Notice to Quit Effective? No Pro Rated Rent?

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Latest post 02-16-2012 3:30 PM by Drew. 31 replies.
  • 01-11-2012 11:40 PM In reply to

    • Drew
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    Re: Notice to Quit Effective? No Pro Rated Rent?

    Its not a relevant debate at this point---but I'm not so sure a judge would hold a notice that contains a material conflict such as get out by 15th and pay up thru end of month to meet the requirements of notice --hopefully you'll not need to test it.

    I'll take bets if I gave one of my tenants a notice with a major conflict in it the judge I'd need to hear it would hand me my head in a basket with some sharp words to do a do over the right way , from scratch--I'm the supposed professional who needs to get it right w no slack.   But I'm not in TX



  • 02-15-2012 4:32 PM In reply to

    • galvez
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    Re: Notice to Quit Effective? No Pro Rated Rent?

    Here is an update: Rent is paid through February 29 at the landlord's request.  Landlord still wants her out tomorrow.  Landlord is represented by an attorney.  I got the following by email today:

    February 15, 2012

    Dear JXXXX and CXXXXX:

    It is now Wednesday, February 15, 2012, and JXXXX's Notice To Quit becomes effective February 16, 2012.

    As my wife and I have stated to you on several occasions, verbally, and in my emails of January 6, 2012 and July 11, 2011, we do not want to be landlords and intend to sell the house located at XXXXXXX, Houston, Texas 770XX. We feel we can no longer delay the listing of this property. In order to prepare it for viewing by real estate agents, it is necessary that all of JXXXX's personal property be removed.

    Since XXXX and I have not received any communication from either one of you, we can only assume that on February 16, 2012, all of JXXXX's possessions will be removed from the property. XXXX and I will then proceed to dispose of anything left in the house, turn it over to a real estate agent, who will place a universal lock on the property for other real estate agents to access for showing.

    Please contact me immediately regarding your plans to vacate the premises, along with the removal of JXXXX's possessions.

    This is official notice from me as Executor of the Estate of XXXXXXXXXXXXX that we will proceed under the foregoing assumption beginning at midnight, February 16, 2012.

    Sincerely,

    XXXXXXXX,
    Executor of the Estate of XXXXXXXX

    I know that they have to post a 3 day evict, and file in JP court, but he seems like he intends to ignore the proper judicial channels and put everything on the street.  Since the rent is paid through the end of the month, it is my understanding I have until the end of the month to move her, assuming we do not go to court over this matter.

    Suggestions?  Comments?

     


     

  • 02-15-2012 4:43 PM In reply to

    Re: Notice to Quit Effective? No Pro Rated Rent?

    You say "her" home, but I gather it isn't (if she transferred ownership interest to someone else and retained a life estate, the deed would need to mention that).  As for a "promise" of a life estate by roommate, she'd have a hard time establishing that promise unless it's in writing somehow. 

    A notice to quit is typically issued when someone has failed to pay rent on time.  Regardless of its title, if she paid her February rent -- though it sounds like she probably didn't -- then a notice to quit as such isn't appropriate.  A simple termination notice would typically entail a 30-day advance notice. 

    Anything less than 30 days' notice would be insufficient under Texas law for a monthly tenancy as far as I know.

    "Was the notice valid, since they had her sign it when she was heavily medicated?"

    Why would she need to sign a notice in the first place?  Was she signing something agreeing to move or just acknowledging that she received the notice?  In any event, being heavily medicated itself doesn't mean someone's not competent to understand and sign something.

    "If they accept March rent, what happens with the Notice to Quit?"

    Not sure what you expect folks to say (oddly worded question).  If estate accepts March rent (and she ought to make it out to "estate of ____________"), then they'd have a hard time arguing they didn't waive the termination notice.

  • 02-15-2012 5:05 PM In reply to

    • galvez
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    Re: Notice to Quit Effective? No Pro Rated Rent?

    She acknowledged notice. I paid the rent with a cashiers check from my bank, made to the executor, drawn on my account. We do not plan to have her there much longer, but the rent is paid through the end of the month. I know that legally, she was screwed out of the life estate, so her only interest is possession as long as the rent is paid. I do not want her to give up posession prior to the end of the month, and I have to have the time to get her moved out. I do not want him removing her personal property from the house at this point.

  • 02-15-2012 5:08 PM In reply to

    Re: Notice to Quit Effective? No Pro Rated Rent?

    galvez:
    I do not want him removing her personal property from the house at this point.

    Then you are going to have to notify him that with the rent paid until the end of the month she can legally stay until then.  If it were me I would also notify him that if ANY property is removed in violation of Texas law that he can expect a lawsuit on his doorstep.  Until you stand up to him and make it clear you know your rights he will attempt to do this.  Even if you stayed beyond the 29th he would still have to go to court and get a formal eviction.  To remove her without that invites a lawsuit against him for violating the law with the possibility of significant damages to Mom.

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • 02-15-2012 9:35 PM In reply to

    • Drew
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    Re: Notice to Quit Effective? No Pro Rated Rent?

    As a retired LL I too am of lay view that Mom provides LL a written criptic response it effect of : As per your prior written demand, my rent has been paid in full thru the end of Feb. Kindly respect you duty to provide me with quiet enjoyment of the premises and no not enter either.

    PS I see your dumb LL as having blown correct notice as well but I'd simply not comment to LL.



  • 02-16-2012 12:18 PM In reply to

    • Drew
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    Re: Notice to Quit Effective? No Pro Rated Rent?

    Owners lawyer may be a great estate attorney but somebody is making a mess of L-T action!

