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title-35•Title 35 — Property
An alien, resident or nonresident may take and hold property, real and personal, in this state, either by purchase, descent, or devise, and may dispose of and transmit the same by sale, descent, or devise as a native citizen.
(Code 1876, §2860; Code 1886, §1914; Code 1896, §419; Code 1907, §2831; Code 1923, §6071; Code 1940, T. 47, §1.)
(a) This section shall be known and may be cited as the Alabama Property Protection Act.
(b) For purposes of this section, the following words have the following meanings:
(1) AGRICULTURAL AND FOREST PROPERTY. All real property used for raising, harvesting, and selling crops or for the feeding, breeding, management, raising, sale of, or the production of livestock, or for the growing and sale of timber and forest products.
(2) CRITICAL INFRASTRUCTURE FACILITY. Any of the following:
a. A chemical manufacturing facility.
b. A refinery.
c. A plant or facility producing electric energy no matter how generated or produced.
d. A water treatment facility or wastewater treatment plant.
e. A liquid natural gas terminal.
f. A telecommunications central switching office.
g. A gas processing plant, including any plant used in the processing, treatment, or fractionation of natural gas.
h. A seaport facility as defined in Section 40-13-1.
i. Aerospace or spaceport infrastructure.
j. An airport as defined in Section 23-1-411.
(3) FOREIGN COUNTRY OF CONCERN. China, Iran, North Korea, and Russia. This term shall not include Taiwan.
(4) FOREIGN PRINCIPAL. Any of the following:
a. The government or any official of the government of a foreign country of concern.
b. A political party or member of a political party or any subdivision of a political party in a foreign country of concern.
c. A country or government identified on any sanctions list of the United State Department of the Treasury’s Office of Foreign Assets Control.
(5) MILITARY INSTALLATION. A base, camp, post, station, yard, or center that is under the jurisdiction of the Department of Defense or its affiliates, encompassing at least 10 contiguous acres.
(6) REAL PROPERTY. Land, buildings, fixtures, and all other improvements to land.
(c) Notwithstanding any other law, no foreign principal shall acquire title to, or acquire a controlling interest in, any of the following:
(1) Agricultural and forest property.
(2) Real property on or within 10 miles of any military installation or critical infrastructure facility.
(d) Subsection (c) shall apply only to the purchase of or other acquisition of title to real property on or after August 1, 2023. The purchase of or other acquisition of title to real property prior to August 1, 2023, is governed by the law in effect immediately prior to August 1, 2023, and that law is continued in effect for that purpose.
(e) No title insurer, title agent, real estate licensee, or other settlement provider as defined by the Real Estate Procedures Act, 12 U.S.C. § 2601 et seq., shall be liable for any violation of subsection (c).
(Act 2023-332, §§1-3.)
(a) All inter vivos gifts of assets, including but not limited to money, lands, or buildings, are void if the donor is left without means of support and does not reserve for himself for life an adequate amount separate from that gift to provide for his subsistence; provided, that this section shall not apply to any gift not expressly and specifically declared void hereunder by an administrative or judicial tribunal of competent jurisdiction within the two-year period immediately following the date of the gift.
(b) As used in this section, unless the context clearly requires a different meaning, “subsistence” means that amount of money or its equivalent necessary to provide one with the minimum necessities of life, such as food, clothing, shelter, and medical care.
(Acts 1977, No. 803, p. 1385.)
Unless otherwise agreed, where unsolicited goods are delivered by mail or common carrier to a person, he has a right to refuse to accept delivery of the goods and is not bound to return such goods to the sender. If such unsolicited goods are addressed to or intended for the recipient, they shall be deemed a gift to the recipient, who may use them or dispose of them in any manner without any obligation to the sender.
(Acts 1980, No. 80-802, p. 1635.)
(a) Owners and lessees of private land on which a cemetery, graves, or burial sites are located shall have a duty to allow ingress and egress to the cemetery, graves, or burial sites by (1) family members, friends, or descendants of deceased persons buried there; (2) any cemetery plot owner; and (3) any person engaged in genealogical, historical, or cultural research, who has given reasonable notice to the owner of record or to the lessees, or both.
(b)(1) The right of ingress and egress granted by this section shall be reasonable and limited to the purposes of visiting graves or burial sites, maintaining the gravesite or burial site or cemetery, or conducting genealogical, historical, or cultural research, or, in the case of a plot owner, burying a deceased person in the plot.
(2) The owner or lessee of the land has the right to designate the frequency, hours, and duration of the access and the access route, if no traditional access route is obviously visible from a view of the property, provided that the designation is reasonable for the purposes set out above.
(c)(1) Any person entering onto private land pursuant to this section shall be responsible for conducting himself or herself in a manner that does not damage the private land, cemetery, gravesite, or burial site, and shall be liable to the owner or lessee of the property for any damage caused as the result of his or her access.
(2) The landowner and lessee, in the absence of gross negligence or willful misconduct, shall be immune from liability in any civil suit, action, or cause of action arising out of the access granted pursuant to this section.
(Act 2007-408, p. 836, §1.)
(a) Notwithstanding any covenant, contract, or restriction to the contrary, a person may exhibit or display on his or her property a current flag of the United States not to exceed 40 square feet in size.
(b) Any covenant, contract, or restriction that prohibits a person from flying the flag of the United States on his or her property in accordance with subsection (a), whether adopted before or after May 21, 2009, is void as a violation of public policy.
(Act 2009-646, p. 1986, §1.)
(a) As used in this section, the following terms shall have the following meanings:
(1) CONDOMINIUM ASSOCIATION. The entity responsible for the administration and management of condominium property.
(2) HOMEOWNER’S ASSOCIATION. As defined under Section 35-20-2.
(3) UNIT OWNERS’ ASSOCIATION. As defined under Section 35-8A-301.
(b) Except as provided in subsection (c), a condominium association, homeowner’s association, or unit owners’ association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the State of Alabama within the association on property in which the member has a separate ownership interest or a right to exclusive possession or use.
(c) Nothing in this section shall be considered to prevent any reasonable restriction on the time, place, or manner of displaying the flag of the State of Alabama necessary to protect a substantial interest of the condominium association, homeowner’s association, or unit owners’ association.
(Act 2022-228, §1.)
(a) As used in this section, “political subdivisions” means all state, county, incorporated city, unincorporated city, public local entity, public-private partnership, and any other public entity of the state, a county, or city.
(b) The State of Alabama and all political subdivisions may not adopt or implement policy recommendations that deliberately or inadvertently infringe or restrict private property rights without due process, as may be required by policy recommendations originating in, or traceable to “Agenda 21,” adopted by the United Nations in 1992 at its Conference on Environment and Development or any other international law or ancillary plan of action that contravenes the Constitution of the United States or the Constitution of the State of Alabama.
(c) Since the United Nations has accredited and enlisted numerous non-governmental and inter-governmental organizations to assist in the implementation of its policies relative to Agenda 21 around the world, the State of Alabama and all political subdivisions may not enter into any agreement, expend any sum of money, or receive funds contracting services, or giving financial aid to or from those non-governmental and inter-governmental organizations as defined in Agenda 21.
(Act 2012-598, p. 1918, §1.)
(a) Except as provided in this section, centralized mail delivery in new one and two-family dwelling neighborhoods, as well as townhouse neighborhoods, is prohibited.
(b) The following are not subject to the restrictions of this section:
(1) Any existing neighborhood that receives centralized delivery by any entity prior to January 1, 2023.
(2) Any condominium or apartment development.
(3) Any commercial property that does not contain one and two-family dwellings or townhouses.
(4)a. Any one or two-family dwelling neighborhood or any townhouse neighborhood in which the developer or the majority of the residents have elected to install centralized mail delivery; provided, however, delivery to residents within the neighborhood shall not be withheld prior to or in the absence of such an election.
b. Unless there exists an active homeowner’s association whereby members will vote pursuant to paragraph a., only one resident of each dwelling, acting on behalf of any other residents of the dwelling, may cast a vote in any election under this section.
(5) Any installation by the United States Postal Service.
(6) Any manufactured homes.
(c) Where installation is not prohibited under this section or any other law, centralized mail delivery devices, not exceeding 62 inches in height, may be located within any county, municipal right-of-way, or easement if doing so allows for the safe, convenient accessibility of the centralized mail delivery devices, provided that the local government approves the location of each installation within its right-of-way or easement.
(d) Other than the enforcement of zoning requirements in a historic district and except as provided under this section, no local government shall adopt any additional requirements by local ordinance or regulation pertaining to the establishment of centralized mail delivery or the installation of centralized mail delivery devices.
(Act 2023-484, §§ 2, 3.)
The system of plane coordinates which has been established by the United States coast and geodetic survey for defining and stating the positions or locations of points on the surface of the earth within the State of Alabama is hereafter to be known and designated as the “Alabama coordinate system.” For the purpose of the use of this system the state is divided into an “east zone” and a “west zone.” The area now included in the following counties shall constitute the east zone: Barbour, Bullock, Calhoun, Chambers, Cherokee, Clay, Cleburne, Coffee, Coosa, Covington, Crenshaw, Dale, DeKalb, Elmore, Etowah, Geneva, Henry, Houston, Jackson, Lee, Macon, Madison, Marshall, Montgomery, Pike, Randolph, Russell, Saint Clair, Talladega, and Tallapoosa. The area now included in the following counties shall constitute the west zone: Autauga, Baldwin, Bibb, Blount, Butler, Chilton, Choctaw, Clarke, Colbert, Conecuh, Cullman, Dallas, Escambia, Fayette, Franklin, Greene, Hale, Jefferson, Lamar, Lauderdale, Lawrence, Limestone, Lowndes, Marengo, Marion, Mobile, Monroe, Morgan, Perry, Pickens, Shelby, Sumter, Tuscaloosa, Walker, Washington, Wilcox, and Winston.
(Acts 1945, No. 477, p. 708, §1.)
As established for use in the east zone, the Alabama coordinate system shall be named, and in any land description in which it is used it shall be designated, the “Alabama coordinate system, east zone.” As established for use in the west zone, the Alabama coordinate system shall be named, and in any land description in which it is used it shall be designated, the “Alabama coordinate system, west zone.”
(Acts 1945, No. 477, p. 708, §2.)
The plane coordinates of a point on the earth’s surface, to be used in expressing the position or location of such point in the appropriate zone of this system, shall consist of two distances, expressed in feet and decimals of a foot. One of these distances, to be known as the “x-coordinate,” shall give the position in an east-and-west direction; the other, to be known as the “y-coordinate,” shall give the position in a north-and-south direction. These coordinates shall be made to depend upon and conform to the coordinates, on the Alabama coordinate system, of the triangulation and traverse stations of the United States coast and geodetic survey within the state of Alabama, as those coordinates have been determined by said survey.
(Acts 1945, No. 477, p. 708, §3.)
When any tract of land to be defined by a single description extends from one into the other of the above coordinate zones, the positions of all points on its boundaries may be referred to either of the two zones, the zone which is used being specifically named in the description.
(Acts 1945, No. 477, p. 708, §4.)
(a) For purposes of more precisely defining the Alabama coordinate system, the following definition by the United States coast and geodetic survey is adopted: The Alabama coordinate system, east zone, is a transverse Mercator projection of the Clarke spheroid of 1866, having a central meridian 85 degrees 50′ west from Greenwich, on which meridian the scale is set one part in 25,000 too small. The origin of coordinates is at the intersection of the meridian 85 degrees 50′ west longitude and the parallel 30 degrees 30′ north latitude. This origin is given the coordinates: x = 500,000 feet and y = 0 feet. The Alabama coordinate system, west zone, is a transverse Mercator projection of the Clarke spheroid of 1866, having a central meridian 87 degrees 30′ west from Greenwich, on which meridian the scale is set one part in 15,000 too small. The origin of coordinates is at the intersection of the meridian 87 degrees 30′ west longitude and the parallel 30 degrees 00′ north latitude. This origin is given the coordinates: x = 500,000 feet and y = 0 feet.
(b) The position of the Alabama coordinate system shall be as marked on the ground by triangulation or traverse stations established in conformity with standards adopted by the United States coast and geodetic survey for first-order and second-order work, whose geodetic positions have been rigidly adjusted on the North American Datum of 1927, and whose coordinates have been computed on the system herein defined. Any such station may be used for establishing a survey connection with the Alabama coordinate system.
(Acts 1945, No. 477, p. 708 §5.)
No coordinates based on the Alabama coordinate system, purporting to define the position of a point on a land boundary, shall be presented to be recorded in any public land records or deed records unless such point is within one-half mile of a triangulation or traverse station established in conformity with the standards prescribed in Section 35-2-5; provided, that said one-half mile limitation may be modified by the Secretary of State to meet local conditions. The Secretary of State shall, from time to time, procure descriptions of monuments, bench marks and markers, etc., as same may become available, relative to the Alabama coordinate system, and shall keep a complete record of this information in the office of the Secretary of State. The Secretary of State shall make and furnish certified copies thereof to each of the probate judges of the several counties in Alabama. It shall be the duty of the probate judge of each county to file and keep a permanent record with proper indexes of such information which shall be available to the public.
