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Notice to Vacate: Delivering Outside is Now Permitted, but There’s a Catch….

A notice to vacate is a fairly innocuous thing.  Texas courts tend to give landlords a very wide berth when it comes to what is in a notice to vacate.  But delivering a notice to vacate is arguably the most common reason Property Managers and Apartment Community Managers receive dismissals from a Justice of the Peace.

notice to vacate

If you have managed lower or middle-income properties for a substantial period of time, you have no doubt had that one tenant who had a knack for getting rip-roaring drunk and aggressive.  Or perhaps it was a tenant who beat his significant other.  These sorts of things seem to come with the territory if you’re an Apartment Community Manager or a Licensed Property Manager.  The problem, of course, is the inevitable drama you face when delivering your notice to vacate.  Often, time is of the essence.  Your problem tenant has caused so many disruptions you simply can’t justify any form of delay in removing him.  You need to pull out that one day notice to vacate and start the eviction process ASAP.  You need to get this violent, ignorant tenant out yesterday!  You can’t risk having him injure another guest, tenant, or one of your employees.  More importantly, you can’t risk creating the perception that you did anything less than taking every step possible to remove him as quickly as the law allows.

Unfortunately, the new laws involving notices to vacate – while well intended – will now likely work against you.

The Old Laws Offered Limited Notice to Vacate Delivery Methods

Before January 1, 2016 you or your employees would have had little choice but to face your violent tenant.  Your notice to vacate delivery options for violent tenants were exactly the same as your options for non-violent tenants.

Certified Mail – Low Risk but a Slower Option

Certified mail enables you to eliminate a lot of the risk associated with the delivery process (assuming you know how to do it properly), but this delivery method nonetheless has its challenges.

One problem with certified mail is that this method is slower than other delivery methods.  If you’re really lucky, you might see your letter delivered within 48 hours.  On the other hand, my office has had more than one certified mail letter disappear into the abyss of the U.S. Postal Service’s system, never to be seen again.  When you are dealing with a tenant who has assaulted a family member, guest, or a neighbor, using a delivery method that adds time to the eviction process could be a major issue for your property owner should your problem tenant end up assaulting another person while you are working on evicting him.  If your property owner is sued for such a subsequent attack, you will almost certainly be questioned by the plaintiff’s attorney about why you used a slower notice to vacate delivery method.

Another problem with the certified mail delivery method occurs when your tenant fails to accept delivery of your notice to vacate.  When this happens, there is a method of providing sufficient proof of effective delivery under state law.  Do you know what this method is?  If not, check out my blog on properly delivering notices to vacate here.

Then there is the problem of the day count.   Delivery by certified mail eliminates a lot of questions about whether or not your problem tenant actually received your notice to vacate.  But that benefit is entirely lost if you forget how handle the day count before filing the petition.  Does day one begin on the day of delivery or the day after delivery?  Is it OK to file the law suit at the end of day one?  I’ve seen many eviction cases dismissed because the Apartment Community Manager / Property Manager failed to handle the day count properly.  Here be dragons….

Hand Delivering Your Notice to Vacate

I really hate this delivery method.  Unfortunately, I see Apartment Community Managers and Property Managers use hand delivery with quite a bit of regularity.  From a lawyer’s perspective, delivering a notice to vacate by hand delivery is problematic because it becomes your word against the tenant’s.  Sure, you and I both know the tenant beats is girlfriend and is a really, really bad guy.  But how is the Judge supposed to know this?  Your tenant will certainly deny that he beats his girlfriend and if he has an ounce of sense and no scruples at all he will likely also lie about having ever seen your notice to vacate.  If you hand deliver your notice to vacate to the tenant but the tenant tells the Judge that you never did so, there is an excellent chance your Judge will dismiss the eviction.  Trust me on this one.  I see this happen all the time!

It goes without saying, of course, when you are dealing with a violent tenant, this delivery method can become very risky for the person tasked with delivering the notice….

Leaving the Notice to Vacate on the Inside of the Tenant’s Door

Leaving your tenant’s notice to vacate on the inside of his front door is a surprisingly solid method of delivering the notice to vacate, if done properly.  I always encourage my landlords to take a photo of the notice taped to the inside of the front door.  Judges typically tolerate this method of delivery quite well.

But this method runs into the same problem as hand delivery: tenant drama.  Although not always as confrontational as hand delivering, leaving a notice to vacate on the inside of your tenant’s door can be challenging if there is no way to confirm the tenant is away.  Worse, what do you do if your tenant is a home-body or generally has an aversion to work?  Trying this delivery method when the tenant is at home presents the exact same risks as hand delivering the notice to him.

