Steps to take with your landlord to resolve a problem
Suing your landlord is very easy to do. Be sure to attempt to work out your problem first with landlord because it is not unusual for a landlord to retaliate. While this may be illegal for the landlord toretaliate, it is still something you will have to deal with. See Retaliation. But often a landlord will not do the right thing unless you get another person looking over their shoulder, and a judge or a jury is sometimes just what you need to get the landlord's attention.
You do not need an attorney to represent you to file and win a lawsuit especially in justice court (also known as of the justice of the peace or JP court). There are over 900 justice courts in Texas and there is at least one in each county. If there is more than one, the county is divided into precincts. Depending on the population, each county has between one and eight precincts. Some justice courts have their ownwebsites, but you can find the one near you in the county government section of the blue pages of the phone book. Sometimes because of a heavy a population in a particular precinct, the county will put more than one justice of the peace in a precinct. They call these "places." For example, a county might be divided into three precincts. But in the first precinct, the county might have decided to put in two justice courts. So in this example, Precinct One will have a justice court called "Precinct One, Place One" and another one called "Precinct One, Place Two." These courts might be in the same building or they might be miles apart (but still inside the precinct lines). Either Place One or Place Two can hear cases in Precinct One.
If you want to see the activity of one particular justice court, you can look at its lateststatisticsgenerated by a state website, or for every justice court. Of particular importance is the "forcible entry and detainer" cases. These are eviction cases. The statistics will show the number of cases handled by that particular justice court for the period you selected. The site will also show the number of wins for the tenant (dismissals) and the number of appeals (these could be by both the landlord and the tenant). Before drawing too many conclusions from the statistics, you might compare your justice court to another. A high win rate for the landlords is not all that unusual, but some rates will be higher than others. Also, a high number of evictions filed could mean that a judge is more likely to be biased against tenants just because of the sheer number of times a judge hears about a tenant allegedly doing something wrong. If there is more than one justice court in your precinct (as discussed above), the court will have a different "Place" number. It is especially good to pick the best court inside a precinct because you can file suit in either "Place" because they are both authorized to decide cases in the precinct.
A justice of the peace is not always a lawyer so don't be intimidated. These courts were designed for nonlawyers to use. Of course, justice court has limitations -- for example, the most you can sue for is $10,000. So, if your claim is worth more than $10,000 you should not file in justice court (and you should probably consider getting an attorney if your claim is worth that much).
Some of the forms and information you need to file suit will be at the justice court itself. But, for most every topic of the Texas Tenant Advisor, we provided a form lawsuit that has been tailored for that particular topic. Each form comes with a set of instructions that will help you fill it out. So, look for your topic on the home page and review the information about the topic to see if you think your rights have been violated. In many of the topics we provided a lawsuit in the Forms area of that topic. It is best to use this the form because it was drafted for that particular topic. But just in case, we have also provided a general lawsuit form for topics we have not yet covered in the Texas Tenant Advisor.
You will have to pay a fee to the court in order to file the lawsuit. You also will have to serve the court papers on the landlord which also costs money. The more people you want to serve, the more it will cost you. If you are unable to pay these costs because you are indigent, you can file an affidavit of inability to pay costs.
After you file the case, the court will prepare the papers to be served on the landlord at the address you provided. The local sheriff or constable actually serves the papers on the landlord and files a statement or "return" with the court that gives the details of how the person or entity was served. Once the landlord is served with the papers, the landlord only has a limited about of time to respond or "answer" your lawsuit. In justice court, the defendant of a suit for damages has about ten days to file a response with the court. (Eviction rules are different.) The defendant landlord should send a copy of the answer to you as well. If the defendant does not timely answer your lawsuit after being served, you can get a automatic or "default" judgment against the landlord. If that happens the judge will give you a winning judgment for everything you asked for. So keep in touch with the justice court and take action if the landlord misses the deadline.
Once the defendant answers your lawsuit, the court will set a trial date to hear your lawsuit.
Suing the right person
You probably want to sue the landlord for violating your lease or the Texas Property Code. Sometimes it is not easy to figure out who that is. For example, what if the person who broke the law was the manager of the apartment complex, and the manager works for a management company that runs the complex for the landlord? Do you sue the apartment complex name? Do you sue the manager? Do you sue the management company too? You certainly can. But remember suing different people can cost you more money, and can make the case very confusing. The person or entity that is ultimately responsbile is the landlord -- the person that owns the land. The manager is just an employee of the management company who is acting on behalf of the landlord. So the landlord is liable for anything the manager or the management company does. A landlord you know at least has one asset that you can try to collect on if you win (the rental property iteself). So suing the owner of the land, and not the name of the complex, the manager or the management company is probably the best plan.
