In a situation where no lease has been signed or the lease does not address this issue, a landlord must refer to Texas Property Code Sec. 92.0081 (b)(2) "Removal of Property and Exclusion of a Residential Tenant." A landlord may remove the contents of premises abandoned by a tenant.
Unfortunately, the Texas Property Code does not define the term "abandonment," so when there is no lease or the lease does not clearly state what circumstances would allow qualify as abandonment, then a landlord has to use his or her best judgment. It is important for a landlord to act carefully when declaring abandonment, especially if the lease does not define it. If nothing exists in the lease about abandonment and the landlord removes all of the tenant’s property, a court could consider it to be an illegal eviction and in violation of the tenant’s rights.
Abandonment is defined under the typical TAA (Texas Apapartment Association) lease as when:
- Everybody appears to have moved out in the landlord’s reasonable judgment;
- Clothes, furniture, and personal belongings have been substantially removed from the dwelling; and
- No one has been in the dwelling for five consecutive days while the rent is due and unpaid; or
- A dwelling is abandoned 10 days after the death of a sole resident.
To avoid the uncertainty of Texas Property Code Sec. 92.0081 (b)(2), landlords may file a Forcible Entry & Detainer action. After giving the occupants notice to vacate, the landlord must file a sworn written complaint in the justice court. Five days after the court grants judgment, it can issue a writ of possession. The constable or sheriff will then post a 24-hour warning notice at the property. If the occupant does not vacate the property after the 24 hours, the constable or sheriff enters the property and removes the occupant and his belongings. The constable puts the belongings on the curb or, in some counties, it is required that the lender arrange for a moving company to put the personal property into storage.
Do you have more questions about residential leases or eviction of tenants in Lampasas, Kempner, Lometa, Bend, or Copperas Cove? Contact us at Martin, Millican, Henderson & Shrum for a consultation.
This blog post only applies to the laws of Texas. The post may or may not match your individual situation. Be careful not to treat it as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney. You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.