Kira Fonteneau is a landlord tenant attorney primarily representing landlords. She will teach a course about Landlord/Tenant Law at Solo Practice University™.

Ms. Fonteneau is Licensed to practice law in Alabama, Georgia and Virginia, but focuses her practice in Alabama running The Fonteneau Firm, LLC. As part of her practice, Kira routinely and successfully represents clients from across the country with legal issues in Alabama in unlawful detainer, ejectment, premises liability and other disputes arising out of the landlord and tenant relationship. Ms. Fonteneau also advises her clients concerning landlord best practices to avoid tenant claims and protracted litigation.

She holds a Bachelor of Arts from The University of Virginia and a Juris Doctor from the University of Georgia School of Law.  Kira is also an accomplished speaker focusing her presentations on employment topics like the Family and Medical Leave Act, the Americans with Disabilities Act, Racial and Sexual Harassment, Proper Discharge Procedures and Leadership.

I will be teaching all about landlord and tenant law. In the class, I will discuss the benefits of adding landlord tenant to your practice, ways to attract landlord tenant clients and the nuts and bolts of the substantive law.  So if you are a lawyer or will be one soon,  I encourage you to become active in Solo Practice University.  I will see you there!

Today’s Question? My tenant’s utilities have been turned off. Can I re-take possession of the unit?

Retaking possession of a property can be a tricky situation.  Landlords who wish to  take possession when it is not clear that the tenant has vacated must weigh the risk of  a lawsuit for unlawful eviction with the lost time and income that can result from delay.  If you are considering retaking possession of your property because of abandonment of the premises, you should look at all the circumstances before taking any steps to remove your tenant’s belongings. The safest way to protect yourself from being sued for an unlawful eviction is to use the court system to retake possession, but sometimes landlords want to avoid using the courts because it can be time consuming.

If you are faced with the decision of whether to retake possession of your property it is probably a good idea to document your reasoning. Ordinarily, a landlord has no right to retake possession of the property just because a tenant has failed to maintain the utilities.  However,  disconnected utilities can be evidence that the tenant has abandoned the residence.  If you find that the utilities in your property have been disconnected, it may make sense to visit the property and talk to your tenant.  If your tenant is still actively living there, you probably do not have grounds to retake possession.  But, if you find that all of the utilities are shut off and the furniture has been removed, it may be appropriate to retake possession without resort to litigation.

If you decide to retake the possession because of abandonment, it is a good idea to document your reasoning. One way to do that would be to send your tenant a dated letter that explains that you have noticed that the property appears to be vacant and that any possessions left in the property will be discarded after 14 days.  The letter might also explain the reasons you have come to those conclusions and give the tenant a way to contact you to collect leftover possessions if you have changed the locks.

Remember, if you decide to retake possession without filing an eviction there is no way to ensure that your tenant will not sue you for unlawful eviction, but an ounce of prevention is always worth a pound of cure.

• Understand the fee structure: It goes without saying that you should consider the cost of the service in relation to the services offered.  Often managment companies charge 10% or more of the rental income on your properties.  You can also expect additional fees for the initial rental and maintenance costs.  Review the contract to ensure that you are not surprised by the cost of services.
• Review the rental companies proposed lease and termination notices: Ultimately, you are responsible if your manager is using outdated leases and termination notices.  Problems with these forms can cause you to lose precious time and money if your eviction proceeding is delayed or dismissed because of inadequate forms.
• Review their fair housing policies: All property managers should know that there are federal anti-discrimination laws that apply in housing rentals.  If a potential manager cannot answer your questions about the laws or openly makes discriminatory statements in your presence, you may want to think twice.
• Take a look at other properties the potential manager is currently handling.  Do they look well kept?  Is the yard maintained?  If the other properties in the manager’s portfolio look run down, you may want to look elsewhere. 
• How does the manager talk about the tenants? If a potential manager sees the tenants as the enemy, you may have future problems.  In my experience, when people have healthy relationships with the landlord or property manager, they tend to cooperate and pay the rent.  When the relationship breaks down or the tenant feels disrespected, it becomes harder to collect. 
• What are the manager’s policies with regard to scheduled maintenance and inspections?  It is a good practice to have quarterly walk throughs of your property to ensure that they are maintained.  While you are there, you can see the properties yourself and talk to your tenants if there are things that need repairing.  This is also a way to verify that the mainenance you were charged for was done in a satisfactory manner.

Under existing law, the provider of certain goods and services may require a landlord to pay the delinquent bill of a tenant for goods and services provided to the tenant of the landlord. This bill would prohibit the provider of goods and services from requiring a landlord or property owner to pay the delinquent bill of a tenant for goods or services provided to the tenant if the account for the service is in the name of the tenant.