(Acts 1945, No. 477, p. 708, §6.)
The use of the term “Alabama coordinate system” on any map, report of survey, or other document shall be limited to coordinates based on the Alabama coordinate system as defined in this article.
(Acts 1945, No. 477, p. 708, §7.)
Whenever coordinates based on the Alabama coordinate system are used to describe any tract of land which in the same document is also described by reference to any subdivision, line, or corner of the United States public land surveys, the description by coordinates shall be construed as supplemental to the basic description of such subdivision, line, or corner contained in the official plats and field notes filed of record; and, in the event of any conflict, the description by reference to the subdivision, line, or corner of the United States public land surveys shall prevail over the description by coordinates.
(Acts 1945, No. 477, p. 708, §8.)
Nothing contained in this article shall require any purchaser or mortgagee to rely on a description, any part of which depends exclusively upon the Alabama coordinate system.
(Acts 1945, No. 477, p. 708, §9.)
There is hereby created, in the state Department of Conservation and Natural Resources, a division of land surveys, for the purpose of establishing, maintaining, and preserving the land monuments, section corners, and other physical accessories of the United States public land survey within Alabama and the field notes and plats and other documents connected therewith.
(Acts 1971, No. 2249, p. 3608, §1.)
The division of land surveys shall be headed by and be under the direction, supervision, and control of an officer who shall be designated “chief of the division of land surveys.” He shall be appointed by the Commissioner of Conservation and Natural Resources, with the approval of the Governor, with the additional requirement that he be a registered land surveyor within the state of Alabama with training and experience properly qualifying him for the performance of his official duties, and he shall be under and subject to the provisions of the state Merit System.
(Acts 1971, No. 2249, p. 3608, §2.)
Before entering upon the discharge of his duties, the chief of the division of land surveys shall take the constitutional oath of office. His salary shall be fixed by the State Personnel Board as it may deem appropriate or as otherwise fixed by law. He shall devote his full time to his official duties and shall hold no other lucrative position while serving as said chief of the division of land surveys.
(Acts 1971, No. 2249, p. 3608, §3.)
The chief of the division of land surveys shall carry out the routine functions and duties of the division, as prescribed herein. He shall recommend for employment, including their compensation, such assistants, and employees as are required for the performance of the work of the division, within the provisions of the Merit System Act and the limits of the funds appropriated. Subject to approval of the Commissioner of Conservation and Natural Resources and through authorized personnel, he shall actively conduct such land surveys or geodetic or leveling surveys as may be necessary to properly locate section corners and boundaries, geodetic or Alabama coordinate horizontal control points or stations or precise level net bench mark stations and other monuments necessary to a proper and accurate description in real estate conveyancing. He shall cause to be placed permanent markers for all corners, bench marks, stations, or boundaries. He shall perform such other work and acts as shall, in the judgment of the Commissioner of Conservation and Natural Resources, be necessary and proper to carry out the objectives of this article.
(Acts 1971, No. 2249, p. 3608, §9.)
The Commissioner of Conservation and Natural Resources, acting by and through the chief of the division of land surveys, is hereby vested with the following functions, duties, and responsibilities:
(1) To restore, maintain and preserve the land survey monuments, section corners, and quarter section corners established by the United States public land survey within Alabama, together with all pertinent field notes, plats, and documents; and also to restore, establish, maintain, and preserve other boundary markers considered by the division to be of importance or otherwise established by law;
(2) To design and cause to be placed at established public land survey corner sites, where practical, substantial monuments permanently indicating, with words and figures, the exact location involved. If such monuments cannot be placed at the exact corner point, then witness corners of similar design shall be placed as near as possible, with words and figures indicating the bearing and distance to the true corner;
(3) To establish, maintain, and provide safe storage facilities for a comprehensive system of recordation of information respecting all monuments established by the United States public land survey within this state and such records as may be pertinent to the division’s establishment or maintenance of other land corners, Alabama coordinate system stations and accessories, and monuments in general;
(4) To extend throughout this state a triangulation and leveling net of precision whereby the Alabama state coordinate system, already initiated within this state by the United States coast and geodetic survey, may be made to cover to the necessary extent those areas of the state which do not now have enough geodetic control stations to permit the general use of the system by land surveyors and others;
(5) To collect and preserve information obtained from surveys made by those authorized to establish land monuments or land boundaries and to assist in the proper recording of the same by the duly constituted county officials, or otherwise;
(6) To furnish, upon reasonable request and tender of the required fees therefor, certified copies of records created or maintained by the division. When certified by the chief of the division of land surveys or a designated assistant, the records shall be admissible in evidence in any court in this state as the original record; and
(7) To prescribe and disseminate to those engaged in the business of land surveying, regulations designed to establish uniform professional surveying and mapping methods and standards in this state.
(Acts 1971, No. 2249, p. 3608, §4.)
There is hereby created an advisory board to the division of land surveys, the membership of which shall consist of five members appointed by the Governor. One member shall be a landowner in the State of Alabama; two shall be registered land surveyors and members of the Alabama society of professional land surveyors within Alabama; one an Alabama professional engineer and registered land surveyor; and the fifth an Alabama citizen who is an attorney. All members except the landowner shall be appointed by the Governor from a list of three names for each position on the board submitted by the Alabama society of professional land surveyors.
(Acts 1971, No. 2249, p. 3608, §5.)
Of the five members first appointed to the division of land surveys advisory board, one shall be appointed for a term of one year, one for two years, one for three years, and two for four years. At the expiration of the term of each member, the Governor shall appoint a successor, who shall hold office for a term of four years and until his successor has been appointed and qualified. Vacancies in the office of the members of the advisory board shall be filled by appointment by the Governor for the unexpired term in the manner provided in Section 35-2-25.
(Acts 1971, No. 2249, p. 3608, §6.)
Members of the advisory board, upon induction into office, shall take the customary oath of office to support the Constitution of the United States, and that of Alabama, and to faithfully demean themselves in office. They shall serve without compensation, but each shall be reimbursed for travel and other expenses incurred in the performance of his duties in accordance with Article 2 of Chapter 7 of Title 36 of this Code.
(Acts 1971, No. 2249, p. 3608, §7.)
Members of the advisory board shall choose one of its five members as chairman. The board shall meet at least four times a year, and the chairman shall determine the time and place for any special meeting. Regular meetings shall be held as agreed upon by members of the board.
(Acts 1971, No. 2249, p. 3608, §8.)
The advisory board shall assist the Commissioner of Conservation and Natural Resources and the chief of the division of land surveys in formulating the policies of said division in the performance of its functions and duties and shall advise the Commissioner of Conservation and Natural Resources concerning any matter relating to the functions and duties of said division.
(Acts 1971, No. 2249, p. 3608, §9.)
The Department of Conservation and Natural Resources, division of land surveys, may acquire in the name of the State of Alabama lands or interests therein, where necessary, to establish permanent monuments, and may lease or purchase or acquire by negotiation land, if necessary, for the establishment of an office of the division, which shall be at or near the capitol complex in the City of Montgomery.
(Acts 1971, No. 2249, p. 3608, §10.)
The custody and ownership of the original United States public land survey corners and accessories has never been released or surrendered by the State of Alabama. These survey corners and their accessories are property of the State of Alabama. This includes all restorations and replacements of the original corners and all their accessories, witness trees, and objects as well. The alteration, removal, disfiguration, or destruction of any of the corners or accessories, without specific permission of the division of land surveys, is an act of destruction of state property and is punishable as a misdemeanor.
(Acts 1971, No. 2249, p. 3608, §11.)
Members of the advisory board, the chief of the division of land surveys or any and all employees of the division shall have the right to enter upon private property for the purpose of making surveys or for searching for, locating, relocating, or remonumenting land monuments, leveling stations, or section corners. Should any of these persons necessarily damage property of the owner in making the surveys or searches or remonumentations, the division may make reasonable payment for the damage through the state Board of Adjustment. However, members of the advisory board or any employees of the division are personally liable for any damage caused by their wantonness, willfulness, or negligence. All members of the advisory board and all division employees are immune from arrest for trespass in performing their legal duties as stated in this article, by presenting cards issued by the division giving the persons or employees permission so to enter private property.
(Acts 1971, No. 2249, p. 3608, §12.)
On request of the chief of the division of land surveys, all probate judges or other recorders of deeds, mortgages, or other instruments dealing with any interest in real property, together with all departments, boards, or agencies of state government, county or city government shall furnish to the division of land surveys certified copies of desired records which are in their custody. This service shall be free of cost when possible; otherwise it shall be at actual cost of reproduction of the records. On the same basis of cost, the division shall furnish records within its custody to other agencies or departments of state, county, or city, certifying them. Copies of records of the division, when so certified by the chief of the division, shall be admitted in evidence, without further identification, in any court proceeding in the state if the substance of the record is properly admissible in the proceeding.
(Acts 1971, No. 2249, p. 3608, §13.)
Every employee of the division of land surveys who is engaged in work required by law to be done by a registered land surveyor will be so registered. No employee of the division shall engage in private land surveying or consultation while so employed by the division.
(Acts 1971, No. 2249, p. 3608, §14.)
The division of land surveys may produce, reproduce, and sell maps, plats, reports, studies, and records and shall fix the charge therefor. All income received from the sales shall be promptly deposited in the State Treasury to the credit of the “Land Surveys Fund,” which is hereby established.
(Acts 1971, No. 2249, p. 3608, §15.)
Whenever the division of land surveys deems it expedient and when funds appropriated permit, the division shall have the power to enter into contracts with agencies of the United States, with agencies of sister states or with private persons, registered land surveyors or professional engineers, in order to plan and execute other projects that are within the scope and purpose of this article.
(Acts 1971, No. 2249, p. 3608, §16.)
Under no circumstances shall the total amount of warrants issued by the Comptroller in payment of the expense and compensation provided for in this article exceed the amount provided therefor by the Legislature in the general appropriation or other appropriation bills.
(Acts 1971, No. 2249, p. 3608, §17.)
This article shall not be construed as to authorize or require the division of land surveys to survey or resurvey the entire State of Alabama. However, the division may perform such surveys as it may, from time to time, deem necessary to fulfill the purposes of this article.
(Acts 1971, No. 2249, p. 3608, §18.)
Any person, or his administrator, executor or guardian, desiring to subdivide his lands into lots shall cause the same to be surveyed by a competent surveyor, if not already surveyed, and shall cause a plat or map thereof to be made, showing the subdivisions into which it is proposed to divide the same, giving the length and bearings of the boundaries of each lot and its number; and, if it is the purpose of the owner to divide the lands into town lots, such plat or map shall show the streets, alleys, and public grounds and give the bearings, length, width, and name of each street, as well as the number of each lot and block. Such plat or map must show the relation of the lands so platted or mapped to the government survey.
(Code 1896, §3899; Code 1907, §6028; Code 1923, §10357; Code 1940, T. 56, §12.)
(a) The plat or map having been completed shall be certified by the surveyor, which certificate must also be signed by the owner, his duly authorized agent or attorney, executor, administrator, or guardian and acknowledged by such owner, agent, or attorney, in the same manner in which deeds are required to be acknowledged. The plat or map, together with the certificate of the surveyor and acknowledgment, shall be recorded in the office of the judge of probate in the county in which the lands are situated, in a suitable book to be kept for that purpose; and such acknowledgment and record shall have like effect and certified copies thereof and of such plat or map may be used in evidence to the same extent and with like effect as in the case of deeds.
(b) The acknowledgment and recording of such plat or map shall be held to be a conveyance in fee simple of such portion of the premises platted as are marked or noted on such plat or map as donated or granted to the public, and the premises intended for any street, alleyway, common or other public use, as shown in such plat or map, shall be held in trust for the uses and purposes intended or set forth in such plat or map.
(Code 1896, §§3900, 3901; Code 1907, §§6029, 6030; Code 1923, §§10358, 10359; Code 1940, T. 56, §§13, 14.)
It shall be the duty of every probate judge in this state to decline to receive for record in his office any map or plat upon which any lands lying within the corporate limits or police jurisdiction of any city of this state having a population of more than 10,000 inhabitants are platted or mapped as streets, alleys, or other public ways, unless such map or plat shall have noted thereon the approval of the governing body or city engineer of such city.
(Acts 1927, No. 208, p. 217; Code 1940, T. 56, §15.)
Any plat or map, whether or not executed and recorded as provided in this article, may be vacated by the owner, his executor, administrator, or guardian of the lands at any time before the sale of any lot therein by a written instrument declaring the same to be vacated, executed, acknowledged, and recorded in like manner as conveyances of land which declaration, being duly recorded, shall operate to destroy the force and effect of the recording of the plat or map so vacated and to divest all public rights in the streets, alleys, and public grounds and all dedications laid out or described in such plat or map. When lots have been sold, the plat or map may be vacated, in the manner herein provided by all the owners of lots in such plat or map joining in the execution of such writing.
(Code 1896, §3902; Code 1907, §6031; Code 1923, §10360; Code 1940, T. 56, §16.)
