It is a simple fact of life that not all disputes are matters of black and white, right and wrong. When you need someone who understands that, look to the Fonteneau Firm for help. We will help you understand the relevant legal issues, explain your legal and non-legal options, and be honest with you about the potential consequences of your options so you can come to a decision about how best to resolve your problems. I hope you will take a few minutes to learn a little more about me, the firm’s practice areas and the law. I look forward to serving you, so feel free to contact me.

]]> http://thefonteneaufirm.com/welcome-to-the-fonteneau-firm/feed/ 1 http://thefonteneaufirm.com/landlords-pick-your-property-manager-wisely/?utm_source=rss&utm_medium=rss&utm_campaign=landlords-pick-your-property-manager-wisely http://thefonteneaufirm.com/landlords-pick-your-property-manager-wisely/#comments Sat, 07 Mar 2009 16:51:23 +0000 Kira Fonteneau http://thefonteneaufirm.com/?p=229 If you own rental property, you know that sometimes maintaining a property is time consuming.  That is why many landlords choose to contract with a property management company to manage their units.  Hiring a property manager can save you time but it is important to ensure that the manager complies with the landlord tenant laws of Alabama and your standard of maintenance and tenant relations.  Always remember that ultimately your property manager represents you and as such, you will be responsible for the manager’s actions.  With that in mind, here are a few things you should consider when dealing with managment companies:

• 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the rental companies proposed lease and termination notices: Ultimately, you are responsible if your manager is using outdated leases and termination notices.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.

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.

But what happens when that new car isn’t so reliable? When you wake up one morning and have to come to terms with the fact that you’ve bought a lemon? Lemon Law attorney Sergei Lemberg offers an overview of Alabama lemon law.

Sergei notes that every state has a lemon law, but that each of them is different. Under Alabama’s lemon law, some vehicles qualify as lemons and others don’t. If you’ve bought a new passenger vehicle, SUV, van, truck, or motorcycle with a gross vehicle weight rating of less than 10,000 pounds you’re covered – if the vehicle is used for personal (as opposed to business) purposes.

Now, on to definitions. In order to be considered a “lemon,” your vehicle’s defects have to affect its use, safety, or value. In other words, if it’s something minor, you don’t have a case. According to Sergei, the other catch is that the defects have to occur during the first year from the delivery date or the first 12,000 miles on the odometer – whichever comes first. In addition, the vehicle must have been taken in three times for the same problem or been out of service for 30 days for the same problem. Plus, the manufacturer has to have the opportunity to repair the vehicle one last time. The first repair attempt has to be made during the first year or 12,000 miles, and the final repair attempt has to be made before the end of the second year or 24,000 miles, whichever comes first.

Sergei is quick to point out that manufacturers have teams of lawyers that do nothing but fight lemon law claims, and that battling them will be much easier with a lemon law attorney at your side. The good news is that, if your claim is successful, the manufacturer has to pay your attorney fees. That being said, with the help of a lawyer, you can often get a refund, replacement vehicle, or cash settlement without having to go through the entire lemon law process – and get your attorney’s fees covered in the process.

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.

Today’s Topic: The Landlord’s Rights if Tenants Neglect Their Responsibilities

Earlier we focused on the tenant’s responsibility to maintain the dwelling. Today we will talk about what the landlord may do if the tenant seriously neglects his or her responsibilities. First let’s look again at the tenant’s responsibilities.

The new law essentially imposes upon tenants a duty to treat the property in a way that would not diminish its value. To that end, the law requires the tenant to:

• Keep the apartment reasonably clean. This includes taking out the trash as well as general cleaning that would be necessary to ensure that the property is not damaged.
• Refrain from deliberate or negligent behavior that would damage the property. Examples of this might be allowing large objects to be put down the drains. This could also include removing or destroying the fixtures in the unit without the owner’s permission.
• Refrain from using the apartment in such a way that would be a safety hazard. This might include interfering with the wiring or using the stove as a heating unit or other risky behavior that could cause damage to the unit.
• Refrain from behaviors that would be disruptive to the neighbors.

Although having these provisions in the law is extremely helpful, it is a good idea to include a set of rules in the lease or as a signed exhibit to the lease so that each tenant understands the landlord’s expectations. Landlords should review the property rules with each tenant at the signing of the lease and make sure that the rules are signed by the tenant in case there is a future legal dispute.

