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Article 8 Forcible Entry and Unlawful Detainer
Division 1 General Provisions
Section 6-6-310 Definitions
Section 6-6-311 To what estates applicable
Section 6-6-312 Commencement of action where property held jointly
Section 6-6-313 Effect of temporary absence
Section 6-6-314 Liability of lessee holding over; how such recovered
Section 6-6-315 Uninterrupted occupation for three years bars action
Section 6-6-316 Action of trespass, etc., not precluded
Section 6-6-317 Notice or demand
Section 6-6-318 Courts deemed always open
Section 6-6-319 Forms for judgment, restitution or possession
Division 2 Proceedings
Section 6-6-330 Jurisdiction
Section 6-6-331 Venue
Section 6-6-332 Process - Form of notice; service and return thereof
Section 6-6-333 Process - Neglect or refusal to execute by sheriff or constable
Section 6-6-334 Failure of witnesses to attend or refusal to testify
Section 6-6-335 Proceedings when parties appear or defendant fails to do so
Section 6-6-336 Extent of inquiry
Section 6-6-337 Proceedings upon determination for either plaintiff or defendant
Division 3 Appeals
Section 6-6-350 To circuit court from district court
Section 6-6-351 Writs of restitution or possession - Suspension upon payment of
rent
by defendant
Section 6-6-352 Writs of restitution or possession - Issuance by circuit court
Section 6-6-353 Proceedings when determination is against appellant
Section 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.
(Code 1852, 2851, 2852; Code 1867, 3299, 3300; Code 1876,
3696, 3697; Code 1886, 3380, 3381; Code
1896, 2126, 2127; Code 1907, 4262, 4263; Code 1923,
8000, 8001; Code 1940, T. 7, 966, 967; Acts
1996, No. 96-573, p. 880, 1.)
Section 6-6-311
To what estates applicable.
Forcible entry and detainer and unlawful detainer extend to, and comprehend,
terms for years and all
estates, whether freehold or less than freehold.
(Code 1852, 2853; Code 1867, 3301; Code 1876, 3698; Code 1886,
3382; Code 1896, 2128; Code 1907,
4264; Code 1923, 8002; Code 1940, T. 7, 968.)
Section 6-6-312
Commencement of action where property held jointly.
Where title or possession of the premises is held by several persons jointly, as
by tenants in common,
coparceners, partners, or other joint occupancy or title, they are seized for
themselves and for each other;
all are equally entitled to possession; and, conversely, the possession of any
one is the possession of all; and
any joint tenant may commence an action of forcible entry and detainer against a
stranger and recover the
entire possession, which inures to the benefit of all.
(Code 1923, 8027; Code 1940, T. 7, 990.)
Section 6-6-313
Effect of temporary absence.
A temporary absence from the premises does not constitute a loss of the actual
possession nor prevent the
commencement of forcible entry and detainer against one who forcibly enters or
detains the premises, and
one who enters during such temporary absence does not acquire the legal
possession such as permits him to
commence the action if the rightful possessor rejects him immediately on
discovery of his presence on the
premises.
(Code 1923, 8028; Code 1940, T. 7, 991.)
Section 6-6-314
Liability of lessee holding over; how such recovered.
Any person who, having entered into the possession of lands and tenements under
a contract of lease,
forcibly or unlawfully retains the possession thereof after the expiration of
his term or refuses to surrender
the same on the written demand of the lessor, his agent, or attorney or legal
representative, is liable for
double the amount of the annual rent agreed to be paid under such contract and
for such other special
damages as may be thereby sustained by the party thus unlawfully kept out of
possession, to be recovered
as now provided by law in actions of unlawful detainer or by a civil action for
damages.
(Code 1867, 3312; Code 1876, 3709; Code 1886, 3391; Code 1896,
2137; Code 1907, 4273; Code 1923,
8014; Code 1940, T. 7, 977.)
Section 6-6-315
Uninterrupted occupation for three years bars action.
The uninterrupted occupation of the premises in controversy by the defendant for
the space of three entire
years preceding the filing of the complaint is, if the estate of the defendant
is not determined, a bar to any
proceeding under this article.
(Code 1852, 2860; Code 1867, 3308; Code 1876, 3705; Code 1886,
3390; Code 1896, 2136; Code 1907,
4272; Code 1923, 8013; Code 1940, T. 7, 976.)
Section 6-6-316
Action of trespass, etc., not precluded.
No proceedings had under this article or judgment entered bars or prevents the
party injured from
prosecuting an action of trespass or other action against the aggressor or party
offending.
(Code 1852, 2863; Code 1867, 3311; Code 1876, 3708; Code 1886,
3392; Code 1896, 2138; Code 1907,
4274; Code 1923, 8015; Code 1940, T. 7, 978.)
Section 6-6-317
Notice or demand.
Forcible entry being in its nature adverse and unlawful, no demand need be made
or notice given except
such as is required in the Code to support an action or proceeding based on an
entry with actual force.
(Code 1923, 8029; Code 1940, T. 7, 992.)
Section 6-6-318
Courts deemed always open.
Courts having jurisdiction under this article must be held open at all times for
the consideration and
determination of questions arising under this article, and judgments had thereon
without delay.
(Code 1867, 3298; Code 1876, 3695; Code 1886, 3379; Code 1896,
2125; Code 1907, 4261; Code 1923,
7999; Code 1940, T. 7, 965.)
Section 6-6-319
Forms for judgment, restitution or possession.
The following or similar forms may be used when appropriate in forcible entry
and unlawful detainer
proceedings; but they are not exclusive of other appropriate forms: Judgment.A.
B. v. C. D.Came the
parties on the _______________ day of_______________, and upon evidence I find
the said C. D. guilty
of the forcible entry and unlawful detainer (or, unlawful detainer) as
complained against him by A. B., and
I therefore order and adjudge that C. D. restore to A. B. the possession of the
tract of land (or tenement)
mentioned in the complaint: _______________ (here designate the land or
tenement), and pay the cost of
this proceeding. Writ of Restitution or Possession. State of Alabama,
County._______________To any
lawful officer of said county: You are hereby commanded to restore A. B. to
possession (or place A. B. in
possession) of the land and tenements (or, as the case may be) which A. B.
recovered of C. D. in an action
of forcible entry and detainer (or unlawful detainer) before me on the
_______________ day of
_______________, at _______________ (here describe the land and tenements). You
are further directed,
of the goods and chattels, lands and tenements, of the said C. D., you cause to
be made the sum of
_______________, which the said A. B. has recovered for his costs in that behalf
expended. Witness my
hand, this the _______________ day of _______________E. F., District Court Judge
(Code 1907, 4286; Code 1923, 8031; Code 1940, T. 7, 994.)
Section 6-6-330
Jurisdiction.
