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Dwayne B.
Dwayne B., Attorney
Category: Real Estate Law
Satisfied Customers: 33926
Experience:  Began practicing law in 1992
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I was never served 3 day notice nor unlawful detainer.

Customer Question

I was never served 3 day notice nor unlawful detainer. Received 5 day notice to vacate. Went to quash won and set for trial for nuisance. I never done anything to be that owner just wants me gone. She has text messages I sent her 9 month ago where i came onto her also about other tenants who moved out 8-9 months ago. How can I be a nuisance to the owner who does not live there and nothing is continous by me. This is frivolous. What recourse i have court date 6/13? Will the judge dismiss this claim.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Dwayne B. replied 1 year ago.
Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms. I am going to be signing off in a few minutes but noticed no one had picked up on your question, I'll be back on first thing tomorrow morning. I need you to be more specific in your question(s) if you could. When we answer general ones like "What is my recourse" "what are my rights" or "what are my options" we have to give general answers and, invariably, the customer responds with "I already knew that". This type of forum works better if you ask specific questions so we know exactly what you are looking for.
Customer: replied 1 year ago.
The owner of the house is trying to evict me as for being a nuisance for sending her text messages about me coming onto her 8-9 months ago and does not want My rent just leave. I stop the 5 day vacate as I never received 3 day or unlawful detainer. Not sure what she means by nuisance but can she evict me as she does not live there and the tenants moved out 8 months ago. I keep to myself all the time i just state things via text not verbal. We go to court 6/13. It is hear say for the owner to say i was a nuiance about someone that never said i was and moved out 8 months ago? Does it has to be continuous behavior by me besides it was text messages an opinion of others attitude. No other tenant complaining but the owner who does not live there. How can I be a nuisance to the owner who does not live there. I am not a lawyer. Will this be thrown out or dismissed
Expert:  Dwayne B. replied 1 year ago.

Do you have a written lease? If fo, does it say anything in it about "nuisance" or anything similar?

Customer: replied 1 year ago.
There is no lease I been living here 3 three years.
Expert:  Dwayne B. replied 1 year ago.

What you are going to want to do is in your Answer to the petition you were served tell the court "Defendant hereby asserts the affirmative defenses of Laches, Estoppel, and Waiver."

You also have to get your signature notarized on the Answer so it is what is known as a "verified pleading". Those are the defenses you use to indicate she has waited too long to pursue the matter. There is also an article at http://texaslawhelp.org/resource/affirmative-defenses-guide-information-and-examples and at http://www.gaddywells.com/AFFIRMATIVE_DEFENSES.html

These articles describe what the affirmative defenses are. The articles are directed at Texas but the information on what affirmative defenses mean applies everywhere.

Customer: replied 1 year ago.
what form do I use
Expert:  Dwayne B. replied 1 year ago.

I'm sorry, we aren't allowed to tell you what specific forms to use. I can tell you it will be an Answer and you will add the sentence I discussed above.

It coudl also be called a Defendant's Answer or a Defendant's Original Answer.

Customer: replied 1 year ago.
Can she evict me while she does not live there? You can not be an owner and tenant as well and obtain tenant right
Expert:  Dwayne B. replied 1 year ago.

She is likely asserting just her owner's rights. Also, nuisance is a right almost anyone can assert, depending on how they assert the facts. It's similar to harassment and doesn't really require a ownership interest but it can.

Usually written leases have something in there that will cover this. However, you can certainly take the position that this isn't an "evictable cause of action".

Expert:  Dwayne B. replied 1 year ago.

She would then have to provide some basis in law for her actions.

Customer: replied 1 year ago.
Is there a statue against texting? If she did not like what I said she could change her number or block me. I was never warned all of this came out of no where. She is really reaching. She does not want my rent but to leave.
Expert:  Dwayne B. replied 1 year ago.

No, there's no statute against texting. However, it is not a duty of hers to change her number or block you so you don't want to use that argument with the judge.