A BILL
TO BE ENTITLED
AN ACTRelating to certain goods and services provided a tenant; to prohibit the provider of goods or services from requiring a landlord or property owner to pay the delinquent bill of a tenant for goods or services provided to the tenant if the account for the service is in the name of the tenant.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. The provider of goods or services may not require a landlord or property owner to pay the delinquent bill of a tenant for goods or services provided to the tenant of the landlord if the account for the goods or services is in the name of the tenant. In addition, the provider of goods or services shall not have a lien on the property for any goods or services provided in the name of the tenant.

Section 2. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

1. Know how much notice you must give the tenant. Some notice periods, like notice of termination after expiration of the lease, can often be found in your lease.  Others are found in the Code of Alabama.  For example, 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 as little as 30 days or more depending on the wording of your lease.
2. 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.
3. Give the notice the right way. 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.  Certified mail alone will probably not be enough to give proper notice.
4. Make sure you keep a copy of the notice and any certified mail receipts. It is common for tenants to deny receiving notice. Make sure you can prove that you followed the law.
   
5. Wait until the entire notice period expires before taking any action. If you do not give the tenant the entire notice period, there is a good chance your eviction will fail.  Be patient, or you may have to start over at the beginning.

What’s a landlord to do?

Nobody likes to see an episode of Cops being re-enacted on their property and it is assuredly upseting to see that a tenant has put your property at risk, but it is important to  realize that you must still follow the law with regard to the terms and conditions of the lease.  Here are a things to consider before taking any concrete action.

• If you are lucky enough to get to the property before the police leave, try to find out the nature of the offense without interfering with the police as they work.
• If you can, get the detective’s card and or a copy of the incident/offense tracking number so that you can secure a police report.
• Try to find out if the police have damaged the property so that you can take actions to repair the damage.  The police will not reimburse you for the damage to the property, but you may still have recourse against your tenant.
• If you have a camera with you take pictures of the damage so that you will have evidence if you need them for court.
• Once the police leave, determine if the door can be properly secured.  The Police have a tend to use methods of entry that could leave the door inoperable.  Sometimes they will remedy this by nailing the door shut for you.  Whatever happens, you should make sure that your property is secured.
• If you have to replace the door and the lock, leave a note for the tenant so that they know how to get in touch with you, if they make bond and need to get back in to the unit.  You do not have a right to remove the tenant immediately simply because they are arrested.

Once the drama has died down, as a landlord you are left with a decision about what to do next.  The first question is whether you would like to continue the landlord tenant relationship.  If you do not wish to continue the relationship you should assess whether you have grounds to evict the tenant or not. Hopefully, your lease addresses drug and criminal activity on the premises.  If it does not, consider including a provision prohibiting illegal activity of any kind in all of your leases and/or updating your rules to include similar provisions in the interim.

If the tenant does not return within a reasonable time because they are unable to make bond, consult the terms of your lease concerning abandonment and/or non-payment of rent.  If the tenant has not returned in time to pay rent, issue a timely notice of termination and immediately follow up with an eviction as soon as the termination notice expires. If the tenant has no plans to return or cannot be released, send a notice of termination based on the abandonment, wait 14 days and file an eviction.

But what happens if the tenant comes back?

If your tenant returns, it is important to remember that the tenant may not be guilty of any offense.  Have a conversation with the tenant about his or her future plans. Perhaps the offense was a misdemeanor with no real jail time likely to be imposed.  Remember that if the tenant is innocent and you do not evict them, you may gain a loyal tenant for years to come.

As more people begin to shy away from buying for fear that home values will continue to decrease and others enter the rental market because they cannot afford a mortgage or have been foreclosed upon, landlords stand to profit from a larger pool of prospective tenants.  As such, landlords who are financially able to increase their holdings will benefit and those who were once looking at empty units may now be fully occupied or able to increase rents.

All of this good news for Alabama landlords should also come with a word of caution.  Landlords should learn from the mortgage industry’s failure when it comes to investigating prospective tenants.  One of the causes of the mortgage industry bust was the failure to properly determine if borrowers were good credit risks.  Too many loans were given to people who simply could not afford the homes they were buying.  The result, as we all know now, was disaster.

The same risks exist for landlords who do not properly investigate their tenants before renting.  The best way to avoid an eviction is to properly screen applicants.  Failure to do so can be costly as unpaid rent and eviction costs mount.