The forcible entry upon and detainer, or the unlawful detainer, of lands,
tenements and hereditaments is
cognizable before the district court of the county in which the offense is
committed.
(Code 1852, 2850; Code 1867, 3297; Code 1876, 3694; Code 1886,
3378; Code 1896, 2124; Code 1907,
4260; Code 1923, 7998; Code 1940, T. 7, 964.)
Section 6-6-331
Venue.
The complaints provided for in this article must be filed with, and be tried by,
the district court for the
county in which the lands or tenements are situated.
(Code 1852, 2868; Code 1867, 3317; Code 1876, 3714; Code 1886,
3385; Code 1896, 2131; Code 1907,
4267; Code 1923, 8008; Code 1940, T. 7, 971.)
Section 6-6-332
Process - Form of notice; service and return thereof.
(a) Upon complaint being made, the district judge shall issue a notice to the
party against whom the
complaint is made to the following effect: The State of Alabama,_______________
County.
To_______________You are hereby commanded to be and appear before me, at
_______________ on the
_______________ day of _______________, 19 _______________, to answer to, and
make defense
against a complaint exhibited to me against you by _______________, for a
forcible entry and detainer (or
for unlawful detainer, as the case may be).Witness my hand this _______________
day of
_______________, 19_______________._______________ District Court Judge
(b) The notice shall be served on the defendant at least six days before the
return day of the process and
may be served on the defendant anywhere within the state. The return of the
service thereof by any sheriff
or constable of the state is sufficient, or proof of the fact may be made before
the judge. A copy of the
notice shall be personally served upon the defendant. If the sheriff or
constable is unable to serve the
defendant personally, service may be had by delivering the notice to any person
who is sui juris residing on
the premises, or if after reasonable effort no person is found residing on the
premises, by posting a copy of
the notice on the door of the premises, and on the same day of posting or by the
close of the next business
day, the sheriff, the constable, the person filing the complaint, or anyone on
behalf of the person, shall mail
notice of the filing of the unlawful detainer action by enclosing, directing,
stamping, and mailing by first
class a copy of the notice to the defendant at the mailing address of the
premises and if there is no mailing
address for the premises to the last known address, if any, of the defendant and
making an entry of this
action on the affidavit filed in the case. Service of the notice by posting
shall be complete as of the date of
mailing the notice.
(c) Upon complaint being made and upon request of the plaintiff to have the
notice served on the defendant
by a process server other than a sheriff or constable, the court shall, if the
process server is qualified under
Rule 4.1 (b) (2) of the Alabama Rules of Civil Procedure, order the clerk to
deliver the notice to the process
server for service.
(Code 1852, 2854, 2855; Code 1867, 3302, 3303; Code 1876,
3699, 3700; Code 1886, 3383, 3384; Code
1896, 2129, 2130; Code 1907, 4265, 4266; Code 1923,
8006, 8007; Code 1940, T. 7, 969, 970; Acts
1990, No. 90-218, p. 255, 1; Acts 1996, No. 96-573, p. 880, 1.)
Section 6-6-333
Process - Neglect or refusal to execute by sheriff or constable.
Any sheriff or constable neglecting or refusing to execute any process placed in
his hands by a district
court judge by virtue of the authority conferred by this article, forfeits to
the party aggrieved $200, to be
recovered by action in the circuit court.
(Code 1852, 2862; Code 1867, 3310; Code 1876, 3707; Code 1886,
3394; Code 1896, 2140; Code 1907,
4276; Code 1923, 8017; Code 1940, T. 7, 980.)
Section 6-6-334
Failure of witnesses to attend or refusal to testify.
(a) Any witness, duly subpoenaed and failing to attend or refusing to testify
may be fined by the district
court judge not exceeding $100, for the use of the county, for which he may
issue execution directed to the
constable.
(b) The judgment specified in subsection (a) of this section must not be made
absolute until 10 days after
service of a written notice on such witness, informing him of the entry of such
judgment.
(Code 1852, 2869, 2870; Code 1867, 3318, 3319; Code 1876,
3715, 3716; Code 1886, 3394, 3395; Code
1896, 2141, 2142; Code 1907, 4277, 4278; Code 1923,
8018, 8019; Code 1940, T. 7, 981, 982.)
Section 6-6-335
Proceedings when parties appear or defendant fails to do so.
If the parties appear, an issue must be made between them upon the complaint,
but if the defendant, having
been duly cited, does not appear or, appearing, declines to plead, the case
proceeds as if the defendant had
denied the allegations of the complaint; or, for good cause, the trial may be
postponed not more than 15
days, at the cost of the applicant.
(Code 1852, 2856; Code 1867, 3304; Code 1876, 3701; Code 1886,
3386; Code 1896, 2132; Code 1907,
4268; Code 1923, 8009; Code 1940, T. 7, 972.)
Section 6-6-336
Extent of inquiry.
The estate or merits of the title cannot be inquired into on the trial of any
complaint filed under this article,
but all legal and equitable defenses may be had against a recovery for damages
or for the unlawful
detention of the land.
(Code 1852, 2859; Code 1867, 3307; Code 1876, 3704; Code 1886,
3389; Code 1896, 2135; Code 1907,
4271; Code 1923, 8012; Code 1940, T. 7, 975.)
Section 6-6-337
Proceedings upon determination for either plaintiff or defendant.
(a) If the judge determines in favor of the plaintiff, he must record the
decision and enter judgment with
costs, upon which he must issue a writ of execution commanding the sheriff or
the constable to restore the
plaintiff to possession or place him in possession of his lands and tenements
according to complaint and to
levy on and sell a sufficiency of the defendant's goods and chattels, lands and
tenements to satisfy the costs
of the proceedings. Successive writs may issue at any time when necessary to
eject defendant or collect
costs and damages, and a defendant who refuses to obey the mandate of the writ
as to the possession of the
property or who enters upon the premises without just cause or legal excuse
after being ejected shall be
guilty of resisting an officer and contempt of court and shall be punished and
fined accordingly, in the
discretion of the court issuing the process.
(b) If the judge determines in favor of the defendant, judgment must be entered
in his favor for the costs,
upon which an execution may issue as in other cases.
(Code 1852, 2857, 2858; Code 1867, 3305, 3306; Code 1876,
3702, 3703; Code 1886, 3387, 3388; Code
1896, 2133, 2134; Code 1907, 4269, 4270; Code 1923,
8010, 8011; Code 1940, T. 7, 973, 974.)
Section 6-6-350
To circuit court from district court.
Any party may appeal from a judgment entered against him or her by a district
court to the circuit court at
any time within 14 days after the entry thereof, and appeal and the proceedings
thereon shall in all respects,
except as provided in this article, be governed by this code relating to appeal
from district courts. However,
the clerk of the court shall schedule the action for trial as a preferred case,
and it shall be set for trial within
60 days from the date of appeal.