If the landlord determines that the tenant has created a problem within the unit that needs immediate intervention the landlord may take action to correct the problem and charge the tenant for the cost of repairs. If, however, the problem is not an emergency but does have a serious effects on safety conditions in the unit or a presents a significant health concern, the landlord may take steps to remedy the problem. In the case of a non-emergency, the landlord must give the tenant a seven day notice that identifies the condition that must be remedied and allow the tenant to correct the problems. Landlords should be careful that they do not simply enter the dwelling and make repairs without first considering whether the problem is a true emergency. Some examples of an emergency that may give rise to an immediate right to enter and repair might be:

• The tenant has left on a faucet that is leaking into another apartment and causing significant flood.
• The tenant has left the gas on or damaged a gas appliance causing a safety hazard

§ 35-9A-422. Failure to maintain.

If there is noncompliance by the tenant with Section 35-9A-301 materially affecting health and safety that can be remedied by repair, replacement of a damaged item, or cleaning, and the tenant fails to comply as promptly as conditions require in case of emergency or within 7 days after written notice by the landlord specifying the breach and requesting that the tenant remedy it within that period of time, the landlord may enter the dwelling unit and cause the work to be done in a workmanlike manner and submit the itemized bill for the actual and reasonable cost or the fair and reasonable value thereof as rent on the next date periodic rent is due, or if the rental agreement has terminated, for immediate payment.

§ 35-9A-301. Tenant to maintain dwelling unit.

A tenant shall:

(1) comply with all obligations primarily imposed upon tenants by applicable provisions of building and housing codes materially affecting health and safety;

(2) keep that part of the premises that the tenant occupies and uses as clean and safe as the condition of the premises permit;

(3) dispose from the dwelling unit all ashes, garbage, rubbish, and other waste in a clean and safe manner;

(4) keep all plumbing fixtures in the dwelling unit or used by the tenant as clear as their condition permits;

(5) use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances including elevators in the premises;

(6) not deliberately or negligently destroy, deface, damage, impair, or remove any part of the premises; or knowingly, recklessly, or negligently permit any person to do so; and

(7) conduct himself or herself and require other persons on the premises with the tenant’s consent to conduct themselves in a manner that will not disturb the neighbors’ peaceful enjoyment of the premises.

Today’s Topic: What Happens in Case of Catastrophe?

Accidents happen. Unfortunately for property owners and tenants, sometimes when accidents happen the property may be damaged in such a way that it cannot be used for its intended purpose. Perhaps the problem is water, smoke or fire damage that requires significant repair. It could also be that a storm causes significant damage to the property that makes it no longer suitable for occupants. As long as the reason for the damage is not the tenant’s negligence or intentional acts, the landlord tenant act makes clear that there is no duty on the part of the tenant to remain in, or pay rent for, a property that is severely damaged. If the unit is destroyed or severely damaged the tenant can choose to vacate the property by giving the landlord notice of termination of the lease or stay in the undamaged portion of the property at a rental rate that is reduced by an amount that will compensate for the loss of use of the damaged portion of the property.

§ 35-9A-406. Fire or casualty damage.

(a) If the dwelling unit or premises are damaged or destroyed by fire or casualty not caused by the tenant to an extent that enjoyment of the dwelling unit is substantially impaired, the tenant may:

(1) immediately vacate the premises and notify the landlord in writing within 14 days thereafter of the tenant’s intention to terminate the rental agreement, in which case the rental agreement terminates as of the date of vacating; or

(2) if continued occupancy is lawful, vacate any part of the dwelling unit rendered unusable by the fire or casualty, in which case the tenant’s liability for rent is reduced in proportion to the diminution in the fair rental value of the dwelling unit.

(b) If the rental agreement is terminated pursuant to this section, the landlord shall return all security recoverable under Section 35-9A-201 and all unearned prepaid rent. Accounting for rent in the event of termination or apportionment shall be made as of the date of the fire or casualty.

Today’s Topic: The Tenant’s Right to Sue the Landlord

As we have discussed before, Alabama tenants now have more ammunition if the landlord tenant relationship should result in a legal dispute.  Most landlords and tenants are aware that the landlord can initiate legal action in the form of an unlawful detainer (eviction).  What is probably less well known is that the tenant can assert claims against the landlord in the same legal action.  If those claims are asserted and proven by the tenant the result could be that the landlord is unable to evict the tenant and/or could owe the tenant money. These counterclaims do not, however relieve tenants who remain in possession from the duty to pay rent. Therefore, if the tenant wishes to assert a counterclaim for breach of the lease, retaliation or failure to provide the minimum requirements under the landlord tenant law, he or she must pay the rent due to the landlord into the court as it becomes due.

§ 35-9A-405. Counterclaims for action for possession or rent.

