The News Courier in Athens, Alabama

January 18, 2007

Evictions returning to a civil procedure

By Karen Middleton

A measure designed to speed the eviction process through the courts 30 years ago, the Sanderson Act, did not protect the rights of tenants and ran counter to the Alabama Rules of Civil Procedure and the English rule of law on which the rules are based.

The Sanderson Act was replaced by the Alabama Uniform Residential Landlord and Tenant Act, which the Legislature passed in April. State Rep. Jeffrey McLaughlin, D-Guntersville, hoped to balance the rights of both landlords and tenants when he sponsored the legislation. Act 2006-316 applies to only those agreements entered into after Jan. 1.

On Thursday, Limestone County Circuit Court Clerk Charles Page coordinated a seminar on the new law for landlords and tenants in the large courtroom.

“Small claims and evictions are the most difficult things we deal with in our office,” said Page to a near-capacity crowd in the courtroom.

The presenter was Kenneth Lay, housing advocacy director of Legal Services of Alabama, which provides civil-court services for low-income state residents. With Lay were former Limestone district attorney Jimmy Fry, now of Mobile, regional director of the Lower Alabama Region for the agency, and Charlotte Cloud of Huntsville, northern Alabama regional director.

While this story is not meant to include all of the points of law discussed at Thursday’s seminar, it focuses on what have been key points of contention in the eviction process.

Under the Sanderson Act, landlords began an eviction process by presenting what is essentially the end result of other legal actions—an order. Under all other civil actions, judges issue the final orders, but under the Sanderson Act, a landlord could present a tenant with an eviction order and the tenant had to file a counter affidavit. It made for a long, drawn-out procedure.

As of Jan. 1, landlords wishing to evict a tenant must have them personally served by the Sheriff’s Department with an “unlawful detainer” after which the tenant has seven business days to answer the complaint.

“Unlawful detainer is like any other civil case,” said Lay. “The tenant is served with a complaint. Unlawful detainer came with English law and predated the Sanderson Act.”

Lay said the termination of tenancy process is key to the whole process, because if it is not done according to the new law, the judge is powerless to act on the eviction.

“The Sanderson Act did not follow Alabama Rules of Civil Procedure. It was an affidavit, not a complaint,” said Lay.

Lay said that while it is possible to get a person out of a rental property and collect money owed at the same time, sometimes it is in the best interest of a landlord to get the person out and then file an amended complaint to claim damages because an angry tenant can do a lot of destruction to a dwelling before legally forced out.

The seven days in which the tenant has to respond is a minimum number set by law.

“If the lease says 24 hours, you still have to give them seven days because that is what the statute says,” Lay told landlords in his audience. “If you are evicting someone for having a pet, but they have paid the rent, the time is 14 days.”

If a tenant is being served with a complaint for not paying the rent, he has a “right of cure” that gives him seven days to pay the rent.

Also, landlords may not write into leases a demand for payment of attorney fees or cost of collection.

“This might be allowed under certain circumstances to be determined by the judge,” said Lay. “But it may not be used as a catch-all phrase.”

This is a summary of rules for both landlords and tenants under the McLaughlin Act:



Landlords

• Ensure unit applies with all codes and is habitable

• Maintain in good working order electrical, plumbing, sanitary, heating, ventilating and air-conditioning systems.

• Provide garbage receptacles

• Supply running water, hot water and heating source for dwelling

• Limit security deposits to no more than one month’s rent

• Provide at least two day’s notice of intent to enter the unit, except in emergency



Tenants

• Pay agreed-upon rent; there are not provisions for a tenant to withhold payment

• Comply with building and housing codes

• Keep the premises clean

• Dispose of garbage

• Keep plumbing fixtures clear as conditions permit

• Use all electrical, plumbing, etc., in reasonable manner

• Refrain from negligently damaging or destroying dwelling

• Do not disturb neighbors

• Allow reasonable access to landlord.