In the past, some states had allowed the prosecution to introduce a certified affidavit indicating the results of forensic analysis into evidence without calling the technician to testify.  This meant that the defendant could not question the technician about the process by which the analysis was conducted or the accuracy of the results.  Now, defendants who have been notified that the state intends to introduce forensic analysis may then notify the State of his/her desire to confront the witness.  The Court also made clear that althought the state must produce the witnesses for trial, it may also impose procedural rules concerning the testimony.  As such, it is likely that the states will adopt rules that require the defendant to make the election to require testimony within reasonable time frames or lose the right.

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/turning-your-alabama-lemon-into-lemonade/ http://thefonteneaufirm.com/turning-your-alabama-lemon-into-lemonade/#comments Wed, 17 Sep 2008 13:57:24 +0000 Kira Fonteneau http://thefonteneaufirm.com/?p=117 If you’ve ever bought a new car, you know what a rush it is. There’s the new car smell, the feeling of power as you hit the accelerator, and the peace of mind knowing that you’ll have a reliable ride for a long, long time.

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.

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.

By now most property owners know that Alabama enacted sweeping changes to the landlord tenant law that took effect in 2007. These changes provide tenants with new rights that were previously not available to them. One important provision of the new law provides that the property owner may not unlawfully remove a tenant from the propery.

Landlords who fail to follow the letter of the law when it comes to evicting tenants face stiff penalties including payment of three month’s rent or the actual damages sustained by the tenant as well as attorney’s fees. Since the laws have recently changed property owners who are facing the prospect of evicting their tenants should seek the advice of a competent attorney to review their lease to ensure that it complies with the new law’s requirements as well as determine if they are giving the proper notice to non-compliant tenants before taking action.