(a) In an action for possession or in an action for rent when the tenant is in possession, the tenant may counterclaim for any amount the tenant may recover under the rental agreement or this chapter. It is in the court’s discretion whether the tenant is to remain in possession. The tenant shall pay into court rent accrued and thereafter accruing as it comes due. The court shall determine the amount due to each party. The party to whom a net amount is owed shall be paid first from the money paid into court, and the balance by the other party. If no rent remains due after application of this section, judgment shall be entered for the tenant in the action for possession. If the defense or counterclaim by the tenant is without merit and is not raised in good faith, the landlord may recover reasonable attorney’s fees.

(b) In an action for rent when the tenant is not in possession, the tenant may counterclaim as provided in subsection (a) but is not required to pay any rent into court.

Today’s Topic: The Tenant’s Remedies for the Landlord’s Failure to Provide the Essentials

Yesterday we talked about the tenant’s remedies for the landlord’s breach of the the lease. Today we focus on the tenant’s remedies for failure to comply with the minimum standards set forth in the landlord tenant law. Until the enactment of the new landlord tenant law, landlords could rent apartments on an as-is basis. There was no requirement that the landlord provide many of the things that most people would consider basic necessities. As a result it was not unheard of for some landlords to rent dwellings that did not have heat or had problems with infestation.

Since the new laws have taken effect, the landlord has a legal duty to provide essential services like heat, running water and access to utilities. If the landlord does not provide those services the tenant may give the landlord a written notification of the problems. If the landlord does not cure the defect within 14 days, the tenant may choose to:

• Vacate the unit with a full refund of the deposit and unearned rent; or
• Recover from the landlord for the decrease in value caused by the defect.

§ 35-9A-404. Wrongful failure to make available heat, water, hot water, or essential services.

(a) The landlord is not responsible for the payment of utility services unless agreed in the lease.

(b) If contrary to the rental agreement or Section 35-9A-204, after receiving notice of the breach from the tenant, the landlord willfully or negligently fails to promptly make available heat, running water, hot water, electric, gas, or other essential service, the tenant may:

(1) send a written notice specifying the date of termination not less than 14 days after receipt of notice and upon vacation of the premises, the rental agreement shall be rightfully terminated without further obligation or penalty. If the rental agreement is terminated pursuant to this section, the landlord shall return all security recoverable by the tenant under Section 35-9A-201 and all unearned prepaid rent; or

(2) recover damages based upon the diminution in the fair rental value of the dwelling unit.

(c) If the tenant proceeds under this section, the tenant may not proceed under Section 35-9A-401 as to that breach.

(d) Rights of the tenant under this section do not arise if the condition was caused by the wilful or negligent act or omission of the tenant, a member of the tenant’s family, a licensee or other person on the premises with the tenant’s consent.

Today’s Topic: The Tenant’s Remedies for the Landlord’s Breach of the Lease

Yesterday we talked about the landlord’s right to impose rules that the tenant’s must follow. Today we will focus on the tenant’s options when the landlord does not cure a default of the terms of the lease. At its core a residential lease is nothing more than a contract. Since a lease is a contract both the landlord and the tenant have a duty to perform. If the landlord fails to perform one or more of the duties required under the contract, the new landlord tenant law provides that the tenant may send the landlord a termination letter advising of the nature of breach. The letter must give the landlord at least 14 days to fix the problems. If the landlord does not fix the problems within the time specified by the tenant’s letter and the problem was not caused by the tenant’s negligence or intentional acts, the tenant may terminate the lease. If the tenant terminates for the landlord’s failure to comply with the lease, the tenant is due to receive the full security deposit and the remainder of any unused rent.

§ 35-9A-401. Noncompliance by the landlord — In general.

(a) Except as provided in this chapter, if there is a material noncompliance by the landlord with the rental agreement or a noncompliance with Section 35-9A-204 materially affecting health and safety, the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than 14 days after receipt of the notice if the breach is not remedied within that period, and the rental agreement shall terminate as provided in the notice subject to the following:

(1) If the breach is remediable by repairs or the payment of damages or otherwise and the landlord adequately remedies the breach before the date specified in the notice, the rental agreement shall not terminate by reason of the breach.

(2) The tenant may not terminate for a condition caused by the deliberate or negligent act or omission of the tenant, a member of the tenant’s family, a licensee, or other person on the premises with the tenant’s consent.

(b) Except as provided in this chapter, the tenant may recover actual damages and obtain injunctive relief for noncompliance by the landlord with the rental agreement or Section 35-9A-204. If the landlord’s noncompliance is in bad faith, the tenant may recover reasonable attorney’s fees.

(c) The remedy provided in subsection (b) is in addition to any right of the tenant arising under subsection (a).

(d) If the rental agreement is terminated pursuant to this section, the landlord shall return all security recoverable by the tenant under Section 35-9A-201 and all unearned prepaid rent.