    The weight of a 30 day notice to quit has all the finality of wet toilet paper.

    The tenant is entitled to quite enjoyment of the premises.

    A rambling email   probably does not comply with the need to deliver written notice to tenant.

    Owner negated his own notice, if there was such notice, by demanding and accepting payment for Feb in full--tenant is paid for Feb in full.

    Absent some other breech of lease, a 3 day notice now woud make no sense, tenant is not delinquent

    LL may win by intimidation and hot air --but so far I don't see him as holding right cards to win in court.



  • 02-16-2012 1:13 PM In reply to

    • galvez
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    Re: Notice to Quit Effective? No Pro Rated Rent?

    I contacted the lawyer and told him that it needs to be done legally or the estate or landlord will be liable.  I told him I want all communications in writing.  Since the landlord was involved in the new will that did not include the life estate, I do not trust him or his attorney.  He is now saying he will file for eviction if I am not willing to talk directly to him rather than do everything in writing.  I am guessing the 3 day evict will be posted in the morning and the case filed on Tuesday.  I will contact the JP court to see if and when it is filed, since I am not trusting that the LL will leave the paperwork at the house.  If they file early, I will ask that it be dismissed. I will probably not pay March, unless the LL wants me to do so.  I plan to move her out over spring break, so even if they file for eviction in March, she will be out before it makes it to court.  I am not out to sc**w the LL, I just want to make sure my mother is not sc***ed.

  • 02-16-2012 1:43 PM In reply to

    • Drew
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    Re: Notice to Quit Effective? No Pro Rated Rent?

    So what if he posts 3 day notice--to do what--evict a tenant who is fully paid up--that should be good for a laugh in court.   But Mom needs to attend court!

    You lack standing to do it for Mom--be sure she actually does whatever



  • 02-16-2012 2:16 PM In reply to

    • galvez
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    Re: Notice to Quit Effective? No Pro Rated Rent?

    Mom is in the hospital for congestive heart failure and has given me power of attorney.  If she is out or her physician gives her permission, she will be there.  I may be her guardian at that point.  The local JP is lenient on who shows up for the hearing, especially since I have been paying the rent.

  • 02-16-2012 2:26 PM In reply to

    • Drew
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    Re: Notice to Quit Effective? No Pro Rated Rent?

    The technical rules as to who can be there doing what might be a technical undoing -I'm sensitive to the point as I tried to help my teen aged daughter  as to her being stiffed for a payday -and I missed a quirky rule about notice to other side --and that cost me a do-over --the judge may not care but you need to be sure you can testify if such is called upon and enemy objects.

    As an aside--in my area --if defendant were in hospital that would be one good reason for defendant to  request for delay most likley to get granted by bench --in your area ?? .



  • 02-16-2012 2:31 PM In reply to

    • Drew
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    Re: Notice to Quit Effective? No Pro Rated Rent?

    Its perhaps totally off point-- but did Mom have a life estate actually in writing in prior will?

    This owner seems awfully anxious to get her out--I wonder if there is something else rotten he needs to get out of the way---was the new will created at a time its maker had lost all her marbles?



  • 02-16-2012 2:51 PM In reply to

    • DPH
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    Re: Notice to Quit Effective? No Pro Rated Rent?

    galvez:
    Suggestions?  Comments?

    Make sure that the tenant or a representative is always present in the apartment/house until you can move her.  If someone shows up to remove property, tell them to pound sand and shut and lock the door.  If they refuse to leave or try to gain access, call the cops.  I would be willing to bet that cops will rapidly determine that this is a civil issue and tell the intruders to leave.  Since you are in the process of relocating the tenant anyway, proceed with that action and stall LL until you have emptied the unit.

    It likely will take the LL/executor several days to try and sort out how to respond to tenants refusal to leave, so just keep it up.  If they try strong-arm tactics, call the cops to protect tenants interests.  If they obtain some sort of eviction action, have the tenant respond with Feb rent receipt to the judge and see what happens.  By the time all of this plays out, the end of the month will be here.

    Good luck  

    "Never argue with stupid people, they will drag you down to their level and then beat you with experience."  -  Mark Twain

     

  • 02-16-2012 2:53 PM In reply to

    • galvez
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    Re: Notice to Quit Effective? No Pro Rated Rent?

    Lawyer is calling at this point. In class so cannot answer the phone, but he seems very interested in resolving.  The life estate was never in writing, at least as far as I know.  I was told it was in a previous will that no one seems to have a copy of.  Yes, she was probably incompetant at the time of the new will, but hard to prove.  The entire thing stinks to high heaven.  All notices are going to me, and I am accepting on her behalf.  It would be hard for them to argue I should not be there on her behalf since they have pulled me into the problem.  I plan to email tonight, since he seems anxious.  I still want everything in writing.

  • 02-16-2012 3:08 PM In reply to

    • Kivi
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    Re: Notice to Quit Effective? No Pro Rated Rent?

    I don't know about TX, but in my part of CA, once you, as a landlord, get the notice to evict, you still have to contact the Sheriff's office and arrange for a trooper(s) to stand by while the actual eviction occurrs. You also have to hire your own locksmith and bring your own movers even if they just take the property to the street. The deputies won't lift a finger on your behalf.

    The Sheriff's office around here advises local landlords that there will be a two or three week wait before they can someone available and they only do evictions on Tuesdays and Thursdays. I think that there also is a fee for their services. You might check your local court's website to see if you can find comparable information there.

    I suspect that if you play hardball until the 29th, you might be OK because it is unlikely the estate will want to go to all of this expense and trouble just to get possession two weeks sooner.

    But, I would not stall this out past the 29th.

     

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