Alabama law sets out specific rules and procedures for evicting tenants beginning with the landlord providing notice of termination of a lease agreement (see the Nolo articles Eviction Notices for Lease Violations in Alabama and Eviction Notices for Nonpayment of Rent in Alabama for details). In many cases, a tenant will move out after receiving an eviction notice, such as a seven-day notice of termination for nonpayment of rent. But that is not always the case. After receiving an eviction notice from a landlord, a tenant may attempt to fight the eviction by making a defense argument at the eviction hearing in an attempt to stay in the rental property longer.
This article summarizes defenses a tenant may use to stop or delay an eviction in Alabama, as well as key information landlords need to know before even starting the eviction process.
Alabama landlord-tenant law, ALA Code § 35-9A-101 and following, specifies defenses a tenant may raise which may prevent an eviction judgment from being entered by the judge. If, at an eviction hearing, the judge finds any of the following situations to be true, the judge will not enter a judgment in favor of the landlord (this means that the judge will not make the tenant move out of the rental property when the landlord is trying to evict the tenant).
It is illegal for a landlord to evict a tenant in retaliation against the tenant’s attempt to enforce the tenant’s legal rights under the lease or rental agreement, or other laws—for example, if the tenant reported a health or safety violation to authorities, or exercised a lawful act, such as joining a tenant organization. (ALA Code § 35-9A-501). See the Nolo article Alabama State Laws Prohibiting Retaliation for details.
If the landlord attempted to adopt a new rule or regulation concerning the conduct of the tenant and the use and enjoyment of the rental unit, and the tenant did not consent to the new policy in writing, a judge will deny an eviction for a tenant’s violation of the new rule. Examples of how a landlord may attempt to adopt a new rule or regulation include increasing the tenant’s monthly rent (without a provision in the lease allowing the landlord to do so), or requiring the tenant to perform certain maintenance or repairs (without having this responsibility agreed to in the lease or rental agreement). (ALA Code § 35-9A-302).
Finally, a judge may deny a landlord’s request for an eviction of the tenant if the landlord used prohibited self-help measures like changing the locks on the rental property, causing an interruption of heat, running water, hot water, electric gas, or other essential services to the tenant in an effort to force the tenant to move out. (ALA Code § 35-9A-427).
A judge may also deny a landlord’s request for an eviction if the judge finds the landlord did not provide proper notice or service of the summons and complaint on the tenant.
There may be a situation in which an action or inaction by the landlord excuses the tenant’s payment of rent under the law or by the terms of the lease or rental agreement—in which case, the landlord would not have grounds to evict the tenant. A tenant may file a counterclaim for damages to offset the rent due to the landlord because the rental property is not fit for living. Examples of an unfit rental unit include a rodent infestation, a leaking roof causing damage inside the rental property living space, a broken furnace during cold temperatures, or the shut off of utilities, such as water or electricity, that is not the fault of the tenant. See Nolo article Alabama Tenant Rights to Demand Needed Repairs for details.
The tenant may ask the judge for more time to prepare a defense or to hire an attorney. Alabama law provides that eviction actions be given priority in scheduling over all other civil cases, however, a judge is likely to grant a tenant more time for certain requests that serve to protect the tenant’s legal right to a fair trial.
Tenants have the legal right to request a trial by jury in Alabama if the action is filed in the circuit court, as opposed to the district court. This request may delay the eviction hearing for some time in order to allow for the parties to prepare for the jury trial. It is best to consult with an attorney if the tenant has demanded a jury trial.
When the tenant is residing in the rental unit and the landlord files an eviction action for a lease violation or due to nonpayment of rent, the tenant may file a counterclaim against the landlord. Examples of a tenant counterclaim against the landlord would include a dispute regarding rent payments, discrimination by the landlord against the tenant, or for the landlord’s violation of the terms of the lease or rental agreement. It is in the court’s discretion whether the tenant can remain in the rental unit pending the outcome of the counterclaim. (ALA Code § 35-9A-405).
Any delay by the tenant in the eviction proceeding, including the filing of a counterclaim, may result in many months of time passing before a decision on the eviction is made at the court. As such, the landlord should ask for rent to be escrowed to the clerk of the court during the delay or stay of the proceedings. The court will order the tenant to pay the monthly rent to the court, with the landlord’s hope that this money will be released to the landlord upon resolution of the court action. Escrowed rent prevents the tenant from living rent-free during the pendency of the lawsuit. (ALA § 35-9A-405).
There may come a time when the landlord is better off stopping the eviction process to work with the tenant. If the tenant has a valid legal defense to the eviction, the landlord may need to continue the lease until he or she has a valid reason to evict the tenant or until the lease term ends. A landlord who pushes an improper eviction too far may end up being held responsible for violating discrimination or housing laws. It may also be possible for a landlord and tenant to agree to sign a new lease or rental agreement reflecting a new understanding between the parties, such as a reduced monthly rental rate or a shorter lease term. In some situations, a tenant may agree to move out if the landlord helps the tenant relocate to a new rental property or negotiates a financial settlement.
In many cases, landlords will want to hire an attorney, particularly if a tenant is not only fighting an eviction but also claiming damages against the landlord. If the tenant demands a jury trial, it will be important for the landlord to hire an attorney who can present evidence and question the landlord on the stand so the jury is able to hear the landlord’s side of the facts.
Tenants who have questions about their eviction case or defense or are dealing with a landlord who has already retained a lawyer, should probably also contact a lawyer. A lawyer can handle the whole case or give a tenant advice on how to proceed. A lawyer can also let a tenant know how likely he or she is to win their case. Tenants may especially want to hire an attorney if they have a complicated case or if they are confident of their case and their lease or rental agreement entitles them to attorney fees if they win in court.
For advice on finding a good lawyer, see the Nolo article How to Find an Excellent Attorney.
Landlord-tenant law is not always straightforward or simple and advanced legal knowledge may be needed in many unique situations. Nolo’s Lawyer Directory includes landlord-tenant lawyers in Alabama who may be helpful in this regard.
A useful resource for landlords and tenants is Alabama Legal Help, which provides self-help legal information. The U.S. Department of Housing and Urban Development’s website publishes many helpful links to Alabama landlord-tenant resources.