All Forum Posts by: Denise Evans

I agree with you, @Eliott Elias, but they've been given inaccurate information. It is not customary in Alabama.

Below is a link to the Alabama law. When the law changed in 2014, there was a very well written article by the manufactured housing association or maybe Dept of Revenue, or maybe somebody else reputable. I can't find it quickly, but perhaps you can find it. I remember it being very detailed as to remedies and very informative.

https://codes.findlaw.com/al/t...

It is not my experience that it is common for landlords to pay utilities except for Section 8 and lower income properties. For Section 8, it makes it easier to control whether the tenant will realistically qualify based on the their income, because housing expenses (rent and utilities) cannot exceed certain ratios. For lower income that is not Section 8, it makes the property more competitive because there is certainty as to monthly expenses.  People generally know if they can afford $1,100 a month in rent that includes utilities, but might be uncertain if they can afford $900 plus unknown amount of utility bills. Some tenants don't care, they will take the gamble. The more cautious ones, who are planful--the kind you prefer as a tenant--like those numbers nailed down so they can budget accordingly and comfortably make a renting decision.

I am the recognized expert in Alabama. You can send me a PM

It depends on what your lease says. If the tenant agreed in the lease that some of the security deposit can be used for a turning fee, then you can use it for that. If the lease is silent on that issue, then the deposit can be used only for damages. Damages are what you could recover in court if you sued the tenant. That means unpaid rent, late charges and fees. It also includes damage to the property beyond normal wear and tear.

No

No. A petition for declaratory relief is simply a lawsuit that asks the judge to declare something, rather than awarding damages (a regular damages lawsuit) or ordering someone to do or stop doing something (request for injunctive relief)  or any of the other remedies such as quiet title, ejectment, mandamus, etc. There are  no magic words for a "deck action" as it is commonly called.  Actually "dec action" but pronounced like "deck."

You set out your facts for why you need the court's help, and you ask the court to declare something. It can be part of any ejectment lawsuit or any other kind of lawsuit.  You can ask for ejectment and damages and declaratory relief in the same lawsuit.  A hundred years ago that was not the case, but things are much less technical and more common sense these days.

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...

A refinement on the 2 yr/5 yr rule. It is actually 24 of the prior 60 months, and they need not be consecutive months, as long as they add up to 24.

@Jaron Walling, this is supposed to be a safe place for people to ask questions and get multiple points of view and gain an education.  For example, one person recommends listing with a Realtor.  I am a Realtor, but that is not always the best answer. It is property and location specific. If I had a SF rental property in an area full of rental houses, I might spend a couple thousand dollars for an appraisal and then sell it to one of the other nearby landlords. No Realtor necessary, no commission expense. We bring a lot of value to the table, but we are not the answer to ALL questions.  This sharing of ideas helps bring out those perspectives and I think is a good idea, no matter what one's experience level.