When should I sue my landlord?
Suing your landlord is very easy to do, but it’s best to try to come to an agreement with your landlord and only sue if you can’t make an agreement because your landlord might retaliate. While this may be illegal for the landlord to retaliate, it is still something you will have to deal with. See Retaliation. But if a landlord will not do the right thing, a judge or a jury is sometimes just what you need to get the landlord’s attention.
Do I need a lawyer to file the lawsuit?
A justice of the peace is not always a lawyer so be confident that you can represent yourself. These courts were designed for nonlawyers to use. Of course, justice court has limitations — for example, the most you can sue for is $20,000. So, if you think the landlord owes you more than $20,000 you should file in a different kind of court and consider getting an attorney if your claim is worth that much.
Where should I file the lawsuit?
There are over 900 justice courts in Texas and there is at least one in each county. Depending on the population, each county has between one and eight precincts. Most justice courts have their own websites. You can find the justice courts in your county with a google search and then call one of the justice court clerks and ask in which precinct your property address is located. Sometimes because of a large 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 latest statistics generated by a state website, or for every justice court. You should look at the statistics for “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). A low dismissal rate is normal, but some courts will be better than others. You can compare the numbers between courts to choose where you want to bring your case if your precinct has multiple justice courts (Places).
What forms do I need to file suit?
Some of the forms and information you need to file suit will be available at the justice court itself. But, for almost every topic on the Texas Tenant Advisor, we have provided a form lawsuit petition specific to that topic. You can fill out the petition yourself and take the petition to the justice court to file. So, search for your topic and review the information about the topic to see if it makes sense for you to sue. It is best to use our forms because they are drafted for each specific topic. But just in case, we have also provided a general lawsuit form (below) for topics we have not yet covered in the Texas Tenant Advisor.
Does it cost money to file a lawsuit?
Yes, you will have to pay a filing fee to the court to file the lawsuit. You will also have to pay for the constable to serve the court papers on the landlord. The more people you sue, the more it will cost you. If you are unable to pay these costs because you do not have the money to pay them, you can file an affidavit of inability to pay costs (below). If the justice of the peace approves the Affidavit of Inability, you may proceed without paying the costs of court.
Do I have to serve the lawsuit papers to the landlord?
No, the court will do it. After you file the case, the court will prepare the papers to be served on the landlord at the address you provided (to find out your landlord’s address, check out Who owns the property?) 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.
What happens after the landlord is served?
Once the landlord is served with the papers, the landlord has a limited amount of time to respond or “answer” your lawsuit. In justice court, the defendant in a suit for damages has 14 days after service in which to file a written answer with the court. See Texas Rule of Civil Procedure 501.1(c).
In a suit for repairs, however, a written answer is not required. Rather the trial date must be not less than 10 days nor more than 21 days after the petition is filed. See Rule 509.3(b).
If the defendant landlord files an answer, the landlord should send a copy of the answer to you, as well. If the defendant does not timely answer your lawsuit for damages after being served or appear for trial in a suit for repairs, you can get an automatic or “default” judgment against the landlord. If that happens the judge will give you a judgment awarding you damages or, in a repair case, other appropriate relief. See Repairs. So keep in touch with the justice court and take action if the landlord misses the deadline.
In a lawsuit for damages, the court will set a trial date to hear your lawsuit once the defendant has filed an answer. You will have to check with the court clerk to find out when the trial will be scheduled.
Who should I sue? The owner or the management company, or someone else?
You probably want to sue the landlord (owner) for violating your lease or the Texas Property Code.
Section 92.001 of the Property Code defines the landlord as the owner of the property, and says it does not include the manager or agent unless the manager or owner purports to be the owner. All the duties in chapter 92 of the Property Code are placed on the landlord rather than the management company. Thus, if you are suing for a violation of chapter 92 or the lease, the proper defendant is the landlord. If the landlord believes the management company is liable, it can bring the management company into the case.
The landlord can be a person or a company. You may never have met the landlord. The person who broke your lease or the law could be a person working for your landlord. You can sue everyone involved, but that will cost more money. The person or entity that is ultimately responsible is the landlord — the owner of the property you are leasing. Sometimes it is not easy to figure out who that is.
Here is a common scenario:
- Apartment Complex name: “Forest on the Swill”
- Manager name: “Meany.” She works for a
- Management Company: “Rip O” that manages the complex for
- The landlord (a Limited Partnership) name: “Forest on the Swill Ltd. I,” which owns the property.
Note: Often investors use limited partnerships to own property and name the limited partnership after the name of the property itself.
