Why Proper Notice Matters

I’m going to spend a few minutes today talking about one of the few ways a landlord can lose an unlawful detainer action under Alabama law – using an improper “Notice of Material Non-Compliance” or “7 Day Notice”. A proper 7 Day Notice is condition precedent to filing an action and cannot be corrected once the action is filed.

Some things to consider when examining your current Notice:

1. The Notice must specifically state that it is being given pursuant to 35-9A-421(b) of the Code of Alabama.

2. The Notice must specifically state that the tenant is in breach, or material non-compliance, with the lease agreement by virtue of failing to pay rent.

3. The Notice must specifically state that the tenant has right to “cure” the breach.

4. The Notice must specifically state the AMOUNT OF MONEY the tenant must pay in order to cure the breach. If you have late fees that accumulate daily, you can include in the Notice a schedule of those late fees. THIS IS A NEW REQUIREMENT.

Some other considerations:

1. The 7 Day Notice must be the LAST notice that you give a tenant. Consider this from an academic perspective. The 7 Day Notice states that if the tenant fails to pay the full amount within seven days, the lease agreement will terminate. Therefore, continuing to give the tenant notices can be deemed an act that reaffirms the lease agreement. Also, there is a line of cases that says that a subsequent Notice invalidates a previous Notice. As you will see, my Notice specifically states that it is the LAST notice a tenant will receive.

2. The 7 Day Notice must be “clean”. That means you cannot have accepted any payments during that 7 Day period, or at any point thereafter. If you wish to accept partial payments, that is fine, just be sure that you give them a new 7 Day Notice. For example, if the tenant owes you $1000 and comes into your office after you have placed a Notice on his door with $500, you can accept the $500 and deposit it. Just make sure that you hand him another 7 Day Notice stating that he now must pay $500 within the 7 calendar day period or the lease will terminate.

3. The 7 Day Notice does not have to be notarized. It needs to be posted on the door of the property (or handed to the tenant directly).

I hope that this clears up some questions. Please note that there are additional requirements that must be included with your 7 Day Notice if this is a Section 8 or tax credit property.

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