HERE’S WHAT YOU SHOULD KNOW:
Notice to Vacate – Optional or Required?
Required. Landlords must deliver a notice to vacate prior to filing an eviction.[1]
When Can I Deliver the Notice to Vacate?
Day after Rent is Due. Landlords can deliver a notice to vacate on the day after rent is due, if evicting for non-payment of rent. Under a standard TAA lease, rent is due on the 1st day of the month with no grace period. Accordingly, the Landlord can deliver the notice to vacate on the 2ndday of the month.
Tenants often incorrectly believe that rent is due on or before the 3rd of the month, because of the “late fee” language in their lease agreement. However, the due date for rent and the date the tenant first accrues late fees are entirely different. Late fees can only accrue after the passage of one full day from the date rent was originally due.[2] Thus, a landlord can deliver a notice to vacate even before the landlord can charge the tenant a late fee.
Can the Notice to Vacate be a 24 Hour Notice?
Yes, if allowed by the lease agreement. The lease agreement can shorten the time period for notices to vacate from the standard three day notice to a 24 hour notice.[3] For example, the current TAA lease agreement allows for a 24 hour notice to vacate in paragraph 32.2. Additionally, no time period is required, if the individual occupying the premises acquired possession without legal authority or by force.[4]
What Information is Required to be in the Notice to Vacate?
The notice to vacate normally must be in writing.[5] No specific language is required in the notice to vacate. However, the notice should contain sufficient language to indicate that the landlord demands possession of the premises.
Notice to Vacate – Proper Methods of Delivery
Landlords may deliver a notice to vacate in person, by mail, or by posting the notice on the outside of the door.[6] Each method has its own unique requirements.
Delivery in Person. Delivery “in person may be by personal delivery to the tenant or any person residing at the premises who is 16 years of age or older.”[7] Delivery in person may also be made by “affixing the notice to the inside of the main entry door.”[8]
Notice by Mail. Notice by mail may be made “by regular mail, by registered mail, or by certified mail, return receipt, to the premises in question.”[9]
Posting on the Outside. Although not recommended, landlords may deliver a notice to vacate by posting it on the outside of the main entry door and following the strict requirements of Texas Property Code § 24.005(f-1).[10] The requirements of section 24.005(f-1) are listed below, verbatim:
“a landlord may deliver the notice to vacate by securely affixing to the outside of the main entry door a sealed envelope that contains the notice and on which is written the tenant’s name, address, and in all capital letters, the words “IMPORTANT DOCUMENT” or substantially similar language and, not later than 5 p.m. of the same day, depositing in the mail in the same county in which the premises in question is located a copy of the notice to the tenant if:
- the premises has no mailbox and has a keyless bolting device, alarm system, or dangerous animal that prevents the landlord from entering the premises to affix the notice to vacate to the inside of the main entry door; or
- the landlord reasonably believes that harm to any person would result from personal delivery to the tenant or a person residing at the premises or from personal delivery to the premises by affixing the notice to the inside of the main entry door.”
Notice to Vacate Practice Tips
Although the following information is not required, we normally recommend it be included on the notice to vacate, because it is helpful at trial: 1) date the notice was delivered; 2) name of each person obligated under the lease and whom the landlord wants to evict; 3) the deadline to vacate; 4) statement specifying how the notice was delivered; 5) statement that the landlord will seek all remedies, including attorney fees; 6) statement that the notice to vacate is unconditional.
Additionally, we normally recommend posting the notice on the inside of the main entry door. If the notice is posted on the inside of the door, then we normally recommend taking a photograph of the notice, once it is posted. We also normally advise against posting a notice on the outside of a door. Finally, we typically advise against hand delivery of the notice to a person inside the unit if you do not know who that person is.
Every situation is different, and you should consult an attorney to determine the most appropriate information and delivery method for your notice to vacate.
I Delivered the Notice to Vacate, Now What?
Once the landlord delivers the notice to vacate, it must wait until the notice deadline expires before it can file an eviction. The notice deadline starts on the date the notice is delivered.[11]Accordingly, if you choose to mail the notice, it’s recommended you wait at least an extra two days before filing, depending on the method and location of mailing. Again, when in doubt, consult an attorney.
