REQUIRED FEDERAL SAFEGUARDS BEFORE TERMINATION OF TENANCY/EVICTION (321 hits)

While I have an extensive background in administrative and civil law, I must state that I am not a licensed attorney and the information provided is based on my own research and general application of legal principles. For any individual situations an attorney should be consulted for guidance. But for our own practical applications that we literally, had to research for ourselves-our tenants association and personal benefit-this has been our results and understanding to date.

Landlord, tenant, property matters period can be, as many of you can attest, some of the messiest, divisive and stickiest situations in human relationships. Recall some of the family fights in wills understanding exactly what was bequeathed and who was rightful heir, etc., etc. So it is with renters and home owners when defaults, delineations of responsibilities and rights become blurred or neglected in some way.

Few attorneys in our area are even willing to take on cases in which a property owner insists and one in possession claims the right of remaining in possession, as in evictions or termination of tenancy actions. Unless that is, the party in possession refuses for whatever reason to undertake steps to correct that which which is a causing the breach in a contract, typically in a lease agreement with landlord tenant cases, a defaulted mortgage in home foreclosure instances. Taking on unscrupulous, misbehaving landlords poses another challenge as in our instant case and we had to roll up our sleeves to research and fight the challenges we were facing. And of course there are many agencies, laws, organizations, and resources with which a successful challenge can be mounted against landlord misdeeds.

Our first action was to have an understanding that in being an advocate to oppose injustice and inequality meant knowing what and where were the solutions to empower and educate with an objective being in the end to bring a better quality of life to our association members, especially the lower income, socially disadvantaged gropus in our community . The employment situation had made it difficult for many of the elderly, single parents, students disabled and other tenants able to pick up or have part time income. This shortfall in income could affect the ability to make timely payment of shelter obligations, food, etc.

So what if the tenant say, became unable to pay for housing? What would be his rights? What was the law? Just how far could a landlord go in seeking return of property to his possession. And when colud he begin the process? And what would the process involve?

This is where our landlord and I began to have serious, serious breakdown in understanding. Having over 300 rental properties (I'm led to believe). A considerable number of renters participating in the Department of Housing and Urban Development (HUD) Section 8 program. His rental practices were long-standing, deficient, illegal and he was not about to change to conform with changing law-The Alabama Landlord Tenant Act of 2007, as amended, President Obama's Fair Landlord Tenants Act of 2009, signed May 20, 2009 (p.l. 111-22). His pratice of self-evicting and bullying tenants, in some cases after a one-day's notice really began to raise my ire, especially after some of the brutally unlawful tactics being employed to oust tenants from his leased premises, actions that are never allowed by law state or federal.

We were evicted while awaiting the state/county district court's answer to our stay motion to a writ of possession to have our home returned to him. LOL! We are evicted in the morning and the court's answer to our motion arrived the same day in the afternoon. However, we had a 7-day right of appeal during which not a stick of furniture should have been touched and the landlord's side disputes that our original appeal was "TIMELY" since it was sent by mail. The judge asked me in court for the legal basis validating that our appeal request was timely-I did readily.

In a bid as if to 'save face' for the opposing attorney, 7 days were granted for both sides to come with references about how to treat the counting of time when an appeal is sent by mail-remember, our side maintains the time had not even begun to 'run' on the day of eviction. Even still, I was able to cite the case in a ruling of the Alabama Supreme Court when it held in Watts v. Rudulph Real Estate, Inc.an appeal by mail is considered timely filed if done by same mode-mail, promptly and in Good Faith.
We awaiting this judge's anticipated favorable ruling to consider all matters before it, the defective notice for eviction, the illegal, premature, therefore wrongful eviction of October 15, 2009.

Next comes the Federal lawsuit and the body of law that governs -the statutory phrase "elements of due process" defined by HUD 24 CFR 966.53 (c) as: an eviction action or a termination of tenancy in a state or local court in which in which the following procedural safeguards are required:

(1) Adequate notice to the tenants of the grounds for tenancy termination and for eviction;

(2) Right to representation by counsel...

(3) Opportunity for tenant to refute evidence, etc., etc.

It would be very beneficial for the reader to review the fair housing law for your state.
Accomplish this in one way by going to the browser with something similar to:
HUD eviction due process determination for "name of your state" This will take you to the HUD general counsel's determination of the 'elements of due process determination in the particular state and a 'GCH number' for that opinion. Alabama's is GCH-0044 for example.
A good defense for eviction or terminating of tenancy might be raised if an adverse determination is issued by a local or state court. Consult an attorney.


Posted By: Bill Cooper
Thursday, November 26th 2009 at 9:00AM
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