Hey all,
I’m working on developing my eviction procedures for a newly acquired park in Texas. In all of my leases, it states that I can recover court fees and attorney’s cost. But then I read that a 10 day notice must be given if you want to recover attorneys costs and court fees, as opposed to the normal 3 day notice. Then I read this law:
(a) Except as provided by Subsection (b), to be eligible to recover attorney’s fees in an eviction suit, a landlord must give a tenant who is unlawfully retaining possession of the landlord’s premises a written demand to vacate the premises. The demand must state that if the tenant does not vacate the premises before the 11th day after the date of receipt of the notice and if the landlord files suit, the landlord may recover attorney’s fees. The demand must be sent by registered mail or by certified mail, return receipt requested, at least 10 days before the date the suit is filed.
(b) If the landlord provides the tenant notice under Subsection (a) or if a written lease entitles the landlord to recover attorney’s fees, a prevailing landlord is entitled to recover reasonable attorney’s fees from the tenant.
So if its in the lease that I can recover court fees and costs, then I can just use the 3 day notice?
We use the Texas MHA lease and it says 10 days per section 24. It also has some good language about preauthorizing a lien on the home for non payment. If you’re not a member you should sign up today. The forms alone are well worth it.
I did some more digging, Texas Property Code Sec. 94.206 says that in mobile home parks it must be a 10 day notice no matter what.
Also:
Texas Property Code § 24.006
(a) Except as provided by Subsection (b), to be eligible to recover attorney’s fees in an eviction suit, a landlord must give a tenant who is unlawfully retaining possession of the landlord’s premises a written demand to vacate the premises. The demand must state that if the tenant does not vacate the premises before the 11th day after the date of receipt of the notice and if the landlord files suit, the landlord may recover attorney’s fees. The demand must be sent by registered mail or by certified mail, return receipt requested, at least 10 days before the date the suit is filed.
(b) If the landlord provides the tenant notice under Subsection (a) or if a written lease entitles the landlord to recover attorney’s fees, a prevailing landlord is entitled to recover reasonable attorney’s fees from the tenant.
***To me this means that notice can be given any way, as long as the landlord wins in court and the lease entitles him to recover attorney’s fees, he/she can recover them. Is this others interpretation as well?
The JP court will usually follow the most favorable law to the tenant - or no law at all if that’s their feeling of the day. I’d default my expectation to the most stringent, 10 day requirement. Keep us posted if you get a formal ruling one way or the other.
The other thing you’re not considering is that it takes time. Getting everything together in 3 days is fast. You’re going to have other priorities sometimes.
And while it’s important to get the non payers out the 10 day rule has some silver lining: 1) you have some runway if other fires are burning; 2) the tenants have an opportunity to repay you for the inconvenience and your time and expense to start the process - they probably won’t be late again; 3) you don’t have to figure out if 3 or 10 days is correct or explain to a Judge why you didn’t follow the 10 day rule.
I’m not saying you’re wrong, but I’m saying this is easier to do and still run a clean shop.