I Bought Property At or After Foreclosure and the Occupants Won’t Leave – How do I get them out?

When you are acting as a landlord and the tenant does not pay then Texas allows for a quick process to remove a tenant from real property. A three day- notice is provided and a complaint is filed with the Justice Court. If you hire an attorney, they will give a ten day notice because the law permits them to recover legal fees. If the property is rented then the law requires a 30-day notice since the sub-tenants will be disrupted by the eviction.

What about the trespasser who has no real claim to the real property? This is a rare situation but it occurs. Even though there is no landlord – tenant relationship they can be evicted under the forcible detainer process. Case law permits the forcible detainer suit to go forward against someone who asserts only a bald face claim of title to the property. There has to be something more than an assertion of title to create a “title dispute.”

If a clear “title dispute” is established – that is, if title has to be determined in order to determine who has possession then the Justice Court has no jurisdiction over the case.

An owner who has acquired property after a foreclosure sale (even a defective foreclosure) can still move to evict the former owner or occupants over claims that the foreclosure is invalid because this is not a true “title dispute.”

This is true as long as the deed or the deed of trust contains language that when the borrower holds over after the foreclosure they become either a tenant at will or a tenant at sufferance. Most deeds of trust provide for this provision and some even provide that a forcible detainer process can be instituted to remove the holdover owner. In this case the Justice Court has an independent basis to proceed and is not deprived of jurisdiction due to allegations that the foreclosure sale was improperly conducted. The allegations that the foreclosure sale are improper are not relevant to the proceeding with regards to the eviction.

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Perry has helped thousands of clients solve difficult problems for over thirty-eight years through his trial and appellate litigation experience. Clients trust him with their problems because of his expertise and his care about their best interests.

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