Finding the landlord -- the owner of the land
Finding out the name of the owner is not all that easy either. Do you sue the name on the sign? Probably not. Businesses use names called "assumed names" and they are probably not the name of the real landlord. You want to sue the actual person or business entity that owns the land as listed on the deed.
There are a few ways to determine this information. First, ask the manager or the person you deal with who the owner is and their address. As we just discussed, you are not interested in the owner of the management company (many managers only give out this information). You are interested in the owner of the property. It is important to know that landlords have a duty to disclose this information in seven days upon a written request by posting the information in the office or responding to you in writing. The only exception to this duty is when the information is in your lease (so check this first). Tex. Prop. Code 92.201. Even if you get information from the landlord, it is best to check it against other records (many landlords try to keep their true names hidden as much as possible).
Second, contact the tax appraisal office in your area. All tax appraisal offices attempt to maintain correct ownership data on all real property in their district. Much of this information can be searched online by the county the property is in. If the county does not have a web site, call or email them for the information. Again, this information is not always correct, but it is easy to search and free.
Third, the best way, but the most complicated way to find out the name of your landlord is to check with the deed records department of the county where the property is located. Unfortunately, deed records are not user friendly so searching for the name here will not be that easy. Rather than organizing records by postal address, deed records use the legal description of the property. Often you can get that information easily using the tax appraisal records as described above, and this will make your search easier. Rather than trying to figure everything out at deed records, ask a clerk for help. Explain you only want to know about the owner of one piece of land. Clerks of these offices will usually help.
In summary, landlords can be people or they can be business entities. If a natural person owns the land, sue the person, not the name of the business or the name of the apartment complex. If the owner of the land is a corporation or a limited partnership, you should sue them in their official names. See the examples in the next section.
Serving the right person with the court papers
Once you know the name of the landlord, you will also have to know the name and address of the person to give the court papers. Sometimes there is a difference between the defendant, and the person that will get the papers.
For example, if Mr. X owns the property himself in his own name, then he is the defendant, and you can serve him at his home or business address. This is an easy one, but not the typical way landlords operate. (List the address he can be found at during the day. Papers cannot be served at post office boxes.)
It is more often like this: Apartment Complex named "Forest on the Swill" has a Manager named "Meany," and she works for a Management Company "Rip O" that manages the complex for the landlord which is Limited Partnership named "Forest on the Swill Ltd. I" which owns the property. (Often investors use limited partnerships to own property and name the limited partnership after the name of the property itself.)
Who do you sue and give the court papers to? Getting this information is the hard part of course, but once you have it do not be fooled -- sue the landlord -- the owner of the land ("Forest on the Swill Ltd. I" in our example.) But who are you going to have the constable or sheriff give the court papers to?
According toSection 92.003of the Texas Property Code, if you have been given the name and street address of a management company being used by the landlord, then you must serve the papers on that management company. (Again, keep the landlord as the defendant, but list the management company as the person to give the papers to.) If the name and street address of the management company has not been supplied to you, then you can serve the manager of the complex or any person that collects the rent with the papers. So check your lease agreement and other papers for this information. In our example, if Management Company "Rip O" is listed in the papers with a street address, list "Rip O" as the person to be served with the papers and put in their address. If a management company name and address are not listed anywhere, then you can serve Manager "Meany" at the office of the complex with the court papers. The defendant stays the same: "Forest on the Swill Ltd. I."
Filing the Case
Before you go to any court to file the suit, you should have done the following:
1. Have one original, and two copies of a completedlawsuit petition. You will need to have filled in the name of the defendant landlord, and the name and address of the person to be served with the court papers. You will also need to have filled in other blanks on the petition. Once it is filled out, you need to sign it and make at least two extra copies. The court will keep your original, and will serve one copy on the defendant landlord, and will give you a copy back for your records.
2. Have the money for the filing fee and the service fee (or a completed affidavit of inability to pay costs if you are indigent). Call the court for precise amount of the fees. These fees generally must be paid in cash or money order. Many courts do not accept personal checks. All of these costs may be added to the amount you recover at trial, if you win.
3. Confirmed that the rental property is in the county and precinct of the court you plan on going to. Call the court and give them the address, and they can confirm if it is within their county and precinct.
Now you are ready
Then go to the court. Give the clerk of the court the petition and the two copies. Tell the clerk you want to file suit. The clerk may give you paperwork to fill out. Look it over. It is probably a form petition. If you have followed our instructions you will not need it. Ask the clerk to file your petition, and give the clerk the appropriate fees. You have a right to request that a jury decide your case if you make the request in writing and pay the appropriate fee. If you want a jury trial, mention this also to the clerk when you file your case.
