ANNUAL VOLUNTEER LAWYER SEMINAR UNIFORM RESIDENTIAL LANDLORD/TENANT ACT

Transcription

1 ANNUAL VOLUNTEER LAWYER SEMINAR UNIFORM RESIDENTIAL LANDLORD/TENANT ACT John Lee, Esquire Solo Practitioner Friday, October 21, :30 3:30 PM Radisson Admiral Semmes Hotel

2 THE UNIFORM RESIDENTIAL LANDLORD AND TENANT ACT URLTA Submitted to VLP Mobile Bar Association By John V. Lee October 21, 2011

3 TABLE OF CONTENTS Analysis of Act Tenant Damage Chart... A1 2

4 THE UNIFORM RESIDENTIAL LANDLORD AND TENANT ACT STATUTORY OUTLINE SECTION I Article I: General Provisions/Definitions Division I: Subject Matter Sections: 101 Short Title (URLTA) 102 Purpose, Rules of Construction 103 Legal Principles 104 Construction Against Repeal 105 Administration of Remedies 106 Settlements 107 Non-applicability (j) Division II: Scope of Jurisdiction Sections: 121 Territorial Application 122 Exclusions of statutory applicability 123 Jurisdiction over landlords Division III: General Definitions Sections: 141 Definitions* Amended 8/1/09 & 08/1/10 (day eviction) 142 Obligation of Good Faith 143 Unconscionability 144 Notice Division IV: General Provisions Sections: 161 Terms of Rental Agreement 162 Unsigned/Undelivered Rental Agreements 163 Prohibited Rental Agreement Terms* amended 8/1/ Obligation to Tender Rent/condition precedent to enforce tenant remedies Article II: Landlord Obligations Sections: 201 Security Deposit/Prepaid Rent 202 Disclosures 203 Obligation to Deliver Possession 204 Duty to Maintain Premises 205 Limitation of Liability 3

5 Article III: Tenant Obligations Sections: 301 Duty to Maintain Premises 302 Duty to Follow Rules Regulations 303 Landlord s Access to Premises* amended 8/1/09 & 8/1/10 (subsections b, d & e) 304 Duty to Use and Occupy Premises Article IV: Remedies Division I: Tenant Remedies Sections: 401 Landlord Noncompliance* amended 8/1/09 (subsection a & b) 402 Failure to Deliver Premises 403 [Reserved] 404 Failure to Furnish Essential Services 405 Counterclaim to Action for Possession 406 Damage to Premises 407 Remedies for Unlawful Ouster, Exclusion or Diminution of Services Division II: Landlord Remedies Sections: 421 Nonpayment of Rent* Amended 8/1/09 & 8/1/10 (subsections a, c & d) 422 Failure to Maintain the Premises 423 Remedy for Abandonment 424 Waiver of Landlord s Right to Terminate 425 Landlord Lien and Distress Eliminated 426 Remedy for Rent, Possession and Actual Damages 427 Self Help Prohibited Division III: Periodic Tenancy, Holdover, Abuse of Access Sections: 441 Mutual Termination of Tenancies/ Landlord s Remedy for Holdover 442 Mutual Remedies for Abuse of Access Division IV: Procedural Rules, Jurisdiction, Service of Process Section: 461 Procedures of ARCP and ARAP apply except as to specific provisions 4

6 of the act.* amended 8/1/09 (subsections d, e & f) Article V: Retaliatory Conduct Sections: 501 Landlord and Tenant Retaliation Prohibited Article VI: Effective Date Sections: 601 Substance and Procedure effective January 1, 2007 Rental Agreement Compliance Effective January 1, Savings Clause 603 Severability SECTION II Section related to appeals is amended to limit the right of appeal of either party to seven days after entry of judgment. Section eliminates the Landlord s lien on a residential tenant s property. SECTION III Section , hiring of lodgings for indefinite term is repealed. Beginning with , the Sanderson Act is repealed. SECTION IV The Act became effective January 1, Subsequent amendments became effective August 1, 2009 and August 1,