Any street or alley shown by any map, plat, or survey, whether such map or plat is executed and recorded as provided by law or not, may be vacated, in whole or in part, by the owner or owners of the lands abutting the street or alley (or that portion of the street or alley desired to be vacated), or their executors, administrators, or guardian, joining in a written instrument declaring the same to be vacated, such written instrument to be executed, acknowledged, and recorded in like manner as conveyances of land, which declaration being duly recorded shall operate to destroy the force and effect of the dedication by the map, plat, or survey and to divest all public rights, including any rights which may have been acquired by prescription, in that part of the street or alley so vacated. If any such street or alley is within the limits of any municipality, the assent of the mayor and aldermen or other governing body of the municipality must be procured, evidenced by a resolution adopted by such governing body, a copy of which, certified by the clerk or ministerial officer in charge of the records of the municipality must be attached to, filed, and recorded with the written declaration of vacation. Convenient means of ingress and egress to and from their property shall be afforded to all other property owners owning property in the tract of land embraced in the map, plat, or survey, either by the remaining streets and alleys dedicated by such map, plat, or survey or by any other street or alley being dedicated. If such street or alley has been or is being used as a public road and outside of any municipality, the assent of the county commission of the county in which the property is situated must be procured, evidenced by resolution adopted by such county commission, a copy of which, certified by the presiding officer thereof, must be attached thereto, filed and recorded with the declaration of vacation.
(Code 1896, §3903; Code 1907, §6032; Acts 1923, No. 15, p. 10; Code 1923, §10361; Acts 1927, No. 199, p. 194; Code 1940, T. 56, §17.)
Every change in location, or vacation, or attempted vacation of any road, street, avenue, or alley, or any part thereof, by the owner or owners of lands abutting thereon, or upon which such road, street, avenue, or alley is located, when such vacation, or attempted vacation, or change of location was in a city or town and was assented to, acquiesced in, or authorized by the governing body thereof (or if it was without a city or town when such vacation, or attempted vacation, or change of location when made was assented to, acquiesced in, or authorized by the county commission, or which has been or may be hereafter ratified or confirmed by the county commission) is and shall be validated, ratified, and confirmed, and all rights of the public in any such road, street, avenue, or alley, or the part thereof so vacated, or attempted to be vacated, including all rights acquired by prescription, are and shall be relinquished or abandoned.
(Acts 1923, No. 15, p. 10; Code 1923, §10362; Acts 1927, No. 199, p. 194; Code 1940, T. 56, §18.)
Where land has been divided into lots, and the map or plat thereof mutilated, lost, or mislaid, and a part or all of the lots indicated therein have been sold, the owner thereof may cause a new survey to be made and a plat or map to be made therefrom, or reproduce the one mutilated, lost, or mislaid, from a survey already made, which new plat or map, if certified, acknowledged and recorded as required by law, shall have the same effect in all respects as a plat or map recorded under Section 35-2-50 and may be vacated in the same manner and under the same conditions as plats or maps may be vacated.
(Code 1896, §3904; Code 1907, §6033; Code 1923, §10363; Code 1940, T. 56, §19.)
When a map or plat or part thereof is vacated, the judge of probate, upon recording such vacation, shall do one of the following:
(1) Where the most recent record is only a tangible map or plat, write in plain letters across the record of the map or plat, or the part so vacated, the word “vacated” and refer on the same to the volume and page in which the instrument of vacation is recorded.
(2) Where the most recent record consists of an electronic or digital image of a map or plat, record a certificate indicating that the map or plat has been vacated, and the certificate shall be made a part of the property records to which it pertains.
(Code 1896, §3905; Code 1907, §6034; Code 1923, §10364; Code 1940, T. 56, §20; Act 2023-536, §1.)
The circuit courts of this state shall have jurisdiction and power to vacate and annul any map, plat, or survey of lands, or any streets, alleys, avenues, or roads, whether designated by any such maps, plats, or surveys or not, upon the filing of a civil action by any person or persons owning any of the lots, parcels, or tracts of land abutting such roads, streets, or alleys sought to be vacated or annulled. Unless the owners of all the lots or parcels of land so abutting upon the roads, streets, or alleys sought to be vacated join as plaintiffs, the owners and claimants of such other lots or parcels of land abutting upon the roads, streets, or alleys sought to be vacated shall be made parties defendant; and the municipality, town, or city, if the land is located within any municipality, town, or city, shall also be made a party defendant; and, if not located in such municipality, city, or town, the county in which such lands are located shall be made a party defendant.
(Code 1923, §10365; Code 1940, T. 56, §21.)
The proceedings for vacating and annulling such maps, plats, surveys, roads, streets, or alleys shall be conducted in all respects as civil actions are conducted and the circuit court may prescribe all rules and regulations for the conduct of such proceedings which are not inconsistent with the laws of this state or rules promulgated by the Supreme Court. Upon the final hearing of the action, the court may grant the relief prayed in the complaint in whole or in part, or may deny such relief in whole or in part. An appeal will lie from such judgment of the circuit court, as is authorized or provided from other judgments of the circuit court; and upon such hearing, the appellate court may affirm, reverse, or render such judgment or order as the trial court should have rendered.
(Code 1923, §10366; Code 1940, T. 56, §22.)
If the final judgment or order of the court provides that any map, plat, survey, road, street, or alley shall be vacated or annulled in whole or in part, the petition or complaint, together with the final order or judgment of the court, shall be recorded in the office or offices in which the map, plat, or survey showing such roads, streets, or alleys are recorded, and the order or judgment of the court shall not be final until such petition, complaint, order, or judgment is so recorded.
(Code 1923, §10367; Code 1940, T. 56, §23.)
The party filing such petition, complaint, order, or judgment for recording and registration shall pay the recording or registration officer a fee of $.15 per 100 words for so recording or registering such documents in such office.
(Code 1923, §10368; Code 1940, T. 56, §24.)
The remedies provided in this article for vacating maps, plats, surveys, streets, alleys, etc., shall not be held to be exclusive, but alternative or cumulative.
(Code 1923, §10369; Code 1940, T. 56, §25.)
In order to facilitate acquirement of easements by watershed associations, water conservancy associations or districts and any other lawful entity engaged in water and soil conservation work, the probate judges of the several counties of the State of Alabama shall receive and record aerial photographs or maps of land areas in their respective counties. These maps or photographs shall be recorded, kept, and maintained in substantially the same manner as prescribed in Section 35-2-51. Before being recorded, such a map or photograph may have drawn or inscribed thereon its source of origin, the approximate scale of the map, section and township lines, property lines, high-water marks for channels and storage areas for water, and soil conservation tract or parcel numbers and boundaries and all such other indicia or information as may be appropriate for identification of the land areas represented by the map.
(Acts 1966, Ex. Sess., No. 415, p. 560, §1.)
Before being recorded, all such photographs or maps must have been presented to the county engineer of the county where the land area represented is located. Upon his being satisfied as to the purpose of the recording of such map or photograph and as to the information inscribed thereon, he shall note his approval and affix thereto his signature. This procedure shall constitute all the requirements necessary for recording; and, after the approval of the county engineer, the map or photograph shall be received and recorded by the appropriate probate judge without any charge or fee. After recording, such maps or photographs may be lawfully used as references in easements or other instruments of conveyance.
(Acts 1966, Ex. Sess., No. 415, p. 560, §2.)
This article is cumulative.
(Acts 1966, Ex. Sess., No. 415, p. 560, §3.)
In addition to any other proceeding authorized under the laws of this state which establish or determine disputed land lines or boundaries between coterminous owners, the following proceedings may be had in the circuit court; but the remedy hereby given shall not be exclusive of any other remedy given or authorized under the laws of this state. When disputed boundary lines are once established under this article, or any other proceedings authorized by law, they shall be as binding and conclusive upon the parties as any other judgment to establish or settle disputed boundary lines.
(Code 1923, §6439; Code 1940, T. 47, §2.)
Actions may be brought by any person owning land or any interest therein against the owner or person interested in adjoining land to have the boundary lines established; and when the boundary lines of two or more tracts depend upon the same common point, line, or landmark, and action may be brought by the owner or any person interested in any of such tracts, against the owners or persons interested in the other tracts, to have all the boundary lines established. The court shall determine any adverse claims in respect to any portion of the land involved which it may be necessary to determine for a complete settlement of the boundary lines and shall make such order respecting costs and disbursements as it shall deem just.
(Code 1923, §6440; Code 1940, T. 47, §3.)
The judgment shall locate and define the boundary lines involved by reference to well-known permanent landmarks, and if it shall be deemed for the interest of the parties, after the entry of judgment, the court may direct a competent surveyor to establish a permanent stone or iron landmark in accordance with the judgment from which future surveys of the land embraced in the judgment shall be made. Such landmarks shall have distinctly cut or marked thereon “judicial landmark.” The surveyor shall make report to the court, and in his report shall accurately describe the landmark so erected and define its location as nearly as practicable.
(Code 1923, §6441; Code 1940, T. 47, §4.)
(a) Whenever in any action pending in the circuit court it is pertinent and material to the determination of the issue or issues therein or to the proper entering of a description in the judgment therein to establish or fix a disputed land line or boundaries between coterminous landowners, or to locate the position of a line of the government survey, or to locate a landmarker or other object, the court may, as provided in this article, direct a competent surveyor or surveyors to make a survey for the purpose of fixing or establishing the disputed land line or boundaries between coterminous landowners or of locating the position of a line of the government survey or of locating a landmarker or other object.
(b) If the court is of the opinion that such survey should be made it shall enter an order stating the reasons why, in its opinion, such survey should be made and fixing a day on which to hear objections thereof and directing the parties to said action to show cause, if any, why such survey should not be made as proposed in said order.
(Acts 1931, No. 163, p. 239; Code 1940, T. 47, §§5, 6.)
(a) Any party to such action may file a motion therein stating the reasons why such a survey should be made and praying that the court appoint a competent surveyor or surveyors to make such survey; and, upon presenting said motion to the judge of the court he shall enter an order fixing a day on which the same shall be heard and directing the other parties to said action to show cause, if any, why such survey should not be made as prayed in said motion.
(b) The notice to show cause why such survey should not be made shall be given by the service of a copy of the order of the court, relative thereto when made by the court without application of a party to said action, or, when based on a motion by a party to said action, then by service of a copy of such motion and the order of the court on said motion on the party or his attorney of record as directed by the court in its order. Such notice shall be for not less than 10 days. The court may continue such hearing from time to time as in its opinion is proper.
(Acts 1931, No. 163, p. 239; Code 1940, T. 47, §§7, 8.)
If no objection is made to the making of such survey, or the court is of the opinion that such objection as made is not well taken and that such survey is pertinent and material to the determining of the issues in said action, or to enable the court to properly enter a judgment in said action, and that such survey is advisable, the court may enter an order providing for such survey and appointing a competent and disinterested surveyor or surveyors to make the same and fixing the manner in which the cost of such survey is to be paid, and the court may include in such order such additional conditions, terms, and provisions as are proper and equitable.
(Acts 1931, No. 163, p. 239; Code 1940, T. 47, §9.)
In the event a party to such action petitions for such survey and offers to pay the cost of the same and it appears that such survey is pertinent to the determination of the issue or issues of said action or is essential to the proper entering of an order therein, the court shall order such survey requiring the petitioning party to deposit with the register or clerk of the court the estimated cost to be fixed by the court of such survey, which deposited funds shall be disbursed by order of the court; and on the deposit of such cost with the register or clerk the court shall order such survey to be made.
(Acts 1931, No. 163, p. 239; Code 1940, T. 47, §10.)
Such surveyor or surveyors shall promptly make the survey as directed by the court and file in said action a map or plat, if practical, of such survey and a full and definite report thereof, which report shall be under oath; and such surveyor shall appear on such day as is fixed by the court for examination by the court or any interested parties or their attorneys relative to such report and map or plat. The report and map or plat of such surveyor or surveyors shall be considered by the court as prima facie correct.
(Acts 1931, No. 163, p. 239; Code 1940, T. 47, §11.)
In fixing the compensation of the surveyor or surveyors, the court may do so by an agreement or by allowing the usual compensation for such professional services. The provisions of this article are not exclusive and shall in no way affect any existing law relative to the power of courts to order a survey.
(Acts 1931, No. 163, p. 239; Code 1940, T. 47, §11.)
All persons of the age of 19 years and not under a legal incapacity may alien their lands and any interest therein, whether immediate or future, certain or contingent, by instrument in writing or by their last will, under the regulations prescribed by law.
(Code 1852, §1265; Code 1867, §1534; Code 1876, §2144; Code 1886, §1788; Code 1896, §981; Code 1907, §3354; Code 1923, §6837; Code 1940, T. 47, §13.)
Every estate in lands is to be taken as a fee simple, although the words necessary to create an estate of inheritance are not used, unless it clearly appears that a less estate was intended.
(Code 1852, §1299; Code 1867, §1569; Code 1876, §2178; Code 1886, §1824; Code 1896, §1020; Code 1907, §3396; Code 1923, §6900; Code 1940, T. 47, §14.)
