UPDATED THROUGH SEPTEMBER 9, 2011 AMENDED RESIDENTIAL LANDLORD AND TENANT ACT (STATEWIDE)

Transcription

1 UPDATED THROUGH SEPTEMBER 9, 2011 AMENDED RESIDENTIAL LANDLORD AND TENANT ACT (STATEWIDE) PREPARED BY DISTRICT JUDGE JACK LOWTHER JEFFERSON COUNTY DISTRICT COURT

2 LANDLORD AND TENANT LAW PROCEDURE AND TIMELINE FOR EVICTION CASES EFFECTIVE AUGUST 1, TERMINATION OF TENANT S POSSESSORY INTEREST: A. ( 35-9a-421) All residential leases dated, extended or renewed on or after 1/1/07 1. By statute A-421(a) 14 days for material noncompliance with lease, an intentional misrepresentation of a material fact in a rental agreement or application, or a noncompliance with 35-9A-301 materially affecting health and safety (with to cure) 2. By statute A-421(b) 7 days for non-payment of rent; or, for combined default under 421(a) and 421(b) (with right to cure) 3. By statute A-421(d) 7 days for non-curable default of the rental agreement (tenant has not right to remedy such a default) 4. If the lease has a provision requiring notice of termination or right to cure that exceeds the statutory requirements, the lease controls 5. Only one notice is required unless the lease requires two or more B. Type of notice required A-421(a)&(b) the landlord may deliver a written notice to terminate the lease to the tenant (a) provides: Any demand may be made or notice served by delivering a written or printed, or partly written and printed, copy thereof to the tenant or by leaving the same with some person above the age of 18 years, residing on or in possession of said premises, then by posting the same on the premises (b) provides: If the demand is served by an officer authorized to serve process, his return shall be prima facie evidence of the facts therein stated; and, if served by any person not an officer, the return may be sworn to by the person serving the same, and shall then be prima facie evidence of the facts therein stated. C. Form of notice 1. Act as amended : 35-9A-421(a) for a default other than the nonpayment of rent, the landlord may deliver a written notice to terminate the lease to the tenant specifying the acts and omissions constituting a 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 lease shall terminate. 2. Act as amended , 35-9A-421(a). An intentional misrepresentation of a material fact in a rental agreement or application may not be remedied or cured. But, it appears to require a 14 day notice, even though it cannot be cured.

3 3. Act as amended 8/1/2009, 35-9A-421(b) (no change in 8/1/2011 amendment). If rent is unpaid when due, the landlord may deliver a written notice to terminate the lease to the tenant specifying the amount of rent and any late fees owed to remedy the breach and that the rental agreement will terminate upon a date not less than seven (7) days after receipt of the notice. If the breach is not remedied within the 7 days, the rental agreement shall terminate. 4. Act: 35-9A-421(b.) If the noncompliance is under both sections (a) and (b), the 7-day notice period to terminate for nonpayment of rent shall govern. 5. Definition of Landlord 35-9A-141(7): includes the owner, lessor or sublessor, and includes a manager of the leased premises D. Recover of Attorney Fees for noncompliance 1. Effective 8/1/2011, 35-9A-421(c) The landlord may recover actual damages and reasonable attorney fees and obtain injunctive relief for noncompliance by the tenant with the rental agreement or 35-9A-301. PRIOR TO 8/1/2011, the noncompliance by the tenant had to be willful before the landlord could recover reasonable attorney s fees A-163(a)(3) Lease may not provide for the payment of attorney fees or the cost of collection A-163(b.) A provision prohibited by this section that is in a lease is unenforceable. 4. EFFECTIVE 8/1/2011, 35-9A-163(b) is amended to limit tenant s right to recover damages for the mere existence of the prohibited provisions in the lease. As long as the landlord does not seek to enforce such a provision in the lease containing such provisions known by the landlord to be prohibited, tenant cannot recover damages or attorney fees. PREVIOUSLY UNDER THE ACT SINCE 1/1/08, if the landlord deliberately used a rental agreement containing the prohibited provisions, the tenant was able to recover in addition to actual damages an amount up to 1 month s periodic rent and reasonable attorney s fees. 2. PROCEEDINGS IN COURT: A. Service of Process. 35-9A-461(a) A landlord s action shall be governed by the Alabama Rules of Civil Procedure, except as modified by this chapter. 35-9A-461(c) Service of process shall be made in accordance with the Alabama Rules of Civil Procedure. However, if the process server is unable to serve the defendant personally, service may be had by delivering the notice to any person who is sui juris residing on the premises, or if after reasonable effort no person is found residing on the premises, by posting a copy of the notice on the door of the premises, and on the same day of posting or by the close of the next business day, the process server, the person filing the complaint, or anyone on behalf of the person, shall mail notice of the filing of the unlawful detainer action by enclosing, directing, stamping and mailing by first class a copy of the notice to the defendant at the mailing address of the premises.