7 OVERVIEW On January 1, 2007, Title 35 of the Code of Alabama (1975) was amended to add Chapter 9A and by repealing certain sections. The Uniform Residential Landlord Tenant Act has four sections. Section I has six articles; Section II amends and ; Section III repeals and through 88 of the Sanderson Act; Section IV is the effective date. Chapter 9A of Title 35 applies to and is the exclusive remedy to regulate, determine rights, obligations and remedies under a rental agreement, wherever made, for a residential dwelling unit located within this state. 35-9A-121. While the Act specifically repeals the remedies afforded a landlord for possession wrongfully withheld in through of the Sanderson Act, it does not repeal Title 6 Article 8 relating to forcible entry in unlawful detainer through is the lone section of Title 6 Article through affected by the legislation in which the time within which to appeal a judgment entered in a proceeding brought pursuant to Title 6 Section 8 is reduced from 14 days to 7 days after entry of the judgment. EXCLUDED RENTAL AGREEMENTS Excluded rental agreements which are not subject to the Act are medical, educational, religious or geriatric institutions, occupancy pursuant to a contract for sale, condominium owners, and 6

8 occupancy of a former owner of residential property which has been sold for 36 months. Transient lodgings, fraternal or sorority institutions are not included. An employee of a landlord whose occupancy is conditioned upon employment is not included within the provisions. 35-9A-122(1-8) PARTIES The term landlord is defined as the owner, lessor or sublessor and includes the manager of the leased property. 35-9A- 141(6). Tenant means a person entitled under a rental agreement to occupy a dwelling unit. 35-9A-141(15). STATUTORY OBLIGATIONS The Act creates duties for both parties to the rental agreement and creates causes of action for the breach of these duties. These duties are set forth below. LANDLORD OBLIGATIONS 35-9A-142 obligation of good faith 35-9A-204 maintain premises 35-9A-303 notice to inspect 35-9A-201 account for security deposits 35-9A-202 disclosure of management identity 35-9A-203 deliver possession of dwelling unit 35-9A-401 perform covenants of rental agreement 35-9A-404 provide essential services 35-9A-423 duty to mitigate 35-9A-442 refrain from unlawful/unreasonable entry; 7

9 unreasonable entry 35-9A-501 retaliatory conduct prohibited TENANT OBLIGATIONS 35-9A-142 obligation of good faith 35-9A-164 payment of rent 35-9A maintain premises/quiet enjoyment 35-9A-302 perform rental agreement rules & regulations 35-9A-303 allow access 35-9A-304 occupy unit; notify landlord of extended absence 35-9A-422 reimburse landlord for repairs DISCLOSURES The landlord must notify the tenant of the name and address of management/the person or entity authorized to act for the owner. 35-9A-202(a). Landlord must give notice to the tenant of proposed rules and regulations. 35-9A-302(b)(6). The tenant must notify landlord of a valid forwarding address upon vacating the premises. 35-9A-201(d). NOTICES The Act has notice provisions which require a party to give notice to the other. These notices are of two general types; general notices and notices which demand a cure of default. GENERAL NOTICES Notices of the general category are as follows: 8

10 (1) A seven day notice is required to terminate a weekly tenancy. 35-9A-441(a) (2) A 30 day notice is required to terminate a month to month tenancy. 35-9A-441(b) (3) Although the Act is silent, presumably a 30 or 60 day notice is required to terminate an annual lease if it contains any renewal provision. See also paragraph 2 above if rent is paid in 30 day increments after lease has expired. (4) A two day notice is required to inspect the premises. 35-9A-303. (5) A tenant may terminate the rental agreement by giving a five day notice for the landlord s failure to deliver possession of the premises. 35-9A-402(a)(1). (6) A tenant must give notice of intent to be absent from the premises in excess of 14 days if the rental agreement so provides. 35-9A-304. NOTICES TO CURE DEFAULT The Act requires 14 and 7 day notices to cure default which are as follows: FOURTEEN DAY NOTICES TENANT TO LANDLORD (1) Tenant s notice to landlord for material noncompliance 9

