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“Nail and Mail” Eviction Lawsuit Notices

Service of eviction lawsuit papers on tenants can be accomplished by attempting personal service at the residence and, if nobody is home, leaving a copy posted on the door and also mailing a copy within 24 hours. This is called “post and mail service” or, more colorfully, “nail and mail service.”

The mailed copy can be regular mail. A recent Alabama Court of Civil Appeals Decision threw the process into doubt, and seemed to require evidence regarding the exact efforts the process server took to serve the papers. The court included factors such as time of day, time waited after knocking, and others. That decision has now been overturned by the Alabama Supreme Court.

In a ruling on Friday, August 30, 2019, the Alabama Supreme Court said that such detailed testimony was not required. It reinstated the default judgment against the tenant in the eviction lawsuit, ruling that service was properly made on her. The court noted that the statute’s additional requirement of mailing the lawsuit papers within 24 hours satisfied United States Supreme Court concerns in similar cases that did not include a second method of service. If you want to read the entire decision, the case is Ex parte Trinity Property Consultants, LLC. You can read the decision HERE.

Bottom line: Back to the way you were doing things before the Alabama Civil Appeals decision of Mays v. Trinity Property Consultants, LLC. It’s not that there’s a new sheriff in town. It’s that the old sheriff is back!

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Tenant Reporting Own Inspections

If your lease or your Rules, Regulations & Fee Schedules have this requirement, you can make your tenants self-report property conditions once a month. Why would you want to do that?

  • It gives you early warning of problems as tenants go down a checklist of items on your form, and report condition and any observed defects. Your form should also ask about additional occupants on the premises, and any new animals.
  • Having to self-report every month tends to make tenants more careful of your property.
  • Reports showing no defects or damages prevents the tenant from later claiming something was wrong, usually after they default and are looking for excuses to make it all the landlord’s fault.
  • There is a high probability that if the tenant lies on the reports, there is significant tenant-caused damage, and then the tenant later files for bankruptcy, the landlord’s claims for damages will not be discharged in bankruptcy. That is because the tenant engaged in fraud. The claim will still have to be paid.
  • Refusal to complete the form is an early warning sign of tenant damage, illegal occupants, or illegal animals. Better to know now, rather than at lease end, isn’t it?
  • If you are selling or refinancing your rental property, the monthly reports are a good due diligence item. If you include on the form the beginning and ending date of the lease, the monthly rent, the security deposit being held, and the lack of any claims against landlord, those letters also constitute “tenant estoppel letters.” Most buyers and lenders require such letters, but it is often awkward having to ask for them because landlords don’t want tenants knowing their plans. The information in this paragraph can be included at the end of the form, in an inconspicuous manner.

Self reporting does not take the place of your own inspections. They are merely a supplement–another tool in your arsenal of good property management. Keep your form short. If you want, you can vary the items each month for the less-important matters.

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Fair Housing and “Limited English Proficiency”

The latest Fair Housing rumor sweeping the Internet relates to something called “Limited English Proficiency” or “LEP” for short. If you believe the emails and social media posts, a landlord who does not have all forms translated, at least into Spanish, can be hit with a Fair Housing complaint and an easy $16,000 PER VIOLATION penalty. Fearmongers offer to translate all of your documents, for a fee, of course!

Nonsense. Con artists are at work!!!!

Here is the truth.

  • You cannot blatantly discriminate, such as advertising “must speak English.”
  • Because the landlord/tenant relationship is relatively simple, and largely rests on written documents with very little on-going communication, landlords who routinely fail to return phone calls or even attempt communication with people who are not fluent will fall under HUD suspicion for unfair practices. In other words, you can’t use “I’m sorry I don’t understand you” as a blanket excuse to anyone who is not fluent in English. At a minimum, learn how to say the following:
    • English: “I am sorry. I do not understand. I need a translator.”
    • Spanish: “Lo siento. No entiendo. Necesito un traductor.”
    • www.translate.google.com will tell you how it is pronounced.
  • Requiring someone fluent in English to co-sign or guaranty the lease is a Fair Housing violation if the tenant otherwise meets credit and background requirements.
  • You do not have to translate documents, but if you have already done so, they must be made available to people who speak that language.
  • Allowing an interpreter of the tenant’s choice to be present or conferenced-in to phone calls is reasonable and should be allowed if requested.
  • Allowing a prospect the opportunity to take documents home for translation is a reasonable request and should be allowed.
  • If the market place for your properties has a high percentage of people who speak only one language that is not English, your failure to translate documents COULD be a violation if, statistically, it results in a higher number of rental denials than for people who do speak English. This is highly unlikely to be the case in Alabama.

Would you like more information about Fair Housing, the exemptions, the REAL traps, and debunking the fake problems such as Limited English Proficiency? Sign up for one of our upcoming Fair Housing classes at the link below. The live class earns 3 hours of Alabama Real Estate CE, but is also open to the public.

Fair Housing Classes or Videos