There can be lots of people and businesses involved. So, who do you sue and whose address do you give to the constable or sheriff? Getting this information is the hard part, but it’s important to make sure you sue the landlord, the owner of the land (“Forest on the Swill Ltd. I” in our example.)
How do I figure out who owns the property?
Finding out the name of the owner can be hard. Businesses can use names called “assumed names,” which are not usually the name of the real landlord.
Landlords can be people or they can be business entities. If a natural person owns the land, you should 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. 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 find this information:
- Check your lease. Your landlord’s address may be listed in your lease.
- Ask the manager or the person you deal with who the owner is and their address. You do not want information about the owner of the management company (many managers only give out this information). You want the address for the owner of the property. The landlord has to legally give you this information within 7 days of a written request by posting the information in the office or responding to you in writing. They don’t have to give you this information if it’s already in your lease so make sure to check your lease. Tex. Prop. Code 92.201.
- Contact the tax appraisal office in your area. All tax appraisal offices try to keep ownership data on all real property in their district. You might be able to search for this information online on the county tax appraisal website. This information is not always correct, but it is easy to search and free.
- The most accurate, but 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 sorted by the legal description of the property instead of the address. So first you might have to get the legal description 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.
Note: 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).
Making sure you serve the court papers to the right person
You will need to know the name of the landlord (property owner), and the address of the person to give the court papers. The landlord (owner) will be the “defendant.” Sometimes landlords list their addresses as P.O. Boxes. They can’t be served court papers unless they’re at an actual address. There can be a difference between the person you’re suing (defendant) and the person who gets the papers.
According to Section 92.003 of 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.
If the name and street address of the management company has not been given to you, then you can serve the on-premises 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.
Note: The landlord will still be the defendant listed in the papers, but list the management company or the person who collects your rent (depending on the situation discussed above) as the person or entity the constable should serve with a copy of the lawsuit.
Here’s a common scenario:
- Apartment Complex name: “Forest on the Swill”
- Manager name: “Meany.” She works for a
- Management Company: “Rip O” that manages the complex for
- The landlord (a Limited Partnership) name: “Forest on the Swill Ltd. I,” which owns the property.
In this example, if Management Company “Rip O” is listed in the papers with a street address, list “Rip O” as the entity for the constable to serve with the papers and put in their address. If a management company name and address are not listed anywhere, then you can have the constable serve Manager “Meany” at the office of the complex with the court papers. The defendant stays the same: “Forest on the Swill Ltd. I.”
Lawsuit petition (to fill out yourself)
Affidavit of inability to pay court costs (form here)
Filing the lawsuit in court
- Take one original, and two copies of the completed lawsuit petition (form above) to the clerk.
- 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, and already filled one out, you will not need it.
- Ask the clerk to file your petition.
- Give the clerk the appropriate fees or give them a completed affidavit of inability to pay costs (if you are indigent – form above).
- Tell the clerk if you want a jury trial when you file your case if you are certain you want a jury. If you are not certain, you can wait until later. You have a right to request that a jury decide your case if you make the request in writing and pay the appropriate fee. You should decide if you want a jury based on whether you think a jury will be more sympathetic to the case than the judge. In a suit for damages, Rule 504.1 states that a written demand for a jury and payment of the fee must be filed no later than 14 days before the date a case is set for trial.
- 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 notice of the trial date. If your court follows this procedure, you should send the letter by certified mail, return receipt requested and regular mail.
- After filing the suit, wait and call the clerk back after 2 weeks to make sure that the defendant has been served and find out the exact date the person was served. Ask the clerk for the date by which the defendant must “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. The court must schedule a hearing. Rule 503.1(a)(2) requires that you must appear at the hearing and provide evidence of the damages. If you prove your damages, the court must sign a judgment for you in the amount proven. This is the fast and easy way to win.
- If the defendant answers the case in writing, the court will set the case for trial in accordance with its schedule. Always check the trial date with the clerk and show up at least 15 minutes early on that day.
- If the defendant hasn’t been served when you call the clerk, you can call the sheriff or constable to remind them.
Remember: you cannot win a lawsuit until the papers have been served on the right person (see “Making sure you serve the court papers to the right person” above).
Always be polite. You want the court staff, sheriff and constables on your side. Your case is one of thousands of cases on file. These officials can only spend a limited amount of time on your case so that they can also give their time to 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.
How can I prepare for the trial?
- Write down and practice a short statement that says 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.
