A Guide to Eviction Prevention Presented by Farah Majid, Staff Attorney

Legal Services Alabama – Mobile Office

February 14, 2013

Overview

Introduction

The Basics: What Every landlord should

know Landlord’s obligations

Tenant’s obligations

Changes to Housing Law in Alabama: The

New Uniform Landlord Tenant Act

Sources of Law

The Uniform Residential Landlord and Tenant Act* (URLTA)

Alabama Uniform Residential Landlord and Tenant Act

Alabama enacted it’s first statewide Landlord tenant law, Alabama Uniform Residential Landlord and Tenant Act in 2006. the Act adopts many of the provisions of the URLTA

URLTA changed in Alabama in 2011

Introduction

Anyone who rents housing to the public for

commercial purposes subjects herself to various state

and federal Landlord-Tenant laws

A lease agreement can be oral or written. A lease gives a tenant the temporary right to exclusively possess the property

Oral agreements may not be enforceable UNLESS the lease is for a term of one year or less.

General Obligations Landlords are obligated to:

Make property habitable before tenants move in

Make reasonable repairs

Make and pay for repairs due to ordinary wear and tear

Refrain from turning off a tenant's water, electricity or gas

Provide written notice to tenants when ownership of the

property is transferred to a new landlord

Not unlawfully discriminate

Give proper notice of a lease termination

File papers in District Court and get an eviction order and

writ of possession for an eviction to be legal

Lease Agreements MUST:

Express intent to establish the lease

Provide for transfer of possession to the Tenant

Describe the property

Indicate length of the term, amount of rent, when and where

rent is to be paid

CANNOT:

Waive habitability: A Lease is prohibited when

property is not in compliance with local building codes

Violate Laws: Landlords cannot lease in violation of

state laws (gambling) or federal laws (discrimination)

Lease Agreements Prohibitions URLTA §35-9A-163 sets the following lease prohibitions:

(1) waiving the landlord's duty to maintain the premises*

(2) waiving the tenant's rights when the landlord breaches the lease or violates the law

(3) waiving the landlord's duty to make utilities available

(4) waiving requirements concerning security deposits

(5) authorizes any person to confess judgment on a claim arising out of the rental

agreement

(6) agrees to pay the landlord's attorney's fees or cost of collection; or

(7) agrees to the exculpation or limitation of any liability of the landlord arising under

law or to indemnify the landlord for that liability or the costs connected therewith

What this means to you: A landlord cannot include any of the above

prohibitions in a lease. If a current lease contains any of the above

prohibitions it is not in accordance with the law and should be changed*

RENT

Rent is a Tenant’s payment to the Landlord for the

Tenant’s occupancy or use of the Landlord’s real

property.

Late Charges

Late charges are legal, if set at a reasonable amount

Rent Escalation

Rental escalation is NOT legal unless provided in lease, or at

termination of lease and beginning of new lease.

Property taxes

A Landlord is usually responsible for property taxes and does

not fall under rent.

Security Deposits

Security Deposits

Landlord may retain for non-payment of rent or damage

to premises

Ala Code §35-9A-201(a): A landlord may not demand or

receive money as security in an amount in excess of one

month’s periodic rent except for pets, changes to the

premises or increased liability risks to the landlord or

premises for tenant’s obligations under a rental

agreement.

Security Deposit cont’d

When the lease period is over the money held by the landlord

as security may be applied to the payment of accrued rent and

the amount of damages which the landlord has suffered which

all should be itemized by the landlord in a written notice and

delivered to the tenant with the amount due 35 days after

termination of the tenancy and delivery of possession by the

tenant*

What this means to you: If the landlord fails to comply with

the law or fails to return any prepaid rent required to be paid

to the tenant within the time required under the statute the

landlord is liable for double the amount of the tenant’s

original deposit: Ala. Code §35-9A-201 (f)*

Lease Termination

Leases can be terminated by: Notice: How much notice depends on lease or term

(proper notice required by landlord will be discussed)

Release and Merger: this happens when a tenant becomes owner (Must be in writing)

Surrender by Agreement: When parties agree to terminate early (Must be in writing)

Abandonment: When a tenant abandons the property there is an automatic termination

Fraud Termination: When a tenant makes

an intentional misrepresentation on the lease

Proper Lease Termination Notices Know how much notice you must give the tenant: In a residential

lease you must give a seven day notice for non-payment of rent but any

other breach of the lease requires a 14 day notice. If there is no breach of the

lease, the notice could be 30 days or more depending on the wording of

your lease.

Make sure your notice spells out the reason for the termination

and the address of the property: The notice should explain exactly

what default must be cured, so that the tenant has an opportunity to fix the

problem. In the event that the tenant is unable to fix the problem, the judge

will also need to know that the notice was served on the right person, at

the right address. If the addresses do not match, you may have to submit

an affidavit to the Court explaining which version of the address is correct.

