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: Required Disclosures

The landlord or the property management company managing a rental property must inform the tenant of the name and address of both the owner of the property and the property manager if they are not the same. The purpose of this requirement is to give the tenant the names of the people who will be responsible for accepting rent, making repairs and or addressing concerns related to the tenancy. This provision is also intended to give tenants, who now have increased legal recourse the information that they would need to initiate a lawsuit against the right parties. The landlord may want to revise the lease to include this information or consider sending each tenant a welcome letter that spells out the management relationship at the at the beginning of the lease year.

§ 35-9A-202. Disclosure.

(a) A landlord or any person authorized to enter into a rental agreement on the landlord’s behalf shall disclose to the tenant in writing at or before the commencement of the tenancy the name and business address of:

(1) the person authorized to manage the premises; and

(2) an owner of the premises or a person authorized to act for and on behalf of the owner for the purpose of service of process and receiving and receipting for notices and demands.

(b) The information required to be furnished by this section shall be kept current and this section extends to and is enforceable against any successor landlord, owner, or manager.

(c) A person who fails to comply with subsection (a) becomes an agent of each person who is a landlord for:

(1) service of process and receiving and receipting for notices and demands; and

(2) performing the obligations of the landlord under this chapter and under the rental agreement and expending or making available for the purpose all rent collected from the premises.

Today’s Topic: Security Deposits

The new landlord tenant law sets out rules with regard to how landlords must handle the security deposits collected from tenants. The entire section dealing with security deposits is included below, but here are a few important points.

• The landlord usually cannot collect more than one month’s rent as a security deposit.
• The landlord may collect a pet deposit or other similar deposit if the tenant’s plans for the property increased the potential risk to the landlord.
• The landlord must return the security deposit to the tenant within 35 days of the end of the tenancy or they can be required to pay the tenant two times the original deposit.
• The landlord must provide the tenant a written itemization of amounts withheld from the security deposit within 35 days of the termination of the tenancy even if the tenant does not provide a forwarding address.
• If the tenant does not claim the money due from the deposit within six months of the end of the tenancy, the tenant’s deposit can be forfeited.
• Mailing the statement to the rental address can satisfy the law’s requirements if the tenant fails to give a forwarding address.
• The landlord can apply the security deposit to unpaid rent or other damages so long as the tenant is given the itemization of the amounts withheld.

§ 35-9A-201. Security deposits; prepaid rent.

(a) A landlord may not demand or receive money as security, in an amount in excess of 1 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.

(b) Upon termination of the tenancy, money held by the landlord as security may be applied to the payment of accrued rent and the amount of damages that the landlord has suffered by reason of the tenant’s noncompliance with Section 35-9A-301 all as itemized by the landlord in a written notice delivered to the tenant together with the amount due 35 days after termination of the tenancy and delivery of possession.

(c) If the landlord does not refund the entire deposit, the landlord, within the 35-day period, shall provide the tenant an itemized list of amounts withheld.

(d) Upon vacating the premises, the tenant shall provide to the landlord a valid forwarding address, in writing, to which the deposit or itemized accounting, or both, may be mailed. If the tenant fails to provide a valid forwarding address, the landlord shall mail, by first class mail, the deposit or itemized accounting, or both, to the last known address of the tenant or, if none, to the tenant at the address of the property. Any deposit unclaimed by the tenant as well as any check outstanding shall be forfeited by the tenant after a period of 180 days.

(e) The landlord’s mailing by first class mail to the address provided in writing by the tenant, within 35 days of the refund or itemized accounting, or both, is sufficient compliance with this chapter.

(f) If the landlord fails to mail a timely refund or accounting within the 35-day period, the landlord shall pay the tenant double the amount of the tenant’s original deposit.

(g) This section does not preclude the landlord or tenant from recovering other damages to which the landlord or tenant may be entitled.

(h) The holder of the landlord’s interest in the premises at the time of the termination of the tenancy is bound by this section.