Date sent or date recieved?

[JenniferLynn]

State of Texas.

I've got another post up a page or two back, however this is just a quick question that got over-looked or I forgot to put into the last post. My husband and I have a month to month lease. The house has been for sale for months, and apparently someone has agreed to buy it. We know that 30 days notice is required, and from what I understand, this isn't just 30 days in the middle of a lease term. Basically we have to be given one lease term to leave, since our lease term is 30 days, I think? Well the notice was given to leave by September 9th, but it wasn't received until the third week in August. I'm unsure of the exact day (husband has the paperwork with his business stuff and isn't home this exact moment). It was sent via certified mail, so there is proof of when it was received.

So my big question after the little one I snuck in above.. Should we have 30 days from the time we received the notice, 30 days from the time the notice was sent, or one 30 days lease from the time of notice? Because of when notice was received, technically, only about 2 1/2 weeks notice were actually received.

I have found the statute on it, but it isn't quite clear.

§ 91.001. Notice for Terminating Certain Tenancies

(a) A monthly tenancy or a tenancy from month to month may be terminated by the tenant or the landlord giving notice of termination to the other.

(b) If a notice of termination is given under Subsection (a) and if the rent-paying period is at least one month, the tenancy terminates on whichever of the following days is the later:

(1) the day given in the notice for termination; or

(2) one month after the day on which the notice is given.

(c) If a notice of termination is given under Subsection (a) and if the rent-paying period is less than a month, the tenancy terminates on whichever of the following days is the later:

(1) the day given in the notice for termination; or

(2) the day following the expiration of the period beginning on the day on which notice is given and extending for a number of days equal to the number of days in the rent-paying period.

(d) If a tenancy terminates on a day that does not correspond to the beginning or end of a rent-paying period, the tenant is liable for rent only up to the date of termination.

(e) Subsections (a), (b), (c), and (d) do not apply if:

(1) a landlord and a tenant have agreed in an instrument signed by both parties on a different period of notice to terminate the tenancy or that no notice is required; or

(2) there is a breach of contract recognized by law.


The day the notice is given.. but does that mean the day the letter was sent or day the letter was received?

[JenniferLynn]

Well I guess everyone is as baffled as I am. Lots of views but no responses.

Just took a little while to read and digest the statute...

You received notice to vacate but that notice was not a 30 day notice. By the time you received it, the date to vacate in the notice was only 2 1/2 weeks later, correct?

Assuming you paid rent every month, section b,2, applies. You have one month after receiving the notice to vacate (not the date listed in the notice). Under section d, your 30 day notice need not end at the end of a rental period, but can be prorated to end in the middle of the month.

[JenniferLynn]

Originally Posted by Unregistered

Just took a little while to read and digest the statute...

You received notice to vacate but that notice was not a 30 day notice. By the time you received it, the date to vacate in the notice was only 2 1/2 weeks later, correct?

Assuming you paid rent every month, section b,2, applies. You have one month after receiving the notice to vacate (not the date listed in the notice). Under section d, your 30 day notice need not end at the end of a rental period, but can be prorated to end in the middle of the month.

Yes, we paid every month. The statute was just giving me a bit of an issues, because of the wording. It's not word for word on date notice is received, but common sense told me it would be date received, not the date sent. I believe USPS even says to allow 7-10 days for delivery of the post, and then certified mail even has the possibility of taking longer, as it has to be picked up and signed for. So all in all, we were only given around 18ish days to vacate, which is not the 30 days required by our lease. Rent has not been paid for this month, however, there is an area in the lease that rent is due on the 1st, but if not paid by the 14th, to vacate the premises by the 21st or the eviction process would be started. So even in the case that the pro-rated rent hasn't been paid yet, it's still within the time limits to have it paid before he could even start an eviction process, which takes a minimum of 20 days from start to finish.

Another thing I thought of. We did confirm with the Real Estate company that closing of the house is set for September 8th. So would the LL even have legal rights to enter the property on the 9th? Technically the ownership is to transfer to the new owners on September 8th. But that's the next thing that bothers me. We are set to move on the 9th. Utilities have already been set with the transfer service date, and everything is packed and sitting in the living room. The only thing we're waiting on is closing at our new house, which is set now for Tuesday, also. They're trying to push it up to Monday afternoon, but can not promise being able to push the day up. A moving crew is coming in the 9th as soon as we give word that closing is finished. It's not like we haven't packed and aren't ready to leave. The utilities and moving crew can all be confirmed but LL is threatening to come in first thing in the am on the 9th to physically move our things to the street himself. He claiming he will bring a sheriff and attorney with him, but an attorney would do him no good, except in court, and I would not think a sheriff would have any reason to come with LL, because I think that the police don't get involved until an actual eviction has been put into place.

And then, even if we refused to vacate at the time given in the notice, would the LL have to have us evicted, or at least get a court order to vacate?

Although closing is scheduled the 8th, it may or may not be final. Those documents have to be recorded with the city or county recorder's office. Depending on the time of closing, there may not be time to do that before that office closes (typically at 4 pm). So on the morning of the 9th, the former LL may still be listed on the county records as the owner. Normally this is not a probblem and the paperwork is recroded first think the next morning.

The police will not escort you out. They will simply tell the LL that it is a civil matter and he needs to pursue it in court. He must obtain an eviction in court before the police will escort you out and remove your things. Attorneys don't normally go to the property, they merely prepare the paperwork for any court case. He is trying to scare you. Print out the statute and show the letter you received to any police or attorney who shows up.

Do be aware that you still owe the prorated rent for this month, and if not paid, it will be deducted (along with any late fees) from your deposit.

[JenniferLynn]

Does an eviction still apply even though we were given notice? The law is pretty unclear on that too... or at least it seems to be to me. I had a general notion that an eviction would still have to be done. I'm trying to gear up for what I'm thinking will be the 'show-down' Tuesday, though all of the LL's threats have been just that so far. Monday (tomorrow!!) I go to my 36week Dr's appointment, where they should schedule the surgery to have this baby for later this week or hopefully next week, and then it's home to finish up any last minute packing. My husband took Tuesday morning off of work so someone would be here in case the LL shows up, as I'll be at closing with my parents. The pregnancy has been high risk and pretty complicated, so my Mom has temporary power of attorney over the closing on our new house, just in case I was in the hospital. Then the moving crew, my Dad, and a guy he works with are stepping in to get everything out. I just wish it were all over already!

If the LL tries to file an eviction case with the court, they will want a copy of the Pay or Quit notice or the Cure or Quit notice, or a copy of the 30 day notice if you are a month to month tenant. If his 30 day notice wasn't even dated for Auguest 10th or earlier, the court clerk should recogbnize that it is not suffiicent and not accept the filing. If he has no copy of the notices, it will be hard for him to file one. Even if he does, it will be tossed out in court since the notice was insufficient. If he does manage to file, make sure you attend so you can get it tossed and not have an official eviction against you.