A cause of action for “forcible entry and detainer” is not the same as a cause of action for “forcible detainer”. Many, including lawyers, use the two terms interchangeably, but they are not interchangeable. The former is governed by Texas Property Code Section 24.001 and the latter is governed by Texas Property Code Section 24.002 and they are distinguished based on the illegality or legality of the initial entry.
A forcible entry and detainer action is used to remove a person from a property who never had a right to be there. In other words, there was never a landlord-tenant relationship between the person entitled to possession of the property (the landlord) and the intruder/trespasser. It’s the procedure to recover possession of the property when another has forcibly obtained possession with no legal right to do so.
In contrast, a forcible detainer action is used to remove a person from a property that at one time had a right to possess the premises (such as a tenant). It’s the procedure to determine the right to immediate possession of real property if there was no unlawful entry. Typically, a landlord will bring a forcible detainer action to evict a tenant in situations where there is non-payment of rent, holding over by a tenant after expiration of the lease agreement, or other defaults under the lease agreement for which the landlord had the right to terminate the lease.
These two separate causes of action also have unique procedural requirements before bringing a lawsuit and differing evidentiary burdens for the plaintiffs. In a forcible entry and detainer lawsuit, the plaintiff must show that the defendant entered the real property of another without legal authority or by force, but no such showing is required in a forcible detainer lawsuit.
Section 24.001 (Forcible Entry and Detainer) provides that a person commits a forcible entry and detainer if the person enters the real property of another without legal authority or by force and refuses to surrender possession on demand. A forcible entry is defined as: (1) an entry without the consent of the person in actual possession of the property; (2) an entry without the consent of a tenant at will or by sufferance; or (3) an entry without the consent of a person who acquired possession by forcible entry.
Section 24.002 (Forcible Detainer) provides that a forcible detainer is committed by a person who refuses to surrender possession of real property on demand if the person is: (1) a tenant or subtenant willfully and without force holding over after the termination of the tenant’s right of possession; (2) 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; or (3) is a tenant of a person who acquired possession by forcible entry. The demand for possession must be made in writing by a person entitled to possession of the property and must comply with the requirements for notice to vacate under Texas Property Code Section 24.005.
Anyone that works in the real estate industry should understand the difference between these two causes of action when recovery of possession of a property is desired. An improperly brought claim could have devastating consequences, so it’s always best to consult an attorney that has the relevant expertise.
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