- Gather evidence (lease, receipts, letters, and other things) you will need to tell your story and prove your case. It is best to have three copies of every document — one for the judge, one for yourself, and one for the defendant. Get photos to show the court if they help prove your case. You usually need your witnesses to come in person because the court requires people to testify under oath in the court. The judge will probably not not consider written witness statements or affidavits. Building and Strengthening Tenant Action (BASTA) provides Evidence Collection Tips for Renters including a log of conditions and activities that can help you keep track of the evidence.
- Gather your witnesses (if you need any). They will have to come to court with you to 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 them and force them to come to court.
- If a subpoena is necessary, go back to the justice of the peace 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.)
- Practice and prepare what you will say in court.
- Decide in what order you will present the evidence you have accumulated.
- List the questions you will ask each witness.
- Make an outline of what you want to say when you testify.
- Request a jury if you decide you want one and pay the appropriate fee.
- In a suit for damages, the justice court must give at least 45 days’ notice of the trial date to the parties. See Rule 503.3(a). If the trial date conflicts with something very important, you can request that the court “continue” or postpone the trial. See Rule 503.3(b).
What is mediation?
Sometimes courts will say that you and the landlord have to try settle their case without a trial using a mediator. A mediator is a person who tries to get the parties (you and the landlord) to come to an agreement, but does not decide anything or rule on anything.
A mediator usually tries to show each side why they might lose. For example, they could tell you that you (plaintiff) don’t have a strong enough case for court and they could tell your landlord (defendant) that they could lose a lot of money if they lose the case. The goal is to get you and the landlord to come to an agreement, or settlement. This means you might meet in the middle, getting less money than you could get in court, but there are some benefits to settlements:
- You can control the result — you can say “yes” or “no” to the settlement.
- It could take less time than a trial.
- You will get the money up front — sometimes it can be hard to get the money you won after a court judgement.
What happens at the trial?
Before the trial: Make sure you call and confirm the date and time of your trial. You should show up at least 15 minutes early. Your case may be dismissed if you are late. If the trial date conflicts with something very important, you may request that the court “continue” or postpone the trial. See Rule 503.3(b). 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.” The judge 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, 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 they tell their side.
If you have a jury trial, 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 want 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. You can ask the judge how this works if you have any questions about it.
You will have the first chance to tell your story. Go through the statement you 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 clarified, they may ask you some questions. You will be able to tell your story without being interrupted by the other side.
When you are finished with your questions, the person you are suing will be able to ask you and your witnesses questions.
After both you and your witnesses have spoken, the person you are suing will explain why they think they should not have to pay you money, whether that’s because they think your story is wrong or you are asking for too much money. They will also be able to tell their story without being interrupted. After they finish, you can ask both them and their witnesses questions. The judge can also ask them questions.
Note: You have to ask the witnesses questions. You cannot argue with them or make any statements. If you think the person you are suing or their witnesses are not telling the truth, you should ask questions which would expose this fact to the judge.
- Be polite and courteous.
- Follow the court’s rules.
- Be brief and to the point.
- This is not the time to “object” to everything the other side says. A nonlawyer generally cannot back up objections with legal argument and the judge will only listen to a legal argument. In fact, some justice court judges will not even entertain formal objections.
- Present facts to the court that show that the defendant (landlord) owes you money and how much money they owe you. You have to prove it.
After the judge has heard the facts from both sides, including the witnesses, and everyone has asked all the questions they want to ask, the judge will then decide who wins the case and the amount, if any, the winner should receive. The judge might not make a decision right then. If they want some time to think about it, they will tell you when they will make a decision.
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.
I won my lawsuit. How do I collect the money the landlord owes?
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 most cases the person you sued will simply pay you after you win. If they do not, you’ll have to take more legal steps to enforce your judgment.
There are a number of things you can do to encourage payment:
- File an “Abstract of Judgment.” This is a document the clerk of the court can prepare, and you can then file in the deed records of each county in which you think the defendant owns property. This puts a judgment 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 want the landlord to pay off the lien to ensure clear title. You could get your money this way, but it might take a long time.
- File for a “writ of execution” with the justice court clerk. This document orders the constable or sheriff to take the debtor’s “nonexempt” 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 $50,000 in value for a single person and $100,000 for a married couple. See Texas Property Code 42.001. However, a landlord almost always has property which may be sold at auction — like the apartment or home they rented!
- Try a writ of garnishment. This will require an attorney because the rules on garnishment are complicated. See Tex. Rules Civil Procedure 657 – 679. This procedure 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), you may be able to hire a debt collection attorney who may be willing to help you and charge a fee based on a percentage of the amount they are able to collect.
The information above is adapted from “How to sue in small claims court” by Professor Richard M. Alderman.