(Code 1852, 2811, 2864; Code 1867, 3257, 3313; Code 1876,
3654, 3710; Code 1886, 3398; Code 1896,
2144; Code 1907, 4280; Code 1923, 8021; Code 1940, T. 7,
984; Acts 1996, No. 96-573, p. 880, 1.)
Section 6-6-351
Writs of restitution or possession - Suspension upon payment of rent by
defendant.
(a) Notwithstanding any other provisions of law or of the Alabama Rules of Civil
Procedure, in cases of
forcible entry or unlawful detainer, an appeal to circuit court or to appellate
court does not prevent the
issue of a writ of restitution or possession unless the defendant pays to the
clerk of the district court all
rents called for under the terms of the lease, since the date of the filing of
the action and continues to pay all
rent that becomes due and payable under the terms of the lease as they become
due, during the pendency of
the appeal, and the sums are to be ascertained by the judge.
(b) If the defendant should fail to make any payments as they become due under
subsection (a), the court
shall issue a writ of restitution or possession and the plaintiff shall be
placed in full possession of the
premises.
(c) Upon disposition of the appeal, the court shall direct the clerk as to the
disposition of the funds paid to
the clerk pursuant to subsection (a).
(Code 1852, 2865; Code 1867, 3314; Code 1876, 3711; Code 1886,
3401; Code 1896, 2145; Code 1907,
4281; Code 1923, 8022; Code 1940, T. 7, 985; Acts 1996, No.
96-573, p. 880, 1.)
Section 6-6-352
Writs of restitution or possession - Issuance by circuit court.
In the event that the plaintiff is placed in possession under a writ of
restitution or possession, and on appeal
the judgment is reversed and one entered for the defendant or the proceeding on
appeal is quashed or
dismissed, the circuit court may award a writ of restitution or possession to
restore him to possession as
against the plaintiff, but not as against a third party; but the issuance of the
writ rests in the discretion of
the appellate court, and the circuit court may, in all cases, direct writs of
restitution or possession to be
issued by the trial court when, in the judgment of the circuit court, such writ
is proper or necessary.
(Code 1923, 8030; Code 1940, T. 7, 993.)
Section 6-6-353
Proceedings when determination is against appellant.
In cases of forcible entry or unlawful detainer, the judgment, if against the
appellant, must be entered in the
circuit court against him and the sureties on the appeal or certiorari bond,
including the costs in the inferior
and circuit courts, and if the appeal or certiorari was sued out by the
defendant and a supersedeas bond was
executed, a writ of restitution or possession must be awarded and judgment must
also be entered against the
defendant and the sureties on his supersedeas bond for the value of the rent of
the premises pending the
appeal.
(Code 1852, 2866, 2867; Code 1867, 3315, 3316; Code 1876,
3712, 3713; Code 1886, 3411; Code 1896,
2146; Code 1907, 4282; Code 1923, 8023; Code 1940, T. 7,
986.)
Section 24-8-7
Exemptions.
(a) Except for subdivision (3) of Section 24-8-4, Sections 24-8-4 and 24-8-6 do
not apply to rooms or units
in dwellings containing living quarters occupied or intended to be occupied by
no more than four families
living independently of each other, if the owner actually maintains and occupies
one of the living quarters
as his or her residence.
(b) Sections 24-8-4 and 24-8-6 do not apply to any single-family house sold or
rented by an owner when:
(1) The private individual owner does not own more than three single-family
houses at any one time;
and
(2) In the sale of any single-family house by a private individual owner not
residing in the house at the
time of the sale or who was not the most recent resident of the house before the
sale, the exemption granted
by this subsection shall apply only with respect to one sale within a 24-month
period; and
(3) A bona fide private individual owner does not own an interest in, nor is
there owned or reserved on
the owner's behalf, under any express or voluntary agreement, title to or a
right to all or a portion of the
proceeds from the sale or rental of more than three single-family houses at any
one time.
(c) After August 8, 1991, the sale or rental of a single-family house is
excepted from the application of this
subsection only if the house is sold or rented without both of the following:
(1) The use in any manner of the sales or rental facilities or the sales or
rental services of a real estate
broker, agent, or salesperson, or of the facilities or services of a person in
the business of selling or renting
dwellings, or of an employee or agent of a broker, agent, salesperson, or
person.
(2) The publication, posting, or mailing, after notice, of an advertisement or
written notice in violation
of this chapter. Nothing in this subsection prohibits the use of attorneys,
escrow agents, abstractors, title
companies, and other professional assistance as necessary to perfect or transfer
this title.
(d) For the purposes of this section, a person is considered to be in the
business of selling or renting
dwellings under any of the following circumstances:
(1) The person has, within the preceding 12 months, participated as principal in
three or more
transactions involving the sale or rental of any dwelling or any interest in it.
(2) The person has, within the preceding 12 months, participated as agent, other
than in the sale of his
or her personal residence, in providing sales or rental facilities or services
in two or more transactions
involving the sale or rental of any dwelling or any interest in it.
(3) The person is the owner of any dwelling designed or intended for occupancy
by, or occupied by, five
or more families.
(e) This chapter shall not prohibit a religious organization, association, or
society, or any nonprofit
institution or organization operated, supervised, or controlled by or in
conjunction with a religious
organization, association, or society, from limiting the sale, rental, or
occupancy of any dwelling which it
owns or operates for other than a commercial purpose to persons of the same
religion or from giving
preference to those persons, unless membership in the religion is restricted
because of race, color, or
national origin. This chapter shall not prohibit a private club not in fact open
to the public, which as an
incident to its primary purpose provides lodgings which it owns or operates for
other than a commercial
purpose, from limiting the rental or occupancy of the lodgings to its members or
from giving preference to
its members.
(f) This chapter shall not prohibit conduct against a person because the person
has been convicted by any
court of competent jurisdiction of the illegal manufacture or distribution of a
controlled substance as
defined by law.
(g) For purposes of subdivision (6) of Section 24-8-4, the term
"discrimination" includes any of the
following conduct:
(1) A refusal to permit, at the expense of the handicapped person, reasonable
modifications of existing
premises occupied or to be occupied by the person if the modifications are
necessary to afford that person
full enjoyment of the premises, except that in the case of a rental, the
landlord, where it is reasonable to do
so, may condition permission for a modification on the renter agreeing to
restore the interior of the premises
to the condition that existed before the modification, reasonable wear and tear
excepted.
(2) A refusal to make reasonable accommodations in rules, policies, practices,
or services when
accommodations may be necessary to afford the person equal opportunity to use
and enjoy a dwelling.