11 with the rental agreement or with 35-9A-204 (covenant of habitability). 35-9A-401(a) (2) Tenant s notice to landlord for failure to provide essential services (covenant of habitability). 35-9A-404(b)(1). (3) Tenant s notice of intent to terminate rental agreement for fire damage or destruction of rental unit. 35-9A-406(1). LANDLORD TO TENANT (1) Landlord s notice to tenant for material noncompliance with the rental agreement or with 35-9A-301 health and safety issues. 35-9A-421(a) (2) Landlord s notice to tenant for material noncompliance with the covenant of quiet enjoyment/nuisance. 35-9A-301. (3) Landlord s notice to tenant for failure to allow lawful access. 35-9A-421. covenants. (4) Landlord s notice to cure default for breach of lease SEVEN DAY NOTICES LANDLORD TO TENANT (1) Notice to tenant for failure to pay rent. 35-9A-421(b). See also 35-9A-141(3). (2) Notice to tenant for failure to pay rent with concurrent other default. 35-9A-421(b). See also 35-9A-442(a) (3) Notice to tenant for failure to maintain premises. 35-9A 10

12 422. (4) Non curable defaults: misrepresentation of material fact, drugs, firearms, assault. TENANT TERMINATION REMEDIES The Act allows the tenant to terminate the rental agreement for four causes: health and safety issues, failure to provide essential services, damage to premises and failure to deliver possession. (1) Health and safety/material noncompliance. A tenant, pursuant to 35-9A-401 may terminate the rental agreement for material noncompliance affecting health and safety in the rental agreement or noncompliance with 35-9A-204 (covenant of habitability) by delivering a written notice to the landlord specifying the acts and omissions constituting the alleged breach and that the rental agreement will terminate fourteen days after receipt of the notice if the breach is not remedied within that period. Pursuant to 35-9A-204, health and safety issues, the acts and omissions, at least those specified in the statute, are as follows: 1. Failure to comply with applicable building and housing codes (affecting health and safety). 2. Failure to maintain a habitable premises. 3. Failure to maintain clean and safe common areas. 11

13 4. Failure to maintain electrical, plumbing, sanitary, eating, ventilating, air conditioning, appliances, including elevators. 5. Failure to maintain adequate trash and waste receptacles. 6. Failure to maintain hot and cold water. The landlord must remedy or the lease terminates. (2) Failure to Provide Essential Services. Pursuant to 35-9A-404 the tenant may terminate the rental agreement for failure to make available heat, running hot and cold water, electric, gas or other essential service if required by the lease agreement or 35-9A-204 by giving 14 days written notice to the landlord specifying the date of termination and the nature of the breach. See also 35-9A-404. (3) Failure to Deliver Possession. If the landlord fails to deliver possession of the dwelling unit as required by the provisions of 35-9A-203, the tenant may terminate the rental agreement upon five days written notice to the landlord. (Tenant may also sue for possession of the dwelling unit from the occupant plus damages). (4) Damage to Premises. If the dwelling unit is damaged or destroyed (substantially impaired) the tenant may vacate the premises and give the landlord 14 days notice of intent to terminate the agreement. 35-9A-406. LANDLORD TERMINATION REMEDIES 12

14 The landlord may terminate the rental agreement for three basic causes which are: material noncompliance, failure to pay rent and refusal to allow access. (1) Material Noncompliance. The landlord may terminate the rental agreement for material noncompliance of the agreement or with 35-9A-301 by delivering a written notice terminating the lease specifying the acts and omissions constituting the breach and that the rental agreement will terminate 14 days after receipt of the notice if the breach is not remedied. Grounds to terminate the tenant s rental agreement are as follows: 1. Failure to comply with obligations imposed by building and housing codes affecting health and safety. 35-9A-501c(1) 2. Failure to keep the premises clean and safe. 3. Failure to dispose of garbage or other waste. 4. Failure to keep plumbing fixtures in operable condition. 5. Failure to reasonably use electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances. 6. Deliberate or negligent damage to the premises (including invitees and guests). 7. Breach of covenant of quiet enjoyment. 8. Other material violations of the lease. (2) Nonpayment of Rent. The landlord may terminate the rental agreement for nonpayment of rent by giving the tenant 7 days written notice to cure the default. If the default is not cured within the 7 day period after receipt, the agreement is terminated. (3) Refusal to Allow Access. The landlord may seek an injunction or terminate the rental agreement pursuant to 35-9A-421 on seven days notice for tenant s failure to allow lawful access. 13