Every estate in real or personal property in fee tail, now or hereafter created, becomes an estate in fee simple, and the person in whom such a conditional fee vests has the same power over the estate as in case of pure and absolute fees.
(Code 1852, §1300; Code 1867, §1570; Code 1876, §2179; Code 1886, §1825; Code 1896, §1021; Code 1907, §3397; Code 1923, §6901; Code 1940, T. 47, §15.)
[Repealed]
Repealed by Act 2011-532, p. 880, §2, effective January 1, 2012.
(Acts 1931, No. 684, p. 816; Code 1940, T. 47, §16.)
Lands may be conveyed within the limits fixed by law, so as to avoid perpetuities, and subject to such other restrictions as are imposed by this Code for such terms as the owner thinks proper; and courts are enjoined to give effect in such cases to the intention and meaning of the parties.
(Code 1852, §1308; Code 1867, §1578; Code 1876, §2187; Code 1886, §1833; Code 1896, §1029; Code 1907, §3416; Code 1923, §6921; Code 1940, T. 47, §17.)
No leasehold estate can be created for a longer term than 99 years. Leases for more than 20 years shall be void for the excess over said period unless the lease or a memorandum thereof is acknowledged or approved as required by law in conveyances of real estate and recorded within one year after execution in the office of the judge of probate in the county in which the property leased is situated.
(Code 1852, §1311; Code 1867, §1581; Code 1876, §2190; Code 1886, §1836; Code 1896, §1032; Code 1907, §3418; Acts 1911, No. 41, p. 24; Code 1923, §6923; Code 1940, T. 47, §18; Acts 1989, No. 89-942, p. 1850, §2.)
When one joint tenant dies before the severance, his interest does not survive to the other joint tenants but descends and vests as if his interest had been severed and ascertained; provided, that in the event it is stated in the instrument creating such tenancy that such tenancy is with right of survivorship or other words used therein showing such intention, then, upon the death of one joint tenant, his interest shall pass to the surviving joint tenant or tenants according to the intent of such instrument. This shall include those instruments of conveyance in which the grantor conveys to himself and one or more other persons and in which instruments it clearly appears that the intent is to create such a survivorship between joint tenants as is herein contemplated.
(Code 1852, §1312; Code 1867, §1582; Code 1876, §2191; Code 1886, §1837; Code 1896, §1033; Code 1907, §3419; Code 1923, §6924; Code 1940, T. 47, §19; Acts 1945, No. 505, p. 730; Acts 1951, No. 885, p. 1526.)
Where a future estate is limited to “heirs,” “issue,” or “children,” posthumous children are entitled to take the estate in the same manner as if born before the death of the parent. Any future estate depending upon the death of a person without heirs, issue, or children is defeated by the birth of a posthumous child of such person capable of taking by descent.
(Code 1852, §1303; Code 1867, §1573; Code 1876, §2182; Code 1886, §1828; Code 1896, §1024; Code 1907, §3402; Code 1923, §6906; Code 1940, T. 47, §20.)
Instruments essential to the title of real property and which are not kept in a public office, as a record, pursuant to law, belong to the person in whom for the time being such title may be vested and pass with the title.
(Code 1923, §6963; Code 1940, T. 47, §21.)
Conveyances for the alienation of lands must be written or printed, or partly written and partly printed, on parchment or paper, and must be signed at their foot by the contracting party or his agent having a written authority; or, if he is not able to sign his name, then his name must be written for him, with the words “his mark” written against the same, or over it; the execution of such conveyance must be attested by one witness or, where the party cannot write, by two witnesses who are able to write and who must write their names as witnesses; or, if he can write his name but does not do so and his name is written for him by another, then the execution must be attested by two witnesses who can and do write their names.
(Code 1852, §1266; Code 1867, §1535; Code 1876, §2145; Code 1886, §1789; Code 1896, §982; Code 1907, §3335; Code 1923, §6838; Code 1940, T. 47, §22.)
A seal is not necessary to convey the legal title to land to enable the grantee to bring a civil action. Any instrument in writing, signed by the grantor or his agent having a written authority, is effectual to transfer the legal title to the grantee, if such was the intention of the grantor, to be collected from the entire instrument.
(Code 1852, §2198; Code 1867, §2599; Code 1876, §2948; Code 1886, §2694; Code 1896, §983; Code 1907, §3356; Code 1923, §6839; Code 1940, T. 47, §23.)
All writings which import on their face to be under seal are to be taken as sealed instruments and have the same effect as if the seal of the parties was affixed thereto.
(Code 1852, §1315; Code 1867, §1585; Code 1876, §2194; Code 1886, §1840; Code 1896, §1036; Code 1907, §3363; Code 1923, §6847; Code 1940, T. 47, §32.)
The acknowledgment provided for in this article operates as a compliance with the requisitions of section 35-4-20 upon the subject of witnesses.
(Code 1852, §1267; Code 1867, §1536; Code 1876, §2146; Code 1886, §1790; Code 1896, §984; Code 1907, §3357; Code 1923, §6840; Code 1940, T. 47, §24.)
Acknowledgments and proofs of conveyances may be taken by the following officers within this state: Judges of the Supreme Court, the Court of Civil Appeals, the Court of Criminal Appeals, circuit courts and district courts, and the clerks of such courts; registers of the circuit court, judges of the court of probate, and notaries public.
(Code 1852, §1276; Code 1867, §1545; Code 1876, §2155; Code 1886, §1799; Code 1896, §993; Code 1907, §3358; Code 1923, §6841; Code 1940, T. 47, §25.)
An acknowledgment or proof of any deed, mortgage, or other conveyance to or by a corporation, national banking association, building and loan association, savings and loan association, credit union, or limited liability company at any time taken by an officer authorized by law to take acknowledgments and proofs of conveyances and at that time owning or holding not more than one percent of the total issued and outstanding capital stock of such corporation, national banking association, building and loan association, savings and loan association, credit union, or limited liability company and not then holding any office in the corporation, national banking association, building and loan association, credit union, or limited liability company shall have the same effect as if the officer did not hold or own any of the stock.
(Acts 1931, No. 593, p. 675; Code 1940, T. 47, §26; Act 2024-314, §2; Act 2025-365, §1.)
(a) Acknowledgments, proofs of conveyances, and affidavits may be taken within the United States and beyond the State of Alabama, by judges and clerks of any federal court, judges and clerks of any state court of record in any state, notaries public, commissioners appointed by the Governor of this state, the commissioner of deeds for the state wherein the acknowledgment is taken, or by any commissioned officer of any of the Armed Forces of the United States. Beyond the limits of the United States, the acknowledgments, proofs, and affidavits may be taken by the judges of any court of record, mayor or chief magistrate of any city, town, borough, or county, by any diplomatic, consular, or commercial agent of the United States, notaries public, or by any commissioned officer of any of the Armed Forces of the United States.
(b) Notwithstanding any provision of this chapter, the acknowledgment of any instrument executed outside the State of Alabama which is in compliance with the manner and form prescribed by the laws of the place of its execution, is executed in a state, territory, or insular possession of the United States or the District of Columbia, and is verified by the official seal of the officer before whom it is acknowledged, shall have the same effect as an acknowledgment in the manner and form prescribed by the laws of this state for instruments executed within the state.
(c) All deeds, conveyances, deeds of trust, mortgages, mineral leases, marriage contracts, and other instruments in writing, affecting or purporting to affect title to any real estate or personal property situated in this state, which have been recorded or executed prior to August 1, 2004, and which may be defective or ineffectual because of the failure to have the form of acknowledgment as required by Section 35-4-29, shall be binding and effectual as though the instruments contained the required form of acknowledgment.
(d) In addition to the acknowledgment of instruments in the manner and form provided by this chapter, persons serving in or with the Armed Forces of the United States or their dependents may acknowledge the same wherever located before any commissioned officer of any of the Armed Forces of the United States. The instrument may not be rendered invalid by the failure to state therein the place of execution or acknowledgment, but shall include the state in which the acknowledgment occurred. No authentication of the certificate of acknowledgment of the officer shall be required, but the officer taking the acknowledgment shall endorse thereon or attach thereto a certificate substantially in the following form:
“On this ____ day of _________, _____, before me, ______________, the undersigned officer, personally appeared ___________ (Serial No. _________ ) known to me or satisfactorily proven to be (serving in or with the Armed Forces of the United States) (a dependent of ________________, Serial No. _________, a person serving in or with the Armed Forces of the United States) and to be the person whose name is subscribed to the within instrument, and acknowledgment before me on this day that, being informed of the contents of this instrument, he or she executed the same voluntarily on the day the same bears date. The undersigned does further certify that he or she is at the date of this certificate a commissioned officer of the rank stated below and is in the active service of the Armed Forces of the United States.
“______________
“Signature of Officer
“______________
“Rank and Serial No. of Officer and Command to which attached.”
(Code 1852, §1277; Code 1867, §1546; Code 1876, §2156; Code 1886, §1800; Code 1896, §994; Code 1907, §3359; Code 1923, §6842; Code 1940, T. 47, §27; Acts 1943, No. 240, p. 195; Acts 1947, No. 47, p. 15; Act 2004-555, p. 1194, §1.)
All deeds, powers of attorney and other instruments of conveyance, affidavits or contracts purporting to be acknowledged, proved or verified as prescribed by law, and which have been recorded or may hereafter be recorded in the office of the judge of probate of the proper county in this state, and transcripts thereof from such record shall be prima facie evidence that the seal of such officer acknowledging or attesting such instrument was his official seal and that it was affixed by him in his official capacity; and all such instruments and certified copies thereof shall have the same force and effect and shall be received in evidence in any court in this state without further proof of the due execution of such instrument or proof of the seal of any officer so certifying or attesting and that the same was affixed by him as his official seal, in his official capacity, whether he be an officer of this state or of any other state, territory or district of the United States.
(Acts 1920, No. 82, p. 135; Code 1923, §6843; Code 1940, T. 47, §28.)
Powers of attorney or other instruments conferring authority to convey property or to enter satisfaction of mortgages or other liens may be proved or acknowledged and recorded in the same manner and must be received as evidence to the same extent as conveyances.
(Code 1852, §1278; Code 1867, §1547; Code 1876, §2157; Code 1886, §1801; Code 1896, §995; Code 1907, §3360; Code 1923, §6844; Code 1940, T. 47, §29.)
The following are substantially the forms of acknowledgment to be used in this state, on conveyances and instruments of every description admitted to record: ACKNOWLEDGMENT FOR INDIVIDUALThe State of ________}____________County}I (name and style of officer) hereby certify that ______ whose name is signed to the foregoing conveyance, and who is known to me, acknowledged before me on this day that, being informed of the contents of the conveyance, he executed the same voluntarily on the day the same bears date. Given under my hand this _____ day of ___, A. D. 20. A. B. Judge, etc. (or as the case may be) ACKNOWLEDGMENT FOR CORPORATIONThe State of ________}____________County}I, _____, a ______ in and for said County in said State, hereby certify that _____ whose name as _____ of the _____, a corporation, is signed to the foregoing conveyance and who is known to me, acknowledged before me on this day that, being informed of the contents of the conveyance, he, as such officer and with full authority, executed the same voluntarily for and as the act of said corporation. Given under my hand this the _____ day of ___, 20 _________ (Style of Officer) ACKNOWLEDGMENT FOR AN OFFICIAL OR OTHER PERSON IN REPRESENTATIVE CAPACITYThe State of ________}____________County}I, _____, a _____, in and for said County in said State, hereby certify that _____, whose name as _____ (here state representative capacity) is signed to the foregoing conveyance and who is known to me, acknowledged before me on this day that, being informed of the contents of the conveyance, he, in his capacity as such ______, executed the same voluntarily on the day the same bears date. Given under my hand this the _____ day of ___, 20 _________ (Style of Officer) ACKNOWLEDGMENT FOR CORPORATION, IN REPRESENTATIVE CAPACITYThe State of ________}____________County}I, _____, a _____ in and for said County, in said State, hereby certify that _____ whose name as _____ of _____, a corporation as _____ of the estate of _____ (or as the case may be) is signed to the foregoing _____, and who is known to me, acknowledged before me on this day, that being informed of the contents of said _____, he, as such officer, and with full authority, executed the same voluntarily for and as the act of said corporation, acting in its capacity as _____ as aforesaid.
Given under my hand this the _____ day of ___, 20 _________ (Style of Officer)
(Code 1852, §1279; Code 1867, §1548; Code 1876, §2158; Code 1886, §1802; Code 1896, §996; Code 1907, §3361; Code 1923, §6845; Code 1940, T. 47, §30; Acts 1951, No. 85, p. 301.)
The form of a probate of a conveyance or other instrument is as follows:The State of }____ County}I, (name and style of the officer), hereby certify that ______, a subscribing witness to the foregoing conveyance, known to me, appeared before me on this day, and being sworn, stated that _______, the grantor, voluntarily executed the same in his presence, and in the presence of the other subscribing witness, on the day the same bears date; that he attested the same in the presence of the grantor, and of the other witness, and that such other witness subscribed his name as a witness in his presence. Given under my hand, this ______ day of , A. D.. A. B. Judge, etc. (or as the case may be).