(3) In connection with the design and construction of covered multifamily
dwellings for first occupancy
after the date that is 30 months after the date of enactment of the Fair Housing
Amendments Act of 1988, a
failure to design and construct those dwellings in such a manner that:
a. The public use and common use portions of the dwelling are readily accessible
to and usable by
handicapped persons;
b. The dwelling has at least one building entrance on an accessible route unless
it is impracticable to
do so because of the terrain or unusual characteristics of the site;
c. All the doors designed to allow passage into and within all premises within
the dwellings are
sufficiently wide to allow passage by handicapped persons in wheelchairs; and
d. All premises within these dwellings contain the following features of
adaptive design:
1. An accessible route into and through the dwelling;
2. Light switches, electrical outlets, thermostats, and other environmental
controls in accessible
locations;
3. Reinforcements in the bathroom walls to allow later installation of grab
bars; and
4. Usable kitchens and bathrooms that an individual in a wheelchair can maneuver
about the
space.
(h) Compliance with the appropriate requirements of the American National
Standard for Buildings and
Facilities Providing Accessibility and Usability for Physically Handicapped
People (commonly cited as
"ANSI A117.1") suffices to satisfy the requirements of subsection
(g)(3)d.
(1) If a unit of local government has incorporated into its laws the
requirements in subsection (g)(3),
compliance with these laws is considered to satisfy the requirements.
(2) A unit of local government may review and approve newly constructed covered
multifamily
dwellings for the purpose of making determinations as to whether the design and
construction requirements
of subsection (g)(3) are met.
(3) The office shall encourage, but may not require, units of local government
to include in their existing
procedures for the review and approval of newly constructed covered multifamily
dwellings, determinations
as to whether the design and construction of these dwellings are consistent with
subsection (g)(3), and shall
provide technical assistance to units of local government and other persons to
implement the requirements
of subsection (g)(3).
(4) Nothing in this chapter shall be construed to require the office to review
or approve the plans,
designs, or construction of all covered multifamily dwellings, to determine
whether the design and
construction of these dwellings are consistent with the requirements of
subsection (g)(3).
(i)
(1) Nothing in subsection (h) shall be construed to affect the authority and
responsibility of the Attorney
General to receive and process complaints or otherwise engage in enforcement
activities under this chapter.
(2) Determinations by the unit of local government under subsection (h) are not
conclusive in
enforcement proceedings under this chapter.
(j) Nothing in this chapter shall be construed to invalidate or limit any rule,
regulation, resolution, or
ordinance of a political subdivision of the state that requires dwellings to be
designed and constructed in a
manner that affords handicapped persons greater access than is required by this
chapter.
(k) Nothing in this chapter with respect to discrimination based on handicap
requires that a dwelling be
made available to an individual whose occupancy would constitute a direct threat
to the health or safety of
other individuals or whose occupancy would result in substantial physical damage
to the property of others.
(l) Nothing in this chapter limits the applicability of any reasonable local,
state, or federal restrictions
regarding the maximum number of occupants permitted to occupy a dwelling. Owners
and managers of
dwellings may develop and implement reasonable occupancy and safety standards
based on factors such as
the number and size of sleeping areas or bedrooms and the overall size of a
dwelling unit so long as the
standards do not violate local, state, or federal restrictions. The provisions
in this chapter regarding familial
status shall not apply to housing for older persons. This chapter shall not
prohibit the lease application or
similar document from requiring information concerning the number, age, sex, and
familial relationship of
the applicants and the dwellings' intended occupants. The owner or manager may
consider these factors in
determining payment of utilities. The application also may require disclosure by
the applicant of the
conviction of any intended occupant for violating any laws pertaining to the
illegal manufacture or
distribution of a controlled substance as defined in Title 22.
(m) Section 24-8-4 with respect to discrimination based on sex does not apply to
the rental or leasing of
dwellings in a single-sex dormitory property.
(Acts 1991, No. 91-659, p. 1248, 7; Acts 1995, No. 95-676, p. 1472, 1;
Acts 1996, No. 96-261, p. 307, 1.)
Article 1 General Provisions
Section 35-9-1 Tenant stopped to deny landlord's title
Section 35-9-2 When tenant at will entitled to emblements
Section 35-9-3 Duration of tenancy when time for termination not specified—
Generally
Section 35-9-4 Duration of tenancy when time for termination not specified—
Hiring of
lodgings for indefinite term
Section 35-9-5 Notice to terminate tenancy for term less than one year
Section 35-9-6 Notice to quit for breach or default of terms of lease
Section 35-9-7 Service of demand or notice
Section 35-9-8 Notice unnecessary when tenancy is for certain period
Section 35-9-9 Remedies extended to lessor's grantees, etc
Section 35-9-10 Remedies extended to lessee's grantees
Section 35-9-11 Right of landlord to enforce lien against sublessees or
assignees
Section 35-9-12 Seizure of crops upon abandonment of premises
Section 35-9-13 Recovery of rent upon death of life tenant who has demised
estate
Article 2 Liens of Landlord
Division 1 Liens for Advances and Rent of Lands
Section 35-9-30 Lien declared
Section 35-9-31 Maturity of rent and advances
Section 35-9-32 Continuation of lien and attachment to crop of succeeding year
Section 35-9-33 Assignment of claim for rent and advances
Section 35-9-34 When lien may be enforced by attachment
Section 35-9-35 Affidavit and bond
Section 35-9-36 Issuance and return of attachment; trial; property leviable
Section 35-9-37 Relation between party furnishing land and party furnishing
labor
Section 35-9-38 Failure or refusal of tenant to plant crop
Section 35-9-39 Levy upon crop of subtenant
Section 35-9-40 Subrogation of subtenant to rights, liens and remedies of
landlord
Section 35-9-41 Right of subtenant to require attachment against tenant in chief
Section 35-9-42 Applicability of division to tenant in chief and subtenant
Division 2 Liens for Rent of Buildings
Section 35-9-60 Lien declared
Section 35-9-61 When lien may be enforced by attachment
Section 35-9-62 Affidavit and bond
Section 35-9-63 Property leviable; priority of lien
Section 35-9-64 Law governing proceedings
Section 35-9-65 Lien, rights and remedies vested in assignee of claim for rent
Article 3 Possession Wrongfully Withheld
Section 35-9-80 Demand for premises
Section 35-9-81 Issuance of writ or process
Section 35-9-82 Service of writ or process
Section 35-9-83 Removal to circuit court
Section 35-9-84 Arrest of proceedings
Section 35-9-85 Trial upon delivery of counter affidavit
Section 35-9-87 Appeals
Section 35-9-88 Fees
Article 4 Use and Occupation
Section 35-9-100 When reasonable satisfaction may be recovered
Section 35-9-1
Tenant estopped to deny landlord's title.
