Personal Property Issues after Foreclosure,
Chapter 47

FREDERICK J. BIEL, Atlas & Hall Partner

I. OVERVIEW

On the first Tuesday of each month, at courthouses or other designated locations all across Texas, title to hundreds of improved and unimproved real properties (hereinafter, “property”) are sold via non-judicial deed of trust foreclosure sales. Even though no one may be physically present on, or constructively controlling, the property, a foreclosure sale purchaser (hereinafter, “purchaser”) often encounters tangible personal property (hereinafter, “personal property”) left at the property. The purchaser may or may not know who owns the personal property, and the purchaser, for whatever reason, did not acquire title to the personal property at the foreclosure sale, or claim a security interest in the personal property. This article provides the practitioner guidance for reducing a purchaser’s risk of liability to the owner of the personal property in removing it from the property.

Although certain principles of landlord—tenant law, and the identification of several causes of action available to the owner of personal property, are reviewed in this article, this article is not an exhaustive analysis of the principles discussed. Rather, the author believes that an introduction of those principles is necessary for the practitioner to be aware of the risks of removing personal property left on the property following foreclosure when the purchaser elects not to obtain an order and writ of possession available under the forcible detainer statutes and rules that are discussed in this article. References in this article to “PROP. CODE” refer to TEX. PROP. CODE ANN. (Vernon 2000 & Supp. 2005).

II. STATEMENT OF THE PROBLEM

What does a purchaser do with the personal property left at the property after foreclosure when the purchaser does not claim to own the personal property, or does not claim a security interest in the personal property? The purchaser gets rid of it! How the purchaser gets rid of the personal property, “that is the question!”

III. FACTUAL BACKGROUND

Ready Realtor (“Ready”) defaults on a note to Good Bank secured by a deed of trust lien on property that Ready used as a residence and a real estate office. Good Bank accelerates the debt and instructs the trustee named in the deed of trust to foreclose the deed of trust lien on the property.

Ready, aware of the impending foreclosure: (i) removes most of Ready’s personal property from the property during the last week of the month preceding the foreclosure sale; (ii) intends to remove the balance of the personal property from the property before the foreclosure sale is conducted; and (iii) notifies the electric company to terminate service to the property effective on the Monday before the scheduled foreclosure sale. On the Friday before the foreclosure sale Ready gets notice that Ready’s father has died. With a death in the family, Ready’s priorities change. Ready secures the personal property remaining at the property by locking the doors to the structure. Ready notifies no one of his father’s death, including the electric company and Good Bank. Ready leaves town to attend the funeral. Ready’s plan is to return to the property after the funeral to remove Ready’s personal property from the property.

At the foreclosure sale, Good Bank purchases the property. The deed of trust includes the following wording that is typical in most deeds of trust in Texas:

If any of the property is sold under the deed of trust, grantor shall immediately surrender possession (emphasis added) to the purchaser. If grantor fails to do so, grantor shall become a tenant at sufferance of the purchaser, subject to an action for forcible detainer.

On Wednesday morning following the foreclosure sale, Good Bank sends Hawkeye Smith (hereinafter, “Hawkeye”) to the property to inspect it. Good Bank tells Hawkeye that it is anxious to get possession and control of the property because a couple of Good Bank’s other realtor customers are interested in buying the property. The two realtors plan to demolish the existing structure and construct a new office building on the site.

Hawkeye contacts the electric company before driving to the property, and Hawkeye learns that electric service, at Ready’s request, was disconnected on Monday. Hawkeye finds the doors to the structure locked. Hawkeye does not observe anyone outside the structure located on the property, there are no cars in the parking lot, and no one appears to be moving about in the structure located on the property. The mailbox affixed to the front of the structure contains several pieces of mail, including a couple of yellowed newspapers. By walking around the structure and looking in several windows, Hawkeye observes that: (i) the interior of the structure is littered with debris; (ii) there is one room in the structure that contains several open storage boxes that appear to hold clothes, personal care items, pictures, trophies, office supplies, and other associated household and office items; and (iii) stacked in a corner of another room in the structure are several pieces of old household furniture, a well used office chair, a damaged filing cabinet, and six black plastic bags, tied with string, containing what Hawkeye believes is trash.

Satisfied that no one is present at the property, Hawkeye telephones a locksmith to get inside the structure. The locksmith re-key the locks. On entering the structure, Hawkeye takes pictures of the interior, and inventories the personal property. Several file folders, a couple of recent bank statements, two or three pads of blank checks, and a few pictures and advertising brochures are discovered in the filing cabinet.

