Your notice to vacate is an extremely important document and one that so many Landlords get wrong. And there isn’t just one way to get it wrong; that’s the biggest problem.
Many Landlords have used the same tired, outdated form as their Notice to Vacate for years—one they got back before the internet was even a thing. Yikes! Or they serve it the same wrong method over and over and over, never really feeling the repercussions until a judge turns them away at Eviction Court. Case Dismissed! Some have a perfectly worded Notice to Vacate, which they served expertly in line with the law, but they screw things up in the aftermath.
I’m here to help Landlords set things right. Hassle-Free Leasing starts with a good lease, but it’s followed up with top tier execution. That includes enforcement of the Lease in a way that makes the best business sense and in a way that comports with State Property Laws. This also means approaching your Lease with the end in mind at the beginning. To find out what this means, please read on.
What is Proper Notice?
In Texas, in order for a Landlord to demand that a tenant vacate property–whether it is a commercial property or whether it is a residential property–a notice to vacate must be delivered to the tenant in writing. This is found in the Texas Property Code Section 24.002(b): The demand for possession must be made in writing by a person entitled to possession of the property. To be entitled to possession, the Tenant must have done something in violation of the Lease for the Landlord to have a superior right to demand possession from the Tenant in writing.
Most landlords get this part correct. What they fail to do is supply the tenant with an adequate notice to vacate. What makes a notice to vacate adequate? Chapter 24 of the Texas Property Code informs us what the legislature has set out for the guidelines for a landlord to establish a good written notice to vacate. However, many, many landlords have either a predated or outdated version of this notice to vacate saved on their computer or stored away in their files, and they recycle that same, old notice. They’ll tell me, “Ernie, I’ve used this same notice for 15 years and it’s never given me a problem before. Why did this court rule against me?”
The fact is, you’re not always going to get caught by the courts on a bad notice. Some courts are more diligent on reviewing these notices to vacate and others are not. In my experience most Evictions fly by with little actual review of the Lease, the Notice to Vacate, or the rent ledger. Where you’ll find the greatest scrutiny is on appeal.
You’ve probably seen enough television to know that a court is supposed to have a stenographer. That’s the person who types out the record of each court proceeding on a little typewriter in the courtroom. If you’ve ever been in a Justice Court (Small Claims Court, Justice of the Peace, or “JP” for short), you may have noticed that the stenographer is never there. That’s because in Texas, Justice Courts are not courts of record. Nothing said in a Justice Court is ever typed out and preserved.
However, when files from the Justice Court go on appeal before the County Courts, the courts there give a greater degree of scrutiny to your documents. The County Courts are courts of record. Because of that, a greater degree of review will be paid to your documents. Your exhibits will have to be numbered and entered into the court and it’s at that point where the judge may, on his or her own, determine that you failed to deliver proper notice. Because of that, you’re not entitled to possession.
Your Notice to Vacate Must be a Demand for Possession
In Texas, your Notice to Vacate should be an unconditional demand for possession. What does that mean? It means that you should, in your notice, be telling your tenant to leave without any doubt that you are demanding possession of the rental unit. Too many landlords deliver notices that give tenants options. They’ll deliver a notice and perhaps it says, “I hereby ask you to pay or quit.” This “Pay or Quit” document is a common notice, but it’s one some judges simply do not like because it’s not an indisputable, undeniable, absolute demand for possession.
Insufficient notice might be seen as confusing or contradictory. What if a tenant makes a partial payment? What if he tenders payment after the vacate deadline? What if he offers that payment at the Courthouse at the time of the Eviction trial? I pose these specific questions because I’ve seen each of them happen before, and different judges treat these situations differently. That’s one problem with an insufficient and ineffective Notice to Vacate.
In order to deliver that unconditional demand, we suggest that you do not give the option to the tenant to pay or to leave. Instead, you make an absolute demand. “You are hereby demanded to vacate the premises.” If, however, you later make some kind of arrangement with the tenant in exchange for payment or some other value, you can withdraw such a notice or you update the notice. You have every right to do this, but the notice itself should be an unconditional demand for possession. As an unconditional demand for possession, you have the strongest argument to demand possession for your tenant’s breach of the Lease during your Eviction trial.
How Many Days am I Required to Give the Tenant to Vacate?
As far as the time in your demand for a Tenant to Vacate, refer to your Lease. A well written lease should explain how many days of notice are required to give to the tenant to vacate in the event of a default. Generally speaking, the default number of days is three. If your contract is silent in that respect, you must give at least three days of notice to your tenant. However a different number of days can be bargained for in a written Lease. That’s why you need to know precisely what your Lease has to say about the number of days allowed in a Notice to Vacate.
Texas Property Code Section 24.005(a): If the occupant is a tenant under a written lease or oral rental agreement, the landlord must give a tenant who defaults or holds over beyond the end of the rental term or renewal period at least three days’ written notice to vacate the premises 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.
The same three-day requirement applies to a Tenant at will (a person who once had permission to stay without a lease or any rental agreement and now refuses to leave) and to a Tenant at Sufferance (generally a person who lost title to their property in a foreclosure who refuses to leave). See Texas Property Code Section 24.005(b).
If a residential property is purchased in a foreclosure, and it’s occupied by a Tenant, who can establish a Lease and current payment of that Lease, Texas Property Code Section 24.005(b) states that “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.” Naturally, the purchaser of this property can also choose to enter into a new agreement with the Tenants without the need to demand possession.
Which Days Count in a Notice to Vacate?
Please don’t feel offended by this part of the guide, but, yes, I’m going to teach you how to count to three.