The tenant cannot dispute his landlord's title, nor attorn to another claimant
while in possession, except in
cases provided otherwise in this Code.
(Code 1907, 4731; Code 1923, 8796; Code 1940, T. 31, 1.)
Section 35-9-2
When tenant at will entitled to emblements.
The tenant at will is entitled to his emblements, if the crop is sowed before
notice to quit by the landlord, or
the tenancy otherwise suddenly terminated, as by sale of the estate by the
landlord, or by judicial sale, or
death of the landlord or tenant.
(Code 1907, 4733; Code 1923, 8798; Code 1940, T. 31, 2.)
Section 35-9-3
Duration of tenancy when time for termination not specified - Generally.
Where no time is specified for the termination of tenancy, the law construes it
to be from December 1 to
December 1 but if it is expressly a tenancy at will, then either party may
terminate it at will, by 10 days'
notice in writing.
(Code 1907, 4732; Code 1923, 8797; Acts 1935, No. 94, p. 158; Code
1940, T. 31, 3.)
Section 35-9-4
Duration of tenancy when time for termination not specified -
Hiring of lodgings for
indefinite term.
A hiring of lodgings or a dwelling house for an unspecified term is presumed to
have been made for such
length of time as the parties adopt for the estimation of the rent. Thus a
hiring at a monthly rate of rent is
presumed to be for one month. In the absence of any agreement respecting the
length of time for the rent,
the hiring is presumed to be monthly.
(Code 1923, 8821; Code 1940, T. 31, 4.)
Section 35-9-5
Notice to terminate tenancy for term less than one year.
In all cases of tenancy by the month or for any other term less than one year,
where the tenant holds over
without special agreement, the landlord shall have the right to terminate the
tenancy by giving the tenant 10
days' notice in writing of such termination, and the landlord upon giving said
notice for said time shall be
authorized without further notice to the tenant to recover possession of the
rented premises in an action of
unlawful detainer.
(Code 1923, 8822; Acts 1932, Ex. Sess., No. 13, p. 14; Code 1940, T. 31,
5.)
Section 35-9-6
Notice to quit for breach or default of terms of lease.
When default is made in any of the terms of a lease, it shall not be necessary
to give more than 10 days'
notice to quit, or of the termination of such tenancy, and the same may be
terminated on giving such notice
to quit at any time after such default in any of the terms of such lease; which
notice may be substantially in
the following form:"To A. B.:You are hereby notified that in consequence of
your default in (here insert the
character of the default) of the premises now occupied by you, being (here
describe the premises), I have
elected to terminate your lease, and you are hereby notified to quit and deliver
up possession of the same to
me within 10 days of this date. Dated this _______________ day of
_______________." To be signed by
the lessor or his agent; and no other notice or demand of possession or
termination of such tenancy shall be
necessary to maintain unlawful detainer
(Code 1923, 8823; Code 1940, T. 31, 6.)
Section 35-9-7
Service of demand or notice.
(a) Any demand may be made or notice served by delivering a written or printed,
or partly written and
printed, copy thereof to the tenant, or by leaving the same with some person
above the age of 18 years,
residing on or in possession of the premises; and in case no one is in the
actual possession of said premises,
then by posting the same on the premises.
(b) When any such demand is made or notice served by an officer authorized to
serve process, his return
shall be prima facie evidence of the facts therein stated, and if such demand is
made or notice served by any
person not an officer, the return may be sworn to by the person serving the
same, and shall then be prima
facie evidence of the facts therein stated.
(Code 1923, 8824, 8825; Code 1940, T. 31, 7, 8.)
Section 35-9-8
Notice unnecessary when tenancy is for certain period.
When a tenancy is for a certain period, and the term expires by the terms of the
lease, the tenant is then
bound to surrender possession, and no notice to quit or demand of possession is
necessary.
(Code 1923, 8826; Code 1940, T. 31, 9.)
Section 35-9-9
Remedies extended to lessor's grantees, etc.
The grantees of any demised lands, tenements, rents or other hereditaments, or
of the reversion thereof, the
assignees of the lessor of any demise, and the heirs and personal
representatives of the lessor, grantee or
assignee, shall have the same remedies by entry, action or otherwise, for the
nonperformance of any
agreement in the lease, or for the recovery of any rent, or for the doing of any
waste or other cause of
forfeiture, as their grantor or lessor might have had if such reversion had
remained in such lessor or
grantor.
(Code 1923, 8827; Code 1940, T. 31, 10.)
Section 35-9-10
Remedies extended to lessee's grantees.
The lessees of any lands, their assigns or personal representatives, shall have
the same remedy, by action or
otherwise, against the lessor, his grantees, his assignees or his or their
representatives, for the breach of any
agreement in such lease, as such lessee might have had against his immediate
lessor; but this section shall
have no application to the covenants against incumbrances, or relating to the
title or possession of the
premises demised.
(Code 1923, 8828; Code 1940, T. 31, 11.)
Section 35-9-11
Right of landlord to enforce lien against sublessees or assignees.
In all cases when the demised premises shall be sublet, or the lease is
assigned, the landlord shall have the
same right to enforce his lien against the sublessee or assignee, that he has
against the tenant to whom the
premises were demised.
(Code 1923, 8829; Code 1940, T. 31, 12.)
Section 35-9-12
Seizure of crops upon abandonment of premises.
When a tenant abandons or removes from the premises or any part thereof, the
landlord or his agent or
attorney may seize upon any grain or other crops grown or growing upon the
premises or part thereof so
abandoned, whether the rent is due or not. If such grain or other crops or any
part thereof is not fully grown
or matured, the landlord or his agent or attorney may cause the same to be
properly cultivated and
harvested or gathered, and may sell and dispose of the same, and apply the
proceeds, so far as may be
necessary, to compensate him for his labor and expenses and to pay the rent and
advances. The tenant may,
at any time before the sale of the property so seized, redeem the same by
tendering the rent and advances
due and reasonable compensation, and expenses of the cultivation and harvesting
or gathering the same.
(Code 1923, 8830; Code 1940, T. 31, 13.)
Section 35-9-13
Recovery of rent upon death of life tenant who has demised estate.
When a tenant for life shall demise any lands and shall die on or after the day
when any rent becomes due
and payable, his executors or administrators may recover from the under-tenant
the whole rent due, but if
any such tenant for life shall die before the day when any rent is to become
due, his executors or
administrators may recover the proportion of rent which accrued before his
death, and the remainderman
shall recover for the residue.
(Code 1923, 8831; Code 1940, T. 31, 14.)
Section 35-9-30
Lien declared.