4 B. District Court has exclusive original jurisdiction of Eviction/Unlawful Detainer cases! See Ex parte McKinney, 2011 WL (5/26/2011) (Ala.) citing Darby v. Schley, 8 So.3d (Ala.Civ.App2008), held that District Court has original jurisdiction over Unlawful Detainer/Eviction actions. It appears that the Alabama Supreme Court has limited the general jurisdiction of Circuit Court. Circuit Court can only handle Unlawful Detainer cases sitting in their appellate capacity. C. Effective 8/1/09, 35-9A-141 (5) defines Eviction as a civil action filed as a remedy, where a tenant has lawfully taken possession of a premises and fails or refuses, after the termination of the possessory interest of the tenant, to deliver possession of the premises to anyone lawfully entitled or to his or her agent or attorney. Since unlawful detainer continues to be used in some parts of the Residential Landlord and Tenant Act as amended, the terms appear to be interchangeable. 1. The termination of lease as provided above is a condition precedent to the Court s obtaining jurisdiction over the action for eviction. 2. The complaint cannot be filed prior to expiration of the termination notice period. The day of delivery does not count in the required notice days, and the count is by complete calendar days. 3. EFFECTIVE 8/1/2011, 35-9A-141(3) defines day as a calendar day, notwithstanding Rule 6 of the Alabama Rules of Civil Procedure. If the last day of the time period falls on a weekend or holiday, then the last day of the time period shall be considered the next official business day when the court is open. 4. If the landlord fails to terminate, or fails to give required notice, the case must be dismissed as to the possession count. The notice cannot be cured after the complaint is filed. D. Application of the Rules of Civil Procedure to the filing of the complaint, answer and proceedings in court A-461(a) provides that a landlords action for eviction, rent, monetary damages, or other relief relating to a tenancy subject to this chapter shall be governed by the Alabama Rules of Civil Procedure EXCEPT AS MODIFIED BY THIS CHAPTER. 2. EFFECTIVE 8/1/ A-141(3) defines day as a calendar day, not withstanding rule 6 of the Alabama Rules of Civil Procedure. 3. Although the 8/1/2011 amendments to the Act make Rule 6(a) Computations inapplicable to the counting of days under the Act, it does provide in the day definition that when the last day of the period falls on a weekend or an official holiday, then the last day of the time period shall be considered the next official business day when the court is open. 4. Rule 12 (Defenses and Objections ) 12(a) and (dc). A defendant shall file an answer within fourteen (14) days after service of the summons and complaint for all actions other than an action for unlawful detainer, in which action a defendant shall serve an answer

