UPDATE: Statewide Eviction/Foreclosure Prohibition

By: Tracy Turner

We have been following the eviction moratoriums put in place during the COVID-19
pandemic and last week we put a note on our web page due to the impact of the 120 day eviction
moratorium put in place under the CARES Act for any person on a government program or a
facility that was funded by a government loan such as VA, FHA, Fannie Mae or Freddie Mac.
Until Friday, there were no official eviction moratoriums in place in the State of Alabama.
Certain Alabama Sheriffs were refusing to execute writs of possession, but otherwise there was
no state-wide prohibition. That all came to an end Friday afternoon when Governor Ivey issued
a Proclamation granting protection against evictions for the entire State of Alabama.
Unlike the Federal moratoriums put in place, Governor Ivey’s Order (copy attached) does
not prevent the filing of evictions or foreclosures, nor does it prevent the application for a writ of
possession. What the Order does is prohibit State, County and Local Law Enforcement Officers
from serving the writ of possession to displace any person from their residence for the duration
of the public health emergency. As such, it is open-ended with no specific end date.
Considering the Governor’s Proclamation, for those people who are not prohibited by
President Trump’s March 18, 2020 Order, or the CARES Act 120 day eviction moratorium
beginning on March 27, 2020, you may still file for and receive an eviction Order and ask for a
writ of possession, but it will not be issued and the tenant will not be set out, if they don’t
voluntarily leave, until the Governor lifts her Proclamation, whenever that may be.

WHERE DO LANDLORDS STAND IN ALL OF THIS?

Written by: Attorney Tracy Turner

Much has been written about the effects of COVID-19 on renters and homeowners concerning foreclosures and evictions, but nothing has been written about the small business owners who are the landlords for these people.  Many of these small business owners themselves have mortgages on their properties.  For those small businesses whose properties, whether apartments or single-family residences or duplexes, financed through HUD, FHA, Fannie Mae or Freddie Mac, back on March 18, 2020 President Trump announced a two-month moratorium on evictions and foreclosures going through the end of April, thus, small business owner/landlords with these types of financing cannot evict or foreclose on their tenants or homeowners.  As such, they must look to the Federal Government for help provided small businesses under the CARES Act.

Speaking of the CARES Act, it also places a moratorium for one hundred twenty (120) days beginning March 27, 2020 on not only evictions for “covered properties,” but also prohibits the assessment of a late fee against the tenant during this same period.  A landlord with such a covered property cannot even issue a notice to vacate until thirty (30) days after the one hundred twenty (120) day moratorium ends.

For other landlords in Alabama, the Court system is still open for evictions and foreclosures but certain Sheriffs in Alabama, specifically Jefferson, Montgomery and Madison County, have refused to execute writs of possession issued by the Courts, thus failing to fulfill their constitutional oath and duties.  Similarly, some Judges in Alabama have stated that they would not issue judgments for eviction or foreclosure, even if all of the paperwork was timely and properly filed.

At this time, no Judges in Mobile County nor the Mobile County Sheriff’s Department has refused to conduct move-outs pursuant to lawfully issued writs of possession or failed to enter an Order on properly supported motions for eviction.  Nevertheless, for those instances where the tenant files an answer, even in Mobile County, the landlord is in limbo since the Alabama Supreme Court has suspended all trials through April 30th, and one can only postulate this will be extended well into May considering the continued expansion of COVID-19 cases.  It may well be June before a landlord gets a trial date on an eviction where the tenant will have paid no rent in many cases since February or before.

At this time, Governor Ivey has not issued a state-wide prohibition on evictions and foreclosures.  However, the Governor has not ruled out doing so if COVID-19 experience in Alabama gets any worse.

Considering the situation, if a landlord has someone who is more than a couple of months behind on their rent, and a proper seven (7) business day notice has been provided, it may very well be in their best interest to move forward with filing the eviction as soon as possible before a moratorium is put in place by the Governor.  Doing so, might assist the landlord in later being paid by the tenant if, in fact, the tenant receives stimulus money from the government under the CARES Act before trials are re-instituted in May or June.  If a landlord needs advice on these issues, myself and the attorneys at Johnstone Adams, LLC will be happy to assist.

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