Hawkeye and Good Bank conclude that Ready has “surrendered possession” of the property as required under the deed of trust. On Wednesday afternoon Hawkeye rents a truck and hires a couple of day laborers to assist him in removing the personal property from the property. The personal property, including the mail, is loaded into the truck, and taken to Hawkeye’s garage for temporary storage until Good Bank decides what to do with the personal property. The unopened black plastic bags, and the debris the day laborers collected from the floor of the structure, are placed at the curb to be picked up by the city’s sanitation truck that is just down the street and making its weekly garbage pickup. Before driving off from the property Hawkeye posts a notice on the door of the structure stating that all inquiries related to the property should be directed to Good Bank.

On Thursday morning Ready returns to the property to claim Ready’s remaining personal property. Unable to gain access to the structure, Ready contacts Good Bank. That same afternoon Hawkeye returns to Ready what Hawkeye claims is all the personal property removed from the property. On inspection, Ready claims that some of Ready’s personal property is missing or damaged. Ready also claims that someone has rummaged through the storage boxes that contained items of a very private nature. Ready specifically asks about the six black plastic bags. Visibly angry, Ready nevertheless signs a receipt for the personal property that Ready takes from Hawkeye’s garage. Ready also informs Hawkeye that he and Good Bank will be hearing from Ready’s attorney.

Ready subsequently demands, without success, that Good Bank return or replace the damaged and missing personal property, or that Good Bank pay Ready the reasonable value of the missing and damaged items. Ready estimates the loss at $50,000.00. Unable to resolve the dispute, Ready files suit against Hawkeye and Good Bank, pleading trespass to realty and personalty, conversion, breach of bailment obligations and negligence.

Good Bank and Hawkeye, in all likelihood, are not entitled to summary judgment on any of Ready’s causes of action because fact issues appear to exist. In other words, unless the parties settle, there will most likely be a bench or jury trial that resolves Ready’s claims against Good Bank and Hawkeye, and if any party disagrees with the decision, an appeal will likely follow. Learning of Ready’s lawsuit, the two realtors interested in the property decide to look elsewhere, and they so inform Good Bank. Let’s examine what Hakweye and Good Bank might have done differently had they understood what Good Bank’s and Ready’s relative rights were under Texas law under their fact situation.

IV. MORTGAGEE’S RIGHT PRIOR TO AND FOLLOWING FORECLOSURE

A. “Self Help Repossession” of Real Property Prior to Foreclosure

Texas law does not recognize “self help repossession” of real property, and it does not condone seizure of real property prior to foreclosure unless voluntarily relinquished by the debtor. Lighthouse Church of Cloverleaf v. Texas Bank, 889 S.W.2d 595, (Tex. App.—Houston [14th Dist.] 1994, writ denied). There is no remedy in the Texas Property Code that corresponds to TEX. BUS. & COM. CODE ANN. (Vernon 2002 & Supp. 2005) §9.609 allowing a secured party after default to take possession of the collateral. The nearest equivalent is a deed of trust that allows for a non-judicial foreclosure. The manner in which a non-judicial foreclosure is conducted is strictly governed by PROP. CODE §51.002.

B. Possession Prior to Foreclosure

Texas follows the lien theory of mortgages. Under this theory the mortgagee is not the owner of the property and prior to default is not entitled to possession, rentals or profits. Taylor v. Brennan, 621 S.W.2d 592 (Tex. 1981). On default, but prior to foreclosure, a mortgagee holding a collateral assignment of rents may elect to enter upon the property and collect both accrued, unpaid rents, and rents thereafter accruing and becoming payable. Id.

C. Effect of Foreclosure

A foreclosure sale extinguishes inferior liens and encumbrances, Motel Enterprises, Inc. v. Nobani, 784 S.W.2d 545 (Tex. App.—Houston [1st Dist.] 1990, no writ), and a trustee’s deed transfers a mortgagor’s actual interest in the real property. Diversified, Inc. v. Walker, 702 S.W.2d 717 (Tex. App.—Houston [1st Dist.] 1985, writ ref ’d n.r.e.) Title passes following acceptance of the bid price, Peterson v. Black, 980 S.W.2d 818 (Tex. App.—San Antonio 1998, no pet.), and equitable title is acquired if a trustee’s deed is not executed and delivered. Pioneer Building & Loan Ass’n v. Cowan, 123 S.W.2d 726 (Tex. Civ. App.—Waco 1938, writ dism’d judgm’t cor.). But a purchaser at a foreclosure sale acquires title subject to any rights of the mortgagor or other third parties under the deed of trust, Smith v. Morris & Co., 694 S.W.2d 37 (Tex. App.—Corpus Christi 1985, writ ref ’d n.r.e.), and at purchaser’s peril, Henke v. First Southern Properties, Inc., 586 S.W.2d 617 (Tex. App.—Waco 1979, writ ref ’d n.r.e.). A purchaser acquires the property “as is” without any expressed or implied warranties, except as to warranties of title, and at the purchaser’s own risk. PROP. CODE §51.009.

