Important Changes Ahead for Owners and Managers of Residential Rental Property
April 22, 2018
The Alabama Legislature through Act 2018-473 has recently made some very important amendments to the Alabama Uniform Residential Landlord Tenant Act (§ 35-9A-101, et. seq.) that you need to be aware of if you own or manage rental properties in Alabama. These amendments will take effect June 1, 2018 and will require you to modify your current notices and procedures regarding evictions in the event of non-payment of rent, and other breaches of the lease. You may need to amend your leases as well. You need to be familiar of the following changes to the law:
Notice of Default for Failure to Pay Rent Changed from Seven Calendar Days to Seven Business Days
Prior to these amendments, § 35-9A-421 of the Act required written notice to be provided to the tenant of any breach of the rental agreement related to the failure to pay rent. The Act also specified that the tenant may cure any such breach within seven (7) calendar days, and if they did so, the lease could not be terminated.
These new amendments now require that the landlord provide the notice seven (7) business days prior to terminating the lease for failure to pay rent. This may seem like a minor change, however, if you do not amend your current notice to provide seven (7) business days’ notice rather than calendar days’ notice, you may forfeit your right to evict a tenant for violating the terms of the lease. Proper notice is a prerequisite to filing an eviction action. Providing an improper notice may be grounds for dismissal of your complaint.
I have attached a copy of the form notices we recommend our clients use. Be sure to use these notice forms or amend your own accordingly. Also, you need to make sure that when youcalculate the time period for the tenant to cure the default by paying all past due rent that you do not include weekends or holidays in that calculation.
Multiple Breaches of the Lease May Only Be Cured Twice in a Twelve-Month Period
The Legislature also reduced the number of times a breach to the lease unrelated to rent may be cured in a twelve-month period from four violations of the same offense down to two. Such violations are typically related to rules violations under the lease such as noise complaints, overnight guests, parking issues, etc. Now after the tenant has been given notice of the breach and cured a violation two times, upon the third breach of the lease, the violation will be considered to be noncurable. Thus, you may terminate the lease upon the third such violation.
This is where the amendment is a bit confusing. In each instance of a breach of the lease not related to the payment of rent, the landlord is required to provide notice of the violation and allow the tenant seven (7) calendar days to cure the violation before terminating the lease. I can only assume that the Legislature thought that seven (7) business days was too much time for the tenant to continue to be in default without curing the default. Thus, they allowed calendar days to be used for the notice and cure period in such instances.
List of Non-Curable Breaches Expanded
The Legislature also expanded the list of noncurable breaches found in § 35-9A-421 (d) to include the following:
Manufacture, transportation, cultivation, importation, possession, furnishing, administering, or use of illegal drugs in the dwelling unit or in the common areas.
Illegal use, manufacture, importation, possession, furnishing, or discharging of a firearm or firearm ammunition on the premises of the rental property, except for the use or discharge of a firearm or firearm ammunition in cases of self-defense of a third party, or as permissible in § 13A-3-23.
(The provisions relating to criminal assault on the premises being a noncurable event of default were left unchanged.)
Lawful Possession of a Firearm is Grounds for Termination
The most surprising change in the law found in these particular changes is the fact that even the lawful possession of a firearm or ammunition on the premises of rental property is grounds for termination of the lease. (See § 35-9A-421(d) (2) above.)
Prior to these changes an unlawful discharge of a firearm was required for termination of a lease. It is one thing for a landlord to prohibit firearms in their agreement with the tenant. Parties are generally free to choose to enter contracts on their own terms. However, it is quite another for it to become the law that an otherwise law-abiding tenant may not lawfully possess a firearm, without the risk of being evicted.
I personally think this was a mistake in the drafting of the original bill. However, it will take another amendment to address this section and the Legislature is not set to be back in session until next March. Until then, just be aware that no pistol permit holder, hunter, shooting enthusiast or anyone else lawfully in possession of a firearm may do so in a rental unit without running the risk of having their lease terminated. I look for the National Rifle Association and those passionate about Second Amendment rights to address this soon.
Second Breach Within Six Months of the Same Breach is Now Grounds for Termination
The new § 35-9A-421(d) also provides that if the tenant commits a violation involving “substantially the same acts or omissions” as one in which you have previously provided notice to the tenant of that particular breach, the tenant may not cure the second similar breach if the two events occur within six months of each other. In other words, once you give notice of a violation of the agreement, if the tenant commits the same violation within six months, you may terminate the lease at your option. The second breach then becomes noncurable. However, you still have to provide a seven-calendar day notice to vacate for a noncurable default prior to your termination of the lease, and beginning your eviction proceedings.
Steps You Need to Take Prior to June 1, 2018
Take a look at the amendments and get with your attorney and have them review and revise your lease forms, and notices as needed in light of these new changes. If you do not have an attorney and would like our assistance, please do not hesitate to call me at (205)344-5000 or email me at email@example.com.
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