What the New Notice to Vacate Laws Do

Recognizing the risk that Apartment Community Managers and Property Managers face when having to evict a violent tenant, the Texas Legislature created a new delivery method that permits delivery of the notice to vacate without having to confront the tenant.  Under the new law, if you have a “reasonable belief that harm to any person would result from personal delivery” inside the tenant’s front door, you may take the following steps:

  1. Place the notice to vacate in a sealed envelope outside of the unit’s main entry door;
    1. The outside of the envelope must have the words “IMPORTANT DOCUMENT” and this text must be in capital letters;
    2. The outside of the envelope must also include each tenant’s name and present address;
  2. Place the packaged notice to vacate on the outside of your tenant’s door;
  3. Send a copy of the notice to vacate to the tenant by snail mail;
    1. The mailed notice to vacate must be placed into the mail system no later than 5:00pm on the same day you post the notice to vacate envelope on the outside of your tenant’s door;
    2. When sending off the mailed copy, you must place it into a mail receptacle that is physically located in the same county as the tenant’s property.

Whew!!  The due diligence steps you would normally take with the other delivery methods would apply here.  For example, you should take a picture of the envelope affixed to the problem tenant’s outside door.  Also, you will want to hold onto copies of your notice to vacate and maintain photo copies of the first class mail envelope (i.e. regular mail) that you sent the client on the same day of delivery.  Hopefully, if you have managed to comply with all of these legal requirements and completed your best practices steps, you won’t get burned by all of the holes in this law.

Why the New Notice to Vacate Delivery Law Sucks

Reason number one is the completely Byzantine set of steps you must undertake to comply.  Talk about a recipe for disaster!

Reason number two involves two words in the statute that stick out to every lawyer reading it: reasonable belief.  What in the heck makes your belief that the tenant is violent “reasonable?”  And worse – how do you prove your belief is reasonable?

Let’s say you hear a rumor that your tenant got into a fight.  However, upon asking around you can find no other tenants who will confirm this rumor.  Acting on this, alone, will likely not be deemed a reasonable concern.  This is true even if you know, but cannot prove, the tenant may have intimidated other tenants or victims into not disclosing to you anything they may have witnessed.

Some “beliefs” are, of course, more obvious.  For example, a tenant who blackens both of his girlfriend’s eyes and breaks her arm would clearly inspire a reasonable belief the offending tenant might injure you or one of your employees.  So would a tenant who stabbed a roommate.  But it’s not going to be enough to walk into court and tell the Judge that you “heard about” these incidents.   You’re going to have to provide some kind of evidence.

So, how do you demonstrate to the Judge that you have a reasonable belief that your violent tenant might injure an employee attempting to deliver a notice to vacate?  An affidavit might help with some Judges.  But the problem with using an affidavit is that the new law doesn’t specify that an affidavit from the landlord’s representative is required.  This implies to me that an affidavit may not do the trick.  But using an affidavit is certainly better than providing no evidence at all.  Some better methods of proving your beliefs about your tenant’s potentially violent behavior might include obtaining police incident reports from when the police were called out to the unit.  But the police will not always complete a police incident report.  Another effective means of proving your reasonable belief is to produce for the Judge a copy of your problem tenant’s past convictions for violent crimes.

There’s yet a third reason why this law sucks.  How can you prove that you delivered the snail mail copy of your notice to vacate before 5:00pm on the same day you posted the envelope on the outside of the tenant’s door?  Sure, I’m being really picky here.  But I promise you a tenant’s attorney would almost certainly attack this.  I doubt a tenant’s attorney would have much luck in front of a Justice of the Peace arguing that you failed to turn the notice to vacate in to the postal system before 5:00pm.  But I would expect this argument to be a problem before some County Court judges.  This is why I advise landlords using this delivery method to post the envelope on the tenant’s door in the morning, and deliver the snail mail copy of the notice to vacate to your local post office’s counter before noon.  Pay for the postage using a debit card.  The receipt will give you time-stamped proof that you delivered something on that date and at that time.  Few Judges would be willing to accept the remote possibility it was something other than your notice to vacate.

Ultimately, this is a new law.  And until enough time has passed and enough cases have reached the Texas Courts of Appeals, leaving a notice to vacate on the outside of your tenant’s door will remain a risky proposition.  Because every case is different, there is no single method of delivering a notice to vacate that will serve as a silver bullet.

Situations involving a violent tenant are tricky.  The consequences of handling one of these situations improperly can be quite severe for a property owner.  If you have a situation like this, give Girling Law a call today at 817 864-8228 to schedule an initial consultation.  Not only can we help you navigate the rough waters of a case involving a violent tenant, we are experts in Texas residential eviction law.