A landlord has a lien, which is paramount to, and has preference over, all other
liens, on the crop grown on
rented lands for rent for the current year, and for advances made in money, or
other thing of value, either
by him directly, or by another at his instance or request for which he became
legally bound or liable at or
before the time such advances were made, for the sustenance or well-being of the
tenant or his family, or
for preparing the ground for cultivation, or for cultivating, gathering, saving,
handling or preparing the
crop for market; and also on all articles advanced, and on all property
purchased with money advanced or
obtained by barter in exchange for articles advanced, for the aggregate price or
value of such articles and
property.
(Code 1876, 3467; Code 1886, 3056; Code 1896, 2703; Code 1907,
4734; Code 1923, 8799; Code 1940, T.
31, 15.)
Section 35-9-31
Maturity of rent and advances.
Unless otherwise stipulated, such rent and advances shall become due and payable
on November 1 of the
year in which the crop is grown.
(Code 1876, 3468; Code 1886, 3057; Code 1896, 2704; Code 1907,
4735; Code 1923, 8800; Code 1940, T.
31, 16.)
Section 35-9-32
Continuation of lien and attachment to crop of succeeding year.
When the tenant fails to pay any part of such rent or advances, and continues
his tenancy under the same
landlord, on the same or other lands, the balance due therefor shall be held and
treated as advances to him
by the landlord for the next succeeding year, for which the original lien for
advances, if any remain unpaid,
shall continue on the articles advanced, or property purchased with money
advanced, or obtained by barter
in exchange for articles advanced, and for which a lien shall also attach to the
crop of such succeeding
year.
(Code 1876, 3469; Code 1886, 3058; Code 1896, 2705; Code 1907,
4736; Code 1923, 8801; Code 1940, T.
31, 17.)
Section 35-9-33
Assignment of claim for rent and advances.
The claim of the landlord for rent and advances, or for either, may be by him
assigned; and the assignee
shall be invested with all the landlord's rights, and entitled to all his
remedies for their enforcement.
(Code 1876, 3470; Code 1886, 3059; Code 1896, 2706; Code 1907,
4737; Code 1923, 8802; Code 1940, T.
31, 18.)
Section 35-9-34
When lien may be enforced by attachment.
The landlord, or his assignee, may have process of attachment for the
enforcement of his lien for rent and
advances, or either, when such rent and advances, or either, as the case may be,
are due and the tenant fails
or refuses, after demand made, to pay the same; and also in the following cases,
whether such rent and
advances, or either, are due or not:
(1) When there is good cause to believe that the tenant or subtenant is about to
remove from the
premises, or otherwise dispose of any part of the crop, without paying such rent
and advances, or either,
and without the consent of the landlord, or of the assignee, when the claim has
been assigned.
(2) When the tenant or subtenant has removed from the premises, or otherwise
disposed of any part of
the crop without paying such rent and advances, or either, and without the
consent of the landlord, or of the
assignee, when the claim has been assigned.
(3) When the tenant or subtenant has disposed of, or there is good cause to
believe that he is about to
dispose of, any of the articles advanced or obtained by purchase with money
advanced, or by barter in
exchange for any article advanced, in fraud of the rights of the landlord, or of
his assignee, as the case may
be.
(Code 1876, 3472; Code 1886, 3061; Code 1896, 2708; Code 1907,
4739; Code 1923, 8804; Code 1940, T.
31, 20.)
Section 35-9-35
Affidavit and bond.
Before such attachment is issued, the plaintiff, or his agent or attorney must
make affidavit, setting forth
the amount that is or will be due for rent and advances, or either, as the case
may be, or, if the rent is not
payable in money, the value of the part of the crop or other things agreed to be
paid as rent, that one of the
causes for issuing an attachment prescribed in section 35-9-34 exists, and that
the attachment is not sued
out for the purpose of vexing or harassing the defendant; and must also execute
a bond in double the
amount claimed, with sufficient surety, payable to the defendant, and with
condition that the plaintiff will
prosecute the attachment to effect, and pay the defendant all such damages as he
may sustain from the
wrongful or vexatious suing out of such attachment.
(Code 1876, 3473; Code 1886, 3062; Code 1896, 2709; Code 1907,
4740; Code 1923, 8805; Code 1940, T.
31, 21.)
Section 35-9-36
Issuance and return of attachment; trial; property leviable.
Such attachment may be issued by any officer authorized to issue attachment in
other cases, and made
returnable before any court of competent jurisdiction, and must be tried in the
same manner, and upon the
same notice, as other attachment proceedings are tried, and may be levied on the
crop, or the proceeds
thereof, and on the articles advanced, and property purchased with money
advanced or obtained by barter
in exchange for articles advanced.
(Code 1876, 3473; Code 1886, 3063; Code 1896, 2710; Code 1907,
4741; Code 1923, 8806; Code 1940, T.
31, 22.)
Section 35-9-37
Relation between party furnishing land and party furnishing labor.
When one party furnishes the land and the other party furnishes the labor to
cultivate it, with stipulations,
express or implied, to divide the crop between them in certain proportions, the
relation of landlord and
tenant, with all its incidents, and to all intents and purposes, shall be held
to exist between them; and the
portion of the crop to which the party furnishing the land is entitled shall be
held and treated as the rent of
the land; and this shall be true whether or not by express agreement or by
implication the party furnishing
the land is to furnish all or a portion of the teams to cultivate it, all or a
portion of the feed for the teams, all
or a portion of the planting seed, all or a portion of the fertilizer to be used
on the crop or pay for putting in
marketable condition his proportion of the crop after the same has been
harvested by the tenant.
(Code 1876, 3474, 3475; Code 1886, 3064, 3065; Code 1896,
2711, 2712; Code 1907, 4742, 4743; Acts
1915, No. 63, p. 112; Acts 1915, No. 89, p. 134; Code 1923, 8807; Code
1940, T. 31, 23.)
Section 35-9-38
Failure or refusal of tenant to plant crop.
In any case in which a tenant of farm lands shall fail or refuse, without just
cause or excuse, to prepare the
land and plant his crops, or a substantial portion of such crops to be grown as
are usually planted by that
time, on or before March 20, he may, at the election of the landlord, be
required to surrender and vacate the
rented premises, and upon making such election, and upon notice thereof to the
tenant, the landlord may
proceed to recover possession of the rented premises by an action of unlawful
detainer.
(Acts 1915, No. 709, p. 808; Code 1923, 8808; Acts 1931, No. 353, p. 410;
Code 1940, T. 31, 24.)
Section 35-9-39
Levy upon crop of subtenant.
When lands are cultivated by a subtenant, and an attachment or other process is
sued out by the superior
landlord, or his assignee, for the purpose of enforcing his lien for rent and
advances, or either, the crop of
the tenant in chief must first be exhausted, before levy is made on the crop of
the subtenant; but if the
tenant in chief makes no crop, or if the crop made by him is not sufficient to
satisfy the plaintiff's demand,
then a sufficient amount of the crop of the subtenant may be levied on to supply
the deficiency; and any
levy made in violation of this section may be vacated on motion, at the first
session of the court thereafter.
