HB65 Alabama 2020 Session

Under current law, landlords are required to make certain reasonable efforts to notify a tenant prior to initiating an eviction

This bill would clarify what efforts must be made by a landlord to give notice to a tenant prior to commencing an eviction

Relating to evictions; to amend Sections 6-6-332 and 35-9A-461, Code of Alabama 1975, to clarify what efforts must be made by a landlord to give notice to a tenant prior to commencing an eviction.

Section 1

Sections 6-6-332 and 35-9A-461, Code of Alabama 1975, are amended to read as follows:

§6-6-332.

(a) Upon complaint being made, the district judge shall issue a notice to the party against whom the complaint is made to the following effect: The State of Alabama, ________ County. To ________ You are hereby commanded to be and appear before me, at _____ on the _____ day of _____, 2__, to answer to, and make defense against a complaint exhibited to me against you by _____, for a forcible entry and detainer (or for unlawful detainer, as the case may be). Witness my hand this _____ day of ______, 2__. _______________________________ District Court Judge

(b) The notice shall be served on the defendant at least six days before the return day of the process and may be served on the defendant anywhere within the state. The return of the service thereof by any sheriff or constable of the state is sufficient, or proof of the fact may be made before the judge. A copy of the notice shall be personally served upon the defendant at the premises. If the sheriff or constable 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 sheriff, the constable, 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 and if there is no mailing address for the premises to the last known address, if any, of the defendant and making an entry of this action on the affidavit filed in the case. Service of the notice by posting shall be complete as of the date of mailing the notice.

(c) Upon complaint being made and upon request of the plaintiff to have the notice served on the defendant by a process server other than a sheriff or constable, the court shall, if the process server is qualified under Rule 4.1 (b)(2) of the Alabama Rules of Civil Procedure, order the clerk to deliver the notice to the process server for service.

§35-9A-461.

(a) A landlord's 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 and the Alabama Rules of Appellate Procedure except as modified by this chapter.

(b) District courts and circuit courts, according to their respective established jurisdictions, shall have jurisdiction over eviction actions, and venue shall lie in the county in which the leased property is located. Eviction actions shall be entitled to precedence in scheduling over all other civil cases.

(c) Service of process shall be made in accordance with the Alabama Rules of Civil Procedure. However, if a sheriff, constable, or process server is unable to serve the defendant at the premises 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 sheriff, the constable, 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 and if there is no mailing address for the premises to the last known address, if any, of the defendant and making an entry of this action on the return filed in the case. Service of the notice by posting shall be complete as of the date of mailing the notice.

(d) Notwithstanding subsection (a) of Section 12-12-70, any party may appeal from an eviction judgment entered by a district court to the circuit court at any time within seven days after the entry thereof. The filing of a timely post-judgment motion pursuant to the Alabama Rules of Civil Procedure shall suspend the running of the time for filing a notice of appeal. In cases where post-judgment motions are filed, the full time fixed for filing a notice of appeal shall be computed from the date of the entry in the civil docket of an order granting or denying such motion, or the date of the denial of such motion by operation of law pursuant to Rule 59.1 of the Alabama Rules of Civil Procedure. Upon filing of an appeal by either party, the clerk of the court shall schedule the action for trial as a preferred case, and it shall be set for trial within 60 days from the date of the filing of the appeal. In eviction actions, an appeal by a tenant to circuit court or to an appellate court does not prevent the issuance of a writ of restitution or possession unless the tenant pays to the clerk of the circuit court all rents properly payable under the terms of the lease since the date of the filing of the action, and continues to pay all rent that becomes due and properly payable under the terms of the lease as they become due, during the pendency of the appeal. In the event of dispute, the amounts properly payable shall be ascertained by the court.

(1) If the tenant should fail to make any payments determined to be properly payable as they become due under this subsection, upon motion, the court shall issue a writ of restitution or possession and the landlord shall be placed in full possession of the premises.

(2) Upon disposition of the appeal, the court shall direct the clerk as to the disposition of the funds paid to the clerk pursuant to this subsection.

(e) If an eviction judgment enters in favor of a landlord, a writ of possession shall issue upon application by the landlord. 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. If a tenant without just cause re-enters the premises, the tenant can be held in contempt and successive writs may issue as are necessary to effectuate the eviction judgment.

(f) In the event that the landlord is placed in possession under a writ of restitution or possession, and on appeal the judgment is reversed and one entered for the tenant or the proceeding on appeal is quashed or dismissed, the circuit court may award a writ of restitution or possession to restore the tenant to possession as against the landlord, but not as against a third party. The issuance of the writ rests in the discretion of the appellate court, and the circuit court, in all cases, may direct writs of restitution or possession to be issued by the trial court when, in the judgment of the circuit court, such writ is proper or necessary."

Section 2

This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.