15 JURISDICTION, VENUE AND PROCEDURE JURISDICTION The District and Circuit Courts have jurisdiction over eviction actions together with the Act s other causes of action in the County in which the leased property is located. 35-9A-461(b). With regard to the original jurisdiction of the Circuit Court, if the amount in controversy between the parties is in excess of $10,000.00, then the Circuit Court has original jurisdiction in the first instance. VENUE Venue lies in the county in which the leased property is located. 35-9A-461(b) SUMMONS AND COMPLAINT COMPLAINT The Act creates a cause of action for eviction, rent, monetary damages and injunctive relief pursuant to the Act. 35-9A-461. If a rental agreement is terminated and the tenant refuses to surrender possession, the landlord has a claim for possession of the premises and for rent and a separate claim for actual damages and attorney s fees as provided in 35-9A-421(c). The landlord may proceed with a single cause of action for 14

16 possession of the premises or for a multi-count complaint. If the landlord elects to proceed with a complaint for possession of the premises (no damage claim), the cause of action for damages is not waived because the claim for unpaid rent, damages and attorney s fees is not ascertained until the premises is recovered. The tenant has causes of action for breach of rental agreement covenants and the statutory duties imposed upon the landlord. SUMMONS The statutory provision regarding service of process on the Defendant for possession of the premises is a departure from the Alabama Rules of Civil Procedure pertaining to personal service of process of complaints for monetary damages. 35-9A-461(c) provides that service of process must be made in accordance with the Alabama Rules of Civil Procedure. However, if the Sheriff (or process server) is unable to serve the Defendant personally, in rem service is made by posting a copy of the summons and complaint and by mailing the lawsuit by first class mail by the end of the following day to the tenant at the leased premises. The Judges of the District Court of Mobile County, when service is made In Rem, enter judgment for the premises and dismiss that part of the complaint pertaining to money damages without prejudice with leave to reinstate by motion at a later time. 15

17 ANSWER The provisions of ARCP Rule 12(dc) apply to answers to complaints in Unlawful Detainer. The rule states as follows: Rule 12 applies in the District Courts except...all time periods of thirty days are reduced to fourteen days for all actions other than an action for unlawful detainer, in which action a defendant shall serve his answer within seven days after service of the summons and complaint... Rule 6 provides Saturday, Sunday or legal holiday may not be included in the computation of time; therefore, weekends and holidays are added to the 7 day time within which to answer. The requirement that a defendant in unlawful detainer answer the complaint within seven days creates tension in a complaint in which the Plaintiff sues for possession of the premises and for money damages for nonpayment of rent. Upon personal service of the complaint, one count must be answered within seven days and the other count within 14 days. This issue is discussed more fully below. CONDITIONS PRECEDENT Notice by either party is a condition precedent to create a cause of action under the Act. Failure to give notice is an 8c defense. DEFENSES AND COUNTERCLAIMS TENANT COUNTERCLAIMS Pursuant to 35-9A-405, a tenant has counterclaims in an 16

18 action for possession of the premises or in an action for rent when the tenant is in possession of the premises. A tenant in possession is precluded from asserting statutory counterclaims to a landlord s complaint if rents have not been tendered to the landlord. 35-9A-164. A tenant s counterclaims arise under the rental agreement or under the provisions of the Act as follows: 1.Breach of rental agreement. 35-9A-401(a). 2.Noncompliance with 35-9A-204 materially affecting health and safety (covenant of habitability). 35-9A-401(a). 3.Failure to provide essential services. 35-9A Abuse of right of access (2 days notice). 35-9A-442(b). 5.Diminution of services. 35-9A-501(a)(1-3)&(b) The tenant, not in possession of the premises, has statutory causes of action and counterclaims against the landlord s cause of action for unpaid rent and damages. These are as follows: 1. Prohibited provisions in the rental agreement. 35-9A Failure to refund security deposit. 35-9A Failure to deliver possession of the premises. 35-9A Failure to refund unearned rent. 35-9A-401,404& Diminution of services/ouster. 35-9A Unlawful-unreasonable entry. 35-9A Retaliatory conduct. 35-9A-501. TENANT DEFENSES The breaches of the statutory duties set forth in the preceding section which create counterclaims should also be considered as 8c defenses. In addition to the affirmative defenses set out in ARCP Rule 17

