Chapter 8-11 Forcible Entry and Detainer

• Jurisdiction: United States

8-11 Forcible Entry and Detainer

8-11:1 Overview

Governed by Chapter 24 of the Texas Property Code and Rule 510 of the Texas Rules of Civil Procedure, a forcible entry and detainer action provides a lawful means to dispossess an individual who will not abandon nor voluntarily surrender possession of real property. It is a speedy, simple and inexpensive means to determine who has the right to immediate possession of real property without resorting to an action on the title.⁴⁴⁰ Though a judgment on such an action determines who has the right to immediate possession, it does not determine any issue regarding the merits of the title to the property.⁴⁴¹

Though forcible entry and detainer is a term broadly used in legal parlance, a "forcible entry and detainer" action and a "forcible detainer" action are separate and distinct causes of action.⁴⁴² Forcible entry and detainer applies where both the initial entry onto the property and its continued possession are illegal.⁴⁴³ Forcible detainer applies where the initial entry onto the property was legal, but its ongoing possession is illegal.⁴⁴⁴

8-11:1.1 Related Causes of Action

Trespass, Trespass to Try Title, Breach of Contract, DTPA, Tortious Interference with Prospective Business Relations

MUST READ CASES

Rice v. Pinney, 51 S.W.3d 705 (Tex. App.—Dallas 2001, no pet.)

Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415 (Tex. App.—Houston [1st Dist.] 2007)

8-11:2 Elements

8-11:2.1 Elements of Forcible Entry and Detainer

(1) The party bringing the suit has the right to possession of the property at the time of the forcible entry;

• No landlord-tenant relationship exists in a forcible entry and detainer action. The action may be brought by anyone with the right to possession of the property at the time of the unlawful entry.⁴⁴⁵

(2) A person commits a forcible entry on the property by:

(2)(a) Entering by force; or
(2)(b) Entering without legal authority by:

(2)(b)(i) Entering without the consent of the person in actual possession of the property;
(2)(b)(ii) Entering without the consent of a tenant at will or by sufferance; or
(2)(b)(iii) Entering without the consent of a person who acquired possession by forcible entry.

"Force" includes a display of physical power that is reasonably calculated to inspire fear of physical harm in those who seek to oppose the trespasser.⁴⁴⁶ Actual physical combat is not necessary.⁴⁴⁷ A forcible entry is an entry without the consent of the person in actual possession of the property.⁴⁴⁸

A plaintiff must show that he was in actual possession of the property at the time of the entry.⁴⁴⁹

• Actual possession means:

• A person who uses the premises as a place to keep his or her household goods and who claims dominion and control of the premises in connection with such use.⁴⁵⁰

• Physical presence is not necessary to establish actual possession.⁴⁵¹
• A forcible entry is an entry without the consent of a tenant at will or by suf-ferance.⁴⁵²
• A forcible entry is an entry without the consent of a person who acquired possession by forcible entry.⁴⁵³

(3) The person entitled to possession of the property gives oral or written notice to vacate immediately or by a specified deadline in compliance with Texas Property Code Section 24.005(d); and

• The plaintiff must give the occupant oral or written notice to vacate before the landlord files a forcible entry and detainer suit.⁴⁵⁴
• The notice to vacate under this subsection may be to vacate immediately or by a specified deadline.⁴⁵⁵

(4) The possessor refuses to surrender possession upon demand.

• The person enters the real property of another and refuses to surrender possession on demand.⁴⁵⁶
• If there was no unlawful entry, the procedure to determine the right to immediate possession of real property is the action of forcible detainer.⁴⁵⁷

8-11:2.2 Elements of Forcible Detainer

(1) A person commits a forcible detainer when the person:

(1)(a) Is a tenant or a subtenant willfully and without force holding over after the termination of the tenant's right of possession;

• A person commits a forcible detainer if the person is a tenant or a subtenant willfully and without force holding over after the termination of the tenant's right of possession.⁴⁵⁸
• Any landlord-tenant relationship is sufficient for a forcible detainer action, including:
• Express leases;

• Those that arise due to other contractual provisions between the parties; or
• Those that arise by operation of law."⁴⁵⁹

(1)(b) Is a tenant at will or by sufferance, including an occupant at the time of foreclosure of a lien superior to the tenant's lease; or

• A person commits a forcible detainer if the person is a tenant at will or by sufferance, including an occupant at the time of foreclosure of a lien superior to the tenant's lease.⁴⁶⁰
• A tenant at sufferance does not have privity with the landlord but is merely an occupant in naked possession after his right to possession has ceased.⁴⁶¹
• A plaintiff seeking possession against a tenant at sufferance after foreclosing a superior lien must prove that: (1) the plaintiff is indeed the owner; (2) the tenant at sufferance was an occupant at the time of foreclosure; and (3) the foreclosure was of a lien superior to the tenant's lien.⁴⁶²
• A property owners' association or other person who purchases occupied property at a sale foreclosing a property owners' association's assessment lien must commence and prosecute a forcible entry and detainer action under Chapter 24 to recover possession of the property.⁴⁶³

(1) (c) Is a tenant of a person who acquired possession by forcible entry;

• A person commits a forcible detainer if the person is a tenant of a person who acquired possession by forcible entry.⁴⁶⁴

(2) A written demand for possession was made in writing, by a person entitled to possession, and in compliance with the requirements for notice to vacate under Texas Property Code Section 24.005;

• If the occupant is a tenant under a written lease or oral rental agreement, the landlord must give the tenant:

• Written notice to vacate the premises;
• At least three days before the landlord files a forcible detainer suit; unless:

• The parties have contracted for a shorter or longer notice period in a written lease or agreement.⁴⁶⁵

• "A landlord who files a forcible detainer suit on grounds that the tenant is holding over beyond the end of the rental term or renewal period must also comply with the tenancy termination requirements of Section 91.001."⁴⁶⁶
• If the occupant is a tenant at will or by sufferance, the landlord must give the tenant:

• Written notice to vacate the premises;
• At least three days before the landlord files a forcible detainer suit; unless:

• The parties have contracted for a shorter or longer notice period in a written lease or agreement.⁴⁶⁷

• "If a building is purchased at a tax foreclosure sale or a trustee's foreclosure sale under a lien superior to the tenant's lease and the tenant timely pays rent and is not otherwise in default under the tenant's lease after foreclosure, the purchaser must give a residential tenant of the building at least 30 days' written notice to vacate if the purchaser chooses not to continue the lease. The tenant is considered to timely pay the rent under this subsection if, during the month of the foreclosure sale, the tenant pays the rent for that month to the landlord before receiving any notice that a foreclosure sale is scheduled during the month or pays the rent for that month to the foreclosing lienholder or the purchaser at foreclosure not later than the fifth day after the date of receipt of a written notice of the name and address of the purchaser that requests payment. Before a foreclosure sale, a foreclosing lienholder may give written notice to a tenant stating that a foreclosure notice has been given to the landlord or owner of the property and specifying the date of the foreclosure."⁴⁶⁸
• If the occupant is a tenant of a person who acquired possession by forcible entry, the landlord must give the person:

• Written notice to vacate;
• At least three days before the landlord files a forcible detainer suit.⁴⁶⁹

• If the lease or applicable law requires the landlord to give a tenant an opportunity to respond to a notice of proposed eviction, a notice to vacate may not be given until the period provided for the tenant to respond to the eviction notice has expired.⁴⁷⁰
• The notice to vacate shall be given:

• In person;

• Notice in person may be by personal delivery to the tenant or any person residing at the premises who is 16 years of age or older or personal delivery to the premises and affixing the notice to the

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