So the individual contacts me regarding a residential rental unit that he had been renting out to a family friend for the past seven or so years. Given that it was a family friend, he was renting the unit to her pursuant to an oral agreement only, with no written lease agreement. As an initial matter, I would not recommend this. As a general rule, and granted, there are exceptions to almost every rule, but as a general rule, if you’re a landlord, whenever possible, rent or lease pursuant to a written agreement.
So in the seven years this landlord was renting to this tenant, there had been no issues until recently when the City’s Water & Sewer Department called him to inform him that they were turning the water in the unit off as a result of a burst pipe. They also informed the landlord that there had been no water usage in the unit since August – in other words, in over 5 months.
As a result, it was clear that, although the tenant was continuing to pay her monthly rent to the landlord, she was no long occupying the premises. This is a problem.
In Alabama, under the Uniform and Residential Landlord and Tenant Act, AL Statute § 35-9A-304, “Unless otherwise agreed, a tenant shall occupy the dwelling unit only as a dwelling unit.” In other words, the tenant shall not use the dwelling unit simply as a storage unit.
Perhaps the Legislative intent behind this statute is to prevent situations exactly like what happened to this landlord. You see that, because the tenant was not present in the unit for over 5 months, when the water pipe burst, the tenant was not present to timely inform the landlord. As a result, the water damage was extensive.
As a result of the water damage, the landlord posted a Notice of Eviction for the tenant and waited 14 days pursuant to AL Statute § 35-9A-421 to terminate the rental agreement. After the 14 days, having heard no word from the tenant, and with the landlord having reasonable cause to believe that the tenant had abandoned the premises, the landlord was permitted to enter the unit without the consent of the tenant.
Further, given that the tenant had abandoned the unit as well as the property within it, the landlord wanted to know whether he had an obligation to preserve the tenant’s possession – for example, renting a storage unit for them. Given that the tenant had left the property in the unit for more than 14 days following termination of the rental agreement, under AL Statute § 35-9A-423, the landlord had “no duty to store or protect the tenant’s property in the unit” and was permitted to dispose of it.
So how can you avoid a situation like this if you are a residential landlord in Alabama? Use a written rental or lease agreement, and specifically include a provision consistent with § 304 that requires that the tenant “notify the landlord of any anticipated extended absence from the premises in excess of 14 days, [by] no later than the fifth day of the extended absence.” Had this landlord had a written agreement with such a provision in it, then the tenant would have had an obligation to notify the landlord of her intended extended absence from the property and the landlord could have stopped by the property periodically or hired a property manager to do so, so that issues like the burst pipe may have been more readily detected.