Ask the clerk how the court sets the trial date. Procedures may vary in different courts. In some courts, the trial date may be set by court order, and you will be responsible for sending the defendant a letter giving him or her notice of the trial date. If your court follows this procedure, you should send the letter by certified mail, return receipt requested.
Check back with the court
Call the clerk after two weeks to make sure that the defendant has been served and find out the exact date the person was served. Ask the clerk how long the defendant has to "answer" or respond to the suit. If the defendant does not meet this deadline, you can ask the court to grant you an automatic or "default" judgment for the amount you requested. This is the fast and easy way to win. If the defendant answers the case in writing, the court will probably set the case for trial. ALWAYS VERIFY THE TRIAL DATE WITH THE CLERK. REMEMBER THIS DATE AND BE IN COURT AT THAT TIME.
Remember, you cannot recover anything unless the papers have been served on the proper person. The court cannot help you until the other party is served. After waiting two weeks, you may wish to start calling the sheriff or constable until they tell you that the citation has been served.
Remember to always be polite. Do not get the clerk, the judge, his staff, the sheriff or the constable angry with you. Cooperation with these officials is a must. Your case is one of thousands of cases on file. These officials can only spend a limited amount of time on your case without neglecting other cases. Also, remember that if you do speak to the judge about procedural matters, do not try to take advantage of the conversation to impress or persuade the judge about the merits of your case. It is improper for the judge to hear one side of the case without the other side present. If you try to influence the judge, the judge may actually get angry with you. It is not worth making the judge mad.
Preparing for trial
You should write down a short statement what happened to you as if you were talking to someone that does not know anything about you or the landlord. Because you filed the suit you have the burden to put on your case with evidence that proves you should win. Leave out details that just distract the listener from the point of the story. Then figure out what evidence you will need to tell your story and prove your case. The lease, receipts, letters are typical items you might need. Get photos to show the court as well. Affidavits are typically not helpful because the court may not consider them. The court requires people to testify under oath in the court, and will not often consider affidavits.
You should determine if there are any witnesses who can come to court with you and help you tell your story. If you feel the witnesses will help tell your story, ask them if they will assist you by giving their testimony in court. If a witness is important to your claim but will not voluntarily come to court, then you have the right to subpoena him and force him to court. If a subpoena is necessary, go back to the county clerk as soon as you have a trial date and ask the clerk to issue the subpoena. You must provide the complete name for the witness and a good address where the witness may be served with the subpoena. The subpoena may require the witness to bring to court any documents in his control which help prove your claim. You must pay an extra fee for getting a subpoena served on a witness. (If you filed your case using an affidavit of inability to pay costs, the court must waive the fees.)
Organize the case
Once you have organized your case by writing a statement, gathering documents and selecting witnesses, then the exact issues in controversy will probably become clearer to you. You should then sit down and prepare what you will say when you get to court. You should also decide in what order you will present the evidence you have accumulated. List the questions you expect to ask each witness. Make an outline of what you want to say when you testify. Sometimes people forget to say things that are important to their case in a trial atmosphere. During trial, you should check off each item as you cover it.
You should also determine whether you prefer the judge to hear the case or whether you want a trial by jury. You should make this decision based upon whether you think a jury will be more sympathetic to the case than the judge. If you request a jury, you will have to pay a small jury fee. You can request a jury decide the case when you file it, or afterwards. (But there is limt on how late you have to ask for a jury so do not wait too long to decide.)
Sometimes courts will require the parties to try and settle their case without a trial using a mediator. A mediator is a person that tries to get the parties to settle the case, but does not decide anything or rule on anything. A mediator will typically try to point out the problems with the positions of both parties. For example, the mediator will tell a plaintiff that their case does not have strong evidence and that they could lose. The mediator will then tell the defendant that if the judge or jury believes the plaintiff, then the defendant will have to pay. This might cause the plainitff to accept less, and the defendant to be willing to pay more. This is the job of the mediator. Settlements are sometimes good because you control the result -- you know what you are going to get. Going to trial takes time, and has risk. Also, sometimes judgments are not easy to collect. When you settle a case, you get the money up front.
Make sure you call and confirm the date and time of your trial. Do not be late or your case might be dismissed. If the trial date conflicts with something very important, you may request that the court "continue" or postpone the trial. Make this request as soon as possible.
When you arrive for the trial, take a seat in the courtroom. Procedures vary from court to court. Usually, the court will go through a "docket call." Answer when your case is called. Some judges will ask you whether you are ready to proceed with your case. You should answer "ready." He will then ask the person you are suing the same question. Most judges will briefly explain the procedure to be used in your trial. If you are confused about anything the judge says, or if you have other questions, do not be afraid to ask the judge. When the trial begins, the judge will ask you and your witnesses to swear to tell the truth. The judge will also swear in the person you are suing before he tells his side of the controversy.
