Alabama Eviction Law

STATE OF ALABAMA EVICTION LAW

Section 6-6-314 Liability of lessee holding over; how such recovered. Any person who, having entered into the possession of lands and tenements under a contract of lease, forcibly or unlawfully retains the possession thereof after the expiration of his term or refuses to surrender the same on the written demand of the lessor, his agent, or attorney or legal representative, is liable for double the amount of the annual rent agreed to be paid under such contract and for such other special damages as may be thereby sustained by the party thus unlawfully kept out of possession, to be recovered as now provided by law in actions of unlawful detainer or by a civil action for damages. (Code 1867, 3312; Code 1876, 3709; Code 1886, 3391; Code 1896, 2137; Code 1907, 4273; Code 1923, 8014; Code 1940, T. 7, 977.) Section 6-6-319 Forms for judgment, restitution or possession. The following or similar forms may be used when appropriate in forcible entry and unlawful detainer proceedings; but they are not exclusive of other appropriate forms: Judgment.A. B. v. C. D.Came the parties on the _______________ day of_______________, and upon evidence I find the said C. D. guilty of the forcible entry and unlawful detainer (or, unlawful detainer) as complained against him by A. B., and I therefore order and adjudge that C. D. restore to A. B. the possession of the tract of land (or tenement) mentioned in the complaint: _______________ (here designate the land or tenement), and pay the cost of this proceeding Writ of Restitution or Possession. State of Alabama,County._______________To any lawful officer of said county:You are hereby commanded to restore A. B. to possession (or place A. B. in possession) of the land and tenements (or, as the case may be) which A. B. recovered of C. D. in an action of forcible entry and detainer (or unlawful detainer) before me on the _______________ day of _______________, at (here describe the land and tenements). You are further directed, of the goods and chattels, lands and tenements, of the said C. D., you cause to be made the sum of _______________, which the said A. B. has recovered for his costs in that behalf expended.Witness my hand, this the _______________ day of _______________E. F., District Court Judge (Code 1907, 4286; Code 1923, 8031; Code 1940, T. 7, 994.) Section 6-6-330 Jurisdiction. The forcible entry upon and detainer, or the unlawful detainer, of lands, tenements and hereditaments is cognizable before the district court of the county in which the offense is committed. (Code 1852, 2850; Code 1867, 3297; Code 1876, 3694; Code 1886, 3378; Code 1896, 2124; Code 1907, 4260; Code 1923, 7998; Code 1940, T. 7, 964.) Section 6-6-331 Venue. The complaints provided for in this article must be filed with, and be tried by, the district court for the county in which the lands or tenements are situated. (Code 1852, 2868; Code 1867, 3317; Code 1876, 3714; Code 1886, 3385; Code 1896, 2131; Code 1907, 4267; Code 1923, 8008; Code 1940, T. 7, 971.) Section 6-6-332 Process - Form of notice; service and return thereof. (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 _______________, 19 _______________, 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 _______________, 19_______________._______________ 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. 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. (Code 1852, 2854, 2855; Code 1867, 3302, 3303; Code 1876, 3699, 3700; Code 1886, 3383, 3384; Code 1896, 2129, 2130; Code 1907, 4265, 4266; Code 1923, 8006, 8007; Code 1940, T. 7, 969, 970; Acts 1990, No. 90-218, p. 255, 1; Acts 1996, No. 96-573, p. 880, 1.) Section 6-6-335 Proceedings when parties appear or defendant fails to do so. If the parties appear, an issue must be made between them upon the complaint, but if the defendant, having been duly cited, does not appear or, appearing, declines to plead, the case proceeds as if the defendant had denied the allegations of the complaint; or, for good cause, the trial may be postponed not more than 15 days, at the cost of the applicant. (Code 1852, 2856; Code 1867, 3304; Code 1876, 3701; Code 1886, 3386; Code 1896, 2132; Code 1907, 4268; Code 1923, 8009; Code 1940, T. 7, 972.) Section 6-6-337 Proceedings upon determination for either plaintiff or defendant. (a) If the judge determines in favor of the plaintiff, he must record the decision and enter judgment with costs, upon which he must issue a writ of execution commanding the sheriff or the constable to restore the plaintiff to possession or place him in