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Common Misunderstandings
The purpose of filing an eviction action, an "unlawful detainer," is to obtain possession of the premises (apartment). The property owner or apartment complex manager may also obtain a judgment for rent owed, court costs and attorney's fees (sometimes). The award of rent in the action is considered to be incidental to the primary purpose--the recovery of the premises.
The process is difficult and the following is a list of common misunderstandings:
1. Common misunderstanding: The property owner or apartment complex manager can have the police throw you out or arrest you if you don't pay your rent or get out when the property owner or apartment complex manager tells you to.
Truth: You cannot be arrested or jailed for not paying rent. The police will remove an apartment resident from the rental unit only if a crime has been committed or if a judge (after an eviction hearing, or FED) has ordered the apartment resident to get out. Failure to pay rent or to get out when the property owner or apartment complex manager says so are not crimes.
2. Common misunderstanding: The property owner or apartment complex manager has to have a good reason in order to evict an apartment resident.
Truth: In a month to month tenancy -- which is what most apartment residents have; the alternative would be a tenancy for a specific period of time, such as one year -- the property owner or apartment complex manager can evict you for no reason or even for a crummy, mistaken reason, so long as the reason is not illegal discrimination (race, religion, children, nationality, marital status) or illegal retaliation (complaints about lack of repairs, for example). In other words, the property owner or apartment complex manager can evict the apartment resident for such crummy reasons as the color of hair or for not smiling enough, or for mistakenly thinking that the apartment resident broke some rule or did something bad.
3. Common misunderstanding: If the apartment resident is pregnant or has young (or even any) children, the apartment resident cannot be evicted.
Truth: Being pregnant or having young children (or any children) does not prevent or delay an eviction.
4. Common misunderstanding: If there is a good reason why the apartment resident does not have the rent money, the apartment resident cannot be evicted for nonpayment of rent.
Truth: Inability to pay the rent is not a legal defense, unless the property owner or apartment complex manager caused the inability. Becoming disabled and unable to work, losing you job, losing your welfare check, or having your money stolen does not prevent or delay an eviction.
5. Common misunderstanding: If the apartment resident has been trying to move out but can't find a new Houston apartment, the eviction hearing judge will not make the apartment resident get out.
Truth: Inability to find a new apartment in Houston is not a legal defense, and the judge will order you to get out -- even if it means that you and your children will become homeless.
6. Common misunderstanding: If the apartment resident goes to the eviction hearing, the judge will automatically give the apartment resident more time to move.
Truth: Sometimes, if there is a really sad situation (a health problem, young children), the judge may ask the property owner or apartment complex manager to give the apartment resident extra time. Rarely, the judge may require the property owner or apartment complex manager to give extra time. Often, the judge will not require any extra time, in part because the judge knows that the property owner or apartment complex manager still has to wait another 3 days.
7. Common misunderstanding: If the apartment resident gets or gives a 30 day eviction notice, the apartment resident does not have to pay rent during the 30 day period.
Truth: The apartment resident's rent obligation continues for every day the apartment resident is in the rental unit, through the 30 day period, even though the property owner or apartment complex manager (or the apartment resident) has given a termination of tenancy notice. It is understandable that the apartment resident may need the rent money, in order to move to a new place. But if the apartment resident does not pay the rent as it comes due, then the property owner or apartment complex manager can give the apartment resident a 72 hour nonpayment of rent notice and evict the apartment resident, long before the 30 day period runs out.
8. Common misunderstanding: The property owner or apartment complex manager may make you pay any unpaid rent at an eviction hearing (an FED).
Truth: The only things a property owner or apartment complex manager can get at an FED are: 1) a judge's order (called a judgment) that the apartment resident must get out at a certain day and time, and 2) a judge's order that the apartment resident pay the property owner or apartment complex manager for the property owner or apartment complex manager's court costs, prevailing party fee, and attorney fees (if any). If the property owner or apartment complex manager wants to make the apartment resident pay any unpaid rent, the property owner or apartment complex manager will have to sue the apartment resident in a separate lawsuit, often in Small Claims Court, for a judgment for the rent money. (Legal Aid has other handouts which explain how the property owner or apartment complex manager must go about collecting the judgment from the apartment resident).
Written by Kate Kemp
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