Proper Lease Termination

Notices Cont’d Make sure service is proper: In Alabama, typically a

landlord must give notice by handing the tenant the notice

personally or posting the notice on the door and mailing

another copy to the tenant

Make sure you keep a copy of the notice and any certified

mail receipts: If a tenant denies receiving notice, make sure

you can prove that you followed the law

Wait until the entire notice period expires before taking

any action: If you do not give the tenant the entire notice

period, your eviction will likely fail and you will have to start

the process over at the beginning.

Proper Notice

Landlords are required to give proper notice to avoid violating a tenant’s rights

Alabama law states the following: Service of process shall be made in accordance with the Alabama Rules of Civil Procedure, however, if a sheriff or process server is unable to serve the defendant personally, service may be had by delivering the notice to any person who is residing on the premises, or if after reasonable effort no person is found residing on the premises, by posting a copy of the notice on the door of the premises*

What this means to you: Personal notice is required for every eviction

Evictions Eviction occurs when Landlord:

Deprives Tenant of possession of the leased property; or

Interferes with this use or enjoyment of the property to the extent that Tenant cannot use or enjoy.

Constructive eviction occurs when Landlord: Breaches lease or covenant or quiet enjoyment; and

Makes it impossible for the Tenant to use and enjoy the property

What this means to you: Landlords cannot evict tenants by

- changing the locks

- cutting off the water or electricity

- moving the tenant’s belongings out of the rental property

.

Reasons for Evictions

There are three common reasons for which a

landlord evicts a tenant:

Non-payment of rent for any period of time

Refusal to move out after the lease expires

Breach of a lease term other than non-payment of

rent

General obligations of tenant

Tenants should:

Pay rent on time.

Use reasonable care and not damage property.

Properly dispose of garbage.

Refrain from taking on additional occupants or subleasing

without the landlord's written permission

Tenant is liable for destruction or abuse of the property.

Tenant not liable for normal wear and tear or depreciation in value over time.

Not Alter the Premises without a landlord’s consent

Landlords can give consent for fixtures to be removed once installed

Maintaining the Premises A landlord must comply with building and housing codes that

affect the health and safety of a tenant Ala. Code §35-9A-204(a)

Landlords must keep the common areas of rental property in a safe, clean condition, maintain good working order of electrical, plumbing, sanitary, heating, ventilating and air-conditioning systems and maintain means for garbage removal and provide running hot and cold water for rental property

Landlords have a duty to ensure the property is livable and cannot waive their right to maintain property

Landlord cannot waive the tenant’s remedies if there are non compliances involving the tenant’s health or safety

Tenant not liable for normal wear and tear or depreciation of property value over time.

Landlord’s Remedies

A Landlord may contact the Sheriff’s

Department for assistance with vacating the

property or making an tenant leave the

premise only after

(1) Giving proper notice

(2) Filing a proper eviction in court

(3) Securing a Court Order from a Judge

What Landlords should know about

the new Housing Laws

The new laws were effective August 1, 2011 and

change the following:

1. Time limitations

2. Tenant Consent for Entry to Make Requested Repairs

3. Consequences of Illegal Provisions in Rental Agreements

4. Attorney Fees Allowed Against Landlord and Tenant

There is also omitted language in the new law you should

be aware of

Time Limitations

Under old Ala. Code 35-9A-141(3) “day" meant calendar day unless otherwise specified*

Under new Ala. Code 35-9A-141(3) "day" meant calendar day, notwithstanding Rule 6 of the Alabama Rules of Civil Procedure; however, in any case where the application of a time period in this chapter consisting of a specific number of days results in the last day of that time period falling on a weekend or an official holiday, then the last day of that time period shall be considered the next official business day when the court is open.

What this means to you: Landlords should be mindful of the change in “day” and its effect on the 7 and 14 day notice required by law.

Time Comparisons Alabama Rules of

Civil Procedure

6(a)

Alabama Code

1-1-4

ARLTA

Day one is the day after the

event. If the event

happened today, then

tomorrow is day one

Day one is the day after

the event Likely the same. The

statute doesn’t say

If a time period is less than

seven days, don’t count

weekends and legal

holidays. If you have six

days to do something and

day one is Friday then day

two is Monday

All time periods count

the same and no special

rule for time periods less

than seven days

The new amendment to

ARLTA says “day” means

calendar day notwith-

standing Rule 6 of the

ARCP.

Time Comparisons ARCP 6(a) Alabama Code 1-1-4 ARLTA

If the last day is a

Saturday, Sunday or Legal

Holiday then the deadline

is the first business day

afterwards.

If the last day is a Sunday or

Legal Holiday then the

deadline is the first business

day afterwards(1)

If the deadline is a Saturday,

Sunday or official holiday,

then the deadline is the next

day afterwards on which the

courts are open.

New Years Day

Martin Luther King Jr. Birthday,

President’s Day, Memorial Day,

Independence Day, Labor Day,

Columbus Day, Veteran’s Day,

Thanksgiving Day, Christmas Day

+any other day appointed as a holiday

by President or Congress

+Any Day that is a holiday in

Alabama Code 1-1-8

New Years Day, Martin Luther King Jr.