(Code 1876, 3476; Code 1886, 3066; Code 1896, 2713; Code 1907,
4744; Code 1923, 8810; Code 1940, T.
31, 25.)
Section 35-9-40
Subrogation of subtenant to rights, liens and remedies of landlord.
Any subtenant who pays or discharges any debt or lien which the landlord has
against the tenant in chief,
by contract, judicial process or otherwise, shall be subrogated to the rights,
liens and remedies, which the
landlord had against the tenant in chief as to such debt or lien so paid or
satisfied, or he may set off such
debt, claim or demand so paid or discharged by him against any claim, debt or
demand which the tenant in
chief may have against such subtenant.
(Code 1923, 8811; Code 1940, T. 31, 26.)
Section 35-9-41
Right of subtenant to require attachment against tenant in chief.
The subtenant may notify the superior landlord, or his assignee, of the
existence of any one of the several
causes authorizing the issue of an attachment against the crop of the tenant in
chief and if such notice is
given, and an affidavit is made by the subtenant before an officer authorized by
law to administer oaths,
setting forth the existence of any one of such causes, and is served by the
subtenant, in person, or by his
agent, on such landlord, or his assignee, at the time the notice is given, and
the landlord, or his assignee,
fails or refuses to proceed within a reasonable time thereafter against the crop
of the tenant in chief, he
thereby loses his right to proceed against the crop of the subtenant for any
deficiency in the crop of the
tenant in chief to satisfy his claim, insofar as that deficiency resulted from
such failure or refusal to
proceed.
(Code 1876, 3477; Code 1886, 3067; Code 1896, 2714; Code 1907,
4745; Code 1923, 8812; Code 1940, T.
31, 27.)
Section 35-9-42
Applicability of division to tenant in chief and subtenant.
The provisions of this division shall apply to parties occupying the relation of
tenant in chief and subtenant.
(Code 1876, 3478; Code 1886, 3068; Code 1896, 2715; Code 1907,
4746; Code 1923, 8813; Code 1940, T.
31, 28.)
Section 35-9-60
Lien declared.
The landlord of any storehouse, dwelling house or other building shall have a
lien on the goods, furniture
and effects belonging to the tenant, and subtenant, for his rent, which shall be
superior to all other liens,
except those for taxes, and except as otherwise provided in section 7-9-310(2).
In case the tenant or
subtenant is adjudged a bankrupt, such lien on such goods, furniture and effects
of the bankrupt, except for
a dwelling house, used exclusively as a dwelling, shall, as against the trustee
in bankruptcy, attach only for
unpaid rent accrued and which shall accrue within six months from the date of
adjudication computed pro
rata at the then current rate. The lien amount accrued and to accrue shall not
be increased by reason of any
default or breach of contract by the bankrupt. From the amount of such lien, so
computed, the trustee in
bankruptcy may deduct all payments and all demands which could be legally set up
against the landlord by
way of counterclaim. If the trustee in bankruptcy shall dispose of the lease as
an asset of the bankrupt
estate, then the landlord shall have a lien on the goods, furniture and effects
of any person holding under the
trustee in bankruptcy.
(Code 1886, 3069; Code 1896, 2716; Code 1907, 4747; Acts 1919,
No. 134, p. 116; Code 1923, 8814; Code
1940, T. 31, 29; Acts 1981, No. 81-312, p. 399, 7-11-109(1).)
Section 35-9-61
When lien may be enforced by attachment.
The landlord shall have the right, for the enforcement of such lien, to sue out
an attachment before any
officer authorized to issue attachments, and returnable to any court having
jurisdiction of the amount
claimed, when the rent, or any installment thereof, is due, and the tenant fails
or refuses, on demand, to pay
such rent or installment; and also in the following cases, whether due or not:
(1) When the tenant has fraudulently disposed of his goods, or is about to
fraudulently dispose of his
goods.
(2) When the tenant has made an assignment for the benefit of his creditors.
(3) When the tenant has made a complete transfer of all, or substantially all,
of his goods, or removes or
attempts to remove all or substantially all of his goods, from the rented
premises, without the consent of the
landlord, or without first having paid the rent in full for the term.
(Code 1886, 3070; Code 1896, 2717; Code 1907, 4748; Code 1923,
8815; Code 1940, T. 31, 30.)
Section 35-9-62
Affidavit and bond.
Before such attachment is issued, the plaintiff, or his agent or attorney, must
make affidavit, setting forth
the amount that is, or will be, due for the rent, that one of the causes for
issuing an attachment prescribed in
section 35-9-61 exists, and that the attachment is not sued out for the purpose
of vexing or harassing the
defendant; and must also execute a bond in double the amount claimed, payable to
the defendant, with
sufficient surety, and with condition that the plaintiff will prosecute the
attachment to effect, and pay the
defendant all such damages as he may sustain from the wrongful or vexatious
suing out of such attachment.
(Code 1886, 3071; Code 1896, 2718; Code 1907, 4749; Code 1923,
8816; Code 1940, T. 31, 31.)
Section 35-9-63
Property leviable; priority of lien.
Such attachment may be levied on so much of the goods, furniture and effects of
the tenant as will satisfy
the plaintiff's demand for rent; and such levy shall have priority over the levy
of any other attachment on
such goods, furniture and effects in favor of any other creditor.
(Code 1886, 3072; Code 1896, 2719; Code 1907, 4750; Code 1923,
8817; Code 1940, T. 31, 32.)
Section 35-9-64
Law governing proceedings.
The law governing the issue, levy, trial and other proceedings in attachment
proceedings in general, not
inconsistent with the provisions of this division, shall govern in all cases
arising under this division.
(Code 1886, 3073; Code 1896, 2720; Code 1907, 4751; Code 1923,
8818; Code 1940, T. 31, 33.)
Section 35-9-65
Lien, rights and remedies vested in assignee of claim for rent.
The lien provided in this division shall vest in any assignee of the claim for
rent; and such assignee shall be
invested with all the rights of the landlord, and entitled to all his remedies
for their enforcement.
(Code 1886, 3074; Code 1896, 2721; Code 1907, 4752; Code 1923,
8819; Code 1940, T. 31, 34.)
Section 35-9-80
Demand for premises.
In all cases where a tenant shall hold possession of lands or tenements over and
beyond the term for which
the same were rented or leased to him, or after his right of possession has
terminated or been forfeited, and
the owner of the lands or tenements shall desire possession of the same, such
owner may by himself, his
agent or attorney-in-fact or attorney-at-law demand the possession of the
property so rented, leased, held or
occupied; and if the tenant refuses or omits to deliver possession when so
demanded, the owner, his agent
or attorney-at-law or attorney-in-fact may go before the district court in the
county in which the land lies,
and make oath of the facts.
(Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, 35.)
Section 35-9-81
Issuance of writ or process.
When the affidavit provided for in section 35-9-80 shall be made, the district
court before whom it was
made shall grant and issue a writ or process directed to the sheriff or his
deputy or any lawful constable of
the county where the land lies, commanding and requiring him to deliver to the
owner or his representative
full and quiet possession of the lands or tenements mentioned in the affidavit,
removing the tenant with his
property found thereon away from the premises.
(Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, 36.)
Section 35-9-82
Service of writ or process.
It shall be the duty of the officer in whose hands the writ or process provided
by section 35-9-81 may be
placed to serve a copy of same at once on the defendant, together with notice
that after the expiration of
seven days, said officer will proceed with the execution of such writ or
process. If the officer is unable to
serve the defendant personally, service may be had by delivering the writ or
process to any person who is
sui juris residing on the premises, or if after reasonable effort no such person
is found residing on the
premises, by posting a copy of the writ or process on the door of the premises,
and on the same day of such
posting, or by the close of the next business day, the sheriff, the constable,
the person filing the complaint,
or anyone on behalf of such person, shall mail a copy of the writ or process by
enclosing, directing,
stamping and mailing by first class mail a copy of the writ or process to the
defendant at the mailing
address of the premises and if there is no mailing address for the premises to
the last known address, if any,
of the defendant and making an entry of this action on the affidavit filed in
the case and service of the notice
by posting shall be complete as of the date of mailing said notice; and unless a
counter affidavit, as
provided by section 35-9-84, is filed with said officer within that time, it
shall then be his duty to proceed
forthwith to execute said writ or process.
(Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, 38; Acts 1990,
No. 90-218, p. 255.)
Section 35-9-83
Removal to circuit court.
Any defendant in any such action may remove such action from the district court
before whom the same is
brought, to the circuit court of the county in which the real estate sued for is
situated, in like manner and
upon like proceedings as actions for forcible entry and detainer or unlawful
detainer may now be so
removed, and the trial of any such case so removed shall be conducted under like
procedure and with like
issues as now provided for the trial of actions of forcible entry and detainer
or of unlawful detainer so
removed.
(Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, 44.)
Section 35-9-84
Arrest of proceedings.
The tenant may arrest the proceedings and prevent the removal of himself and
goods from the land by
declaring on oath that his lease or term of rent has not expired, and that he is
not holding possession of the
premises over and beyond his term, or that his right of possession has not
terminated or been forfeited, and
that he still has a good and lawful right to the possession of said premises.
(Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, 37.)
Section 35-9-85
Trial upon delivery of counter affidavit.
If the counter affidavit provided in section 35-9-84 be made and delivered to
the sheriff or deputy sheriff or
constable, the tenant shall not be removed, but the officer shall immediately
return the proceedings to the
court which issued said writ or process, and the fact or facts in issue shall be
there tried by said court, and
shall stand for trial on the third day after the delivery to said sheriff or
deputy sheriff or constable of such
counter affidavit, Sundays and legal holidays excepted.
(Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, 39.)
Section 35-9-86
Judgment for landlord.
If the issues specified in section 35-9-85 shall be determined against the
tenant, judgment shall go against
him, and the movant or plaintiff shall, after the expiration of one day after
judgment, have a writ of
possession and, without further delay, be by the sheriff, deputy or constable
placed in full possession of the
premises.
(Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, 40.)
Section 35-9-87
Appeals.
(a) Any party may appeal from a judgment entered against him by any district
court, to the circuit court, at
any time within one day after the entry thereof, and such appeal and the
proceedings thereon shall in all
respects be governed by the law relating to appeals from district courts.
(b) An appeal does not prevent the issuance of a writ of restitution or
possession unless the defendant also
executes a supersedeas bond with sufficient sureties, payable to the sheriff, in
the sum of twice the yearly
value of the rent of the premises, to be ascertained by the court, with
condition to pay the plaintiff all such
damages as he may sustain by the prosecution of the appeal.
(c) Upon the trial in circuit court, the judgment, if against the appellant,
must be entered against him and
the sureties on the appeal bond, including the costs in both courts, and if the
appeal was taken by the
defendant, and a supersedeas bond was executed, a writ of restitution or
possession must be awarded, and
judgment must also be entered against the defendant and the sureties on his
supersedeas bond for the value
of the rent of the premises, pending the appeal.
(Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, 41-43.)
Section 35-9-88
Fees.
In proceedings under this article, the following fees shall be allowed:
(1) To witnesses, the same fees as are allowed by law in the circuit court;
(2) To the sheriff or constable, for serving the original writ or process and
return, $1.00;
(3) For receiving counter affidavit and returning the same, $.50;
(4) For executing the writ or process or judgment by placing the plaintiff in
possession, $2.00;
(5) For making money on execution, serving subpoenas, etc., the same fees as in
cases in the circuit
court;
(6) To the district court, for issuing the original writ or process, $.50;
(7) For receiving and filing the counter affidavit, $.50;
(8) For entering final judgment, $1.00;
(9) For issuing writ of possession and execution, $.50;
(10) For approving appeal bond and preparing transcript on appeal, $1.00.
(Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, 45.)
Section 35-9-100
When reasonable satisfaction may be recovered.
A reasonable satisfaction may be recovered for the use and occupation of
land:
(1) When there has been a demise by deed or by parol, and no specific sum agreed
on as rent.
(2) When the defendant has been let into possession upon a supposed sale of the
lands, which, from the
act of the defendant, has not been consummated.
(3) When the tenant remains on the land by sufferance of the owner. When, after
a demise, the tenant,
having had 30 days' previous notice, holds over without the consent of his
landlord, he shall pay to such
landlord double the value of the customary rent of the property so withheld.
(4) When the defendant has gone in possession of the land unlawfully. The owner
of the land has a lien
upon the same property of the defendant, and to the same extent as the landlord
has under section 35-9-30
or section 35-9-60, which may be enforced by attachment as provided in section
35-9-61 or section
35-9-34, as may be applicable.
(5) When for any reason the defendant is estopped from disputing the title of
the plaintiff as to the use
of the land occupied. In no case shall a mere claim or assertion of powers,
right or title of the defendant to
that of the plaintiff be a defense unless the claim of right or title of the
defendant is bona fide.
(Code 1852, 2206; Code 1867, 2607; Code 1876, 2956; Code 1886,
2715; Code 1896, 2722; Code 1907,
4753; Code 1923, 8820; Code 1940, T. 31, 46.)