PHA Didn't Send a Separate Notice to Vacate as Required by State Law
In a recently decided case, a court found that a public housing agency (PHA) couldn’t evict a resident because the PHA didn’t strictly comply with the state’s notice-to-vacate requirements. Under Texas state law, for a tenant under a written lease, the owner must give the defaulting tenant at least three days' written notice to vacate before filing an eviction lawsuit, unless the parties have contracted in writing for a larger or smaller notice period. But if the lease or applicable law requires the owner to give a tenant an opportunity to respond to a notice of proposed eviction, a notice to vacate may not be given until the period provided for the tenant to respond to the eviction notice has expired.
In March 2020, the resident entered into a lease with the PHA. Consistent with HUD regulations, the lease provided that the PHA could "terminate or refuse to renew this Lease for serious or repeated violations of Resident's obligations under any section of this Lease or for other good cause.”
The PHA terminated the resident’s lease because of her failure to attend her re-examination interviews. The lease stated that failure to attend the interview "on the designated date and time" was "considered a serious violation of [the] lease and grounds for termination of [the] lease." She had failed to attend the originally scheduled interview and the rescheduled one.
On the day of the rescheduled interview, the PHA notified her in writing that because she had breached the lease by failing to attend the two re-examination appointments, the lease would be terminated on Oct. 31, 2020, and she must vacate the premises by that date. The lease termination notice stated the specific grounds for termination and informed her of her rights to reply to the notice, to examine documents directly relevant to her termination and eviction, and to request a hearing under the grievance procedure. The notice explained that if she didn’t vacate the premises by the Oct. 31 deadline, the PHA would file an eviction action against her. Also, on Sept. 10, she signed an "Eviction Delivery Certification" indicating that she had received the lease-termination notice and a "Delivery Receipt of Violence Against Women Reauthorization Act (VAWA)."
The resident failed to vacate the property, and on Dec. 9, 2020, the PHA sued her for possession of the apartment. The trial court ruled in favor of the PHA, and the resident appealed. She challenged the trial court's legal conclusions that "[a]ll legal notices and prerequisites to granting an eviction have been met."
How the Court Ruled
The resident didn’t dispute that she breached the lease or failed to attend her recertification interview. Her argument to the Texas appeals court was that the PHA didn’t abide by state law when it didn’t send a separate notice to vacate. The Texas appeals court eventually reversed the lower court’s ruling and ruled in favor of the resident.
According to the court’s reasoning, since the lease gave her the right to reply to a lease termination notice and the right to request a hearing in accordance with the grievance procedure, the PHA couldn’t send a notice to vacate until the period provided for the resident to respond had expired.
Although neither the lease nor the lease termination notice specified the period in which the resident was required to respond to the notice or to request a grievance hearing, the court found that state law applies because both the lease and the HUD regulations required the PHA to give the resident an opportunity to respond, either through a reply or by requesting a grievance hearing. And because state law applies, the PHA couldn’t combine its notice to vacate with its lease termination notice; it was required to send the resident a separate, later notice to vacate.
The PHA argued that it wasn’t required to send a separate notice to vacate because federal housing regulations and not the Texas Property Code govern its notice obligations and that federal law preempts state law to the extent the two conflict. The court rejected this argument because it found that compliance with both state law and federal law was possible. Federal regulations state, “A notice to vacate which is required by State or local law may be combined with, or run concurrently with, a notice of lease termination under paragraph (l)(3)(i) of this section" [24 C.F.R. §966.4(l)(3)(iii)]. In other words, federal law allows a PHA to combine the two notices but does not require it do so.
- Perry v. Wichita Falls Hous. Auth., May 2022