Birthday, Robert E Lee’s Birthday,

George Washington’s Birthday, Thomas

Jefferson’s Birthday, Mardi Gras

(Mobile and Baldwin Counties only)

Confederate Memorial Day, National

Memorial Day, Jefferson’s Davis’

Birthday, Fourth of July, Labor Day,

Columbus Day, Fraternal Day, Veteran’s

Day, American Indian Heritage Day,

Thanksgiving (Thursday and Friday if

so designated by the Governor),

Christmas Day

All Official Holidays as listed

under Alabama Code 1-1-4

Tenant Consent for Entry to

make Requested Repairs

Ala. Code 35-9A-303(e) now states, “If a tenant requests repairs or

maintenance or improvements to a dwelling unit, the tenant shall

be deemed to have granted consent to the landlord to enter into the

dwelling unit and make the repairs, maintenance, or improvements

as requested by the tenant.”

What this means to you: once a landlord receives a requests to

make a repair, maintenance or improvement, you have the right to

enter the property. Although it is always best to call a tenant

before entry, if a landlord is unable to contact a tenant after the

request is made, the tenant is considered to have given consent for

the landlord to enter to do the work.

Consequences of Illegal Provisions in Rental

Agreements

The new Ala. Code 35-9A-163(b) substitutes "seeks

to enforce [an illegal provision]" for "deliberately

uses [an illegal provision]."

What this means to you: Landlords cannot

deliberately use an illegal provision in a rental

agreement. If a landlord attempts to enforce an

illegal provision a tenant can then bring legal action

If a tenant makes “an intentional misrepresentation of a

material fact in a rental agreement or application” then the

landlord can terminate the lease on 14 days notice. Ala. Code

35-9A-421(a)

What this means to you: If misstatement on an application

is not intentional (not fraudulent) it does not give a landlord a

right to terminate a lease in 14 days.

Consequences of Fraud in Rental

Agreement or Application

Attorney Fees Allowed against Landlord

and Tenant

Tenants are now entitled to fees for landlord's non-compliance.

Landlords are now entitled to fees for tenant’s non-compliance.

What this means to you: Landlords still cannot write an attorney’s fee clause into a rental agreement, however the statute now gives the right for both the landlord and the tenant to recover attorneys fees.

New Seven Day Notice

Tenant not entitled to Cure certain defaults

Pursuant to Ala. Code 35-9A-421(d) the landlord may now terminate the tenant for certain non-curable offenses on seven days notice including, but not limited to, the following:

1. Possession or use of illegal drugs in or around the property

2. Discharging a gun illegally

3. Assault

What this means to you: A tenant does

not have the right to cure after certain

offences are proven

Landlord Obligations in event of

Abandonment of Premises

Deleted the sentence: "If the landlord fails to use reasonable

efforts to rent the dwelling unit at a fair rental or if the

landlord accepts the abandonment as a surrender, the rental

agreement is deemed to be terminated by the landlord as of

the date the landlord has notice of the abandonment."

What this change means to you: A landlord should still use

reasonable effort to rent the dwelling after an abandonment,

but, there is no longer a termination of the lease assumption

once a landlord has notice of the abandonment

New Immigration Statute In September of 2011 the Beason-Hammon Alabama Taxpayer

and Citizen Protection Act (H.B. 56), an act which discourages

illegal immigration became effective

Under the new immigration law it was unlawful for a person to:

Harbor an alien unlawfully present in the United States by entering

into a rental agreement with an alien to provide accommodations,

if the person knows or recklessly disregards the fact that the alien

is unlawfully present in the United States.

What this means to you: A landlord can not rent to an undocumented alien. A landlord is not authorized to discriminate on the basis of national origin or language by the statute. A landlord can still be sued for discriminatory practices.

Changes to the Immigration Law

There have been recent changes to the immigration law and now a landlord may not be criminally prosecuted for unknowingly leasing an apartment to an unauthorized person; before the changes renting an apartment to an unlawfully present person could open the landlord up to harboring*

What that means to you: If a landlord unknowingly rents to an alien it may no longer be a crime, however, a landlord might not be able to compel payment of the rent or otherwise enforce the lease agreement since contracts with unauthorized immigrants are not enforceable if the landlord has knowledge the tenant is unlawfully present.

Remember:

Landlords should never attempt an eviction by

- changing the locks

- cutting off the water or electricity

- moving the tenant’s belongings out of the rental property

Landlords must give proper notice of an eviction and

Landlords must go to District Court to file a court order for

an eviction to be legal

A Landlord should never act outside of the law even if a

client has breached the lease. Doing so opens you up to legal

action

Questions

Prepared by: Jaffe Pickett Director of Training, Legal Services Alabama

The information and training is made possible through a

partnership between Legal Services Alabama and

Collaborative Solutions, Inc. with funding from the U.S.

Department of Housing & Urban Development (HUD)

Any use of materials, including reproduction, modification, distribution or republication, without the prior written consent of LSA or CSI is strictly prohibited

Contact information

35

Ashley Kerr

Collaborative Solutions, Inc.

P.O. Box 130159

Birmingham, AL 35213-0159

(205) 939-0411 x205

ashley@collaborative-solutions.net