Need Opinion from Birmingham PM or Attorney
Dear Abby (a licensed Alabama RE agent/broker, RE attorney, experienced property manager - sorry, no offense to anyone else, but I need just the facts from this post, not guesses.)
First, the law as it is written:
Section 35-9A-421
Noncompliance with rental agreement; failure to pay rent.
(a) Except as provided in this chapter, if there is a material noncompliance by the tenant with the rental agreement, an intentional misrepresentation of a material fact in a rental agreement or application, or a noncompliance with Section 35-9A-301 materially affecting health and safety, the landlord may deliver a written notice to terminate the lease to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than seven days after receipt of the notice. An intentional misrepresentation of a material fact in a rental agreement or application may not be remedied or cured. If the breach is not remedied within the seven days after receipt of the notice to terminate the lease, the rental agreement shall terminate on the date provided in the notice to terminate the lease unless the tenant adequately remedies the breach before the date specified in the notice, in which case the rental agreement shall not terminate.
(b) If rent is unpaid when due, the landlord may deliver a written notice to terminate the lease to the tenant specifying the amount of rent and any late fees owed to remedy the breach and that the rental agreement will terminate upon a date not less than seven days after receipt of the notice. If the breach is not remedied within the seven days, the rental agreement shall terminate. If a noncompliance of rental agreement occurs under both subsection (a) and this subsection, the seven-day notice period to terminate the lease for nonpayment of rent in this subsection shall govern.
(c) Except as provided in this chapter, a landlord may recover actual damages and reasonable attorney fees and obtain injunctive relief for noncompliance by the tenant with the rental agreement or Section 35-9A-301.
(d) Notwithstanding Section 35-9A-141, no breach of any of the terms or obligations of the lease may be cured by a tenant more than four times in any 12-month period except by the express written consent of the landlord... (there is more, but it is not related to my question.)
Second, the situation:
I own an SFR in Calera, Shelby County. I was using a local PM firm (name not important.) Based on purchase agreement, the PM firm was responsible for paying me rent for 12 months following my purchase of the property from them - whether the property was rented or not. That guarantee was to expire in May of this year. The original tenant I inherited as part of my purchase had to be evicted just months later for non-payment of rent. The PM firm placed a "replacement" tenant in the property in January of 2017, following four months of the house sitting empty. The PM firm paid me rent, as agreed.
However, due to a number of issues I still had with the PM firm, I terminated my contract with the firm, effective in April of this year. It was at that time, that the PM firm provided me with the current/"replacement" tenant's original application, which showed that the tenant should not have qualified to rent the property, if for no other reason than that she did not even have income 2x the monthly rent - far cry from the PM firm's advertised "3x minimum," as well as other "minimum" requirements.
The very next month, May, the tenant failed to pay rent, and failed to respond to any communication attempts for days after. The lease agreement has the due date on the 1st of each month, late if payment is not received by the end of the 5th day. (I had established a line of communication with the tenant in April, had her sign an addendum about where to make future payments, whom to contact, etc.) The tenant only resurfaced after I had the house served by a process server with a 7-day notice. She claimed to have lost her job.
The PM firm - after external "pressure" - agreed to extend their original rent guarantee to me through December (when the current lease would expire,) and to get the tenant evicted at their cost, as soon as legally possible, as well as to find another tenant at no cost to me. All good. Couldn't ask for more.
The tenant ended up paying in late May. She again did not pay on time in June. The PM firm sent her "Termination Notice" to pay by regular mail and email. The tenant caught up by late June. She was late again in July, and another Termination Notice was sent to her. I am not sure whether she's paid for July yet; she had not paid by at least the middle of the month. In any case, she appears to not be paying the ever-growing late fee since May.
Since I would like to have this tenant evicted as soon as possible, so as not to have to still deal with her late payments and potential eviction and other costs to myself come next January - when my rent guarantee is over - I inquired of the PM firm whether they are documenting each "breach" (subsection "(b)") in order to be able to evict the tenant after her fourth breach since this May (per subsection "(d)".)
And the Question:
The PM firm told me that it is not considered a breach, "as long as she pays in the same month it's due."
I am not a lawyer in any state, but have over twenty years of experience in reading and applying laws. This is simply not how I understand the statute.
Dear Abby, I know that I am probably just feeling insecure about myself after this otherwise-trustworthy PM firm sold me this bill of goods and then agreed to remedy the situation after only a few arm twists by people stronger than me. But could they be wrong in their interpretation of the law? After all, this status quo does benefit them. And the last time something benefited them over their fiduciary duty to me, they chose themselves. But maybe they've changed, and I need to learn to trust again.
Perhaps, dear Abby, Shelby County eviction judges have been known to see the law the way the PM firm sees it - I trust that you would know and could tell me that. I could just be wrong.
The flip side of this situation - if I am not wrong about the law - is that each month after the fourth breach the PM firm does not seek an eviction, once I take over again and do seek an eviction under subsection (d), the judge may not see the urgency in my claim.
With bated breath.
Thank you, Abby.