D. Rights Following Foreclosure

After foreclosure, a purchaser is entitled to full ownership of the rights conveyed at foreclosure, including possession. Scott v. Hewitt, 127 Tex. 31, 90 S.W.2d 816 (1936). Although foreclosure transfers title from the mortgagor to the purchaser, it does not put the purchaser in possession; it gives the purchaser a right to possession. Lighthouse Church, 889 S.W.2d at 603. (Emphasis added). If a mortgagor or another party who is not entitled to possession remains in possession of property following foreclosure, the purchaser’s remedy is a lawsuit, i.e., a forcible detainer action. Home Savings Ass’n. v. Ramirez, 600 S.W.2d 911 (Tex. Civ. App.—Corpus Christi 1980, writ ref ’d n.r.e.). Damages for wrongfully holding over following a foreclosure is the reasonable rental value of the property for the period the purchaser is deprived of possession. Donaldson v. Mansel, 615 S.W.2d 799 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref ’d n.r.e.).

E. Tenant at Sufferance/Tenant at Will

In the absence of an enforceable agreement, such as a lease or a contract to sell, a party in possession of property following foreclosure is generally at best a tenant at will or a tenant at sufferance, and at worst a trespasser. Fandey v. Lee, 880 S. W. 2d 164 (Tex. App.—El Paso 1994, no writ). In addition, unless there is a separate contractual agreement to the contrary, such as a non-disturbance and attornment agreement, a non-judicial foreclosure terminates a lease or other contractual right that was executed after the recorded deed of trust lien, or one that is contractually subordinated to a deed of trust lien. United General Insurance Agency of Midland, Inc. v. American National Insurance Co., 740 S.W.2d 885 (Tex. Civ. App.—El Paso 1987, no writ). A purchaser at a foreclosure sale will therefore generally be entitled to possession, after notice and demand, by showing sufficient evidence of ownership to demonstrate a superior right to immediate possession. Goggins v. Leo, 849 S.W.2d 373 (Tex. App.—Houston [14th Dist.] 1993, no pet.). Conversely, a foreclosure sale, in the absence of a contractual subordination, generally will not terminate a lease or other contractual right executed prior to the recordation of a deed of trust lien, and the party is entitled to remain in possession of the property. F. Groos & Co. v. Chittam et al., 100 S.W.1006 (Tex. Civ. App. 1907, no writ). But see, M.D. Fleetwood v. Med Center Bank, 786 S.W.2d 550 (Tex. Civ. App.—Austin 1990, writ denied).

Most deeds of trust provide that a party remaining in possession of property following a foreclosure of a lien superior to the rights of the party becomes a “tenant at sufferance.” It is settled that such a provision is valid as between a mortgagor and mortgagee. Criswell v. Southwestern Fidelity Life Insurance Company, 373 S.W.2d 893 (Tex. Civ. App.—Houston 1963, no writ). A “tenant at sufferance” is distinguishable from a “tenant at will.” A tenant at will occupies the property with the permission of the owner for no fixed term, Robb v. San Antonio St. Ry., 82 Tex. 392, 18 S.W. 707 (Tex. 1891). A tenant at will has no certain nor sure estate; the lessor may put a tenant at will out at any time. A tenant at will, in contrast to a tenant at sufferance, possesses the property with the owner’s consent. Emerson v. Emerson, 35 S.W. 425 (Tex. Civ. App.—San Antonio 1896, no writ.)

A tenant at sufferance is a lesser possessory estate. A tenant at sufferance is merely an occupant in naked possession of property. Goggins, 849 S.W.2d at 377). A tenancy at sufferance is one who wrongfully continues in possession of property after the tenant’s right to possession has ceased and does not assert a claim to superior title. A tenant at sufferance is not in privity with the owner and possesses no interest capable of assignment. Id. (no privity); Griffin v. Reynolds, 107 S.W.2d 634 (Tex. Civ. App.—Texarkana 1937, writ dism’d) (not assignable).

F. What is “Immediately Surrender Possession?”

“Immediately” means without interval of time, without delay, straightway, or without any delay or lapse in time. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex. 1966); American Central Ins. Co. v. Crespi and Co., 218 S.W.2d 269 (Tex. Civ. App.—Austin 1949, no writ); Black’s Law Dictionary, 674 (5th ed. 1979). The word “immediately” is stronger than the expression “within a reasonable time” and implies prompt, vigorous action without any delay. Id. Regardless of its definition, “immediate” is a relativistic term that does not necessarily or even suggestively establish a certain date for anything. Texas Farmers Insurance Co. v. Hernandez, 649 S.W.121 (Tex. App.—Amarillo 1983, writ ref ’d n.r.e.).