Different courts count this in different ways, so I’m going to give you the rule of thumb that I use when I counsel clients on the proper way to calculate days allowed for the Notice to Vacate. If you deliver a Three-day Notice to Vacate, and there’s an adequate demand for possession, the day that you deliver it is day ZERO. Let’s say, for example, that your DAY ZERO falls on a Monday. The Tenant in this example will have Tuesday (DAY 1), Wednesday (DAY 2), and Thursday (DAY 3) to vacate. That doesn’t mean that you can file the eviction on Thursday at 8:00AM, which is the third calendar day since you delivered the notice. Always regard the day you hand deliver the Notice to Vacate as DAY ZERO. In this case, it’s Monday. At the completion of day three, if the tenant has not vacated, then on Friday (DAY 4) of that same week, you are free to file your eviction.
Again, read your lease carefully. Some leases give additional time. Some give less time. To be certain, review your lease. If you have any questions regarding the interpretation of your lease, speak to a licensed attorney. If your Lease says 10 days or 30 days for a Notice to Vacate and you went with the “Standard Three-Day Notice,” your notice fails to comply with the Texas Property Code and is not a proper demand for possession.
In terms of giving fewer than three days for your Notice to Vacate, don’t do it, just don’t. Yes, you might be allowed to, and that might save you 2 whole days, but don’t do it. In this case, even if The Property Code allows it, and you have a written Lease signed by you and the Tenant agreeing to it, I still wouldn’t recommend it. A one or two-day Notice to Vacate is uncommon, and Courts like common ways of doing things. Judges like ruling the same way over and over again. They also don’t like it when you argue with them, especially about the law. Yeah, I’ve leaned that the hard way! Basically, it’s not worth the headache. Even if you can give fewer than three-days’ notice, just stick to three.
The Correct Way to Deliver the Notice to Vacate
As far as the methods of delivery of a notice to vacate, the courts offer very specific methods. We’re going to talk mainly about two. These are the two that I recommend the absolute most. We’re also going to talk about one method that I never recommend.
The two that I recommend involve personal delivery and then delivery by mail. We’ll get to the one that I tell you to stay away from absolutely, but we’ll get to that one last. The Texas Property Code Section 24.005(f) states: the notice to vacate shall be given in person or by mail at the premises in question. 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 inside of the main entry door. Notice by mail may be by regular mail, by registered mail, or by certified mail, return receipt requested, to the premises in question.
First method. If you’re going to deliver a notice to a person in person and leave it in their hand, that’s a good and effective method of delivery. However, that person must be a named tenant on the lease or some resident of the property who is at least 16 years old. Generally speaking, if you knock on the door and the named tenant answers and you leave the notice with them in their hand, you’ve accomplished what the courts require with regard to delivery of a valid notice to vacate.
Where people get in trouble is where they leave a notice with the boyfriend or the mom or a small child, none of whom are Tenants on the Lease or even occupants of the rental unit. These are not methods that we encourage. Because of the possibility that a tenant can claim, “I didn’t get the notice, but my friend was visiting at the time and she mentioned something about a knock at the door.”
Unfortunately, leaving a notice with a party who is not named on the lease or who is not actually a resident of the property defeats an otherwise valid Notice to Vacate. It calls it into question as a violation of the delivery provision of the Texas Property Code. While we do recommend personal delivery of a Notice to Vacate as an adequate means of delivery, it’s not the best.
A Notice to Vacate can also be personally delivered to the premises by “affixing the notice to the inside of the main entry door.” This sounds pretty simple, but it is also often done incorrectly. The terms “affixing” and “inside the main entry door” are the parts that often are misinterpreted by Landlords.
Instead of “affixing the notice to the inside of the main entry door,” some Landlords will slip the Notice to Vacate under the door, or slide it into the door jam, or walk into the rental unit and leave it on the counter. None of those are in strict compliance with this provision in the Property Code, and they are all real ways my Clients have tried unsuccessfully in the past to deliver their Notice to Vacate. The other issue is getting the notice “inside the main entry door.” Affixing the Notice to Vacate to the outside of the main entry door used to be commonly allowed, but the law has changed dramatically (more about that later). It must be on the inside of the main entry door—not on the screen door, the side door, or the door of the Tenant’s car (again real examples of bad notice).
The best method of delivery of a Notice to Vacate is by regular and certified US Mail. This is the method that we employ in every one of our eviction filings for two basic reasons:
1. regular mail cannot be rejected by a tenant and
2. certified mail can be tracked.
Because of these two facts, we can use the delivery of a regular and certified letter to a tenant and prove those facts simply by going to USPS.com and following the tracking. In every case that we’ve presented to a Justice Court, this information has proven effective to establish the dates and times when notices to vacate were delivered.
The method that we strongly discourage is one that is technically legal in the state of Texas, but only in a very, very narrow situation. Because it is so narrow, we discourage strongly anyone from employing this method. That is a delivery of a notice by taping a notice to the outside of the door.
Generally speaking, this has been a method that some landlords have employed for years, but this method is no longer recognized except in a very narrow situation. Because it is so narrow, I’m not even going to take the time to explain it. I’m simply going to tell don’t do it. It’s easy to get wrong, and, honestly, you have to mail the notice anyway, so the whole thing makes no practical sense. If you want to read the code provision, it’s found at Texas Property Code Section 24.005(f-1).
If you have questions about a notice that you’ve delivered or about a method that you are interested in discussing, feel free to call or text us at 832-305-7694. We’ll be happy to draft and deliver a valid and effective notice to vacate on your behalf. In the meantime, you can learn more about Hassle-Free Leasing HERE.