Alabama Unlawful Detainer Statutes Examined

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In Alabama, "unlawful detainer" has been defined as one who has lawfully entered into possession of lands as a tenant but who fails, or refuses, after the termination of the possessory interest of the tenant, to deliver possession of the premises to anyone lawfully entitled or his or her agent or attorney. In other words, a tenant who refuses to move out of a rental property when his or her lease expires. The following article attempts to address the "highlights" of Alabama's unlawful detainer statutes.

To What Type of Property Interests Do Alabama's Unlawful Detainer Statute Apply?

It really does not matter what type of property interest is involved because actions for unlawful detainer extend to, and comprehend, terms for years and all estates, whether freehold or less than freehold. Essentially what this means is that if a person wrongfully retains possession of any real property in Alabama after expiration of his or her right to be there, an action for unlawful detainer can be brought against that person.

What Happens If The Rental Property Is Owned By More Than One Person?

Likewise, it is irrelevant if the real property is owned by more than one person. Real property can be owned by several persons jointly, as by tenants in common, coparceners, partners, or other joint occupancy or title. Because they are equally entitled to possession of the entire parcel of real property, the joint tenants, whether individually or as a whole, can initiate an action for unlawful detainer against a stranger to recover possession of the real property. Of course, an action by one owner to remove someone unlawfully retaining possession of property inures to the benefit of all of the co-owners so the rule makes both legal and common sense.

What Happens If The Owner of The Property Is Temporarily Absent From The Property?

Sometimes, even in today's modern environment, an owner of real property is absent from the real property for a while only to return and find a squatter taking up space at the property. Luckily, Alabama's unlawful detainer statute provides that even a temporary absence from the property does not constitute a loss of the actual possession; nor does it prevent the owner from initiating an action for unlawful detainer against the person or persons unlawfully detaining the property. Statutory fiat declares that the unlawful detainer does not obtain any legal interest in the real property by his or her act of squatting.

Uninterrupted Unlawful Occupation For Three Years Precludes An Action For Unlawful Detainer

However, it is important to note that, in the event the squatter has enjoyed three years of uninterrupted occupation of the property, even if wrongful, the owner of the property is not entitled to sue that squatter for unlawful detainer and will not get the benefits of provided in the unlawful detainer statute (such as entitlement to double the market value rent, etc.). Instead, the real property owner will be required to bring an action for trespass against the offending party.

What Is The Liability of The Person Who Unlawfully Detains Real Property In Alabama?

An action for unlawful detainer is, at least as far as the owner of the property is concerned, much more desirable than an action for trespass. The primary reason is monetary. A person who, having entered in the possession of property in Alabama and unlawfully retains the possession thereof after the expiration of his or her term or refuses to surrender the property upon written demand of the owner, his agent or attorney or legal representative, is liable for double the amount of the annual rent agreed to be paid under the lease (whether oral or written) and for such other special damages as may be sustained by the party who has been unlawfully kept out of the premises.

Alabama Forms For Use In Connection With Actions For Unlawful Detainer:

There are a few free forms that a property owner can use in connection with prosecution of an action for unlawful detainer. Keep in mind that with these forms, you will need to use the proper caption which includes the case style, case number, and all other information required by Alabama law.

1. Service of Process

Once a complaint for unlawful detainer has been filed against the Defendant, the Alabama District Judge shall issue a notice that is substantially similar to the following:

"You are hereby commanded to be and appear before me, at ___________________, on the ______ day of _______________, to answer to, and made defense against a complaint exhibited to me against you by __________________________, for unlawful detainer."

This notice must be personally served upon the Defendant at least six days before the hearing date and may be served on the Defendant anywhere in the State of Alabama.

2. Unlawful Detainer Judgment

If the Alabama District Judge finds in favor of the Plaintiff, he should enter a Final Judgment in a form substantially similar to the following:

"Came the parties on the ____ day of ___________, and upon evidence I find that Defendant is guilty of unlawful detainer as complained against him by Plaintiff, and I therefore order and adjudge that Defendant restore the possession of the tract of land [or tenement, if applicable] mentioned in the complaint: …. [here designate the land or tenement], and pay the cost of this proceeding."

3. Writ of Restitution or Possession

Finally, once the Final Judgment is entered, the Judge should issue the following Writ of Restitution And Possession to be served by any Alabama lawful officer:

"To any lawful officer of State of Alabama, County of ______________: You are hereby commanded to restore Plaintiff to possession (or place Plaintiff in possession) of the land and tenements (or, as the case may be) which Plaintiff recovered from Defendant in an action for unlawful detainer before me on the ____ day of _____________, at ___________ [here describe the land and tenements]. You are further directed, of the goods and chattels, lands and tenement, of the said Defendant, you cause to be made the sum of $____________, which the said Plaintiff has recovered for his costs in that behalf expended."

The author routinely reviews the unlawful detainer statutes from around the United States on his blog.