To “surrender” means to give back, to yield, to render up, to restore. Black’s Law Dictionary, 1295 (5th ed. 1979). Surrender differs from “abandonment” as applied to leased premises, inasmuch as the latter is simply an act on the part of the lessee alone; but to show a surrender, a mutual agreement between the lessor and lessee that the lease is terminated must be clearly proved. Id. To constitute a surrender of a lease there must be a mutual agreement between the lessor and the lessee. Early v. Isaacson, 31 S.W.2d 515 (Tex. Civ. App.— Amarillo 1930, writ ref ’d); Crawford v. Haywood, 392 S.W.2d 387 (Tex. Civ. App.—Corpus Christi 1965, no writ). A surrender by operation of law may be effected through the abandonment of the premises by the tenant and re-entry by the landlord. Dearborn Stove Company v. Caples, 149 Tex. 563, 236 S.W.2d 486 (1951). “Possession” means custody and control, the having, holding or detaining of property in one’s power or control; it is that condition of facts under which one can exercise his power . . . to the exclusion of all other persons. The Citizens First Natl Bank of Tyler v. Rushing, 433 S.W.2d 741 (Tex. Civ. App.—Tyler 1968, no writ). From a criminal context, “possession” means the exercise of control, management or care over the thing allegedly possessed. Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005).

G. What is “Occupying, Vacating and/or Abandoning the Property?”

For someone to occupy property does not necessarily mean that the person must actually live in it. Kelly-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462 (Tex. 1998) (“occupy” means “to hold or keep for use”); Am. Guarantee and Liab. Ins. Co. v. 1906 Co., 273 F.3d 605 (5th Cir. 2001). A tenant has vacated the premises when the tenant is no longer occupying the premises, and the tenant has removed all or substantially all of the tenant’s property from the premises. Knoff v. U.S. Fidelity, 447 S.W.2d 497 (Tex. Civ. App.—Houston, 1969, no writ). Intent is not required to establish that a tenant has vacated the premises. Scott Properties v. Wal-Mart, 138 F.3d 571 (5th Cir. 1998). If there is a substantial amount of tenant’s personal property in the premises, the tenant has not vacated the premises. In Phoenix Assurance Co., Ltd. of London v. Shephard, 137 S.W.2d 996 (Tex. Com. App. 1940), the Court, in considering whether the property was “vacant” at the time of a fire, held that the term “vacant” means “an entire abandonment, deprived of contents, empty.” The Court went on to hold that although the property was not occupied by persons, the property was not vacant because the occupant had left behind some furniture and articles of clothing.

An abandonment is the intentional relinquishment of the premises without vesting ownership in any particular person. Shahan v. N. Tex. Traction Co., 266 S.W. 850 (Tex. Civ. App.—Austin 1924, writ dism’d w.o.j.). Property is abandoned when the owner leaves it without any intent or expectation to regain it. Worsham v. State, 120 S.W. 439 (1909). Mere cessation of use is not sufficient to show an abandonment. The relinquishment must be voluntary, absolute and amount to a total desertion. City of Anson v. Arnett, 250 S.W.2d 450, 454 (Tex. Civ. App.—Eastland 1952, writ ref ’d n.r.e.). A person does not abandon property merely by leaving it. Lucky v. Fidelity Union Life Ins. Co., 339 S.W.2d 956 (Tex. Civ. App.— Dallas, 1960, no writ). Abandonment is generally a fact question. Lopez v. State, 797 S.W.2d 272 (Tex. App.—Corpus Christi 1990, writ denied).

There is no statutory definition of “abandonment” in a residential lease. A residence is a place where one actually lives or has a home. Owens Corning v. Carter, 997 S.W.2d 560 (Tex. 1999). Texas Courts generally hold that a landlord, in order to prove abandonment in a residential lease, must show an intent on the tenant’s part to leave and not return, rather than mere non-use alone, unless the nonuse is long, continued and unexplained. PRC Kentron Inc. v. First City Center Associates, II, 762 S.W.2d 279 (Tex. Civ. App.—Dallas 1988, writ denied). The term “abandon” means “[t]o give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connections with or concern in; to desert.” Railroad Comm’n of Tex. v. Waste Mgmt. of Tex., Inc., 880 S.W.2d 835 (Tex. App.—Austin 1994, no writ). PROP. CODE §93.002(d) provides that a commercial tenant is presumed to have abandoned the premises if goods, equipment or other property, in amounts substantial enough to indicate a probable intent to abandon the premises, is being or has been removed from the premises and the removal is not within the normal course of the tenant’s business. A “commercial rental property” is rental property that is not residential rental property. PROP CODE §93.001(b). A landlord may remove and store any personal property of a tenant that remains on the premises that are abandoned. PROP. CODE §93.002 (e). A landlord may dispose of the stored personal property if the tenant does not claim the personal property within 60 days after the date the personal property is stored. Id. A landlord must deliver by certified mail to the tenant at the tenant’s last known address a notice stating that the landlord may dispose of the tenant’s property if the tenant does not claim the personal property within 60 days after the date the property is stored. Id.

