Evictions
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Fast, Efficient Evictions
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Eviction Process
Breach & Notice of Breach
Eviction is a remedy for a breach of the rental contract and like any contract in Alabama, the breaching party must be given notice. The landlord or her agent must provide the tenant notice of the breach. This written notice must meet Alabama legal requirements such including they have a right to cure the breach and a timeline of when that must happen.
While the notice may be presented personally or even posted on the door, proof that it was also mailed USPS First Class, (not certified) is required.
File Eviction Less Than 7 Days After Notice
An “Unlawful Detainer” Complaint must be filed in the appropriate court and to file this your attorney will require:
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A Copy of the Signed Lease
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Confirmation of the property address including the county
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The grounds for eviction referring to the section of lease violated
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A copy of the 7-day notice and an attestation of when it was served
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A ledger or statement of debt to include the last payment and current amount owed to show what fees were charged
Service of the Complaint on Defendant(s) ~ 4 days
You may have the clerk serve by certified mail or request the County Sheriff to serve, but these methods waste time, are unreliable, and can be refuted by a defendant in court. Service by private process server is fast, efficient, and they will show up in court if necessary.
Defendant has 14 Days to Answer Complaint
If the Defendant Answers and contests the complaint the following are valid legal defenses:
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The landlord did “self help” eviction
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The tenant cured the breach
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The landlord discriminated
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The landlord retaliated
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There was no provable breach
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The landlord failed to maintain the rental unit
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The notice or complaint contained even the smallest of errors
Plaintiff Prompts Court to Set Hearing for Possession
If the Defendant does not answer, the Plaintiff must file a motion to default the Defendant and request a hearing. If the Defendant does answer, the court may set a hearing, but the Plaintiff should file a motion requesting a hearing on possession.
Court Issues Order Setting Hearing (7-14 days)
Even after prompting, the Court may take weeks to set the hearing. When the hearing is set it may be for a month out.
Hearing for Possession
Either party will be granted a 15-day continuance if requested. At the hearing the Plaintiff should provide the Court with a proposed order for a bifurcated judgment for possession only and request a continuance on the money damages hearing until after the Sheriff sets out the breaching tenants.
The attorney will enter into evidence and the Landlord/Owner will attest to the truth of the following:
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A Copy of the Signed Lease
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The grounds for eviction
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A copy of the 7-day notice and attestation of when it was served
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A ledger or statement of debt to include the last payment and current amount owed
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Judges may rule in Court or may rule days later. If the judge rules there was a breach that has not been cured they will issue an order for possession through ALACOURT.
Writ of Possession
The Court will NOT automatically issue a writ of possession. The Plaintiff’s attorney must request a Writ of possession (not execution) from the court clerk and pay the county a fee for the writ. Once the attorney has the writ, they provide it to the County Sheriff along with the landlord/owner’s local contact information. The attorney is not involved in the set out and will not know it has happened until the landlord tells them.
Set out by County Sheriff (1-6 months)
Once the attorney confirms the Writ of Possession has been delivered to the appropriate section in the Sheriff’s Department the attorney is not involved until after the set out.
The Sheriff’s deputy coordinates directly with the owner/landlord to schedule the set out. Some Counties do not set out anyone from Thanksgiving to Easter. There is nothing the attorney can do to speed up the set out.
Some Counties charge for the labor to set out the tenant’s personal property. Some Counties require the landlord/Owner to provide labor to perform this function. The Sheriff’s department is there to keep the peace while the personal property is being set out.
Again, the attorney is not involved in organizing or coordinating the set out.
Final Hearing on Damages
After the Sheriff conducts the set out the owner can ascertain the physical condition of the property and will know the last date for rent. Once the landlord/owner has this information they should request the attorney move for a final hearing for money damages. Again, the attorney should provide a draft order for damages to the Court after the hearing. It is important to apply the deposit to damages and not to rent unless the lease specifically allows such. The Landlord must still provide an accounting of the deposit to the tenant or risk a penalty. The Court should issue a money judgment which can be certified by the court clerk and recorded in probate records.
Collections/Garnishment
Once the money judgment has been recorded the Plaintiff should wait 45 days, then they can pursue collections and garnishment. Collections is a different legal action and should be considered separate from the eviction. There are attorneys who specialize in collections, and some eviction attorneys will do collections for their existing clients. Collections may cost 50% of the amount recovered.
Estimated Cost: $1300
Frequently Asked Questions
Landlords must give a seven-day notice before filing eviction and must inform tenants they have a right to cure any breach. Eviction is a remedy for a breach of the rental contract, so like any contract in Alabama, the breaching party must be given notice.
There is no mention of grace periods in Alabama eviction law. After 1 day, rent is late and landlords can charge reasonable late fees pursuant to the lease agreement. AL Code 35 Chapter 9.
A landlord can evict a tenant even if the lease was oral or if the paper is not available. The landlord will need to sign affidavits to attest to the fact of a lease and the breach. Your attorney will charge you to draft and execute these extra documents.
If the unwanted person paid rent or did other valuable services such as taking out the trash around your home in exchange for living there, you must follow Alabama’s eviction process outlined in Alabama’s URLTA. AL Code § 35-9A (2022)
YES! You must have a reason such as the tenant breached their lease.
In Alabama, a landlord cannot legally evict a tenant without cause. Legal grounds to evict include not paying rent on time, staying after the lease ends, violating lease terms, failing to keep the premises safe, unauthorized occupants or pets, property damage, disturbing the peace, refusing to allow the landlord access to the rental unit, and committing illegal activity.
You can evict without a breach if the lease has run its course and you do not want to renew. In a residential lease, after the period of tenancy contracted for has been completed, the lease converts to a “hold-over monthly lease.” In that case you simply give a 30-day notice the lease is not being renewed. If the tenant fails to move at that time, you may begin the eviction process.
Alabama gives a tenant seven days to answer an eviction. In addition to receiving notice from a person, tenants should also get a copy in the mail. The 7 days will start upon receipt of the summons and complaint. However, judges are reluctant to remove a person from their home based on a default, so do not expect the court to immediately set a hearing at 7 days.
No. No. No.
No breach of any of the terms or obligations of the lease may be cured by a tenant more than two times in any 12-month period except by the express written consent of the landlord. See https://law.justia.com/codes/alabama/2022/title-35/chapter-9a/article-4/division-2/section-35-9a-421/
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