5 within seven (7) days. EFFECTIVE 8/1/2011, the answer must be filed within 7 calendar days subject to the last day rule. 5. Rule 40 (Assignment of Cases for Trial) (a) and (dc). The trial of actions shall be set by entry on a trial docket or by written order at least 14 days before the date set for trial. 6. Rule 58 (Rendition and Entry of Orders and Judgments) This Rule impacts the filing of post trial motions pursuant to Rule 59 (dc); the filing of an appeal pursuant to or 35-9A-461(d); and the date upon which the writ of possession can be issued pursuant to Rule 62. All time periods run from the entry of the judgment. The entry of judgment is either the date the clerk enters the Order into the State Judicial Information System (SJIS); or if the Order is entered electronically by the Judge, the Order shall be deemed entered as of the date the Order is electronically transmitted by the judge to the electronic filing system. 7. EFFECTIVE 7/1/2009. Rule 59 (dc) (Post trial motions for new trial or to alter, amend or vacate). The time period for filing Rule 59 motions for unlawful detainer actions is reduced to seven (7) days. See Committee Comments to the July 1, 2009, Amendment to Rule 59(dc): All judgments entered by a district court in unlawful detainer actions, residential and commercial, must be filed within the seven (7) day appeal period. 8. Rule 59.1(dc) Disposition of Motions for New Trial and Other Post-Trial Motions. No post-judgment motion filed pursuant to Rules 52, 55 and 59 shall remain pending for more than 14 days unless within that time an order extends the period, for good cause shown, for not more than an additional fourteen (14) days. E. Appeals from District Court to Circuit Court under / 35-9A-461(d). 1. Any party may appeal from a judgment entered against him or her by a district court to the circuit court at any time within seven (7) days after the entry thereof (Note: this applies only to the unlawful detainer/eviction). 2. EFFECTIVE 8/1/2011, Rule 6, computation of time for counting of days is not longer applicable (See 35-9A-141(3). The seven days are calendar days and not business. Also see: Ex parte Arlington Properties, Inc., 2010 WL (Ala.Civ.App.) March 26, The Rules of Civil Procedure cannot be applied if applying them would offend restrictions imposed by our Constitution. Art. VI, 150, Ala. Const (Off.Recomp.), provides in part: The Supreme Court shall make and promulgate rules governing practice and procedure in all courts; provided, however, that such rules shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts or venue of actions therein Both and 35-9A-461 provide for a 7 day period in which to file a notice of appeal from an unlawful detainer judgment entered in District Court. Thus, those statutes grant appellate jurisdiction to circuit court to review an unlawful detainer judgment only if the notice of appeal is filed within the seven day period. The application of Rule 6 would extend that period and the jurisdiction of the circuit courts. Rule 6 is inapplicable to appeal statutes.

6 **** REVERSED. Ex parte Arlington Properties, Inc., 2011 WL (Ala.), September 9, Cert. Granted. Reversed and Remanded as to effect of Rule 6 on appeals. Court notes that effective 8/1/2011, as to residential evictions the appeal time is 7 calendar days based upon the most recent amendment to the Alabama Residential Landlord and Tenant Act. Smith v. Estes, 2010 WL (Ala.Civ.App.), April 2, Rule 6 of the ARCP do not apply to appeals under , or to 35-9A-461(d). F. Issuance of Writ of Possession. 1. Rule 62(a) & (dc) (Stay of Proceedings to Enforce Judgment). (a) Automatic Stay. Normally, 14 days from entry of judgment or as extended by Rule 59 motions. NOTE: The Amended New Landlord and Tenant Act Section 35-9A-4619(e), (effective August 1, 2009). Notwithstanding Rule 62 of the Alabama Rules of Civil Procedure, the automatic stay on the issuance of the writ of possession or restitution shall be for a period of seven days. Provided, if a post trial motion is filed within the 7 day time period, the automatic stay of execution under Rule 62(b) and (dc) shall remain in effect pending ruling on the motion or the denial of the motion by operation of law. The writ may be issued after the 7 day appeal time runs from the entry of the order on the post trial motion or the denial by operation of law. EFFECTIVE 8/1/2011, THIS MEANS 7 CALENDAR DAYS. 2. Rule 62(b) (dc). The issuance of the writ is stayed by post judgment motions pending a ruling on any motion for a new trial or to alter or amend a judgment or for amendment to the findings or for additional findings. In judges discretion may stay execution pending ruling of a Rule 60 motion. 3. SUMMARY TIMELINE EFFECTIVE AUGUST 1, 2011 FOR RESIDENTIAL EVICTIONS Proceedings Notice of Termination of Lease Residential Eviction/Unlawful Detainer Not less than 7 calendar days for nonpayment of rent Not less than 7 calendar days for other curable defaults if combined with nonpayment of rent default Not less than 7 calendar days for non-curable defaults Not less than 14 calendar days for other curable defaults File Complaint Answer Complaint If no answer filed and plaintiff files an application for possession judgment, enter Judgment Not before the day after the termination notice period is over Within 7 calendar days after service Not before the 8 th calendar day after service of process personal or by posting

7 If no answer filed and plaintiff files an application for money judgment Default Requirements In answer filed, trial setting Not before the 15 th calendar day after personal service Lease (if any); termination notice & rent ascertainment The date of trial must be at least 14 days after the order Setting the case for trial with notice to the parties no later than 3 days after the order Appeal Post trial motions Within 7 calendar days after the entry Within 7 calendar days after the entry