possession of his lands and tenements according to complaint and to levy on and sell a sufficiency of the defendant's goods and chattels, lands and tenements to satisfy the costs of the proceedings. Successive writs may issue at any time when necessary to eject defendant or collect costs and damages, and a defendant who refuses to obey the mandate of the writ as to the possession of the property or who enters upon the premises without just cause or legal excuse after being ejected shall be guilty of resisting an officer and contempt of court and shall be punished and fined accordingly, in the discretion of the court issuing the process. (b) If the judge determines in favor of the defendant, judgment must be entered in his favor for the costs, upon which an execution may issue as in other cases. (Code 1852, 2857, 2858; Code 1867, 3305, 3306; Code 1876, 3702, 3703; Code 1886, 3387, 3388; Code 1896, 2133, 2134; Code 1907, 4269, 4270; Code 1923, 8010, 8011; Code 1940, T. 7, 973, 974.) Section 6-6-350 To circuit court from district court. Any party may appeal from a judgment entered against him or her by a district court to the circuit court at any time within 14 days after the entry thereof, and appeal and the proceedings thereon shall in all respects, except as provided in this article, be governed by this code relating to appeal from district courts. However, 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 appeal. (Code 1852, 2811, 2864; Code 1867, 3257, 3313; Code 1876, 3654, 3710; Code 1886, 3398; Code 1896, 2144; Code 1907, 4280; Code 1923, 8021; Code 1940, T. 7, 984; Acts 1996, No. 96-573, p. 880, T. 1.) Section 6-6-351 Writs of restitution or possession - Suspension upon payment of rent by defendant. (a) Notwithstanding any other provisions of law or of the Alabama Rules of Civil Procedure, in cases of forcible entry or unlawful detainer, an appeal to circuit court or to appellate court does not prevent the issue of a writ of restitution or possession unless the defendant pays to the clerk of the district court all rents called for 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 payable under the terms of the lease as they become due, during the pendency of the appeal, and the sums are to be ascertained by the judge. (b) If the defendant should fail to make any payments as they become due under subsection (a), the court shall issue a writ of restitution or possession and the plaintiff shall be placed in full possession of the premises. (c) Upon disposition of the appeal, the court shall direct the clerk as to the disposition of the funds paid to the clerk pursuant to subsection (a). (Code 1852, 2865; Code 1867, 3314; Code 1876, 3711; Code 1886, 3401; Code 1896, 2145; Code 1907, 4281; Code 1923, 8022; Code 1940, T. 7, 985; Acts 1996, No. 96-573, p. 880, 1.) Section 6-6-352 Writs of restitution or possession - Issuance by circuit court. In the event that the plaintiff is placed in possession under a writ of restitution or possession, and on appeal the judgment is reversed and one entered for the defendant or the proceeding on appeal is quashed or dismissed, the circuit court may award a writ of restitution or possession to restore him to possession as against the plaintiff, but not as against a third party; but the issuance of the writ rests in the discretion of the appellate court, and the circuit court may, in all cases, 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. (Code 1923, 8030; Code 1940, T. 7, 993.) Section 6-6-353 Proceedings when determination is against appellant. In cases of forcible entry or unlawful detainer, the judgment, if against the appellant, must be entered in the circuit court against him and the sureties on the appeal or certiorari bond, including the costs in the inferior and circuit courts, and if the appeal or certiorari was sued out by the defendant and a supersedeas bond was executed, a writ of restitution or possession must be awarded and judgment must also be entered against the defendant and the sureties on his supersedeas bond for the value of the rent of the premises pending the appeal. (Code 1852, 2866, 2867; Code 1867, 3315, 3316; Code 1876, 3712, 3713; Code 1886, 3411; Code 1896, 2146; Code 1907, 4282; Code 1923, 8023; Code 1940, T. 7, 986.) Section 35-9-3 Duration of tenancy when time for termination not specified - Generally. Where no time is specified for the termination of tenancy, the law construes it to be from December 1 to December 1 but if it is expressly a tenancy at will, then either party may terminate it at will, by 10 days' notice in writing. (Code 1907, 4732; Code 