(Code 1852, §1280; Code 1867, §1549; Code 1876, §2159; Code 1886, §1803; Code 1896, §997; Code 1907, §3362; Code 1923, §6846; Code 1940, T. 47, §31.)
Livery of seisin is not necessary in any conveyance of lands, and the property and possession of the grantor pass as fully by his conveyance as if seisin had been formally delivered.
(Code 1852, §1316; Code 1867, §1586; Code 1876, §2195; Code 1886, §1841; Code 1896, §1037; Code 1907, §3364; Code 1923, §6848; Code 1940, T. 47, §33.)
Every conveyance of an estate in any hereditament, corporeal or incorporeal, is good and effectual without attornment of the tenant; but no tenant who has paid his rent without notice of such conveyance is liable therefor.
(Code 1852, §1298; Code 1867, §1568; Code 1876, §2177; Code 1886, §1823; Code 1896, §1019; Code 1907, §3365; Code 1923, §6849; Code 1940, T. 47, §34.)
A judgment for specific performance shall operate as a deed to convey land or other property without any conveyance being executed by the vendor. Such judgment, certified by the clerk or register, shall be recorded in the registry of deeds in the county where the land lies, and shall stand in the place of a deed. In any action in which the court orders the specific performance of a contract for the sale of real estate, when it appears from the evidence that the party in whose favor the judgment is made is entitled to the possession of the real estate as against the other party and that such other party is in person or by tenants in possession of such real estate, the court may, in such judgment of specific performance, order the issuance of a writ of possession as in ejectment cases.
(Code 1907, §3366; Code 1923, §6850; Code 1940, T. 47, §35.)
No deed or other conveyance creating or transferring any interest in land shall be invalid or ineffective because of the fact that it does not recite a good or valuable consideration or no such consideration exists or is given; provided that this section shall in no way affect any equitable rights or remedies of the parties to the deed or other conveyance.
A deed or other conveyance purporting to create or transfer any interest in land, executed prior to January 21, 1971, shall be valid and effective notwithstanding the fact that it does not recite a good or valuable consideration or no such consideration existed or was given; provided, that this section shall in no way affect any equitable rights or remedies of the parties to the deed or other conveyance.
(Acts 1971, 3rd Ex. Sess., No. 170, p. 4420.)
Conveyances of property, required by law to be recorded, must be recorded in the office of the judge of probate.
(Code 1852, §1268; Code 1867, §1537; Code 1876, §2147; Code 1886, §1791; Code 1896, §985; Code 1907, §3367; Code 1923, §6853; Code 1940, T. 47, §94.)
Except as may be otherwise provided by the Uniform Commercial Code, all deeds, mortgages, deeds of trust, bills of sale, contracts, or other documents purporting to convey any right, title, easement, or interest in any real estate or personal property and all assignments of mortgages, deeds of trust, or other securities for debt or extension agreements with respect thereto, when executed in accordance with law, shall be admitted to record in the office of the probate judge of any county. Their filing for registration shall constitute notice of their contents.
This section shall not be construed as superseding or repealing any other laws effective in Alabama relative to the subject matter in this article, but shall be held and construed to be cumulative.
(Acts 1927, No. 442, p. 496; Code 1940, T. 47, §95; Acts 1965, No. 549, p. 811.)
(a) A memorandum of a lease may be recorded in lieu of the lease itself if the memorandum is executed and acknowledged by the lessor and the lessee and contains:
(1) The names of the lessor and lessee;
(2) The term of the lease;
(3) Any option of the lessee to renew or extend the term of the lease; and
(4) The specific legal description of the leased premises, or a survey or plot plan authorized under subsection (c) showing the location of the leased premises.
(b) A memorandum recorded under this section may also contain any other agreement made between the lessor and the lessee in the lease.
(c) A survey or plot plan may be used in lieu of a specific legal description to describe:
(1) Any part of a building on the leased premises, if the specific legal description of the real property on which the building is located is set forth in the memorandum, survey, or plot plan;
(2) Any part of the leased premises that is part of a larger tract of land, if the specific legal description of the larger tract is set forth in the memorandum, survey, or plot plan; or
(3) Real property of the lessor, in addition to the leased premises if:
a. The use of such additional real property is restricted, benefitted, or otherwise affected by the terms of the lease; and
b. The specific legal description of the additional real property is set forth in the memorandum, survey, or plot plan.
(d) As to the provisions contained in a memorandum recorded under this section, recording the memorandum has the same effect as recording the lease itself.
(Acts 1989, No. 89-942, p. 1850, §1.)
(a) A certified copy of the petition, with or without the schedules thereto, of the decree of adjudication or of the order approving the trustee’s bond in bankruptcy proceedings under the provisions of the acts of the Congress of the United States may be filed in the office of the judge of probate of every county in this state where the bankrupt owns or has an interest in real property situated in said county, and such filing shall constitute notice of such proceeding as may be provided by law.
(b) The judge of probate shall immediately file and record such certified copy in the lis pendens record kept in his office, note on it and in the record the hour and date of the filing and place and date of recording and index the same directly in the name of the bankrupt.
(Acts 1953, No. 183, p. 236, §§1, 2.)
Every bond for title or other written contract for the sale of land, acknowledged or witnessed as required by law, as well as any purchase money note, may be recorded in a similar manner as provided for the conveyances of lands and shall be notice to all subsequent purchasers, lienors, and creditors of the existence of such bond, contract, or note and of the rights of the parties thereto.
(Code 1923, §6854; Code 1940, T. 47, §96.)
Whenever any person, having an estate for life or years in personal property removes to this state with such property, the conveyance creating such estate must be recorded in the county to which it was brought within 12 months thereafter; and, if such property is removed to another county, then in such county within four months after its removal thereto, or such property must be taken to vest absolutely in such person, as to purchasers and creditors without notice; provided, however, that nothing contained in this section shall be construed as applying to any leases, including, without limitation, leases under the Uniform Commercial Code.
(Code 1852, §1285; Code 1867, §1555; Code 1876, §2164; Code 1886, §1808; Code 1896, §1001; Code 1907, §3378; Code 1923, §6869; Code 1940, T. 47, §112; Acts 1992, 2nd Ex. Sess., No. 92-700, p. 92, §604.)
Choses in action are not included in the words “personal property” in this division.
(Code 1852, §1286; Code 1867, §1556; Code 1876, §2165; Code 1886, §1809; Code 1896, §1002; Code 1907, §3379; Code 1923, §6870; Code 1940, T. 47, §113.)
Patents from this state or the United States to lands in this state may be recorded in the office of the judge of probate of the county in which the lands lie; and a certified copy of such record is evidence in any court of this state.
(Code 1852, §1353; Code 1867, §1623; Code 1876, §2231; Code 1886, §1878; Code 1896, §1003; Code 1907, §3380; Code 1923, §6871; Code 1940, T. 47, §114.)
All deeds of assignment executed by debtors for the benefit of creditors shall, as soon as executed, be filed and recorded in the office of the judge of probate of the county in which the property is situated, and such deeds are operative in all respects as other deeds from the day of the delivery to the judge.
(Code 1896, §1004; Code 1907, §3381; Code 1923, §6872; Code 1940, T. 47, §115.)
Judges of probate are to procure, at the expense of their counties, large and well-bound books, in which must be recorded in a fair hand, or by printing the same, or by the use of a typewriter or other writing or printing, photograph or photostat machine, word for word, conveyances of property and all other instruments authorized to be recorded, with the acknowledgments, proofs, schedules, plats, surveys, etc., belonging thereto; and, at the foot or in the margin of the record of each conveyance or other instrument, the day of the month and year of the delivery of the same for record must be specified. The judge making the record of any conveyance or other instrument must certify on the same when it was received and recorded and in what book and page the same is recorded and must deliver it to the party entitled thereto, or his order, on the payment of the fees of registration; but the judge of probate may refuse to indorse “filed” on any conveyance or other instrument or to record the same until such fees of registration are paid and unless the conveyance or other instrument is witnessed, probated, or acknowledged as required by this Code; provided, that in counties wherein a photostat machine or other similar photograph machine is used and an electric time clock or time stamp is used, the judge of probate may make the certificate required by this section by having same stamped upon the instrument with the electric time stamp to read as follows:
“STATE OF ALABAMA ______ COUNTY
I CERTIFY THIS INSTRUMENT WAS FILED ON THE ____ DAY OF _____ (Month), _____ (Year) at (time). Recorded book and page as shown above.
(Signed) _____, Judge of Probate.”
For making the certificate required by this section the judge of probate shall not be entitled to any additional fee for his service, other than that now provided for in Section 12-19-90.
(Code 1852, §1269; Code 1867, §1538; Code 1876, §2148; Code 1886, §1792; Code 1896, §986; Acts 1907, Ex. Sess., No. 56, p. 80; Code 1907, §3368; Code 1923, §6855; Acts 1927, No. 130, p. 89; Code 1940, T. 47, §97; Acts 1953, No. 281, p. 346.)
The conveyance or other instrument is operative as a record from the day of the delivery to the judge; and anyone delivering a conveyance or other instrument for registration may require a receipt for same, describing it by date, parties thereto and property conveyed or described.
(Code 1852, §1270; Code 1867, §1539; Code 1876, §2149; Code 1886, §1793; Code 1896, §987; Code 1907, §3369; Code 1923, §6856; Code 1940, T. 47, §98.)
Such judge must permit all persons to have free access to such books during office hours and furnish transcripts therefrom, with certificates when required, upon the payment of lawful fees.
(Code 1852, §1271; Code 1867, §1540; Code 1876, §2150; Code 1886, §1794; Code 1896, §988; Code 1907, §3370; Code 1923, §6857; Code 1940, T. 47, §99.)
If any judge of probate neglects or refuses to perform any of the duties required by this division, he is liable to a civil action for damages to the party injured and also to a penalty of $200.00, which may be sued for by the county treasurer for the use of the county or in his own name by the party aggrieved, for the joint use of himself and the county.
(Code 1852, §1272; Code 1867, §1541; Code 1876, §2151; Code 1886, §1795; Code 1896, §989; Code 1907, §3371; Code 1923, §6858; Code 1940, T. 47, §100.)
(a) Conveyances of real property shall be recorded in the county in which the property is situated.
(b) A deed, mortgage, certificate of judgment, state or federal tax lien, lis pendens, or financing statement filed pursuant to Article 9A (commencing with Section 7-9A-101) of Title 7, conveying or affecting an interest in real property in counties divided into divisions, in counties that maintain more than one courthouse, or in counties that maintain one or more courthouse annexes, may be recorded in either division of the county, in any courthouse located within the county, or in any courthouse annex located within the county when conveyances of real property recorded within the county are electronically stored and indexed so that retrieval of all recordings, after August 1, 2004, may be accomplished from any courthouse or courthouse annex within the county.
(Code 1852, §1273; Code 1867, §1542; Code 1876, §2152; Code 1886, §1796; Code 1896, §990; Code 1907, §3372; Code 1923, §6859; Code 1940, T. 47, §101; Act 2004-628, p. 1432, §1.)
The recording in the proper office of any conveyance of property or other instrument which may be legally admitted to record operates as a notice of the contents of such conveyance or instrument without any acknowledgment or probate thereof as required by law.
(Code 1852, §1274; Code 1867, §1543; Code 1876, §2153; Code 1886, §1797; Code 1896, §991; Code 1907, §3373; Code 1923, §6860; Code 1940, T. 47, §102.)
Purchasers of real property against which there are recorded mortgages, vendor’s liens, judgments, and other liens shall be protected in assuming that the record owner of such liens is the owner of the indebtedness secured by the same and in dealing with such record owner as the owner of such indebtedness.
Cancellation of the record of mortgages, vendor’s liens, judgments, and other liens by the record owner of the same shall be valid as to purchasers of the real property affected by liens of such character.
(Acts 1927, No. 452, p. 503; Code 1940, T. 47, §103.)
Conveyances of property, real or personal, or any interest therein, whether absolute or on condition, which are acknowledged or proved according to law and recorded may be received in evidence in any court without further proof; and, if it appears to the court that the original conveyance has been lost or destroyed or that the party offering a transcript had not the custody or control thereof, the court must receive the transcript, duly certified, in the place of the original, unless the reputed maker is in bona fide possession of the property and makes and files an affidavit that the said conveyance is a forgery.
(Code 1852, §1275; Code 1867, §1544; Code 1876, §2154; Code 1886, §1798; Code 1896, §992; Code 1907, §3374; Acts 1909, No. 9, p. 14; Code 1923, §6861; Code 1940, T. 47, §104.)
It shall be lawful to record certified copies of deeds, mortgages, maps, and other papers affecting the title to property in any probate office in this state in which the same should have been recorded when such mortgages, deeds, maps, or other papers have heretofore been or may hereafter be recorded in any probate office in this state.
When a certified copy of any deed, mortgage, map, or other paper affecting title to property has been recorded as provided for in this section, such recording shall in all things be considered as and shall be given the effect of the original paper if so recorded.
