OCTOBER 2019
QUESTION:
If we have an eviction case that was originally filed as a non-payment of rent case. At trial the Judge grants “possession only.” If the defendant appeals, would they be required to pay the one month’s rent into the court’s registry, even though the judgment was for possession only?
ANSWER:
Yes. If the basis for the eviction was that the tenant did not pay their rent, then it is a non-payment of rent eviction even if the landlord does not ask for back rent or the court does not award back rent.
If it is a non-payment of rent eviction, and the tenant appeals by filing a Statement of Inability to Afford Payment of Court Costs or by filing an appeal bond, then the court must provide the written notice concerning payment of rent and the tenant must deposit one month’s rent into the court registry. See Evictions Deskbook at page 45; Property Code §24.0053.
If the ground for the eviction is something other than non-payment of rent (for example, loud parties late at night or the lease has terminated but the tenant has not vacated the premises), then the tenant is not required to pay rent into the court registry, and the court does not send the notice to the tenant.
What counts is whether the basis for the eviction suit is non-payment of rent, not whether the landlord is seeking to recover back rent or whether back rent was awarded. It is up to the landlord to decide whether he wishes to seek to recover back rent or not in an eviction case. Even if he decides not to do so, if one of the grounds for eviction was non-payment of rent, then the tenant must make the initial deposit of rent into the court’s registry upon appealing by filing a Sworn Statement of Inability to Afford Payment of Court Costs or by filing an appeal bond.
The Deskbooks can be found here.
