Once Again, Notice Defects

This article is the second in a six-part (at least) series that is designed to give you a detailed look at each segment of the unlawful detainer process. This particular article focuses on the termination notice required before an unlawful detainer action has been filed. A valid termination notice is a condition precedent to the filing of an unlawful detainer action under the Alabama Uniform Residential Landlord-Tenant Act. An unlawful detainer (“eviction”) filed on an invalid notice renders the entire pleading void and robs the court of subject-matter jurisdiction over the dispute. Bottom line: The 7 Day Notice is a legal document and typographical and service errors can ruin your eviction. A lawyer cannot “fix” an eviction that was filed on a bad notice. 1. THE NOTICE MUST BE PROPERLY ADDRESSED. This requirement seems straight-forward but is one of the most common errors on a 7 Day Notice provided to our office. There is a legal principle that states that the written document “trumps” the spoken word. Therefore, if you accidentally invert the numbers on the tenant’s street address the 7 Day Notice is invalid because as far as the Court is concerned, you delivered the 7 Day Notice to the address listed on the 7 Day Notice. Some Judges also require that the full address street address be be used (including zip code). 2. THE NOTICE MUST BE PROPERLY DATED. If you are using the 7 Day Notice provided in my formbook, you will note that there are three blanks for dates – the date of the Notice, and the date that you serve the Notice. Please make sure that these dates all “line up”. 3. THE NOTICE MUST CONTAIN THE RIGHT TO CURE. Ala. Code 35-9A-100 et seq requires that your Notice give the tenant the right to “cure” their default. Curing a default means that the tenant has the legal right to pay the rent to avoid eviction. It does not matter if you “would have let the tenant pay” – what matters is that your notice specifically provides them information about that legal right. Think about the “right to cure” like the “miranda rights” before an arrest. In order to validly terminate the tenancy, you must let the tenant know that they can avoid this whole process by “curing” their current default. You can only “unilaterally” terminate a lease agreement in a narrow set of circumstances (none of which are nonpayment related). 4. THE NOTICE MUST LIST THE AMOUNT OF RENT REQUIRED TO CURE. The act was amended to require that you list the specific monetary amount owed in order to cure the default. Judges in Morgan County will not grant defaults unless the 7 Day Notice specifically lists the amount of money required to cure a default even if the tenant does not raise that as a defense. In calculating the amount due, please do not anticipate the next months’ rent or late fees. List the amount of rent owed as of the date of the Notice. If there is dispute as to what amount of rent is owed (i.e., pet fees that were unpaid) the safest course of action is to list the undisputed amount in the Notice. 5. THE NOTICE MUST BE PROPERLY EXECUTED. A Notice should be signed by the Landlord (or Landlord’s agent) and also by the person that posts the Notice. This means if you have your maintenance man post the Notice, he is the “affiant” that affirms that he posted the Notice and he is the one that should sign on that line. 6. THE NOTICE MUST BE PROPERLY SERVED. Notices should either be hand-delivered OR “nailed and mailed”. Hand-delivery is always the safest course of action. “Nail and mail” means that you affix a copy to the front door of the leased premises AND place a copy in regular U.S. Mail. Only posting a notice is insufficient for most Courts. Note that your lease may also require additional steps for serving a notice (most often certified mailing) and if your lease provides a tenant with additional protections, you are bound by your lease agreement to provide those protections. If your 7 Day Notice comports with these six requirements, you validly terminate a tenancy. Failing to comply with one of these requirements may render your eviction pleading “void”: if you have a void pleading, it is like multiplying a number against zero. No matter how much rent your tenant owes you, if the Notice is bad, you cannot prevail at trial.

One Response to Once Again, Notice Defects

  1. I am renting out a room in my personal home. We signed no legal rental documents or renters agreement. How do I evict if we decided to do a month to month. Also, all utilities are in my name.

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