(Acts 1935, No. 70, p. 156; Code 1940, T. 47, §105.)
(a) Any deed, mortgage or other conveyance of property which purports on its face to have been executed in the name of any corporation by any person as its president, vice-president, or secretary, or by any one or more of said persons, shall, when attested by one or more witnesses or acknowledged by such person or persons before any officer authorized by the laws of this state to take and certify acknowledgments, be prima facie evidence that such conveyance was executed in the name of said corporation by such person or persons as such officer or officers and that said person or persons were such officer or officers of said corporation and duly authorized by said corporation to execute said conveyance in its name.
(b) All conveyances of real property, or any interest therein, whether absolute or on condition, which have been executed and acknowledged as provided by subsection (a) of this section, or attested and proved as conveyances of real property by individuals are proved, shall, when recorded, be received in evidence in any court of this state without further proof.
(c) If it appears to the court that the original conveyance has been lost or destroyed or that the party offering a transcript has not the custody or control thereof, the court must receive the transcript, duly certified, in place of the original unless said corporation is in bona fide possession of the property and one of its officers makes affidavit that said conveyance is a forgery.
(Acts 1911, No. 44, p. 31; Code 1923, §§6862-6864; Code 1940, T. 47, §§106-108.)
All conveyances admitted to record on proof must be attested by two witnesses, and the proof or acknowledgment must comply substantially with the foregoing forms or the conveyances lose the privileges conferred by section 35-4-65.
(Code 1852, §1261; Code 1867, §1550; Code 1876, §2160; Code 1886, §1804; Code 1896, §3375; Code 1907, §3375; Code 1923, §6866; Code 1940, T. 47, §109.)
Affidavits heretofore recorded or that may hereafter be recorded showing the relationship of parties or other persons to conveyances of lands, the relationship of any parties to any conveyances with other parties whose names are shown in the chain of title to lands, whether or not any person or persons connected with the chain of title were married at the time of the execution of any conveyances, the ages of any person or persons connected with the chain of title, whether the lands embraced in any conveyance constituted a part of the homestead of any grantor, whether the lands embraced in any conveyance have been in the actual possession of any parties connected with the chain of title to either the surface or mineral rights of lands, or any other persons; and affidavits relating to the identity of parties whose names may be shown differently in chains of title; and affidavits showing the ownership and adverse possession of lands, that other persons have not owned such lands nor been in possession of same, that there is no outstanding dower interest in said lands; and affidavits stating any other fact or circumstance affecting title to land or any right, title, interest in, or lien or encumbrance upon land, when so recorded, the record of said affidavits shall be notice of the facts therein recited; and any such affidavit may be made by any person whether connected with the chain of title or not.
This section shall apply to affidavits heretofore or hereafter made whether the same were made in connection with any particular transaction or merely to perfect title to land.
(Acts 1915, No. 805, p. 919; Code 1923, §6873; Code 1940, T. 47, §116; Acts 1945, No. 343, p. 559.)
In any litigation over any of the lands referred to and described in any of such affidavits, in any court in the state of Alabama or in any proceedings in any such court involving the title to such lands, wherein the facts recited in such affidavits may be material, the said affidavits or certified copies of the record thereof shall be admissible as evidence of the facts therein recited and shall be sufficient to prima facie establish such facts. The said affidavits or certified copies thereof shall only be admissible as evidence in the event the parties making the affidavits are deceased, are nonresidents of the state, their residence is unknown to the parties offering the affidavits, or such parties are too old, infirm, or sick to attend court.
(Acts 1915, No. 805, p. 919; Code 1923, §6874; Code 1940, T. 47, §117; Acts 1945, No. 343, p. 559.)
The affidavits referred to in Sections 35-4-69 and 35-4-70 shall be filed by the probate judge of the county where offered for filing and by him recorded and indexed in deed records as conveyances of lands are recorded and indexed, and he shall receive the same compensation therefor as for recording deeds to lands.
(Acts 1915, No. 805, p. 919; Code 1923, §6875; Code 1940, T. 47, §118; Acts 1945, No. 343, p. 559.)
When a validly executed instrument, not properly acknowledged and recorded, has for 10 years been of record in the office of the judge of probate, the original or a duly certified transcript thereof shall have the same force and effect as evidence as such original or transcript would have had had such instrument been duly acknowledged and recorded.
(Code 1907, §3382; Code 1923, §6876; Code 1940, T. 47, §119.)
(a) No deed, contract, or other conveyance of land or any interest therein, whether legal or equitable, shall be accepted for record by the probate judge unless it contains a recitation of the marital status of an individual grantor or vendor; provided, that this section shall apply only to instruments executed subsequent to July 21, 1972.
(b) A probate judge shall not be liable in damages or for a penalty for an error or mistake in the performance of his duties under this section if committed in good faith.
(c) Any person who knowingly makes a false recitation, as provided in subsection (a) of this section, shall be guilty of a misdemeanor.
(Acts 1971, 3rd Ex. Sess., No. 172, p. 4422.)
(a) No instrument, other than a will, purporting to create or transfer any interest in land shall be accepted for record by a probate judge if such instrument describes the land in which such interest is to be created or transferred by reference to a plat and the plat is not attached to and made a part of the instrument or the instrument does not describe the plat book and the office in which such plat book is to be found and there is no description of the land by metes and bounds; provided, that this section shall apply only to instruments executed subsequent to July 21, 1972; provided further, that where, prior to July 21, 1972, any person has received a conveyance of land, or any interest therein, in which the land is described by reference to a plat which is not recorded and which is not available to him, this section shall not apply if the grantor or mortgagor recites in any instrument executed after July 21, 1972, that the plat is lost, destroyed, or unavailable for recording.
(b) A probate judge shall not be liable in damages or for a penalty for any error or mistake in the performance of his duties under this section if committed in good faith.
(Acts 1971, 3rd Ex. Sess., No. 171, p. 4422.)
(a) Where any contract or extension thereof for the sale of any interest in land fails to state the time within which, or the circumstances under which, a deed is to be delivered, the time for the delivery of the deed shall be a reasonable time after the date on which the contract was entered into, and in no case more than one year subsequent to such date.
(b) Where any contract for the sale of any interest in land or any extension of such contract has been recorded or rerecorded and five years have elapsed since the time provided by the parties or by subsection (a) of this section for the delivery of the deed, whichever period shall be the longer, and no action has been brought for the specific performance of such contract or for the foreclosure of the vendee’s interest or for the enforcement of an equitable lien arising from the contract and no lis pendens has been properly filed, a lienholder or a purchaser for value or mortgagee may conclusively presume that such contract has been abandoned by the parties thereto and that the vendee named in the contract and his successors in interest have no equitable claim against the land made the subject of the contract; provided, that this section shall not apply so long as the vendee named in the contract or his successors in interest shall be in actual possession of the land made the subject of the contract.
(c) This section shall apply to contracts and extensions thereof recorded before or after January 31, 1972; except, that the period of five years provided for in subsection (b) of this section shall not be deemed to have expired in any case until January 31, 1974.
(Acts 1971, 3rd Ex. Sess., No. 179, p. 4439.)
(a) No option to purchase any interest in land, other than an option limited in favor of a lessee and exercisable at a time not later than the end of the term of a lease or any extension or renewal thereof, or an option to repurchase reserved by the grantor in a deed, shall be valid or enforceable for a period of more than 20 years. If any such option may, by the terms of the instrument creating it, continue to exist for longer than 20 years, it shall terminate and cease to be enforceable 20 years after the time of its creation. Where the instrument creating any such option shall place no limit upon the duration of the option or otherwise state the terms controlling the duration of the option, the option shall cease to be enforceable two years after the time of its creation. This section shall not apply to options created prior to January 31, 1972.
(b) Where an option to purchase land, or any interest therein, or any renewal or extension of such option, has been recorded in the public records of land and one year has elapsed since the expiration of such option or renewal or extension thereof, according to the terms of the recorded instrument by which it was created, extended, or renewed, and no instrument of record gives notice that such option has been exercised, the instrument by which the option was created, renewed, or extended shall cease to be notice of the option, its renewal, or extension, nor shall any person be put on inquiry with respect to the exercise or existence of such option; provided, that this subsection shall become effective January 31, 1973.
(c) Subsection (b) of this section shall not apply where a person claiming an option is in possession of the land affected by the option.
(Acts 1971, 3rd Ex. Sess., No. 180, p. 4440.)
(a) All conveyances of real property, deeds, mortgages, deeds of trust, or instruments in the nature of mortgages to secure any debts are inoperative and void as to purchasers for a valuable consideration, mortgagees, and judgment creditors without notice, unless the same have been recorded before the accrual of the right of such purchasers, mortgagees, or judgment creditors.
(b) Subsection (a) of this section includes absolute conveyances of real property defeasible by a defeasance or other instrument, in which case such defeasance or instrument must be recorded, according to its character, within the time limited in subsection (a) of this section or it is void as to purchasers for a valuable consideration, mortgagees, and judgment creditors of the original grantee without notice.
(Code 1852, §§1287-1289; Code 1867, §§1557-1559; Code 1876, §§2166-2168; Code 1886, §§1810-1812; Code 1896, §§1005-1007; Code 1907, §§3383, 3384; Code 1923, §§6887, 6888; Code 1940, T. 47, §§120, 121.)
All wills and conveyances, creating estates in lands in remainder or reversion or upon a condition, after an estate for life or lives, are inoperative and void as against the creditors of the tenant for life or lives in possession after a possession of five years by such tenant, unless the will or conveyance is recorded within five years from the entry and possession of such tenant.
(Code 1852, §1290; Code 1867, §1560; Code 1876, §2169; Code 1886, §1813; Code 1896, §1008; Code 1907, §3385; Code 1923, §6889; Code 1940, T. 47, §122.)
Except as may be otherwise provided by Article 9 of the Uniform Commercial Code, all conveyances, mortgages, and other instruments executed hereafter for the purpose of transferring standing timber or trees, or cutting rights with respect thereto, or an interest therein, whether such timber, trees, or rights shall be real or personal property, shall be recorded in the county in which such timber and trees are located in the same manner and books and under the same conditions that conveyances of real property are recorded in such county and with like effect; and no such instrument need be recorded elsewhere. Unless an instrument effecting such transfer and herein required to be recorded is so recorded, any such transfer shall be inoperative and void as against purchasers, mortgagees, and judgment creditors without notice.
(Acts 1951, No. 629, p. 1084; Acts 1965, No. 549, p. 811.)
Personal property conveyed in consideration of marriage, when the possession remains with the husband or the husband and wife, must be taken as the property of the husband, in favor of purchasers without notice and creditors, unless such conveyance is recorded in the county of the husband’s residence, within 12 months after such possession commenced in this state; and, if the husband removes to another county, within four months after such removal.
(Code 1852, §1293; Code 1867, §1563; Code 1876, §2172; Code 1886, §1816; Code 1896, §1011; Code 1907, §3388; Code 1923, §6892; Code 1940, T. 47, §125.)
All loans in writing, wills, or conveyances creating estates in personal property, on condition, in reversion or remainder, or in which the use is separated from the right, other than the conveyances hereinabove in this division specified and other than leases (including, without limitation, leases under the Uniform Commercial Code) and security agreements under the Uniform Commercial Code, and under which possession is suffered to remain for three years with the party entitled to the estate or use, vest an absolute estate in the person so having possession for such number of years as to creditors and purchaser of such person unless such loan, will, or conveyance is recorded within such time in the county where such property is; provided, however, that nothing contained in this section shall be construed as applying to any lease (including, without limitation, leases under the Uniform Commercial Code) or to any security interest or security agreement under the Uniform Commercial Code.
(Code 1852, §1294; Code 1867, §1564; Code 1876, §2173; Code 1886, §1817; Code 1896, §1012; Code 1907, §3389; Code 1923, §6893; Code 1940, T. 47, §126; Acts 1965, No. 549, p. 811; Acts 1992, 2nd Ex. Sess., No. 92-700, p. 92, §605.)
All loans of personal property, not in writing, vest an absolute estate in the person in possession under such loan, as to purchasers and creditors of such person, after three years from the commencement of such loan, unless within that time the lender commences a civil action, in good faith, for the recovery of the property.
(Code 1852, §1295; Code 1867, §1565; Code 1876, §2174; Code 1886, §1818; Code 1896, §1013; Code 1907, §3390; Code 1923, §6894; Code 1940, T. 47, §127.)
All conveyances of personal property in favor of minor children, except by will, where the custody, control, and visible possession thereof is suffered to remain by the donor with the father or mother of such children, vest an absolute estate in such father or mother so in possession, in favor of the purchasers from, and creditors of, such father or mother, without notice, unless the conveyance is recorded within three years after such possession commenced in this state in the county of the residence of such father or mother.
(Code 1852, §1296; Code 1867, §1566; Code 1876, §2175; Code 1886, §1819; Code 1896, §1014; Code 1907, §3391; Code 1923, §6895; Code 1940, T. 47, §128.)