V. FORCIBLE DETAINER ACTION

A. Proceeding to Determine Right to Immediate Possession

A forcible detainer action, commonly referred to as an eviction proceeding, is the principal remedy available to a purchaser following a non-judicial foreclosure sale to remove unwanted occupants, and any personal property remaining on the property, if the deed of trust provides that the mortgagor, following foreclosure, becomes a tenant at sufferance, Rice v. Pinney, 51 S.W.3d 705 (Tex. App.—Dallas 2001, no pet.), or a tenant at will, Home Savings, 600 S.W.2d at 913. The procedure to determine the right to immediate possession of property, if there was no unlawful entry, is an action of forcible detainer. Haginas v. Malbis Memorial Foundation, 163 Tex. 274 (1962); Kennedy v. Highland Hills Apartments, 905 S.W.2d 325, (Tex. App.—Dallas 1995, no writ); Anarkali Enterprises, Inc. v. Riverside Drive Enterprises, Inc., 802 S.W.2d 25 (Tex. App.—Fort Worth 1990, no writ). A forcible detainer action was created by the legislature to provide a summary, speedy and inexpensive remedy (or at least it is supposed to be) for determination of who is entitled to possession of property. Fandey, 880 S.W.2d at 168; Johnson v. Fellowship Baptist Church, 627 S.W.2d 203 (Tex. App.—Corpus Christi 1981, no writ). A forcible detainer action must be based on a landlord-tenant relationship. Aguilar v. Weber, 72 S.W.3d 729 (Tex. App.—Waco 2002, no pet.); Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169 (Tex. App.— Houston [1st Dist.] 1995, writ denied); Haith v. Drake, 596 S.W.2d 194 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref ’d n.r.e.); Dent v. Pines, 394 S.W.2d 266 (Tex. Civ. App.—Houston 1965, no writ). The statutes and rules for a forcible detainer action are chapter 24 of the Texas Property Code, and rules 738 through 755 of the Texas Rules of Civil Procedure.

Under PROP. CODE §24.002(a)(2), “[a] person who refuses to “surrender possession” (emphasis added) of real property on written demand commits a forcible detainer if the person . . . is a tenant at will or by sufferance, including an occupant at the time of foreclosure of a lien superior to the tenant’s lease[.]” The courts have held that a forcible detainer action is dependent on proof of a landlord- tenant relationship. Haith, 596 S.W.2d at 196. A notice to vacate is considered a demand for possession. PROP. CODE §24.005(h).

If the occupant is a tenant at will or by sufferance, the purchaser must provide the occupant at least three days’ written notice to vacate before filing a forcible detainer action unless the parties have contracted for a shorter or longer notice period in a written agreement. PROP. CODE §24.005(b). If a building is purchased at a trustee’s foreclosure sale under a lien superior to the occupant’s lease, and the occupant timely pays rent and is not otherwise in default under the occupant’s lease after foreclosure, the purchaser must give a residential occupant of the building at least 30 days’ written notice to vacate if the purchaser chooses not to continue the lease. Id. An occupant is considered to timely pay rent if, during the month of the foreclosure sale, the occupant pays the rent for that month to the landlord before receiving any notice that a foreclosure sale is scheduled during the month or pays the rent for that month to the foreclosing lienholder or the purchaser not later than the fifth day after the date of receipt of a written notice of the name and address of the purchaser that requests payment. Id. The notice to vacate may be given in person or by mail at the property. Notice in person may be by personal delivery to the tenant or any person residing at the property who is sixteen years of age or older or personal delivery to the property and affixing the notice to the inside of the main entry door. Id. §24.005(f ). Notice by mail may be by regular mail, by registered mail, or by certified mail, return receipt requested, to the property. If the property has no mailbox and has a keyless bolting device, alarm system or dangerous animal that prevents the purchaser from entering the property to leave the notice to vacate on the inside of the main entry door, the purchaser may securely affix the notice on the outside of the main entry door. Id. The notice period is calculated from the day on which notice is delivered. Id. §24.005(g).

