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!

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.

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: Abandonment by The Tenant

Sometimes tenants for one reason or another need to be away from the property for extended periods of time. Sometimes the tenant may be traveling. Other tenants simply decide to leave the unit permanently before the lease is up. Whatever the reason for these extended absences, the landlord will probably want to be informed. Unfortunately, tenants often do not tell the landlord that they will be leaving.

Abandonment can put the landlord in a tough position because it is often hard to determine whether the tenant has left the premises for good. One way to avoid any question about whether the property has been abandoned is by including a clause in the lease that requires the tenant to give notice of absences from the property that will extend beyond 14 days.

The new landlord tenant act provides the landlord some recourse if the tenant leaves the property for more than two weeks without giving notice. First, the landlord can take legal action against the tenant for damages caused by the tenants failure to give notice of an extended absence. Second, the landlord may go into the unit if it is necessary while the tenant is gone. Third, the landlord may consider the lease terminated and re-let the unit to another tenant. Finally, if the landlord finds that the tenant has left personal items behind in the unit, there is no duty to store or safeguard the tenant’s possessions. As such, the landlord can throw the items away or liquidate them as desired.

§ 35-9A-423. Remedies for absence, nonuse and abandonment.

(a) If a rental agreement requires the tenant to give notice to the landlord of an anticipated extended absence in excess of 14 days pursuant to Section 35-9A-304 and the tenant willfully fails to do so, the landlord may recover actual damages from the tenant.

(b) During any absence of a tenant in excess of 14 days, the landlord may enter the dwelling unit at times reasonably necessary.

(c) If a tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent it at a fair rental. But such duty shall not take priority over the landlord’s right to first rent other vacant units. If the landlord rents the dwelling unit for a term beginning before the expiration of the rental agreement, it terminates as of the date of the new tenancy. 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. If the tenancy is from month-to-month or week-to-week, the term of the rental agreement for this purpose is deemed to be a month or a week, as the case may be.

(d) If a tenant leaves property in the unit more than 14 days after termination pursuant to this chapter, the landlord has no duty to store or protect the tenant’s property in the unit and may dispose of it without obligation.

Today’s Topic: Exercising your right to terminate

Unfortunately some tenants do not fulfill their duties under their leases. When that happens, the landlord is faced with a decision about whether or not they will terminate the lease because of a particular violation or allow the tenant to continue in the lease despite the breach. Sometimes there is a monetary reason to allow the breach, other times, the landlord may feel sorry for the tenant. Whatever the situation, Landlords who are aware of a breach should consider whether that breach is minor enough that they are willing to fore go termination completely. As a result landlords who become aware of a breach must act to promptly enforce their rights or risk losing the ability to pursue their remedies in the future. Failing to reserve the right to preserve rent before accepting rent can give a tenant a defense of waiver of the right to terminate during a subsequent unlawful detainer proceeding.

So what is a landlord to do? Make sure that you inform your tenants in writing of the breach before you accept the rent and state that by accepting rent you are in no way implying that they have completely met their responsibilities under the lease. The letter should also indicate that the breach must be remedied by the tenant or they will face termination and possible eviction.

§ 35-9A-424. Waiver of landlord’s right to terminate.

Acceptance of rent with knowledge of a default by the tenant or acceptance of performance by the tenant that varies from the terms of the rental agreement constitutes a waiver of the landlord’s right to terminate the rental agreement for that breach, unless otherwise agreed after the breach has occurred.

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: Removing Non-Compliant Tenants

The new landlord tenant law allows landlords to terminate the leases of tenants who fail to comply with the lease, create a hazard or fail to pay rent.  In order to terminate the tenancy of a non-compliant tenant, the landlord must give a 14 day notice to tenants who fail to comply with the lease or cause a hazard.  If the tenant has failed to pay rent the landlord need only give a 7 day notice before terminating the tenancy. In either case, the notice must explain to the tenant the nature of the deficiency and explain how much time the tenant has to cure the problem before termination. If the tenant does not cure and remains in possession of the dwelling the landlord may pursue an unlawful detainer.

§ 35-9A-421. Noncompliance with rental agreement; failure to pay rent.

(a) Except as provided in this chapter, if there is a material noncompliance by the tenant with the rental agreement or a noncompliance with Section 35-9A-301 materially affecting health and safety, the landlord may deliver a written notice to terminate the lease to the tenant 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 the 14 days after receipt of the notice to terminate the lease, the rental agreement shall terminate on the date provided in the notice to terminate the lease unless the tenant adequately remedies the breach before the date specified in the notice, in which case the rental agreement shall not terminate.

(b) If rent is unpaid when due and the tenant fails to pay rent within 7 days after receipt of written notice to terminate the lease for nonpayment and if the rent is not paid within the 7-day period, the landlord may terminate the rental agreement at the expiration of the 7-day period. If a noncompliance of rental agreement occurs under both subsection (a) and this subsection, the 7-day notice period to terminate the lease for nonpayment of rent in this subsection shall govern.

(c) Except as provided in this chapter, a landlord may recover actual damages and obtain injunctive relief for noncompliance by the tenant with the rental agreement or Section 35-9A-301. If the tenant’s noncompliance is willful, the landlord may recover reasonable attorney’s fees.

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.