Parol gifts of personal property are inoperative until the custody, control, management, and use of the property passes from the donor to the donee and is possessed by such donee or his agent; when the donee is a minor living with his parents, or either of them, the possession of the father or parent with whom he is living must be considered the possession of the child.
(Code 1852, §1297; Code 1867, §1567; Code 1876, §2176; Code 1886, §1820; Code 1896, §1015; Code 1907, §3392; Code 1923, §6896; Code 1940, T. 47, §129.)
Such a conditional sales contract, when the execution thereof has been acknowledged or proved before an officer having authority to take and certify the acknowledgment of conveyances and when such contract has been duly recorded, must be received in evidence without other proof of execution; and, if the original of such contract is lost or destroyed, or the party offering in evidence a certified transcript has not the custody or control thereof, a certified transcript from the record thereof must be received in evidence without other proof of the execution of the original.
(Code 1886, §1822; Code 1896, §1018; Code 1907, §3395; Code 1923, §6899; Code 1940, T. 47, §132.)
No probate judge shall receive for record or permit the recording of any instrument in which the title to real property, or any interest therein, or lien thereon, is conveyed, granted, encumbered, assigned, or otherwise disposed of, or any instrument relating to the organization, reorganization, or dissolution of a private corporation, unless such instrument has endorsed on it a printed, typewritten, or stamped statement showing the name and address of the individual who prepared the instrument. If the instrument is in part composed of a printed form the person.preparing the instrument shall be the person who filled in the blanks in the form or examined the entries made in such blanks by some other person.
(Acts 1965, No. 624, p. 1137, §1; Acts 1969, No. 121, p. 397; Acts 1971, 3rd Ex. Sess., No. 178, p. 4438, §1.)
The probate judge shall not be liable in damages or penalty for any error or mistake in the performance of the duties prescribed in this division if committed in good faith.
(Acts 1965, No. 624, 1137, §2; Acts 1971, 3rd Ex. Sess., No. 178, p. 4438, §2.)
This division shall not apply to the recording of any will, decree, court order, or judgment; nor to any instrument executed prior to July 21, 1972; except, that it shall apply to instruments executed since January 1, 1966, in counties having a population of over 600,000 inhabitants according to the 1960 or any succeeding federal census, and to all instruments executed since July 1, 1969, in counties having a population of 300,000 inhabitants according to the 1960 or a succeeding federal census.
(Acts 1965, No. 624, p. 1137, §4; Acts 1971, 3rd Ex. Sess., No. 178, p. 4438, §3.)
An instrument will be in compliance with this division if it contains a statement in the following form: “This instrument was prepared by (Name) ____ Address) ____.”
(Acts 1965, No. 624, p. 1137, §5; Acts 1971, 3rd Ex. Sess., No. 178, p. 4438, §4.)
This division may be cited as the Alabama Uniform Real Property Electronic Recording Act.
(Act 2009-510, p. 954, §1.)
In this division:
(1) “Document” means information that is:
a. Inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
b. Eligible to be recorded in the land records maintained by the judge of probate.
(2) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(3) “Electronic document” means a document that is received by the judge of probate in an electronic form.
(4) “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a document and executed or adopted by a person with the intent to sign the document.
(5) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(6) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
(Act 2009-510, p. 954, §2.)
(a) If a law requires, as a condition for recording, that a document be an original, be on paper or another tangible medium, or be in writing, the requirement is satisfied by an electronic document satisfying this act.
(b) If a law requires, as a condition for recording, that a document be signed, the requirement is satisfied by an electronic signature.
(c) A requirement that a document or a signature associated with a document be notarized, acknowledged, verified, witnessed, or made under oath is satisfied if the electronic signature of the person authorized to perform that act, and all other information required to be included, is attached to or logically associated with the document or signature. A physical or electronic image of a stamp, impression, or seal need not accompany an electronic signature.
(Act 2009-510, p. 954, §3.)
(a) In this section, “paper document” means a document that is received by the judge of probate in a form that is not electronic.
(b) A judge of probate:
(1) Who implements any of the functions listed in this section shall do so in compliance with standards established by the Electronic Recording Commission.
(2) May receive, index, store, archive, and transmit electronic documents.
(3) May provide for access to, and for search and retrieval of, documents and information by electronic means.
(4) Who accepts electronic documents for recording shall continue to accept paper documents as authorized by state law and shall place entries for both types of documents in the same index.
(5) May convert paper documents accepted for recording into electronic form.
(6) May convert into electronic form information recorded before the judge of probate began to record electronic documents.
(7) May accept electronically any fee or tax that the judge of probate is authorized to collect.
(8) May agree with other officials of a state or a political subdivision thereof, or of the United States, on procedures or processes to facilitate the electronic satisfaction of prior approvals and conditions precedent to recording and the electronic payment of fees and taxes as provided for in the standards to implement this division.
(Act 2009-510, p. 954, §4.)
(a) The Electronic Recording Commission consisting of 14 members is created to adopt standards to implement this division. The members shall be appointed as follows:
(1) Six judges of probate or chief clerks appointed by the Alabama Probate Judges Association.
(2) Two practicing attorneys appointed by the Alabama State Bar Association.
(3) One person engaged in the business of title insurance in the State of Alabama appointed by the Alabama Land Title Association, a division of the Dixie Land Title Association.
(4) One person appointed by the Alabama Bankers Association.
(5) One person appointed by the Association of County Commissions of Alabama.
(6) The Chief Examiner of the Alabama Department of Examiners of Public Accounts, or his or her designee.
(7) The Director of the Alabama Department of Archives and History, or his or her designee.
(8) One person appointed by the Alabama Association of Realtors.
(b) To keep the standards and practices of judges of probate in this state in harmony with the standards and practices of recording offices in other jurisdictions that enact substantially this division and to keep the technology used by judges of probate in this state compatible with technology used by recording offices in other jurisdictions that enact substantially this division, the Electronic Recording Commission, so far as is consistent with the purposes, policies, and provisions of this division in adopting, amending, and repealing standards, shall consider:
(1) Standards and practices of other jurisdictions.
(2) The most recent standards promulgated by national standard-setting bodies, such as the Property Records Industry Association.
(3) The views of interested persons and governmental officials and entities.
(4) The needs of counties of varying size, population, and resources.
(5) Standards requiring adequate information security protection to ensure that electronic documents are accurate, authentic, adequately preserved, and resistant to tampering.
(c) The Electronic Recording Commission shall adopt standards pursuant to this division. The commission shall prescribe uniform standards for electronic recording of real estate records for any county participating in the electronic recording of real estate in the county. The Secretary of State, pursuant to the Alabama Administrative Procedure Act, shall immediately implement the standards adopted by the Electronic Recording Commission without change.
(Act 2009-510, p. 954, §5.)
Except as expressly provided in this division or the standards adopted by the Electronic Recording Commission, nothing in this division or any rule adopted pursuant to this division may amend, alter, or repeal the substantive law of this state as it relates to the requirements of any real property recording.
(Act 2009-510, p. 954, §6.)
In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
(Act 2009-510, p. 954, §7.)
This division modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. Section 7001, et seq.) but does not modify, limit, or supersede Section 101(c) of that act (15 U.S.C. Section 7001(c)) or authorize electronic delivery of any of the notices described in Section 103(b) of that act (15 U.S.C. Section 7003(b)).
(Act 2009-510, p. 954, §8.)
The judge of probate of each county in this state shall keep in his office as a public record a suitable book, to be called a lis pendens record.
(Acts 1915, No. 77, p. 122; Code 1923, §6877; Code 1940, T. 47, §65.)
(a) When any civil action or proceeding shall be brought in any court to enforce any lien upon, right to or interest in, or to recover any land, or where an application has been made to the probate judge of any county for an order of condemnation of land, or any interest therein, the person, corporation, or governmental body commencing such action or proceeding or making such application shall file with the judge of probate of each county where the land or any part thereof is situated a notice containing the names of all of the parties to the action or proceeding, or the persons named as those having an interest in the land in the application for an order of condemnation, a description of the real estate and a brief statement of the nature of the lien, writ, application, or action sought to be enforced. The judge of probate shall immediately file and record the notice in the lis pendens record and note on it and in the record the hour and date of the filing and the place and date of recording.
(b) A copy of the notice required by Section 6-6-564, regarding in rem proceedings involving claims to title of land, certified by the register or clerk as being correct, shall also be recorded as a lis pendens in the office of probate judge of the county where the lands lie.
(Acts 1915, No. 77, p. 122; Acts 1923, No. 526, p. 699; Code 1923, §§6878, 9916; Code 1940, T. 7, §1120; Code 1940, T. 47, §66; Acts 1971, 3rd Ex. Sess., No. 181, p. 4441, §1.)
When a sheriff, constable, United States marshal, or other officer shall levy upon land by virtue of any process, he shall file with the judge of probate of each county where the land or any party thereof is situated a notice of the levy, showing the names of the parties to the proceeding, the kind of process, and a description of the land levied on. The judge of probate shall file and record and note upon the notice and record as in Section 35-4-131.
(Acts 1915, No. 77, p. 122; Code 1923, §6879; Code 1940, T. 47, §67; Acts 1971, 3rd Ex. Sess., No. 181, p. 4441, §2.)
Any notice filed with the judge of probate under this article shall be recorded in such record in full, and the original of such notice shall bear the indorsement of the time of filing for record and the book and page wherein such notice is recorded.
(Acts 1915, No. 77, p. 122; Code 1923, §6884; Code 1940, T. 47, §72.)
The judge of probate, upon filing and recording each notice, shall index the same, both directly and indirectly, under the name of each party to the proceeding.
(Acts 1915, No. 77, p. 122; Code 1923, §6880; Code 1940, T. 47, §68.)
If the notice required by Sections 35-4-131 and 35-4-132 shall not be entered in the lis pendens record, the action, proceeding, or application shall not affect the rights of a bona fide purchaser, lessee, or mortgagee of any interest in such land or any person then or thereafter asserting a lien against such land unless he or they have actual notice of the action, proceeding, levy, or application.
(Acts 1915, No. 77, p. 122; Code 1923, §6881; Code 1940, T. 47, §69; Acts 1971, 3rd Ex. Sess., No. 181, p. 4441, §3.)
Where the action, proceeding, or levy, notice of which has been entered in the lis pendens record, shall be terminated, whether on the merits or not, the court wherein the same was pending may direct the judge of probate who has custody of the record to make such entry thereof as he shall prescribe, to give notice of the result of the action, proceeding, or levy and of the devolution of the land, and the judge of probate shall at once, on presentation thereof, file and record an entry and note the date of filing and recording on the record; provided, that where an application has been made for an order of condemnation of land, or any interest therein, the probate judge shall make such entry on his own motion. The officer or party filing such notice must, within 30 days after demand, enter on the margin of the record of the same satisfaction of such claim under the lis pendens notice whenever the same shall have been fully satisfied or terminated, and such satisfaction shall have the same effect as if made by the judge of probate as provided in this article. Nothing in this section, nor in Section 35-4-137, shall be construed to alter the form used in maintaining the lis pendens records in those counties where the public land records are, by authority of the statute law of the State of Alabama, maintained on microfilm.
(Acts 1915, No. 77, p. 122; Code 1923, §6882; Code 1940, T. 47, §70; Acts 1971, 3rd Ex. Sess., No. 181, p. 4441, §4.)
When any lis pendens in an action or proceeding to enforce a lien has been filed and recorded in the office of the judge of probate, as prescribed in Sections 35-4-131 and 35-4-132, the person owning or claiming the land described in the lis pendens may at any time, before a judgment is entered enforcing the lien, nullify the notice given by such lis pendens by executing a bond with sufficient surety in double the amount of the fair market value of the land described in the lis pendens and as to which the lis pendens is to be nullified, the amount of the bond and the surety or sureties thereon to be approved by the judge of probate. The bond shall be payable to the judge of probate and conditioned to pay any sum of money found to be a lien against such land, up to the fair market value of the said land, said payment to be made by 12:00 noon of the day and at the place appointed for the sale thereof. When said bond has been taken and approved by the judge of probate, he shall make a notation of the same on the margin of the record of the lis pendens and on the margin of the record of the lien referred to in said lis pendens. If the makers of such bond do not make payment according to the conditions thereof, the court officer advertising the sale of such land shall within five days thereafter forfeit said bond and issue or have issued from the proper court officer, without delay, an execution on the forfeited bond against all the obligors therein for the amount found to be a lien upon said land relieved and released by said bond, up to the fair market value of said land so relieved and released, together with all lawful costs, all of which shall be endorsed on the said execution. The judge of probate of each county in the State of Alabama shall keep in his office as a public record a suitable book, appropriately designated, in which all such bonds shall be recorded and properly indexed. The judge of probate, for the services required of him, shall receive a fee of $1.00 for approving the said bond and $.15 per 100 words for recording said bond, which fee shall be paid by the person filing the same.
(Acts 1931, No. 701, p. 826; Code 1940, T. 47, §74; Acts 1971, 3rd Ex. Sess., No. 181, p. 4441, §5.)
The judge of probate, for the services required of him, shall receive a fee of $.15 for each 100 words for recording such notice, which fee shall be paid by the person filing the same.