1923, 8797; Acts 1935, No. 94, p. 158; Code 1940, T. 31, 3.) Section 35-9-4 Duration of tenancy when time for termination not specified - Hiring of lodgings for indefinite term. A hiring of lodgings or a dwelling house for an unspecified term is presumed to have been made for such length of time as the parties adopt for the estimation of the rent. Thus a hiring at a monthly rate of rent is presumed to be for one month. In the absence of any agreement respecting the length of time for the rent, the hiring is presumed to be monthly. (Code 1923, 8821; Code 1940, T. 31, 4.) Section 35-9-5 Notice to terminate tenancy for term less than one year. In all cases of tenancy by the month or for any other term less than one year, where the tenant holds over without special agreement, the landlord shall have the right to terminate the tenancy by giving the tenant 10 days' notice in writing of such termination, and the landlord upon giving said notice for said time shall be authorized without further notice to the tenant to recover possession of the rented premises in an action of unlawful detainer. (Code 1923, 8822; Acts 1932, Ex. Sess., No. 13, p. 14; Code 1940, T. 31, 5.) Section 35-9-6 Notice to quit for breach or default of terms of lease. When default is made in any of the terms of a lease, it shall not be necessary to give more than 10 days' notice to quit, or of the termination of such tenancy, and the same may be terminated on giving such notice to quit at any time after such default in any of the terms of such lease; which notice may be substantially in the following form: "To A. B.: You are hereby notified that in consequence of your default in (here insert the character of the default) of the premises now occupied by you, being (here describe the premises), I have elected to terminate your lease, and you are hereby notifed to quit and deliver up possession of the same to me within 10 days of this date. Dated this _______________ day of _______________." To be signed by the lessor or his agent; and no other notice or demand of possession or termination of such tenancy shall be necessary to maintain unlawful detainer. (Code 1923, 8823; Code 1940, T. 31, 6.) Section 35-9-7 Service of demand or notice. (a) Any demand may be made or notice served by delivering a written or printed, or partly written and printed, copy thereof to the tenant, or by leaving the same with some person above the age of 18 years, residing on or in possession of the premises; and in case no one is in the actual possession of said premises, then by posting the same on the premises. (b) When any such demand is made or notice served by an officer authorized to serve process, his return shall be prima facie evidence of the facts therein stated, and if such demand is made or notice served by any person not an officer, the return may be sworn to by the person serving the same, and shall then be prima facie evidence of the facts therein stated. (Code 1923, 8824, 8825; Code 1940, T. 31, 7, 8.) Section 35-9-8 Notice unnecessary when tenancy is for certain period. When a tenancy is for a certain period, and the term expires by the terms of the lease, the tenant is then bound to surrender possession, and no notice to quit or demand of possession is necessary. (Code 1923, 8826; Code 1940, T. 31, 9.) Section 35-9-60 Lien declared. The landlord of any storehouse, dwelling house or other building shall have a lien on the goods, furniture and effects belonging to the tenant, and subtenant, for his rent, which shall be superior to all other liens, except those for taxes, and except as otherwise provided in section 7-9-310(2). In case the tenant or subtenant is adjudged a bankrupt, such lien on such goods, furniture and effects of the bankrupt, except for a dwelling house, used exclusively as a dwelling, shall, as against the trustee in bankruptcy, attach only for unpaid rent accrued and which shall accrue within six months from the date of adjudication computed pro rata at the then current rate. The lien amount accrued and to accrue shall not be increased by reason of any default or breach of contract by the bankrupt. From the amount of such lien, so computed, the trustee in bankruptcy may deduct all payments and all demands which could be legally set up against the landlord by way of counterclaim. If the trustee in bankruptcy shall dispose of the lease as an asset of the bankrupt estate, then the landlord shall have a lien on the goods, furniture and effects of any person holding under the trustee in bankruptcy. (Code 1886, 3069; Code 1896, 2716; Code 1907, 4747; Acts 1919, No. 