You will have the first chance to tell your story. Go through the statement you previously prepared. Call your witnesses one at a time to testify. If you have photographs, have someone testify about what each photograph shows. For example, if you have photographs of a damaged item, have someone testify that the photograph accurately depicts how the item looked at the time the damage occurred. If you have documents, have someone testify about what each document is. If you have brought anything with you, now is the time to show it to the court.
Take your time so that the judge can understand the points you are trying to make. If the judge does not understand you, or wants something made clearer, he may ask you some questions. You will have an opportunity to tell your story without being interrupted by the other side. When you are finished, however, the person you are suing will have a chance to ask you and your witnesses questions.
After both you and your witnesses have told the judge what you know, the person you are suing will explain why he thinks he should not have to pay you any money. It may be his position that you are wrong in the way you say the events occurred. Or he may say that your story is correct but that you are demanding too much money. He also has a chance to tell his story without interruption. After he is finished, you can ask both him and his witnesses questions. The judge may also ask them questions.
You cannot make statements to the witnesses. Ask them questions. You cannot argue with the witnesses about their testimony. If you think the person you are suing or his witnesses are not telling the truth, you should ask questions which would expose this fact to the judge. You do not have to say you disagree with everything a witness says. Obviously, there is a disagreement otherwise you would not be in court.
Be polite and courteous to the witnesses and others in the courtroom. Obey the court's instructions. Be brief and to the point. State your position in a respectful tone. Don't try and play Perry Mason. This is not the time to "object" to everything the other side says. A nonlawyer generally cannot back up objections with legal argument. In fact, some justice court judges will not even entertain formal objections. You will probably find it better not to make objections during the trial of your case. Be sure that you present facts to the court that establish that the defendant owes you money and show how much money he owes you. The burden of proof is on you.
After the judge has heard the facts from both sides, including the witnesses, and everyone has asked all the questions he wants to ask, the judge will then decide who wins the case and the amount, if any, the winner should receive. He may want more time to think about the case. If so, he will probably tell you when you can expect a decision.
If you want a jury trial, the same procedure described above will be followed, but before you begin telling your story, both you and the person you are suing will be given a list of the names of potential jury members. You will be allowed to question these people and then decide which of them you do not wish to be on the jury. You may disqualify three of them for any reason (called a "peremptory challenge"). You may disqualify others if you show the judge that there is some fact which by the law disqualifies a person from serving as a juror or which convinces the judge that a person is unfit to be on the jury. For example, you may discover that one of the potential jurors is a close relative of the person you are suing. This fact would normally be enough to disqualify this person and would not count as one of your three peremptory challenges. This procedure will be explained to you in more detail by the judge if you ask .
If you or the person you are suing has chosen to have a jury trial, the jury, and not the judge, will usually decide whether you have won your case. If the jury decides that you have won, it will also decide the amount of money you should receive from the person you are suing.
If you have convinced the judge or jury that your side of the story is correct, and that you are entitled to some money from the person you sued, the judge will enter a "judgment" in your favor. But this doesn't get you any money. Sometimes the hardest part of the case is getting your money. In the vast majority of cases the person you sued will simply pay you after you win. If he or she does not, however, you must take legal steps to try to enforce your judgment.
There are a number of things you can do to encourage payment. The first thing you should do is file an "Abstract of Judgment." This is just a document the clerk of the court can prepare, and the you file with the deed records of each county you think the defendant owns property in. This puts a lien on all the property in the county that belongs to the defendant (except the defendant's home). If the defendant tries to sell the property, then the new buyer will take the land subject to the lien. Thus, the new buyer will insist that you be paid off. But this may take some time.
Therefore, you should also consider a "writ of execution." This device orders the constable or sheriff to take the debtor's "non-exempt" real or personal property and sell it to pay your judgment at a public auction. In Texas, much of what the average person owns is "exempt." Exempt property includes the person's home and most personal property, up to $30,000 in value for a single person and $60,000 for a married couple. However, a landlord almost always has property which may be sold at auction -- like the apartment or home they rented!
If unsuccessful, and you know where the landlord has money you should try a writ of garnishment. This device allows you to obtain any money that is owed to the person you sued. The most common type of money that a writ of garnishment is used for is a bank account. If you know where the person you sued has a bank account, you can go back to the clerk of the court and obtain a writ of garnishment to force the bank to turn over the money in the account to you.
If the judgment is for a significant amount (like $5,000), there are debt collectors and attorneys that may be willing to help you. However, you should probably only pay them by letting the take a percentage of what they collect.
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