Changes to Alabama Landlord Law

The Alabama Legislature has passed some new laws that affect landlords. This is a longer email than I normally send out, but please take the time to read it. One law will absolutely require changes to your default policies and forms. Another law will create some opportunities for you to better protect yourself from fraud related to service and assistance animals.

HB421 made major changes to default provisions under the Alabama Residential Landlord Tenant Act. Governor Ivey signed it into law on March 28. It will be effective on July 1, 2018. I recommend you meet with your attorney, and/or your management software people, to update your forms related to default, and your internal policies and procedures.

Notice of default and opportunity to cure is now seven business days, not seven calendar days. If your lease says rent is due on the 1st and tenant is in default if not paid by the close of business on the 5th, then your default letter can go out on the 6th. (Note: according to the wording of your lease, WHEN is your tenant actually in default? You might be surprised! Consult with your attorney to make sure.) Using the example below of August 2018, the tenant will have until 8/15/18, to get the rent current.

Termination for fraud in the rental application or agreement requires seven business days’ notice.

Landlord does not have to allow tenant cure of the third default in any twelve months. This is reduced from the prior number of four defaults. In other words, 3 defaults in twelve months and you can terminate the lease and not let the tenant cure the default. The defaults do not have to be similar types.

BE CAREFUL OF FAIR HOUSING PITFALLS: If you terminate a 3x defaulting tenant for behavior problems, but you do not terminate the one who simply got in a bind and had to pay his or her rent late for several months, you might get hit with a Fair Housing complaint. That’s because you decided to terminate some tenants and not others. You know that’s begging for trouble, don’t you?

If you do not intend to terminate tenants who are merely late on their rent, but cure in a timely manner, then write that into your policies and follow it for everybody. Maybe your internal written policy will say something like, “Although current law allows us to terminate tenants upon the third default in twelve months, we will enforce that only if one of the defaults is something different from late payment of rent.” Then you will be safe. Isn’t it really the behavior problems we want to get rid of, anyway?

If a tenant is in default and then cures, and then is again in default for substantially the same thing within the next six months, the landlord does not have to let him cure. The same Fair Housing advice I gave in the prior section applies here. Maybe your internal written policy here will say, “Although current law allows us to terminate tenants upon the second substantially similar default in six months, we will not enforce that for late rent payments.”

The non-curable defaults for drugs, firearms and assault still have a “seven day notice” provision. It does not specifically say “calendar” or “business.” I think it is safest to assume this is also a business day. That is because the Legislature obviously indicated a preference for business days rather than calendar days, with its other changes. Some people will say, “Since they made a point of saying business day for other time limits, this one must be calendar days. Otherwise, they would have said business days.” I understand the reasoning. But, in this context, isn’t it better to be safe rather than sorry? Assume it is business days, and you’ll always be safe.

The non-curable default for possession or use of illegal drugs has been expanded to include “the manufacture, cultivation, importation, transportation, possession, furnishing and administering.” I assume this cures some evidence problems to get to the real intention of the original statute. Zero tolerance for drugs. Beware of using this statute to kick out a tenant if all you’ve seen is drug paraphernalia on the premises. Consult with an attorney before taking action!

The non-curable default for discharge of a firearm has been expanded to include “illegal use, manufacture, importation, possession, furnishing and discharge” and now includes not just firearms, but also ammunition. As one example of the difference this makes, since most felons are not allowed to possess firearms, it will now be a non-curable default for those felons to simply possess a firearm, whether it is “discharged” or not.

Providing relief from scams related to service and assistance animals, HB198 makes such behavior a crime. It was signed into law by Governor Ivey on March 15, and takes effect on July 1, 2018.

Landlords presented with a “reasonable accommodation request” for a disability-related animal may require the person to provide reliable documentation of the disability, and the disability-related need for the animal. Under the Fair Housing laws, it is legally sufficient if the tenant has a simple letter from a doctor, health-care professional, therapist, counselor or social worker that says something like, “Jane Doe [but with a real name] has a disability. She has a disability-related need for a service [or assistance] animal.” No details are necessary. No details can be demanded. You are not allowed to ask for proof of the disability or the need. BUT, as easy as it is to get such a letter, Jane Doe commits the criminal offense of “misrepresentation of entitlement to an assistance animal or service animal” if she basically lies to the landlord, or the person who wrote the letter, about her disability or her need for a disability animal. In addition, according to my interpretation of the statute, if Jane gets her cousin John Doe to write the letter for her, and John knows Jane is not disabled, then John is also criminally liable.

There are also criminal penalties for lying about whether an animal is a service or an assistance animal. It includes intentionally making a false statement, but also includes things like putting a “certified service animal” vest on a pot-bellied pig and letting you draw your own conclusions. It’s just an example, but you get the idea.

To clarify, a service animal is a dog with special training and certification. Service animals must be allowed in public places, like stores and restaurants and office buildings. They also have to be allowed in housing. An assistance animal can be any type of animal, and does not need any type of training or certification. Assistance animals do not have to be allowed in stores, restaurants, office buildings, etc. They are allowed in housing, under the Fair Housing Act. Assistance animals are usually emotional support animals.

As a result of these new laws about disability animals, I recommend all landlords ALWAYS ask for the letter saying the tenant, or prospect, has a disability and the need for the animal is related to the disability. A lot of you don’t ask for the letter because you think, “Why bother. They’ll just buy one off the Internet.” Now, there is a reason to bother. If that person is going to lie, you want them to do it in writing, so you have something to turn over to the DA’s office for prosecution.

I also recommend you have an Addendum to your rental application, related to disability animals. Make that tenant prospect tell you as part of their application that they have such a need, and include the letter as part of the application. That way, if it turns out they lied, it is a non-curable default for fraud in the rental application. For existing tenants that request a disability animal after the lease starts, you should use an Amendment to their lease, to incorporate the same things. That way, if they lie, it will be a non-curable default for fraud in the rental agreement.

Please let me know what you think about these laws, and what other questions they raise in your mind. I’ll try to address those in future posts.