134, p. 116; Code 1923, 8814; Code 1940, T. 31, 29; Acts 1981, No. 81-312, p. 399, 7-11-109(1).) Section 35-9-61 When lien may be enforced by attachment. The landlord shall have the right, for the enforcement of such lien, to sue out an attachment before any officer authorized to issue attachments, and returnable to any court having jurisdiction of the amount claimed, when the rent, or any installment thereof, is due, and the tenant fails or refuses, on demand, to pay such rent or installment; and also in the following cases, whether due or not: (1) When the tenant has fraudulently disposed of his goods, or is about to fraudulently dispose of his goods. (2) When the tenant has made an assignment for the benefit of his creditors. (3) When the tenant has made a complete transfer of all, or substantially all, of his goods, or removes or attempts to remove all or substantially all of his goods, from the rented premises, without the consent of the landlord, or without first having paid the rent in full for the term. (Code 1886, 3070; Code 1896, 2717; Code 1907, 4748; Code 1923, 8815; Code 1940, T. 31, 30.) Section 35-9-62 Affidavit and bond. Before such attachment is issued, the plaintiff, or his agent or attorney, must make affidavit, setting forth the amount that is, or will be, due for the rent, that one of the causes for issuing an attachment prescribed in section 35-9-61 exists, and that the attachment is not sued out for the purpose of vexing or harassing the defendant; and must also execute a bond in double the amount claimed, payable to the defendant, with sufficient surety, and with condition that the plaintiff will prosecute the attachment to effect, and pay the defendant all such damages as he may sustain from the wrongful or vexatious suing out of such attachment. (Code 1886, 3071; Code 1896, 2718; Code 1907, 4749; Code 1923, 8816; Code 1940, T. 31, 31.) Section 35-9-63 Property leviable; priority of lien. Such attachment may be levied on so much of the goods, furniture and effects of the tenant as will satisfy the plaintiff's demand for rent; and such levy shall have priority over the levy of any other attachment on such goods, furniture and effects in favor of any other creditor. (Code 1886, 3072; Code 1896, 2719; Code 1907, 4750; Code 1923, 8817; Code 1940, T. 31, 32.) Section 35-9-64 Law governing proceedings. The law governing the issue, levy, trial and other proceedings in attachment proceedings in general, not inconsistent with the provisions of this division, shall govern in all cases arising under this division. (Code 1886, 3073; Code 1896, 2720; Code 1907, 4751; Code 1923, 8818; Code 1940, T. 31, 33.) Section 35-9-65 Lien, rights and remedies vested in assignee of claim for rent. The lien provided in this division shall vest in any assignee of the claim for rent; and such assignee shall be invested with all the rights of the landlord, and entitled to all his remedies for their enforcement. (Code 1886, 3074; Code 1896, 2721; Code 1907, 4752; Code 1923, 8819; Code 1940, T. 31, 34.) Section 35-9-80 Demand for premises. In all cases where a tenant shall hold possession of lands or tenements over and beyond the term for which the same were rented or leased to him, or after his right of possession has terminated or been forfeited, and the owner of the lands or tenements shall desire possession of the same, such owner may by himself, his agent or attorney-in-fact or attorney-at-law demand the possession of the property so rented, leased, held or occupied; and if the tenant refuses or omits to deliver possession when so demanded, the owner, his agent or attorney-at-law or attorney-in-fact may go before the district court in the county in which the land lies, and make oath of the facts. (Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, 35.) Section 35-9-81 Issuance of writ or process. When the affidavit provided for in section 35-9-80 shall be made, the district court before whom it was made shall grant and issue a writ or process directed to the sheriff or his deputy or any lawful constable of the county where the land lies, commanding and requiring him to deliver to the owner or his representative full and quiet possession of the lands or tenements mentioned in the affidavit, removing the tenant with his property found thereon away from the premises. (Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, 36.) Section 35-9-82 Service of writ or process. It shall be the duty of the officer in whose hands the writ or process provided by section 35-9-81 may be placed to serve a copy of same at once on the defendant, together