19 8c the tenant has the defense of the landlord s failure to give appropriate condition precedent notice. This defense can arise for complete failure to give notice; failure to comply with the statutory time requirements; failure of the notice to comply with the substantive content requirements of the Act or of the rental agreement; failure to properly deliver or serve the notice; failure to allow the tenant to cure the default. The landlord s acceptance of any rent is a waiver of the right to recover possession of the premises and is therefore an 8c defense to an action for possession of the dwelling unit. 35-9A- 424; the acceptance of rent is not an 8c waiver defense if the eviction is for other than a monetary default. ATTORNEY S FEES The Act prohibits a landlord from including a clause in the rental agreement which provides the tenant is liable for attorney s fees. 35-9A-163(3). Either party may recover attorney s fees under the Act. The tenant may recover attorney s fees from a person wrongfully in possession of the leased premises if that occupant refuses to surrender possession of the premises. 35-9A-203&441. DAMAGES Actual damages and rent penalties are recoverable under the 18

20 Act for both parties. JUDGMENTS AND ORDERS DEFAULT JUDGMENTS The Rules of Civil Procedure require either party to move the Court for entry of default judgment. The landlord s motion can be made after the tenant has failed to answer within the time allowed. The motion should provide the Court with sufficient facts to enter judgment and establish the costs of appeal. A motion for default judgment is required setting forth (1) facts establishing the Landlord Tenant relationship (2) appropriate termination notice (3) refusal of the tenant to surrender possession of the premises (4) the calculation of rents accrued during the pendency of the case (5) a calculation of damages and (6) attorney s fees. PREFERENTIAL SETTING The Act requires that the District and Circuit courts docket original cases and appeals as a preferred case, and the Circuit Court must set the case for trial within 60 days of an appeal. 35-9A-461(b) TRIAL ORDERS The centerpiece of the act is 35-9A-405(a). In a contested action for possession of the premises or for an action for rent when the tenant is in possession of the premises, 19

21 the tenant may counterclaim under the rental agreement or under the Act. 35-9A-405(a). As a condition precedent the tenant shall pay into Court rent accrued and thereafter accruing as it comes due. 35-9A-405(a). (1) The Court shall determine the amount due to each party. The prevailing party shall receive the net amount from the monies paid into Court and the balance by the other party. If no money is due the landlord, judgment for possession shall be entered for the tenant, that is, the Court finds no rent is due the landlord and tenant s counterclaims exceed the landlord s claim for rent, a judgment for possession of the premises shall be awarded to the tenant. If the landlord s claims exceed the tenant s counterclaims, the Court may enter judgment for the landlord or the tenant. (2) Section 35-9A-405(a) provides the landlord with a cause of action to recover unpaid rent while the tenant is in possession. If the tenant answers and counterclaims, the Act provides the tenant must pay all rents into court. In the event of an appeal, the appeal costs, except the court costs, are on deposit with the District Clerk. (3) In a landlord s action for rent and damages where the tenant is not in possession, the tenant may counterclaim under the rental agreement or the Act but is not required to tender any sums to the Clerk of Court. The Court will award a monetary judgment on 20

22 the facts at trial. INJUNCTIVE RELIEF The Act s provisions regarding injunctive relief are found in 35-9A-442 arising by virtue of the tenant s refusal to allow access and for the landlord s unlawful entry upon the premises. In addition, the tenant may seek injunctive relief for noncompliance of rental agreement or noncompliance with 35-9A-204. These are Circuit Court remedies. APPEALS The appeal time applicable to judgments entered by the District Court pursuant to 35-9A for possession of the premises is 7 days. To appeal, a tenant must pay the applicable court costs and all rents and other charges set forth in the Court s order of entry of judgment. These sums are payable to the Clerk of Court. 35-9A- 461(d). WRITS The Plaintiff-Landlord must request the Clerk of Court to issue a writ on the 8 th day after entry of judgment. An appeal will not stay the issuance of a writ unless the tenant pays into court all rents which accrued from the month of filing of the action and all subsequent rents that come due during the pendency of the 21

23 appeal and continues to pay all rents as they come due. 35-9A-461. If the tenant fails to make any payments determined by the Court on appeal, the landlord may move the Circuit Court for an Order to issue a writ of restitution. 35-9A-461(d)(1). Respectfully submitted, John V. Lee (LEE013) P.O. Box 2533 Mobile, AL jvleelaw@gmail.com 22