                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-11-00376-CV


ROBERT C. STEPHENS, JR.                                               APPELLANT

                                         V.

KEVIN WILLIAMS                                                          APPELLEE


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          FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

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                           MEMORANDUM OPINION1

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      This is an appeal from a judgment of possession in a forcible detainer

action. In his sole issue, appellant Robert C. Stephens, Jr. contends that the trial

court abused its discretion by concluding that appellee Kevin Williams was only

required to give Stephens three days’ notice prior to filing this action. We will

affirm.



      1
          See Tex. R. App. P. 47.4.
      The facts of this case are not in dispute. Williams purchased the property

in question at a tax foreclosure sale on March 2, 2011. Prior to the foreclosure,

Stephens was the owner of the property. After Williams purchased the property,

Stephens continued to reside at the property. Williams gave Stephens written

notice to vacate the property on June 15, 2011. Williams later filed this forcible

detainer action on June 27, 2011.

      The issue in this case is whether the trial court erred by finding that

Williams gave sufficient notice to Stephens prior to filing this action. Stephens

contends that he was entitled to thirty days’ notice. See Tex. Prop. Code Ann.

§ 24.005(b) (West Supp. 2012) (“If a building is purchased at a tax foreclosure

sale or a trustee’s foreclosure sale under a lien superior to the tenant’s lease and

the tenant timely pays rent and is not otherwise in default under the tenant’s

lease after foreclosure, the purchaser must give a residential tenant of the

building at least 30 days’ written notice to vacate if the purchaser chooses not to

continue the lease.”). Williams argues that the trial court correctly found that he

had given Stephens the statutorily required three days’ notice for a tenant by

sufferance. See id. (“If the occupant is a tenant at will or by sufferance, the

landlord must give the tenant at least three days’ written notice to vacate before

the landlord files a forcible detainer suit.”). We agree with Williams.

      A forcible detainer action is the procedure by which the right to immediate

possession of real property is determined.          See Cattin v. Highpoint Vill.

Apartments, 26 S.W.3d 737, 738–39 (Tex. App.—Fort Worth 2000, pet. dism’d


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w.o.j.). In a forcible detainer action, the only issue for the trial court to determine

is which party has the immediate right to possession of the property. Tex. R. Civ.

P. 746; Williams v. Bank of New York Mellon, 315 S.W.3d 925, 927 (Tex. App.—

Dallas 2010, no pet.).     The action is intended to be a speedy, simple, and

inexpensive means to obtain possession without resorting to an action on the

title.2 Marshall v. Hous. Auth. of the City of San Antonio, 198 S.W.3d 782, 787

(Tex. 2006). Proper notice is an element of forcible detainer. See Tex. Prop.

Code Ann. § 24.002 (West 2000), § 24.005 (West Supp. 2012).

      Subsection 24.005(b) of the Texas Property Code reads:

             If the occupant is a tenant at will or by sufferance, the landlord must
      give the tenant at least three days’ written notice to vacate before the
      landlord files a forcible detainer suit unless the parties have contracted for
      a shorter or longer notice period in a written lease or agreement. If a
      building is purchased at a tax foreclosure sale or a trustee’s foreclosure
      sale under a lien superior to the tenant's lease and the tenant timely pays
      rent and is not otherwise in default under the tenant's lease after
      foreclosure, the purchaser must give a residential tenant of the building at
      least 30 days’ written notice to vacate if the purchaser chooses not to
      continue the lease. The tenant is considered to timely pay the rent under
      this subsection if, during the month of the foreclosure sale, the tenant 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 at foreclosure not later
      than the fifth day after the date of receipt of a written notice of the name

      2
       In his brief, Stephens suggests that Williams’s friend fraudulently induced
Stephens into not paying taxes and took advantage of a “partnership” in order to
gain possession of the property. But a forcible detainer action is not the proper
vehicle to allege such a claim—any defects in the foreclosure process or the
purchaser’s title to the property may not be considered in a forcible detainer
action. See Shutter v. Wells Fargo Bank, N.A., 318 S.W.3d 467, 471 (Tex.
App.—Dallas 2010, pet. dism’d w.o.j.). Such defects must be pursued, if at all, in
a separate suit for wrongful foreclosure or to set aside the substitute deed. Id.


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      and address of the purchaser that requests payment. Before a foreclosure
      sale, a foreclosing lienholder may give written notice to a tenant stating
      that a foreclosure notice has been given to the landlord or owner of the
      property and specifying the date of the foreclosure.

Tex. Prop. Code Ann. § 24.005(b).

      In this case, the trial court found that Stephens was a tenant by sufferance

and that Williams gave Stephens proper three days’ notice. Citing canons of

statutory construction that stand for the proposition that a court should not give

one provision of a statute a meaning that is out of harmony or inconsistent with

other provisions within that statue, Stephens argues that “it is clear that the

Legislature intended the term ‘lease’ in 24.005(b) to encompass all rights of

possession that are extinguished by foreclosure sales.”       And, according to

Stephens, anyone who is in possession of property after a foreclosure sale is

entitled to thirty days’ notice. We conclude that Stephens is simply reading the

statute incorrectly.

      Subsection 24.005(b)’s notice provisions apply when the possessor of

property is a tenant at will or by sufferance. Id. The first sentence of 24.005(b)

provides the general rule for notice regarding tenants at will or by sufferance—

three days. Id. The remainder of subsection 24.005(b) defines an exception to

this general rule—the applicable notice required to be given tenants who become

tenants by sufferance when a lease is terminated by operation of law when the

landlord’s property is foreclosed upon and a lessee remains. See Russell v. Am.

Real Estate Corp., 89 S.W.3d 204, 208 (Tex. App.—Corpus Christi 2002, no pet.)



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(holding that tenants’ lease was terminated by foreclosure and that lessees

remained as tenants by sufferance entitled to the notice provisions of subsection

24.005(b)). Under this exception to the general rule, in addition to the property

being purchased at “a tax foreclosure sale or a trustee’s foreclosure sale,”

subsection 24.005(b) clearly states that it is applicable only when there is a

“residential tenant,” that the tenant is in possession of the property under a

“lease,” and that the tenant is “not otherwise in default under the tenant’s lease

after foreclosure.” Tex. Prop. Code Ann. § 24.005(b). Contrary to Stephens’s

construction of subsection 24.005(b), not every tenant by sufferance after a

foreclosure sale is entitled to thirty days’ notice. Only those who are “residential

tenant[s]” in possession of the property under a lease, and the lessee is not in

default under the terms of that lease are entitled to thirty days’ notice. Id. All

other tenants by sufferance are entitled to three days’ notice prior to the

complainant filing a forcible detainer. Id.

      In this case, Stephens was never a residential tenant and there was never

a lease. Stephens was the prior owner of the property who lost ownership of the

property at a tax foreclosure sale. Thus, the general rule provided in subsection

24.005(b) applies to this forcible detainer action; namely, Stephens remained on

the property as a tenant by sufferance and Williams was only required to give

Stephens three days’ notice prior to filing this action. Id. It is undisputed that

Williams provided Stephens with more than three days’ notice prior to filing this

action.   The trial court therefore did not abuse its discretion by finding that


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Williams had provided Stephens adequate notice. We overrule Stephens’s sole

issue and affirm the trial court’s judgment.




                                               BILL MEIER
                                               JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DELIVERED: August 2, 2012




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