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.

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: 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: 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.