Monday, July 15, 2013
Forcible Detainer ... Huh? What?
What do lawyers and landlords mean by "forcible detainer"?
It's what leads to eviction; -- the failure to move out when the renter or previous owner no longer has the right to be in the house or in the apartment ("premises"), and denies the rightful owner the right to have control over it ("possession"). A forcible detainer action is an eviction suit, whose purpose is to get a justice of the peace to order the occupant(s) out of the habitation. The landlord or property manager will typically also ask for any unpaid rent.
Forcible detainer occurs when a person, who is a tenant at sufferance, refuses to surrender possession of real property after his right to possession has ceased. See TEX. PROP. CODE ANN. § 24.002; ICM Mortg. Corp. v. Jacob, 902 S.W.2d 527, 530 (Tex. App.-El Paso 1994, writ denied).
A forcible detainer action is "a summary, speedy, and inexpensive" procedure for determining the right to immediate possession of real property where no claim of unlawful entry exists. Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 926-27 (Tex. App.-Dallas 2010, no pet.). To maintain the intended simplicity, the applicable rule of civil procedure, rule 746, provides that "the only issue shall be as to the right to actual possession; and the merits of the title shall not be adjudicated." TEX. R. CIV. P. 746; Williams, 315 S.W.3d at 927. In other words, entitlement to possession of premises is decided "without resorting to an action upon the title." Rice v. Pinney, 51 S.W.3d 705, 710 (Tex. App.-Dallas 2001, no pet.) (quoting Scott v. Hewitt, 127 Tex. 31, 35, 90 S.W.2d 816, 818-19 (Tex. 1936)). Proof of the existence of a landlord-tenant relationship establishes a plaintiff's entitlement to possession. Pinney, 51 S.W.3d at 712.
SOURCE: DALLAS COURT OF APPEALS - 05-12-00899-CV - 7/10/2013
Application of Law to Facts
[Former home owner's] issue on appeal mirrors his argument to the trial court. He does not dispute that (1) he defaulted on the loan, (2) the property was sold at foreclosure, (3) GMAC purchased the property at the foreclosure sale and subsequently conveyed it to FNMA, (4) he did not surrender possession of the property upon demand, and (5) the home equity agreement provided that, upon sale of the property and his failure to surrender, a tenancy at sufferance was created, which established a landlord-tenant relationship, and which established FNMA's entitlement to possession. See id. Rather, he disputes the validity of the foreclosure sale in light of the automatic bankruptcy stay, which addresses the merits of the title. Because [former home owner's] issue as to the merits of the title may not be raised in a forcible detainer action, we resolve his sole issue against him. See Williams, 315 S.W.3d at 927.