Alabama Real Estate Attorney

Articles Tagged with: Alabama Real Estate Attorney

Changes to Alabama Eviction Laws

As a landlord in Alabama, it is crucial that you stay abreast of all the changes in legislature regarding evictions and other lease requirements, otherwise you may unwittingly forfeit many of your rights as a property owner. While it would be in your best interests to consult with a knowledgeable real estate attorney every few months, and especially when taking on a new tenant, there are a few changes to the Alabama Uniform Residential Landlord Tenant Act (§ 35-9A-101, et. seq.) that may require you to take action sooner rather than later. These changes went into effect on June 1, 2018 and will require you to modify your existing notices and procedures regarding evictions and breaches of the lease.

Notice of Default for Failure to Pay Rent Changed From Seven Calendar Days to Seven Business Days

Prior to June 1, landlords were required to give tenants seven calendar days to cure a nonpayment-of-rent breach. However, the amendments have changed the notice period, and now require landlords to give tenants seven business days. While this may not seem like a huge deal, failure to change your lease agreement to reflect these changes may mean that you forfeit your rights to evict a tenant at all. If you wish to retain your full rights as the property owner, you need to modify your lease agreements to inform tenants of the extended notice period.

The List of Non-Curable Breaches Has Been Expanded

Under § 35-9A-421 (d), the only non-curable breach a tenant could commit was assaulting a guest or other tenant of the property. As of June 1, however, the legislature has been expanded to include two other non-curable actions:

Manufacturing, transporting, cultivating, importing, possessing, furnishing, or using illegal substances while on the property; and
Using, manufacturing, possessing, furnishing, importing, or discharging an illegal firearm ammunition on the premises of the rental property, except in cases of self-defense.

The Number of Times a Breach May Be Cured Has Been Reduced

Prior to the June changes, Alabama law allowed tenants the opportunity to cure a breach of the lease unrelated to rent up to four times in a 12-month period. However, the law has reduced the number of times a breach may be cured from four violations of the same offense down to two in a year’s span. These violations typically include things such as noise complaints, having overnight guests, keeping animals on the property, etc. The tenant has the opportunity to cure the same breach twice within seven calendar days, not business days, and, upon the third violation, you have the right to terminate the lease right then and there.

Second Breach Within Six Months of the Same Breach is Grounds for Termination of Rental Contract

Not only has the number of times a person can cure the same breach within a 12-month period been reduced, but also the frequency with which the same breach has been committed may qualify as grounds for termination. The amendment states that if a tenant commits a violation involving “substantially the same acts or omissions” as one for which you have provided notice within the past six months, you do not have to allow the tenant time to cure said breach. However, because this is just the second breach, you still have to give the tenant seven calendar days to vacate the premises before following through with eviction proceedings.

Lawful Possession of Firearms is Grounds for Termination

This is perhaps the most surprising of the changes to the landlord/tenant act, as, up until recently, Alabamians have been strong supporters of the second amendment. With the uptick in school shootings and other public massacres, however, Alabamians have begun to change their stance, which is evident by the passage of § 35-9A-421(d) (2). This provision of the act makes the lawful possession of a firearm or ammunition on the premises of a rental property grounds for termination.

What makes this provision especially surprising is the fact that an otherwise law-abiding citizen runs the risk of being evicted for legally possessing a firearm. Had a gun holder known of this law prior to signing a lease, he or she could have willfully walked away from a contract and found somewhere else to live. As it stands, a landlord can change its lease agreement today and go around evicting tenants tomorrow.

Consult a Real Estate Attorney Regarding the New Changes

If you have yet to make the necessary changes to your lease agreements, reach out to Cloud Willis & Ellis to discuss changes with our Alabama real estate lawyers. Our team can help you draft a new lease agreement that contains the necessary and optional provisions and ensure that you are able to evict a tenant should you feel it necessary to do so.

