LEGAL UPDATE
judged .” In other words , at trial ( even in an eviction case ) if you ask for any rent , you must attempt to collect all rent due and owing as of the date of trial , not merely the amount due at the time you filed the eviction ( which could have been filed the prior month from the day of the trial ) – if you don ’ t try to obtain all rent due at the time of trial , the doctrine of res judicata says “ you lose what you do not request .” Consequently , in the eviction fact scenarios above , the landlord must request May and June rent at the eviction trial if you asked for any rent . Consequently , if you : 1 . Lose your eviction case and do not appeal ; or
2 . Do not request and obtain all rent due and owing on the date of the eviction hearing ; you have then created a scenario that allows the tenant or a tenant lawyer to assert Texas Act and DTPA Claims if you thereafter :
1 . Try to collect May and June rent when you lost the eviction and did not appeal ( regardless of whether it is the owner , the management company or the collection agency that is attempting to collect ). The reasoning is , under the fact scenario above , you turn over May and June rent to a collection agency but you had previously filed an eviction but then failed to request rent for May and June in your eviction case , you have waived the right to receive May and June rent forever . If you try to collect by any means , a tenant advocate can assert that you have violated the Texas Act and the DTPA because you have waived
the right to collect May and June rent and are attempting to recover sums that a Court has determined the tenant did not owe ( even though in reality , the tenant continued to owe back rent , but the law says you lost the claims not asserted ).
2 . Try to collect rent that was not included in an eviction judgment even when you win . The reasoning is that if you didn ’ t request all rent due and owing as of the date of trial , you waive current and back rent forever .
The Accounting Scenario . In the accounting scenario above , the Landlord would be attempting to collect a debt that was not due , a potential violation of the Texas Act . Regardless of the accounting error , a tenant or tenant lawyer can take the position that the owner or landlord has violated the Texas Act . The Practical Issue :
Since the Texas Act does not exempt a property , a management company , a leasing agent , a manager , a local car repair shop or anyone who makes a call from any collection office , you must be certain that tenant accounts are accurate and do not include any charges that are not expressly authorized in the lease or an addendum to the lease ; an error in favor of the owner is an opening for a tenant lawyer to take you to court . The Bottom Line :
Avoiding violations of the Texas Act and DTPA is simple if you follow some key practices in evictions and in accounting ; here they are .
In every eviction case , regardless of whether you file in house , use a non-lawyer eviction service or use a lawyer :
28 July / August 2018 | www . saaaonline . org
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