Forcible Detainer Texas: Understanding Texas Commercial Eviction Laws
If you own a commercial building in Texas and want to remove a current tenant, what are your options? Texas eviction laws are complicated, and they use language that may not be clear to many commercial real estate owners who want to know more about how they can move forward with evicting a tenant.
To be clear, the two terms that get used in Texas law to remove individuals or businesses from a space are “forcible entry and detainer” and “forcible detainer.” They sound alike, and as such it can seem that these laws are one and the same. It is essential to recognize up front that these laws are quite different and must be used in distinct circumstances.
At the same time, the terms do not make clear immediately what they designed to do. In short, forcible detainer is the term that is used to talk about a commercial real estate owner’s rights when it comes to evicting a tenant. We want to tell you more about “forcible detainer” in Texas, and we want to make clear how it is distinct from “forcible entry and detainer.”
We also want to tell you more about some of the most common reasons that commercial landlords seek to evict tenants, and motivations for evictions that are both lawful and unlawful. Finally, we want to provide you with some additional information about the types of tenancy that exist under Texas law so that you can prepare to speak with a Texas commercial real estate lawyer about your case.
Defining “Forcible Detainer” Under Texas Law
How does Texas law define “forcible entry and detainer,” or just “forcible detainer”? It is important to understand how the law distinguishes between these two terms, and how they may apply to Texas commercial lease evictions. Under Section 24.001 of the Texas Property Code, the following language is used to defined forcible entry and detainer:
“A person commits forcible entry and detainer if the person enters the real property of another without legal authority or by force and refuses to surrender possession on demand.”
The statute goes on to clarify that a forcible entry can be defined as any of the following:
- Entry without the consent of the person in actual possession of the property;
- Entry without the consent of a tenant at will or by sufferance; or
- Entry without the consent of a person who acquired possession by forcible entry.
What is the difference between “forcible entry and detainer” and “forcible detainer”? Section 24.002 of the Texas Property Code indicates that “a person who refuses to surrender possession of real property on demand commits a forcible detainer” if any of the following are true of that person:
- Person is a tenant holding over after the termination of the tenant’s right of possession;
- Person is a tenant at will or by sufferance; or
- Person is a tenant of someone who acquired possession by forcible entry.
Under this section of the statute, any demand for possession “must be made in writing by a person entitled to possession of the property and must comply with the requirements for notice to vacate.”
Understanding the Difference Between “Forcible Entry and Detainer” and “Forcible Detainer” Actions
What does all of this language in the Texas Property Code mean? What is the practical distinction between “forcible entry and detainer” and “forcible detainer,” and what do these sections of the Texas Property Code have to do with commercial evictions?
While it might seem that “forcible entry and detainer” and “forcible detainer” are interchangeable, they are not. Rather, an owner of a commercial building would use a “forcible entry and detainer” action when there is no landlord-tenant relationship.
In other words, this option would only exist if a person (or persons) were in a commercial space without actually having a valid lease that establishes a clear landlord-tenant relationship, and if that person were in the commercial space without any legal authority to be there.
Alternately, a “forcible detainer” action is what a commercial real estate owner would use in order to evict a tenant. In other words, in forcible detainer actions, a landlord-tenant relationship does exist, but there is some reason that the landlord wants to sever that relationship and wants to evict the commercial tenant from the property.
Reasons for Seeking to Evict a Commercial Tenant in Texas
There are numerous reasons that a commercial landlord might want to evict a commercial tenant, including but not limited to the following:
- Tenant’s failure to pay rent, or nonpayment of rent;
- Holding over, or tenant is staying in the building beyond the agreed-upon date in the lease;
- Violating terms of the lease, such as residing inside the commercial space or allowing pets inside the commercial space; or
- Engaging in criminal activity within the commercial space.
There may be additional reasons for a commercial landlord to take action to evict a commercial tenant, and a Texas commercial lease lawyer can help you to understand if you have a valid reason to evict a tenant. If you are eligible to file a forcible detainer action, you will need to ensure that you take the following steps:
- Give the tenant proper notice to cure the default: It is unlawful for a commercial landlord to try to evict a tenant without giving proper, written notice. First, if the tenant has not paid rent or is in violation of a term of the lease, the landlord needs to give the tenant written notice of the default. The landlord must give the tenant a reasonable amount of time to correct the issue.
- Give the tenant written notice to vacate the property: If the tenant does not correct the problem, the landlord still must give written notice to the tenant to leave the property. Typically, in an eviction case, a commercial landlord must provide at least three days notice to the tenant that she or he must vacate the property. However, if your lease has different notice requirements—if, for example, the lease specifies a 10-day notice—then you must abide by that term of the lease.
- Give the tenant time to respond: In some cases, commercial leases provide a tenant with an opportunity to respond to an eviction notice. If the lease contains such a provision, the landlord is required under Texas law to provide the tenant with this opportunity to respond.
- File the forcible detainer action: Once notice has been properly given and the tenant has been afforded time to respond, the commercial landlord can file a forcible detainer action if the tenant still will not leave the property. The forcible detainer action is essentially how the landlord gets approval from the court to remove or evict the tenant.
The commercial landlord must show that the tenant violated the terms of the lease or failed to move once the lease expired and the landlord did not renew it.
Unlawful Reasons for Eviction or Forcible Detainer
In addition to the failure to provide proper notice to a tenant, it is also unlawful to evict a tenant or to file a forcible detainer action for discriminatory reasons. Both the federal Fair Housing Act and the Texas Fair Housing Act prohibit discrimination in certain landlord-tenant situations, as does the Texas Property Code.
Understanding Different Types of Tenancy for Purposes of Commercial Evictions
There are different types of tenancy under Texas law, and the type of tenancy can affect the action you must file to evict a commercial tenant. These types of tenancy include the following:
- Tenancy that is defined by a specific time period (a period of tenancy for a fixed period of time, which can be anywhere from months to years, or may even be periodic);
- Tenancy at will, or tenancy in which there is not a fixed lease term and the tenant is staying in the commercial space at the will of the owner; and
- Tenancy at sufferance, or a tenancy in which the terms of the lease have expired and the tenant is remaining in the space without the owner’s approval or consent (this is also known as a holdover tenancy).
Depending upon the type of tenancy, the terms for the eviction can change. A commercial real attorney in Texas can help you to determine the proper procedures for moving forward with an eviction.
Contact a Texas Commercial Evictions Attorney About Your Case
Texas law tends to favor landlords in commercial lease disputes and in situations where the commercial tenant has failed to pay rent or has violated the law. However, commercial landlords who want to file a forcible detainer action still must take necessary steps under the Texas Property Code to ensure that they are engaging in a lawful eviction.
If you have questions about forcible detainer actions, you should speak with an experienced Texas commercial lease lawyer as soon as possible. Contact Lindquist Wood Edwards LLP for more information about how our team can assist with your case.