Three Legal Ways to Get Stubborn Tenants Off of Your Property

Whether you are a creditor trying to figure out a way to get former homeowners out of the foreclosed upon property or a landlord wanting to remove bad tenants from your rental unit, you may be wondering how you can get the stubborn tenants off of your property in a way that is compliant with the law. Landlords typically go the eviction route, but what do lenders do when the stubborn residents are not mere tenants, but former borrowers? Fortunately, Alabama provides three ways for landlords and tenants alike to remove a person from their property without much hassle or headache.

Lawsuits for the Removal of Residents

In Alabama, there are three ways in which a person can use the law to regain control of his or her property. Though our Birmingham real estate lawyers at Cloud Willis & Ellis can do a better job of explaining each method in depth in person, this post explains those methods in brief:

Eviction: Eviction is applicable when there is a landlord/tenant lease agreement in place. Unfortunately for the landlord, the tenant has the right to remain on the premises unless the lease is up and the tenant and landlord did not agree to renew it, and/or unless the tenant has violated the terms of the lease. The most common violation is failure to pay rent, but may also include a number of other violations, such as having a pet on the property despite a written agreement forbidding pets. If a landlord opts to evict a tenant instead of ejecting him or her, he or she must give the tenant a chance to remedy the issue for which the landlord wants to evict him or her. A lender cannot evict a prior homeowner for refusing to leave a foreclosed property.
Ejectment: An ejectment applies in situations where the person residing on the property does not have a lease agreement with the owner to be on the property. An ejectment action typically arises when the person living on the premises believes that he or she has the right to be there, such as in foreclosure cases. The homeowner feels that because he or she once owned the property, and/or because he or she invested a significant amount of money in the property, he or she is still entitled to reside in it. Ejectment actions need to be filed in the Circuit Court and typically take much longer to resolve than evictions or unlawful detainers/forcible entry.
Unlawful Detainer/Forcible Entry: This last cause of action arises when the owner of a property wants to remove a person who was invited onto the property and/or granted permission to live on the property for an indefinite period of time but who has overstayed his or her welcome. Unlawful detainer cases typically arise when a child refuses to leave his or her parent’s house after turning 18 and being asked to move out. Alternatively, unlawful detainer cases may arise when a guest is invited to stay on the property by the homeowner but, when asked to leave, refuses to do so. Forcible entry cases, on the other hand, arise when a person resides on another’s property despite lack of an invitation. These usually occur when a squatter has taken up residence on a foreclosed property.

Discuss Your Options With a Real Estate Lawyer

At Cloud Willis & Ellis, we help property owners exercise their rights on a daily basis. If someone is living on your property without your consent, or if you wish to remove somebody from your property in a legal manner, contact our real estate attorneys today.

Three Mistakes That Could Cost You Your Earnest Money

If you have found your dream home, you want to do everything possible to secure it and make sure that at the end of the day, it is yours. Part of “everything possible” is agreeing to and handing over the sizeable cash deposit—otherwise known as “earnest money.” Typically, that money is applied to your closing costs and down payment, but if you are not careful, you may see that money go up in smoke. If you are in the market for a new home, you must be careful in what you do and do not do, as your actions could cost you your earnest money. Here are three mistakes to avoid to ensure that your money—and your home—are yours at the end of the day.

Not Acting in Time

One of the biggest mistakes that our real estate attorneys see potential homeowners make during the homebuying process is failing to perform certain responsibilities on time. Some responsibilities that homebuyers must follow through with include getting the home inspected or finalizing the terms of their mortgage loan.

If the timelines for certain obligations pass and the homebuyer still has not met the seller’s requirements, the seller has one of two options. One option involves the seller giving the homebuyer extra time to fulfill his or her end of the bargain. Sellers typically only do this when the buyer has a valid reason for failing to meet the deadlines in the first place. However, if the buyer does not have a credible reason for why he or she did not get everything done in time, the seller has every right to cancel the deal altogether. If he or she chooses to do this, the dealer has effectively breached the contract and therefore, is not entitled to his or her deposit money.

As a buyer, it is up to you to meet the seller’s requirements within an allotted period of time. If you fail to do so, you may unwittingly forfeit both your dream home and your money.

