Alabama Gazette - The people's voice of reason

Renting or Trespassing?

 


I allowed a friend to move in to the home that I am leasing as he was separated from his wife and needed a place to live short term. It only took a short time for me to realize that some of his living habits are less than desirable, maybe why his wife wanted him out. I have repeatedly asked him to find his own place. At first he would be emotional and I would give him more time. Now he gets angry and refuses to leave, actually threatening me one time. I have called the police and they will not escort him out citing residency as he has been there for four months and receives two bills there. How can I get him out?

This is not my area of specialty and I can see some grey areas. You have not mentioned whether he pays a portion of the rent or whether he was placed on the lease. Also, you have not mentioned the terms of the lease whether others can reside with you.

Since it was to be a short term I will assume he is not on the lease and possibly not assisting with rent payments. While this situation seems to be cut and dry, it is not as you might think when someone refuses to leave that has been living some place.

One legal theory that may be used is criminal trespass. Criminal Trespass, third degree is defined in the Code of Alabama, 1975 in the following manner:

ALA. CODE § 13A-7-4 (1975)

§ 13A-7-4. Criminal trespass in the third degree

(a) A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises.

(b) Criminal trespass in the third degree is a violation.

While I have only cited Criminal Trespass in the Third Degree, it may also be possible that prosecution may be used in the Second or First Degree depending on circumstances.

Once an individual has remained for some period of time or done such things as to suggest that the individual resides in a home, I would think that any form of trespass becomes a less likely legal theory to use.

A more likely legal theory that might be used might be what is used when it is necessary to eject a tenant from a rental home. While most call it “eviction”, the correct legal definition is “unlawful detainer”. In a lease unlawful detainer can be filed in Court seven days after legal notice is given to the person, but only if it involves the lack of payment of rent. For all other matters which may include breaking the terms of the lease which may include disturbing neighbors, failure to keep up the yard, leaving garbage in the wrong locations where it is unsafe or not prone to city pickup or consistently parking cars in areas that are designated as “no Parking” in the lease, there is a fourteen day notice required before filing for Unlawful Detainer in Court.

The definition of Unlawful Detainer, reads as follows:

ALA. CODE § 6-6-310 (1975)

§ 6-6-310. Definitions For the purposes of this article, the following terms shall have the meanings respectively ascribed to them by this section:

(1) FORCIBLE ENTRY AND DETAINER. Where one by force or strong hand, or by exciting fear or terror, enters upon and detains lands or tenements in the possession of another, as by breaking open doors, windows or any other part of a house, whether any person is within or not, by threats of violence to the party in possession, or by words or actions that have a tendency to excite fear or apprehension of danger, by putting out of doors or removing the goods or chattels of the party in possession, or by entering peaceably and then by unlawful refusal, or by force or threats, turning, or keeping the party out of possession.

(2) UNLAWFUL DETAINER. Where one who has lawfully entered into possession of lands as tenant 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.

Most often I would expect such action to be filed in an Alabama District Court. District Court has a Small Claims docket for actions up to $3,000.00. District Court otherwise decides cases involving less than $10,000.00. Circuit Court decides cases involving $10,000.00 or more. A person losing in District Court may be given the right to appeal in an Alabama Circuit Court.

This is not my specialty area so I definitely advise that you seek the counsel of an attorney that handles cases such as yours. If you do not have an attorney I would advise that you check with the Alabama State Bar Lawyer Referral or seek the advice of a trusted friend or relative.

This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist. "No representation is made that the quality of legal services performed is greater than the quality of legal services performed by other lawyers."

Ronald A. Holtsford, Esq.

Ronald A. Holtsford, LLC

7956 Vaughn Rd, Box #124

Montgomery, AL 36116

(334) 220-3700 Phone

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