Ejectment on missing Homeowner

[Devon Daniels]

I am planning to file an ejectment on a home I bought at this years tax certificate sale. I have sent a certified letter to the property letting them know I have the tax certificate to the property and it was returned. I left a copy of the notification letter posted to the door. The house looks vacant and possibly abandoned. How should I file the ejectment if you cant find the landowner? Has anyone ever delt with this type of situation?

[Denise Evans]

In my opinion you cannot file ejectment if you cannot serve the lawsuit papers on the defendant(s).

Other attorneys do this routinely, and ask the court to grant service by publication.

Again, in my opinion (and others may disagree with me) the only time you are allowed to get service by publication under Rule 4.3, Alabama Rules of Civil Procedure (reprinted below.)

Ejectment is not a claim that is historically equitable. In fact, ejectment was originally at law, not in equity.  Plus, the property is not under the control of the court.  The defendant is not avoiding service because you can't find the defendant. There is not a specific statute that permits it, such as is the case with the quiet title statutes.

The danger of being wrong about the service issue is that if you "obtain service by publication" but that was not allowed, then you never obtained good service on the defendant. The court never gained jurisdiction over him/her. Any court order is null and void. You taking possession under that court order is invalid, unlawful, and is trespass. If you make improvements, an owner can claim later your possession was unlawful and you are therefor not entitled to be paid for them.

If a lawyer tells you that you can get service by publication on an ejectment claim, make sure they say that in writing, keep that writing in a safe place, and also make sure they have malpractice insurance.

On a more positive note, you might POSSIBLY be able to ask the court to take jurisdiction over the property and declare it abandoned, as part of a declaratory relief action. That is historically equitable, and you've asked the court to take jurisdiction of the property, so that might fly. Again, only my opinion.

Rule 4.3.
Process: Service by publication.
(a) Scope of rule. This rule applies as follows:
(1) To a claim historically equitable involving property under the control of
the court (e.g., administration of an estate, interpleader, partition) or marital
status which claim has heretofore been deemed appropriate for service by
publication where the identity or residence of a defendant is unknown or where a
resident defendant has been absent from that defendant’s residence for more
than thirty (30) days since the filing of the complaint and the method of service by
publication in such instances is not specifically provided by statute; and,
(2) To a claim, whether legal or equitable, against a defendant who avoids
service of process as described in subdivision (c) of this rule. This rule does not
supersede specific procedure for publication as set forth in certain statutes
governing special proceedings (e.g., attachment, in rem action to quiet title) and,
in such proceedings, the specific statutory procedure for publication and all other
requirements appearing therein shall govern except to the extent that subdivision
(b) of this rule may be applicable. In no event shall an in personam judgment be
entered on service by publication except as provided in subdivision (c) of this
rule.
(b) Residence known; when publication appropriate. When the residence
of a defendant is known and the action is one in which service by publication is
permitted, service of process must first be attempted by one of the methods of
service other than publication as is provided by Rule 4 or Rule 4.4, if service on
the defendant is to be effected in a foreign country.
(c) Avoidance of service. When a defendant avoids service and that
defendant’s present location or residence is unknown and the process server has
endorsed the fact of failure of service and the reason therefor on the process and
returned it to the clerk or where the return receipt shows a failure of service, the
court may, on motion, order service to be made by publication. When a
defendant is a corporation and the process server has endorsed the fact that the...