Waiving Certain Contingencies

Though it is never a good idea to waive contingencies of a real estate contract, because Alabama is a buyer-beware state, our attorneys at Cloud Willis & Ellis strongly recommend against doing so in this state. It is true that many contingencies are in place to protect sellers, but some, such as one that allows buyers to walk away if a home does not pass inspection, actually work in favor of the buyer.

You may feel tempted to waive certain contingencies in order to appear more favorable in the seller’s eyes, but in the end, your decision to do so could cost you in the long run. If you decide not to buy the property because of costly structural issues, you may be forced to sacrifice your contingency—which may be your deposit money for your true dream home.

Walking Away

Once you sign the papers and begin the escrow process, you are obligated to go through with the purchase—and if you do not, the seller has every right to take your contingency money and even sue you for additional damages.

While you could always hope that the homeowner has mercy on you, we would not count on it. If you want to save yourself time, headache, and money, do not commit to buying a home that you are unsure about. Get the inspections performed within the allotted time frame, make sure to secure a loan before shopping for a home, and discuss the purchase with your partner before you pull the trigger.

If you are in the market for a new home, be smart about the way in which you shop for your dream home. Make the most of your time and money and work with a real estate lawyer to avoid the most common buyer mistakes. Call Cloud Willis & Ellis today to learn more.

Resource:

law.ua.edu/resources/pubs/lrarticles/Volume%2060/Issue%202/Murphy-Caveat_Emptor.pdf

Remedies for the Breach of a Commercial Real Estate Contract: Restitution, Rescission, and Specific Performance

In our last post, we discussed when monetary damages might be applicable in breach of commercial real estate contract cases and, if monetary damages are not applicable, what other types of remedies are available. Additional remedies would include:

Restitution;
Rescission;
Reformation; and
Specific performance.

If monetary damages do not apply to your case, you may still be able to compensate for the breach via one of these four legal means. Our Birmingham real estate attorneys at Cloud Willis & Ellis can help you review your options and determine which is best for your situation.

Restitution

Restitution is designed to return the offended party to the position in which he or she was pre-contract negotiations. Parties who are interested in restitution do not want damages for lost earnings; rather, they just want to be compensated, really, for their waste of time. Restitution typically applies when contracts are voided due to defendants’ incompetence or incapacity (Section 8-1-170), and when such a void has made the plaintiff worse off than before he or she entered the contract.

Rescission

Rescission refers to a remedy that essentially terminates the contractual duties of both parties. Rescission may occur when one or both parties enter the contract by undue influence, fraud, duress, or even mistake. A contract that was formed under fraudulent misrepresentation is never valid in the U.S. If rescission applies, the plaintiff may be able to recover benefit-of-the-bargain damages, which is a monetary amount equal to the value of what the plaintiff would have gained had the contract been fulfilled.

Reformation

Reformation refers to the remedy that grants courts the right to modify the content of a commercial real estate contract to make it enforceable and/or not-fraudulent. A judge might choose this option if the person who fraudulently misrepresented him or herself or the building did so unintentionally and via a simple miswording. That said, courts are hesitant to rewrite contracts to echo both parties’ intentions, as the parties can do that themselves.

Specific Performance

Specific performance is the second most commonly used remedy in breach of commercial real estate contract cases. Specific performance simply means that the court forces both parties to follow through with all of or specific provisions of the contract. This type of remedy is only available when monetary damages will not suffice to compensate the plaintiff.

Retain the Help of a Commercial Real Estate Attorney

Breach of contract almost always causes headache for the party that intended to follow through with the contract. This is especially true when commercial real estate is involved. As we mentioned in our last post, commercial real estate is not easy to come by, and it is not easy to sell. Then there is the amount of time invested in contract negotiations and the handling of other transaction details. If you feel that you are in a worse position because of a breach of a real estate contract, reach out to the Alabama real estate attorneys at Cloud Willis & Ellis to learn more about your legal options.

Resource:

law.cornell.edu/wex/fraudulent_misrepresentation

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