The burden of proof is on her to prove you did something wrong and it's unlikely she can do that based on your facts.

Expert:  Dwayne B. replied 1 year ago.

There is a California statute against "cyberstalking" and there is an article on it at this link: http://www.shouselaw.com/cyberstalking.html

Texting is one of the ways to violate that statute but as you can see it doesn't mean all texting is illegal.

Customer: replied 1 year ago.
I did nothing wrong. This is just personal. All what she has is old text message back in Aug/Sept. I was not stalking her just giving my opinion on things. I am an opinionated person. I can not be a nuisance to her if we do not live in the same space.
Expert:  Dwayne B. replied 1 year ago.

Under the cyberstalking laws you can violate the laws and not live anywhere near her so you have to take that into consideration as well. However, if you haven't contacted her since Aug/September and she just recently filed I would think it is unlikely that the judge will evict you.

Customer: replied 1 year ago.
She filed in Feb/2016. She just do not like the way I talk which is my first amendment right. She has not basis for her claim nor reference of law. Besides there is nothing continuous by me to be a stalker. I do not have to stalk anyone
Expert:  Dwayne B. replied 1 year ago.

I understand your position and I wasn't saying you were stalking her, I was just reminding you that you have to take that law into account when you go to court. The claim that "I can not be a nuisance to her if we do not live in the same space" is incorrect and if that is your only defense you will lose.

However, yuo can win just by asserting that you were never notified it was bothering her, you stopped as soon as you were told, etc.

Customer: replied 1 year ago.
One last thing. Another lawyer stated the following.....It is important to remember that by definition a "nuisance" is something that interferes with someone's enjoyment of their own property (including a tenant's leasehold interest in property). Sometimes, a landlord will try to evict a tenant for creating a nuisance, but the only person who comes to testify is the landlord, and he does not live at the property. If that happens, there is no nuisance because the landlord cannot testify that other people in the building are annoyed (that's hearsay).
Expert:  Dwayne B. replied 1 year ago.

He is right to a point. The landlord could call other witnesses to prove that he is a nuisance of course. In this case, the landlord is going to claim that it is the connection between you by virtue of you being a tenant that is interfering with her quiet enjoyment of her own property. Nuisance does not require you live at the same place. Most nuisance suits are brought by landowners adjoining the other person's property and can be located a distance away. As I said, I don't think it will work, but it isn't as cut and dried as you might think.

Customer: replied 1 year ago.
The other people she talk about moved out 8-9 months ago.
Customer: replied 1 year ago.
If the text messages are between the owner and I how can it be a nuisance to others when I never complained to them directly.
Expert:  Dwayne B. replied 1 year ago.

SHe isn't likely to bring anyone as a witness under your facts and it isn't necessary since she doesn't, according to your facts so far, indicate you are harassing other people in the building.

Expert:  Dwayne B. replied 1 year ago.

It wouldn't be a nuisance to others.

Customer: replied 1 year ago.
Thank for your time. I do not believe she has case against me. She never said stop texting me throughout the three years I have been here. Nuisance has no recourse or cure is the reason she is using it. If she would have I would of stopped.
Expert:  Dwayne B. replied 1 year ago.

If she never told you to stop texting her then that is a strong point for your case. Also, she isn't allowed to talk about the texts unless she actually has them. They are hearsay although the judge may let them in as a "statement against interest" or "admission by a party opponent". Be sure they don't say it's a "statement by a party opponent" because that's not a real way to get stuff into evidence. They will try and combine the two together to get there.

Customer: replied 1 year ago.
She has the text messages but only what I said. Like a book with 20 chapters. She pull out 4 7 15 and 19.
Expert:  Dwayne B. replied 1 year ago.

You can object to them based on them being incomplete if they don't show what she said abck to you. The judge will probably let them in but you never know, he might strike them.

Also, consider picking up the book on trial objections at http://www.lessonsinlaw.com/the-guerrilla-guides-to-the-law/

It is very inexpensive and lists the majority of the objections you need to learn, as well as the responses, for most trials.