The best case scenario is when you’ve got a lease that awards reasonable and necessary attorney’s fees to the plaintiff for filing a lawsuit. That generally happens with a well-constructed lease.
But if you’ve got either a tenancy that you inherited (this happens sometimes when you purchase property, and there are already tenants there, so you get handed a tenant, but there’s no lease), or, you purchased a foreclosed property, and there are people living there with whom you have no written agreement (maybe they’re the owners, or the tenants of the owners, or, maybe, they’re just “squatters” who came in because they knew that the house was subject to foreclosure), then you’ve got to deal with these people.
You may tell yourself, “I want to hire an attorney, but I want to be able to collect my attorney’s fees from this process. But if I don’t have a written contract, how can I do that?” Actually, the Texas Property Code does allow for such a thing.
Generally speaking, you need to send a proper Notice to Vacate. The Property Code requires at least three days of notice in your Notice to Vacate. But whenever there’s no written agreement, you generally go by the default provisions of the Property Code.
And one of them is – if you want to create a request for attorney’s fees, you have to give the tenant, even the tenant at sufferance (that is, someone who is there after a foreclosure and not because of a contract with anybody), a Notice to Vacate with at least 10 days’ notice.
Your notice should say 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.”
This language is essential, both the number of days and the threat of an eviction with attorney’s fees attached. If you’re able to do that, once you sue, you can make a rightful claim for attorney’s fees.
Not every judge is perfectly comfortable with this. So, it might vary from Justice Court to Justice Court.
But if you send a 10-day Notice, and that Notice specifically says: “Failure to move out will result in me filing an eviction, and I will make a request for all my reasonable and necessary attorney’s fees,” that should be sufficient, even if your lease doesn’t mention attorney’s fees, or if there is no lease, but you’re rightfully demanding possession.