Jurisdiction of forcible detainer actions is expressly given to the justice court of the precinct where the property is located, and on appeal, to county courts for a trial de novo. Id. §24.004; Goggins v. Leo, 849 S.W.2d at 375; Home Savings, 600 S.W.2d at 913. In a forcible detainer action the parties may represent themselves or be represented by their authorized agents, who need not be attorneys. PROP. CODE §24.011. A final judgment in the county court may not be appealed on the issue of possession unless the property is used for residential purposes only. Id. §24.007. The sole issue in a forcible detainer suit is who has the right to immediate possession of the property. Rice, 51 S.W.3d at 709); TEX. R. CIV. P. 746 (Vernon 1967 & Supp. 2006). To prevail in a forcible detainer action, a plaintiff is not required to prove title, but is only required to show sufficient evidence of ownership to demonstrate a superior right to immediate possession. Id. (citing Goggins, 849 S.W.2d at 377).

At the time a plaintiff files a forcible detainer action, or at any time before final judgment in the justice court, a plaintiff may execute and file a possession bond. TEX. R. CIV. P. 740 (Vernon 1967 & Supp. 2006 ). The purpose of the bond is to gain possession of the property, with the aid of a constable or sheriff, after six days from the date the occupant receives notice of the bond. Id. If a possession bond is filed, the justice court must notify the occupant, among other things, that the occupant may file a counterbond within six days and remain in possession. Id.

B. Writ of Possession

A purchaser who prevails in a forcible detainer action is entitled to a judgment for possession of the property, authorizing the justice court to issue a writ of possession. PROP. CODE §24.0061(a). An order of possession, without the issuance and execution of a writ of possession, however, does not entitle the purchaser to take possession. Brown v. City of Dallas, 549 S.W.2d 787 (Tex. Civ. App.—Waco 1977, no writ). A writ of possession may not be issued before the sixth day after the date the judgment is rendered, unless a possession bond has been filed and approved under the Texas Rules of Civil Procedure, and judgment for possession is thereafter granted by default. PROP. CODE §24.0061(b); TEX. R. CIV. P. 748 (Vernon 1967 & Supp. 2006). The court must notify an occupant in writing of a default judgment for possession by sending a copy of the judgment to the property by first class mail not later than 48 hours after the entry of the judgment. PROP. CODE §24.0061(c). If a forcible detainer judgment in the justice court is appealed to county court, a writ of possession, following judgment, may be issued by the clerk of the county court according to the judgment rendered at any time after the expiration of two days from the rendition of the judgment, and the writ of possession may not be suspended or superceded in any case by appeal from the final judgment in the county court unless the property is the principal residence of a party. TEX. R. CIV. P. 748, 755 (Vernon 1967 & Supp. 2006). A judgment of a county court may not under any circumstances be stayed pending appeal unless, within 10 days of the signing of the judgment, the appellant files a supercedeas bond in an amount set by the county court. PROP. CODE §24.007. In setting the supercedeas bond the county court shall provide for the protection of the appellee as in any other appeal, taking into consideration the value of the rents likely to accrue during appeal, damages which may occur as a result of the stay during appeal, and other damages or amounts as the court may deem appropriate. Id.

A writ of possession orders the officer executing the writ to post a written warning of at least 8 ? by 11 inches on the exterior of the front door of the property notifying the occupant that the writ has been issued, and that the writ will be executed on or after a specific date and time stated in the warning not sooner than 24 hours after the warning is posted. Id.

§24.0061(d)(1). A writ of possession also directs the executing officer when the writ is executed: (i) to deliver possession of the property to the purchaser; (ii) to instruct the occupant and all persons claiming under the occupant to leave the property immediately, and if the occupants fail to comply, to physically remove the occupant and all persons claiming under the occupant from the property; (iii) to instruct the occupant to remove or allow the purchaser, the purchaser’s representative or other persons acting in the officer’s supervision to remove all personal property from the property other than personal property claimed by the purchaser; (iv) except in inclement weather (raining, sleeting, or snowing), to place or have an authorized person place, the removed personal property outside the property at a nearby location, but not blocking a public sidewalk, passageway, or street; and (v) at the officer’s discretion, authorize the officer to engage the services of a bonded or insured warehouseman to remove and store, subject to applicable law, part or all of the personal property at no cost to the purchaser or the officer executing the writ. Id. §24.0061(d)—(e). The officer may not require the owner to store the personal property. Id. §24.0061(f ). Neither the purchaser, nor the officer executing the writ, is required to stand guard over the removed personal property until it is retrieved by its owner, nor do either of them, under the forcible detainer statutes, have any duty to ensure that the removed personal property is not damaged. Campos v. Investment Management Properties, Inc., 917 S.W.2d 351 (Tex. App.—1996 San Antonio, writ denied). An officer executing the writ of possession is not liable for damages resulting from a proper execution of the writ if the officer executes the writ in good faith and with reasonable diligence, and the officer may use reasonable force in executing the writ. PROP. CODE §24.0061(g)—(h).

