What to do if You are Facing Eviction in Austin

Published January 20, 2021 by Bankruptcy Attorneys of Austin

If you are facing eviction, you should seek advice and counsel from attorneys who are experienced in protecting the rights of tenants. Here is some general information on the options available.

If you are facing eviction as a residential tenant here in Austin, you have several options including the following:

  • Fight the eviction
  • Negotiate with your landlord
  • Vacate the premises

An eviction is a legal process that involves your landlord providing various types of notices to you, the tenant, and eventually filing a lawsuit in the Texas state courts. In legal terms, these eviction lawsuits are called Forcible Detainer actions. Filing a Forcible Detainer action is the only method that a landlord can use to regain possession of an apartment or other leased property. Austin landlords CANNOT use any sort of "self-help" such as turning off the utilities, locking the tenant out, or hiring a moving company to put the tenant's furniture on the curb.

Fight the Eviction

Tenants who want to fight their eviction must have one or more legal defenses when they appear in court.

One potential defense is to prove to the court that the landlord had a discriminatory or unlawful reason for terminating the lease. Austin landlords are obligated to treat their tenants fairly and to provide them with the full complement of rights that are guaranteed by Texas law. Among these rights include the right to non-discrimination in housing. As such, a landlord cannot evict a tenant for any discriminatory reason or in retaliation for the tenant exercising their rights under the lease, under Texas law and/or under the US and Texas Constitutions.

Factual inaccuracy can be another potential defense. Non-payment of rent is the most common reason for eviction. However, if a tenant can prove that the rent was paid on time, then a judge will likely accept that as a valid legal defense that will prevent eviction. The same is true for other alleged violations of the tenant's lease.

Another option is to demonstrate that the landlord failed to follow the proper legal procedures for the eviction. The onus is on Austin landlords to follow the procedures that are required to terminate a tenancy and to file the Forcible Detainer action.

In Austin (and in Texas generally), a landlord can terminate a lease if the tenant violates provisions of the lease. However, BEFORE filing for eviction, Austin landlords must give tenants a WRITTEN notice that that the tenant's right to possession is being terminated and a date on which the tenant is to vacate. This notice is called a Notice to Vacate. Under Texas law, the time period is three days unless the lease provides for a shorter or longer notice period. See Tex. Prop. Code Ann. § 24.005. The Notice to Vacate must be delivered in a manner prescribed by law. For example, the landlord must deliver the Notice by personal delivery or by certified, registered, or regular mail or by attaching the Notice to the door or entryway. If the tenant fails to vacate, THEN the landlord can file a Forcible Detainer action.

Failure of the landlord to follow the eviction procedures exactly may result in the judge dismissing the landlord's eviction action. For example, if the Notice to Vacate was given verbally, that will not be legally correct notice and, likely, the eviction action will be dismissed by the judge. Likewise, if the landlord did not give the proper amount of time for vacating, likely, the eviction will be dismissed. At minimum, the tenant can counter-sue in the lawsuit and attempt to recover statutory damages for the landlord's violation of the tenant's rights. Other procedural and legal defenses might include:

  • Other defects in or with respect to the Notice to Vacate
  • Defects in delivery
  • Premature filing of the Forcible case -- case was filed before expiration of the time in the Notice to Vacate
  • Failure to allow tenant to fix the problem (but giving an opportunity to fix the lease violation is not always required)
  • Landlord waived or otherwise allowed the violation of the lease
  • Lease violation was caused by the landlord
  • And more

Negotiate With Your Landlord

When confronted with an eviction, rather than fighting, sometimes the best solution is to negotiate. Most landlords would prefer to negotiate a solution rather than file an eviction. This is true because evictions are time-consuming and expensive.

Potentially, many days and weeks can pass before a tenant is actually removed from a leased premises. As described above, at least a few days are needed for the Notice to Vacate to be delivered and for it to expire. Then the Forcible Detainer lawsuit must be filed. The lawsuit itself takes a few weeks to complete. For example, copies of the court papers must be delivered to the tenant and the tenant has an opportunity to file papers in opposition to the eviction. Importantly, the tenant can and should demand an eviction hearing before a judge (which is like a mini-trial). The tenant can ask for an extension of time for the first hearing date and, often, judges will grant such requests. At the hearing, the tenant can present various defenses to the eviction. If the judge agrees with the tenant, then the eviction will be dismissed.

If the judge agrees with the landlord, there are potentially many more days until the landlord actually takes possession. Often the judge will give a tenant some time — usually about 10 days to two weeks — to vacate the premises after an eviction hearing. If the tenant does not vacate, then the Constable/Sheriff is sent out to execute a Writ of Possession. Executing the Writ is the procedure by which the Constable/Sheriff supervises the removal of the tenant and the tenant's belongings. This is another lengthy and expensive process.

Because of the time and expense, negotiation is a legitimate strategy for a tenant faced with eviction. During the negotiation process, it is advisable to consult with an experienced tenant's rights attorney. Issues that can be negotiated include:

  • Continued residency (if that is desired)
  • Correction or fixing of lease violations
  • Modification of lease terms to correct/fix lease violations (such as removing a “no pets” clause if having a pet is the violation)
  • Extra time for tenant to find a new rental
  • Return of security deposits and other collateral
  • Reduction in or waiver of past-due rents
  • Payment by the landlord for vacating the premises quickly
  • And more

Vacate the Premises

Even if a tenant is willing and able to vacate the premises after receiving a Notice to Vacate, it is still important to contact the landlord to negotiate details. Often, landlords will have some flexibility with regard to the move-out date and, typically, concessions can be negotiated with respect to return of security deposits and past-due rent amounts. Occasionally, landlords are willing to pay moving expenses and offer other financial inducements to gain possession quickly. Any waiver or reduction in past due rent and any other agreements with the landlord should be reduced to writing. Again, it is advisable to have an experienced tenants’ rights attorney help you with this process.

Contact Experienced Tenants’ Rights Attorneys Today

If you are facing an eviction here in Austin, contact our law office today. We can offer advice and counsel on how to best proceed. We are courtroom-tested and can provide you with trusted legal services.