Sometimes a tenant rents from the landlord, then brings in someone else to share the apartment. It isn't an unusual arrangement, nor is it rare for things to fall apart. If the situation becomes uncomfortable, or the roommate refuses to follow house rules or pay their share of the rent, eviction is likely in the forecast. If this is all happening in Texas, it's important to follow the state's eviction process.
Roommate on the Lease Agreement
If the roommate's name was added to the rental agreement or lease, the roommate is a co-equal tenant. Although the original tenant can ask the roommate to leave, they cannot force them. Nor can the original tenant gain any ground by threatening to evict the roommate or co-tenant. Under Texas state law, only the landlord can evict a tenant with whom they have a rental contract.
What does this mean? It means that if the roommate is a bad tenant, for example, refuses to pay rent, smokes in a no-smoking apartment, sells drugs out the window or has all-night parties that disturb the neighborhood – only the landlord can take action.
If, on the other hand, the roommate is a good tenant but a bad roommate – eating food that doesn't belong to them from the fridge; leaving dirty dishes around; refusing to shower or use deodorant; or hogging the television – the landlord may not be that excited about an eviction. Just like the original tenant can ask the roommate to make changes, they can ask the landlord to evict. But if the landlord declines, the original tenant cannot take any legal action to get the roommate out.
Roommate Not on the Lease
What if the roommate was never added to the lease, and only the original renter is listed? This gives the original tenant more authority to evict the roommate in Texas. If the original tenant is responsible for paying the landlord 100 percent of the rent due every month and their roommate pays their share to the tenant, the tenant is effectively the roommate's landlord. The landlord is not in contract with the roommate; the tenant is, and this is true even if the agreement is oral and not in writing.
The tenant can evict the roommate if the roommate violates the lease, or they can terminate the roommate's month-to-month tenancy by a notice of termination for any or no reason. In this case, however, the tenant must follow all of Texas' rules and procedures that relate to eviction.
Notice and Eviction Procedures
In Texas, the person who has the rental contract with the roommate must first give the roommate notice. If the roommate is up to date on rent and has not broken the terms of the agreement, their tenancy can still be terminated. Assuming that the roommate is on a month-to-month lease, the person in contract with the roommate can end the tenancy with 30-days' written notice. That notice to terminate tenancy must state the date on which the roommate must move out, at least 30 days after the date the notice is given.
If the roommate has failed to pay rent or broken rental agreement terms, the notice is not a 30-day notice to terminate tenancy, but a 3-day notice to vacate. Although some states, like California, require the eviction notice to give the person a chance to take care of the issue within the three days instead of vacating, Texas does not require this.
In Texas, a landlord is not required to give the tenant a chance to pay the unpaid rent within the 3-day time period of the notice. They are permitted to file a 3-day notice to quit. The tenant is then required to leave within three days, without the option to pay back rent and stay. This notice must be handed to the person personally, mailed to them return receipt requested, or posted on the entry door and mailed to them.
Filing the Eviction Lawsuit
If the roommate doesn't vacate when the 30 days specified in the notice of termination are past, or when the 3-days specified in the notice to vacate have passed, the person in contract with the roommate can file a petition for eviction in the justice court where the rental property is located. This is sometimes called a forcible detainer proceeding.
The court will assign a hearing date for the eviction case between 10 and 21 days after the filing. A sheriff or constable will be charged with serving the papers on the roommate at least six days before the court date.
Roommate Can Respond
The roommate will generally read the papers served on them and decide what to do. The justice court rules do not require that the tenant file a written answer in order to object to the petition. However, they can, and often do, if they don't agree with the statements in the petition.
The roommate will be required to show up at the hearing if they don't file an answer. If there is no written response and no roommate appearance at court, the person bringing the petition will likely be granted default judgment in their favor.
Either party can request a jury for the eviction hearing as long as they make the demand three days or more before trial. If no jury is demanded, the court determines the facts and issues the judgment after the hearing. The losing party can appeal the matter to a higher court within five days after the judgment issues.
Writ of Possession
After a final judgment is issued against the roommate, they have six days to pack up and leave the rental unit. If they are still there on the seventh day, the justice court will issue a writ of possession to be filed at the sheriff's office. The person seeking the eviction has to pay the sheriff a fee for carrying out the eviction.
The sheriff gives the roommate notice of the writ of possession, and they have five days to move out. On the final day, the sheriff enters the premises and removes the roommate and their property. At that time, the landlord can secure the premises by changing the locks. But note that, under Texas law, it is always illegal for the landlord to personally take action to remove the person from the rental unit or to lock them out until the sheriff has executed the writ of possession.