C. Warehouseman’s Lien

If the personal property is removed from the property and stored in a bonded or insured public warehouse, the warehouseman has a lien on the removed personal property to the extent of any reasonable storage and moving charges incurred by the warehouseman, but the lien does not attach until the personal property has been stored by the warehouseman. Id. §24.0062(a). An occupant may redeem any personal property left at the property, without payment of moving or storage charges to a warehouseman, on demand, during the time the warehouseman is removing the personal property from the property and before the warehouseman permanently leaves the property. Id. §24.0062(d). If the removed personal property is to be stored in a public warehouse, the officer executing the writ of possession shall deliver in person to the occupant, or send by first class mail to the occupant’s last known address not later than 72 hours after execution of the writ if the occupant is not present, a written notice, underlined or in boldfaced print, Id. §24.0062(c), stating the complete address and telephone number of the location at which the removed personal property may be redeemed, Id. §24.0062(b), and advising the occupant of the conditions under which the occupant may redeem some or all of the personal property. Id. Within 30 days from the date of storage, the occupant may redeem certain personal property on demand following payment of the moving and storage charges reasonably attributable to the redeemed items. Id. §24.0062(e)—(f ). After the 30-day period and before sale, an occupant may redeem the removed personal property on demand and on payment of all moving and storage charges. Id. §24.0062(g).

A warehouseman may sell the removed personal property that is subject to the lien following the warehouseman’s compliance with the procedures set forth in TEX. BUS. & COM. CODE ANN. (Vernon 2002 & Supp. 2005) §7.210, §§9.401—9.409, and §§9.601—9.628, PROP. CODE §24.0062(j); however, an occupant, before the sale of the removed personal property, may file suit to recover any removed personal property required to be returned to the occupant on the ground that the purchaser or the warehouseman failed to return the removed personal property following the occupant’s compliance with any conditions precedent to the return of the removed personal property, or on the ground that the amount of the warehouseman’s moving or storage charges are not reasonable. Id. §24.0062(i).

D. Attacks on Removal of Person Property

Writs of possession involving the removal and storage of an occupant’s personal property have been attacked on constitutional grounds. In Merritt v. Harris County, 775 S.W.2d 17 (Tex. App.— Houston [14th Dist.] 1989, writ denied), the court concluded, however, that the constitution does not require separate notice that the result of losing a forcible detainer action, coupled with a failure to remove personal property from the property, could be the storage of goods. The storage of goods for a fee, according to the court, is a better solution than leaving the occupant’s personal property on the street.

E. Effect of Forcible Detainer Action Judgment

A judgment awarding possession in a forcible detainer action is not a bar to an action for trespass, damages, waste, rent or mesne profits. PROP. CODE §24.008. In addition, a subsequent suit by an occupant for wrongful eviction is not precluded by a forcible detainer judgment. Johnson v. Highland Hills Drive Apartments, 552 S.W.2d 493 (Civ. App.—Dallas 1977), ref ’d n.r.e.), 568 S.W.2d 661 (Tex. 1978); Anarkali Enterprises, 802 S.W.2d at 27.

VI. SUMMARY OF READY REALTOR’S CAUSES OF ACTION

A. Trespass to Real Property

Trespass to real property occurs when a person enters another’s land without consent. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827 (Tex. App.—Dallas 2000, no pet.); Rowland v. City of Corpus Christi, 620 S.W.2d 930 (Tex. App.- Corpus Christi 1981, writ ref ’d n.r.e.). Every unauthorized entry is a trespass even if no damage is done. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819 (Tex. 1997). Trespass requires only proof of interference with the right of possession. Cargal v. Cargal, 750 S.W.2d 382 (Tex. App.—Fort Worth 1988, no writ).

B. Trespass to Personal Property

Trespass to personalty is an injury to, or interference with, possession of the personal property, unlawfully, with or without the exercise of physical force. Mountain States Tel. & Tel. Co. v. Vowell Constr. Co., 161 Tex. 432, 341 S.W.2d 148 (1960); Jamison v. Nat’l Loan Investors, L.P., 4 S.W.3d 465 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). Destruction of, or injury to, personal property, regardless of negligence, may be a trespass. Mountain States Tel. & Tel. Co. v. Vowell Constr. Co., 161 Tex. 432, 341 S.W.2d 148 (1960); Jamison, 4 S.W.3d at 469.

