Eviction of a Commercial Tenant in Texas

Commercial landlords are increasingly finding that their tenants are unable to meet the obligations of their leases.  While one option is to negotiate concessions to help the tenant during this troubled time (as discussed in more detail here), another option is to declare the lease in default and proceed to evict the tenant.

First, a landlord must consider whether eviction is the best course of action.  It will be important for the landlord to look at the potential market for the space - were it to become available – and determine whether a market lease to a new tenant would be more favorable than modifying the existing lease with the defaulting tenant.

Once the landlord has decided to evict, it must be careful to document the entire process in order to prevent a wrongful eviction defense or counterclaim from the tenant.  The first item of documentation the landlord should consult is the lease.  For most commercial leases, the procedure for determining a default, and the remedies available to landlord for tenant’s default, will be clearly spelled out.  Also, it will be important to make sure landlord has a fully executed copy of the lease.  If a court proceeding of eviction is required, it will be necessary to produce evidence of the landlord-tenant relationship between the parties.  The lease is the best evidence of such relationship.

If the lease is for a specified term (as opposed to an “at will” lease), tenant will need to have breached a specific provision of the lease for landlord to terminate and evict.  Most often, this breach will be tenant’s failure to pay rent when due.  Landlord’s should take particular note of the lease’s default provisions to see what obligations exist with respect to delivery of default notice, tenant’s right to cure, and applicable time periods for each.

Once a default has been identified pursuant to the terms of the lease, the landlord must serve the tenant with a notice to vacate the premises.  In Texas, this document must include the following items:

1. Landlord’s demand that tenant leave the premises and return possession to landlord;

2. A clear identification of the property or premises subject to the notice;

3. A deadline for tenant to comply – in Texas this is at least a 3 day period; and

4. Demand for monies owed to landlord, including rent and attorney’s fees associated with collection and eviction.

In Texas, delivery of the notice to vacate can be made in person, by mail, or by posting notice on the inside of the primary entrance door of the premises.

Once the time for compliance has passed, and tenant continues to refuse to give up possession of the premises, the landlord is in position to pursue action in court for eviction (also referred to as “forcible detainer” in Texas).

In such an action in Texas, the landlord must establish that (i) it has an actionable landlord-tenant relationship, (ii) breach of the lease has occurred, (iii) proper notice to vacate was given, and (iv) the time for compliance with the notice has passed without tenant vacating the premises.  Once these items are successfully proven, the court will issue a writ of possession.  A writ of possession is a judgement verifying landlord’s exclusive right to the premises.

Generally a Texas landlord would enforce a writ of possession by having a sheriff or constable execute the writ.  Under Texas law, the sheriff or constable may use reasonable force to remove the tenant from the premises.

Keep in mind that this process is Texas-specific, and each state’s law may change the procedure or requirements.  This article is not intended to substitute for the advice of an attorney. However, reviewing the process involved in a Texas eviction can help a landlord think about the level of documentation necessary to successfully complete a lawful eviction.  No commercial landlord wants to find itself in a situation where it must evict a tenant.  Being as prepared as possible, though, will make the process much smoother if it ever does arise.