with notice that after the expiration of seven days, said officer will proceed with the execution of such writ or process. If the officer is unable to serve the defendant personally, service may be had by delivering the writ or process to any person who is sui juris residing on the premises, or if after reasonable effort no such person is found residing on the premises, by posting a copy of the writ or process on the door of the premises, and on the same day of such posting, or by the close of the next business day, the sheriff, the constable, the person filing the complaint, or anyone on behalf of such person, shall mail a copy of the writ or process by enclosing, directing, stamping and mailing by first class mail a copy of the writ or process 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 and service of the notice by posting shall be complete as of the date of mailing said notice; and unless a counter affidavit, as provided by section 35-9-84, is filed with said officer within that time, it shall then be his duty to proceed forthwith to execute said writ or process. (Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, 38; Acts 1990, No. 90-218, p. 255.) Section 35-9-83 Removal to circuit court. Any defendant in any such action may remove such action from the district court before whom the same is brought, to the circuit court of the county in which the real estate sued for is situated, in like manner and upon like proceedings as actions for forcible entry and detainer or unlawful detainer may now be so removed, and the trial of any such case so removed shall be conducted under like procedure and with like issues as now provided for the trial of actions of forcible entry and detainer or of unlawful detainer so removed. (Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, 44.) Section 35-9-84 Arrest of proceedings. The tenant may arrest the proceedings and prevent the removal of himself and goods from the land by declaring on oath that his lease or term of rent has not expired, and that he is not holding possession of the premises over and beyond his term, or that his right of possession has not terminated or been forfeited, and that he still has a good and lawful right to the possession of said premises. (Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, 37.) Section 35-9-85 Trial upon delivery of counter affidavit. If the counter affidavit provided in section 35-9-84 be made and delivered to the sheriff or deputy sheriff or constable, the tenant shall not be removed, but the officer shall immediately return the proceedings to the court which issued said writ or process, and the fact or facts in issue shall be there tried by said court, and shall stand for trial on the third day after the delivery to said sheriff or deputy sheriff or constable of such counter affidavit, Sundays and legal holidays excepted. (Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, 39.) Section 35-9-86 Judgment for landlord. If the issues specified in section 35-9-85 shall be determined against the tenant, judgment shall go against him, and the movant or plaintiff shall, after the expiration of one day after judgment, have a writ of possession and, without further delay, be by the sheriff, deputy or constable placed in full possession of the premises. (Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, 40.) Section 35-9-87 Appeals. (a) Any party may appeal from a judgment entered against him by any district court, to the circuit court, at any time within one day after the entry thereof, and such appeal and the proceedings thereon shall in all respects be governed by the law relating to appeals from district courts. (b) An appeal does not prevent the issuance of a writ of restitution or possession unless the defendant also executes a supersedeas bond with sufficient sureties, payable to the sheriff, in the sum of twice the yearly value of the rent of the premises, to be ascertained by the court, with condition to pay the plaintiff all such damages as he may sustain by the prosecution of the appeal. (c) Upon the trial in circuit court, the judgment, if against the appellant, must be entered against him and the sureties on the appeal bond, including the costs in both courts, and if the appeal was taken by the defendant, and a supersedeas bond was executed, a writ of restitution or possession must be awarded, and judgment must also be entered against the defendant and the sureties on his supersedeas bond for the value of the rent of the premises, pending the appeal. (Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, 41-43.)