C. Conversion

Conversion is established by proving that: (i) plaintiff owned, had legal possession of, or was entitled to possession of, the personal property; (ii) defendant assumed and exercised dominion and control over the personal property in an unlawful and unauthorized manner, to the exclusion of and inconsistent with plaintiff ’s rights; and (iii) defendant refused plaintiff ’s demand for return of the personal property. Huffmeyer v. Mann, 49 S.W.3d 554 (Tex. App.—Corpus Christi 2001, no pet.).

D. Bailment Obligation

Bailment relationships may be governed by principles of contract or negligence. Nelson v. Schanzer, 788 S.W.2d 81 (Tex. App.—Houston [14th Dist.] 1990, writ denied); Anchor Cas. Co. v. Robertson Transport Co., 389 S. W. 2d 135 (Tex. Civ. App.—Corpus Christi 1965, writ ref ’d n.r.e.). For a bailor-bailee relationship to exist, there must generally be (i) a contract, either express or implied, (ii) delivery of personal property to the bailee, and (iii) acceptance of the personal property by the bailee. Nelson v. Schanzer, 788 S.W.2d 81 (Tex. App.—Houston [14th Dist.] 1990, writ denied). A bailment may arise by implication of law, if proof of sufficient circumstances shows the implied relationship of bailor and bailee rests upon a substantive foundation. Nelson v. Schanzer, 788 S.W.2d 81 (Tex. App.— Houston [14th Dist.] 1990, writ denied).Nelson v. Schanzer, 788 S.W.2d 81 (Tex. App.—Houston [14th Dist.] 1990, writ denied). In an implied bailment, it is not necessary that delivery and acceptance be formal. Shamrock Hilton Hotel v. Caranas, 488 S. W. 2d 151 (Tex. Civ. App.— Houston [14th Dist.] 1972, writ ref ’d n.r.e. The element of acceptance of the personal property and of the responsibilities accompanying the relationship may be proved directly or circumstantially. Sanroc Co. Int’l v. Roadrunner Transp. Inc., 596 S.W.2d 320 (Tex. Civ. App.—Houston [1st Dist.] 1980, no writ). Knowingly taking personal property into possession or control is a sufficient acceptance and may suffice to establish an implied bailment. Rust v. Shamrock Oil & Gas Corp., 228 S.W.2d 934 (Tex. Civ. App.—Amarillo 1950, no writ).

E. Negligence

The common law doctrine of negligence consists of the following elements: (i) a legal duty owed by one person to another; (ii) a breach of that duty; and (iii) damages proximately resulting from the breach. Van Horn v. Chambers, 970 S.W.2d 542 (Tex. 1998). Assuming the care, custody and control of personal property is tantamount to a bailment, where a duty of ordinary care normally arises. Allright, Inc. v. Elledge, 515 S.W.2d 266 (Tex. 1974). A bailee’s standard of care is the care a reasonable and prudent person would use in protecting bailor’s property. Jack Boles Servs., Inc. v. Stavely, 906 S.W.2d 185 (Tex. App.—Austin 1995, writ denied).

VII. CONCLUSION

If there is any doubt that a mortgagor, or a party claiming under mortgagor, actually surrendered possession of the property after the foreclosure sale, and there is personal property left on the property, a prudent purchaser is well advised to institute a forcible detainer action and obtain a judgment and writ for possession pursuant to the Texas forcible detainer statutes and rules before removing any personal property from the property.

FREDERICK J. (“Fred”) BIEL, an Atlas & Hall partner since 1989, represents clients in real estate law, including the sale and acquisition of improved and unimproved land, commercial and residential real estate development, mortgage lending, foreclosures and loan re-structurings, commercial retail, office and industrial leasing, residential and commercial construction, real estate brokerage and management, residential and commercial property owners associations, condominium development, government regulation and approval of residential and commercial subdivisions, farm and ranch matters, and entity formation and structuring. Prior to joining Atlas & Hall, Fred’s practice included government service as general counsel to the Commissioner and Board for the Texas Department of Human Resources, County Attorney for Bee County, Texas, and Municipal Prosecutor for the City of Beeville, Texas. From 1983 through 1987 Fred was a partner in the Beeville, Texas law firm of Morrill, Patton & Biel. Fred received B.B.A. and J.D. degrees in 1973 from Baylor University. He was admitted to practice law in Texas in 1973.

Texas Paralegal Journal © Copyright 2006 by the Paralegal Division, State Bar of Texas.

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