Here are four tips for landlords who wish to take advantage of the housing crisis without taking unnecessary risk:

1. Require all prospective tenants to fill out an application.  The application should give you enough information to investigate rental history, income, credit and criminal background.
2. Call all references given on the application and be wary of people who have no rental history at all or long gaps,  Those gaps could mean that they are being untruthful, have spent time in prison or have been evicted.
3. Run credit checks on all prospective tenants.  There are many websites available that will run credit checks for you and then make a recommendation  about whether you should rent to an applicant or not.  Other sites will allow you to pull the credit reports directly and make your own decision.  The difference between the two is largely in the cost of start up and the amount of information you are willing to provide about yourself. The sites that provide recommendations are open to anyone, but direct access to credit reports requires the landlord to undergo a background check before being given access to credit files.  Running credit checks also means that the landlord must provide the applicant certain disclosures about the reason for a denial based on credit and an opportunity to view their credit report. The advantage to pulling your own credit and criminal history would be that there are some situations where the applicant has a good reason for having bad credit, like a medical crisis.  Which ever option you choose, credit checks are invaluable decision-making tools.
4. Get copies of all prospective tenant’s pay stubs for at least two months.  This allows you to evaluate whether the tenant can, in fact, afford the property.  You should always require the actual documents, because applicants may not always share their true income or their obligations.  This information also will help you determine where the applicant works, information you will be glad you had in the event that you later need to garnish their wages after an eviction.

What’s An Alabama landlord to do?

The first thing to do is to try to determine if the tenant is in the process of moving or has abandoned the property.  Obviously, if the tenant dropped off the keys to the unit, there isn’t much of a question as to the tenant’s intent. If the tenant simply left the property with no notice either by abandonment or because eviction was eminent, you may want to make an effort to determine whether the tenant intended to abandon the property.

Some things to consider would be:

• Whether there are expensive items that the tenant would probably take if they were moving.
• Whether the utilities are on.
• Whether the neighbors can give you an idea of how long it has been since the tenant has been on the property.
• Whether there is old mail in the mailbox addressed to the tenant.
• Whether the items left in the apartment have been moved  or the number of items has decreased since your last visit.

If you have satisfied yourself that the tenant has left the property, you have no duty to house the tenant’s belongings for more than 14 days. Once that period has passed, you may dispose of the property in any way that you see fit, including sale or discarding the items.  As always, if the removal of the tenant’s items causes you to spend money or resources to clean the property, you may, of course, deduct those expenses from any security deposit that may have been due the tenant.

A potential client called an attorney after he had obtained a judgment in District Court against a tenant and was scheduled to go before the Court to prove damages the next day.  The attorney got the call at 8:00 p.m.  the night before the hearing and first asked a few basic details about the case.  The first thing the attorney learned was that the damages were close to $45,000 and the unlawful detainer was filed in a court  that could only award him $10,000. The attorney advised the potential client that he needed to retain an attorney who would ask for a transfer to the correct court so that he could get a judgment for the full amount owed.  The potential client declined to do so.

A few weeks later, the attorney gets a call from the same potential client.  The client had decided not to pursue the transfer to the other court and as a result only had a $10,000 judgment.  The client was seeking to collect the judgment with a garnishment.  The potential client was calling because he had received a letter from the court that said his garnishment was being dismissed because he had not answered the defendant’s claim of exemption in a timely fashion.  He was ultimately unable to collect any of the money that was owed.

Some landlords must retain an attorney.

If you rental property company is incorporated or a limited liability company you must hire an attorney to file your eviction in Alabama. In Alabama, individuals always have the right to represent themselves in Court but only licensed attorneys may make appearances in court on behalf of others.  Corporations and limited liability companies are considered legal “people”  distinct from their officers, shareholders and/or members. That is because the purpose of these entities is to shield those people from personal liability for the debts or responsibilities of the business. As a result, Officers, shareholders and members of the business may not represent the business in Court and risk having their case dismissed or criminal prosecution for unauthorized practice of law if they attempt to file an eviction on a company’s behalf.

Sole proprietorship landlords may represent themselves.

If you own your properties in your own name, you are not legally required to retain an attorney to file an eviction.  When deciding whether to retain an attorney, you should consider whether you have the expertise and resources to get the result you desire in Court.   A knowledgeable attorney will know the eviction law and the rules of civil procedure that apply to all Court cases.  If you choose to represent yourself you are presumed to know the rules and the law. The Court may not make any allowances or waive the rules for parties that choose to represent themselves. Failure to read or understand the laws could cause your case to be dismissed or result in a less than optimal outcome.

In an unlawful detainer, time is money.  The longer a tenant stays in the property without paying, the more money the landlord loses.  A knowledgeable attorney can reduce the amount of time your case lingers in the court.  First, an attorney will have access to a process server who knows the service rules and can get your tenant served quickly.  If you file the unlawful detainer yourself, you will need to wait for the sheriff or the constable to serve the documents for you.  Depending on the county the service can take weeks. Second, evictions are a multi-step process with deadlines that must be met. Most reputable attorneys will have access to the Court’s online file system, Alacourt.  The system allows attorneys to see whether a tenant has responded and take immediate action when necessary.  In most cases, attorneys can also electronically file the pleadings in your case which also saves time.

Finally, one advantages of hiring an attorney is that if you win, the tenant can be ordered to reimburse the landlord’s attorney fee.  So in many cases, hiring an attorney can  give you peace of mind, speed the process and be an economical solution for the landlord.