(Acts 1915, No. 77, p. 122; Code 1923, §6885; Code 1940, T. 47, §73.)
If any judge of probate shall fail to perform any of the duties required of him by this article, he shall be liable on his official bond to any party injured for all damages he may sustain; and, if any sheriff, constable, marshal, or other officer shall fail to file the notice provided for in this article, upon the levy by him of any process on real estate, he shall be liable on his bond for all damages resulting therefrom.
(Acts 1915, No. 77, p. 122; Code 1923, §6883; Code 1940, T. 47, §71.)
Any person claiming title to land directly or remotely from the grantee in a deed, mortgage, or other conveyance containing an erroneous description, may maintain a civil action in a circuit court for the reformation of such deed, mortgage, or other conveyance and shall be entitled to relief in all cases in which the grantee in the deed, mortgage, or other conveyance containing an erroneous description would be entitled to relief.
(Acts 1911, No. 227, p. 199; Code 1923, §6960; Code 1940, T. 47, §133.)
In order to authorize a person claiming title under the grantee in a deed, mortgage, or other conveyance containing an erroneous description to maintain a civil action for the reformation of the same, it shall not be necessary that there shall be any error in description in all the conveyances constituting the chain of title from the grantor in the conveyance containing the erroneous description to the complainant; but, if it shall reasonably appear that it was the purpose or intention of each grantor to convey the land which was intended to be conveyed in said deed, mortgage or other conveyance containing the erroneous description, the complainant shall be entitled to a reformation of such deed, mortgage, or other conveyance.
(Acts 1911, No. 227, p. 199; Code 1923, §6961; Code 1940, T. 47, §134.)
The grantors in any number of conveyances in the chain of title of the complainant may be made parties defendant to the civil action for the reformation of the description in any one or more of such conveyances, and the joining of the grantors in several conveyances in the chain of title shall not make the complaint multifarious or objectionable by reason of the misjoinder of parties defendant.
(Acts 1911, No. 227, p. 199; Code 1923, §6962; Code 1940, T. 47, §135.)
When, through fraud, or a mutual mistake of the parties, or a mistake of one party which the other at the time knew or suspected, a deed, mortgage, or other conveyance does not truly express the intention of the parties, it may be revised by a court on the application of the party aggrieved so as to express that intention, insofar as this can be done without prejudice to rights acquired by third persons in good faith and for value.
(Code 1923, §6825; Code 1940, T. 47, §136.)
No estate or interest of any person can be defeated, discontinued, or extinguished by the act of any third person having a possessory or ulterior interest, except in the cases especially provided by this Code.
(Code 1852, §1305; Code 1867, §1575; Code 1876, §2184; Code 1886, §1830; Code 1896, §1026; Code 1907, §3406; Code 1923, §6910; Code 1940, T. 47, §63.)
The tenant for life in personalty cannot remove it beyond the jurisdiction of this state without the consent of the remainderman. If he attempts to do so, the remainderman or reversioner is entitled to the writ of ne exeat to restrain him.
(Code 1907, §3407; Code 1923, §6911; Code 1940, T. 47, §64.)
Excepting in cases where the dower interest of the widow of a decedent is sold during process of administration of such decedent’s estate, in all cases where lands are sold for division among joint owners or tenants in common and where lands are taken under the power of eminent domain, and one or more persons own a dower or life interest in the whole or in an undivided interest in such lands, the court having jurisdiction of the action in which such lands are sold or taken, as aforesaid, after the proceeds are paid into court, shall, upon the sworn application of any person owning such dower interest or life interest, or any remainder or reversionary interest therein, ascertain the present value of such dower or life estate and pay to the owner of such dower or life interest in cash the value of such interest, the remainder to be paid to the reversioners or remaindermen.
(Acts 1945, No. 446, p. 684, §1.)
(a) The application referred to in Section 35-4-190 shall set out the names and places of residence of all the persons interested in the funds in which such dower or life interest exists, stating which, if any, are infants or persons of unsound mind. If any of the parties or their places of residence are unknown, the application shall so state. The court shall set a day for the hearing of said application not less than 30 days from the date of the filing thereof, and notice thereof shall be given by the clerk, judge, or register and served on such other persons as may be interested in the funds, residing in the state, not less than 10 days prior to the hearing; and, if any are nonresidents or their names or places of residence are unknown, then service on them shall be by registered or certified mail where practicable in the same manner as now provided by law for service by registered mail, or by publication once a week for three successive weeks in some newspaper published in the county or, if none are published in the county, then in some newspaper published in an adjoining county. The hearing shall take place on the day set or on any day to which said hearing may be continued. A guardian ad litem shall be appointed to represent infants or persons of unsound mind. All costs of such proceedings, including any fee for the guardian ad litem, shall be paid out of the common fund in which the life or dower interest exists, to the end that, as nearly as may be, the life tenant shall be taxed with such proportion of such costs as his share of the common fund, when ascertained, shall bear to the whole; provided, however, that the court shall be clothed with discretion in such taxation of costs as to it may otherwise appear just and equitable.
(b) In ascertaining the value of such life interest, the court may examine witnesses touching their opinion on such value and may take into consideration the age and health of the life tenant, the earning power of the money representing the lands or the interest therein, as well as any other factor which may reasonably shed light on the inquiry. Witnesses may be examined orally or by depositions, and no notice shall be required for oral examination of such witnesses on the day set for the hearing, any rule of civil procedure or probate practice to the contrary notwithstanding.
(Acts 1945, No. 446, p. 684, §§2, 3.)
Any party feeling aggrieved by the finding of the court may invoke an appeal therefrom to the Supreme Court or the Court of Civil Appeals within 30 days from the date of such order or judgment by giving security for costs to be approved in the same manner as now provided for in appealing from the judgments of the court in which such proceeding was had.
(Acts 1945, No. 446, p. 684, §4.)
As used in this article, the following terms shall have the meanings respectively ascribed to them in this section, unless the context clearly indicates a different meaning:
(1) ESTATE IN REMAINDER. One limited to be enjoyed after another estate is determined or at a time specified in the future.
(2) ESTATE IN REVERSION. The residue of an estate, usually the fee, left in the grantor and his heirs after the determination of a particular estate which he has granted out of it.
(3) RIGHTS OF THE REVERSIONER. The same rights as those of a vested remainderman in fee.
(Code 1907, §3400; Code 1923, §6904; Code 1940, T. 47, §139.)
Remainders are either vested or contingent. A vested remainder is one limited to a certain person at a certain time or upon the happening of a necessary event. A contingent remainder is one limited to an uncertain person or upon an event which may or may not happen.
(Code 1907, §3401; Code 1923, §6905; Code 1940, T. 47, §140.)
No estate in lands can be created by way of contingent remainder; but every estate created by any will or conveyance, which might have taken effect as a contingent remainder, has the same properties and effect as an executory devise.
(Code 1852, §1301; Code 1867, §1571; Code 1876, §2180; Code 1886, §1826; Code 1896, §1022; Code 1907, §3398; Code 1923, §6902; Code 1940, T. 47, §137.)
Where a remainder in real or personal property is limited to take effect on the death of any person without heirs, or heirs of his body, or without issue, the word “heirs” or “issue” must be construed to mean heirs or issue living at the death of the person named as ancestor.
(Code 1852, §1302; Code 1867, §1572; Code 1876, §2181; Code 1886, §1827; Code 1896, §1023; Code 1907, §3399; Code 1923, §6093; Code 1940, T. 47, §138.)
Where a remainder created by a deed or will is limited to the heirs, issue, or heirs of the body of a person to whom a life estate in the same property is given, the persons who, on the termination of the life estate, are the heirs, issue, or heirs of the body of such tenant for life are entitled to take as purchasers by virtue of the remainder so limited to them.
(Code 1852, §1304; Code 1867, §1574; Code 1876, §2183; Code 1886, §1829; Code 1896, §1025; Code 1907, §3403; Code 1923, §6907; Code 1940, T. 47, §141.)
An estate during the life of a third person, whether limited to his heirs or otherwise, is a freehold only during the life of the grantee or devisee; but after his death it is a chattel real.
(Code 1852, §1594; Code 1867, §1915; Code 1876, §2279; Code 1886, §1950; Code 1896, §4246; Code 1907, §3404; Code 1923, §6908; Code 1940, T. 47, §142.)
A conveyance made by a tenant for life or years, purporting to convey a greater interest than he possesses or can lawfully convey, does not work a forfeiture of his estate but passes to the grantee all the estate which the tenant could lawfully convey.
(Code 1852, §1317; Code 1867, §1587; Code 1876, §2196; Code 1886, §1842; Code 1896, §1036; Code 1907, §3405; Code 1923, §6909; Code 1940, T. 47, §143.)
No use, trust, or confidence can be declared of any land, or of any charge upon the same, for the mere benefit of third persons; and all assurances declaring any such use, trust, or confidence must be held and taken to vest the legal estate in the person or persons for whom the same is declared; and no estate or interest can vest thereby in any trustee.
(Code 1852, §1306; Code 1867, §1576; Code 1876, §2185; Code 1886, §1831; Code 1896, §1027; Code 1907, §3408; Code 1923, §6912; Code 1940, T. 47, §144.)
[Repealed]
Repealed by Act 2006-216, p. 314, §5, effective January 1, 2007.
(Code 1852, §1307; Code 1867, §1577; Code 1876, §2186; Code 1886, §1832; Code 1896, §1028; Code 1907, §3409; Code 1923, §6913; Code 1940, T. 47, §145.)
[Repealed]
Repealed by Act 2006-216, p. 314, §5, effective January 1, 2007.
(Code 1852, §1310; Code 1867, §1580; Code 1876, §2189; Code 1886, §1835; Code 1896, §1031; Code 1907, §3410; Code 1923, §6914; Code 1940, T. 47, §146.)
[Repealed]
Repealed by Act 2006-216, p. 314, §5, effective January 1, 2007.
(Code 1923, §6915; Code 1940, T. 47, §147.)
[Repealed]
Repealed by Act 2006-216, p. 314, §5, effective January 1, 2007.
(Code 1852, §1318; Code 1867, §1588; Code 1876, §2197; Code 1886, §1843; Code 1896, §1039; Code 1907, §3411; Code 1923, §6916; Code 1940, T. 47, §148.)
Transferred to Section 19-3B-1301 effective January 1, 2007
(Code 1852, §1320; Code 1867, §1590; Code 1876, §2199; Code 1886, §1845; Code 1896, §1041; Code 1907, §3412; Code 1923, §6917; Code 1940, T. 47, §149.)
Transferred to Section 19-3B-1302 effective January 1, 2007
(Code 1852, §1321; Code 1867, §1591; Code 1876, §2200; Code 1886, §1846; Code 1896, §1042; Code 1907, §3413; Code 1923, §6918; Code 1940, T. 47, §150.)
When a trust is created or declared by any such instrument in writing, the recording thereof in the county where the lands lie is equivalent to actual notice to every person claiming under a conveyance made or lien created after such recording.
(Code 1852, §1322; Code 1867, §1592; Code 1876, §2201; Code 1886, §1847; Code 1896, §1043; Code 1907, §3414; Code 1923, §6919; Code 1940, T. 47, §151.)
Transferred to Section 19-3B-1303 effective January 1, 2007
(Code 1852, §1323; Code 1867, §1593; Code 1876, §2202; Code 1886, §1848; Code 1896, §1044; Code 1907, §3415; Code 1923, §6920; Code 1940, T. 47, §152.)
Transferred to Section 19-3B-1304 effective January 1, 2007.
(Acts 1945, No. 306, p. 499; Acts 1961, No. 1014, p. 1592.)
Transferred to Section 19-3B-1305 effective January 1, 2007.
(Acts 1949, No. 265, p. 389.)
All warranties by any tenant for life are void as against those in remainder or reversion, and it shall not be necessary for those in remainder or reversion to bring any action or file any complaint to recover such property or set aside or limit such conveyance or declare their interest until they are entitled to such property, and no statute of limitation or repose shall operate against them until such time as they are entitled to such property.
(Code 1852, §1313; Code 1867, §1583; Code 1876, §2192; Code 1886, §1838; Code 1896, §1034; Code 1907, §3420; Code 1923, §6925; Code 1940, T. 47, §153.)
In all conveyances of estates in fee, the words “grant,” “bargain,” “sell,” or either of them, must be construed, unless it otherwise clearly appears from the conveyance, an express covenant to the grantee, his heirs and assigns, that the grantor was seised of an indefeasible estate in fee simple, free from incumbrances done or suffered by the grantor, except the rents and services that are reserved; and also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by the express words of such conveyance; and the grantee, his heirs, personal representatives, and assigns may, in any action, assign breaches, as if such covenants were expressly inserted.
(Code 1852, §1314; Code 1867, §1584; Code 1876, §2193; Code 1886, §1839; Code 1896, §1035; Code 1907, §3421; Code 1923, §6926; Code 1940, T. 47, §154.)
(a) The grantor, in any conveyance, may reserve to himself any power beneficial, or in trust, which he may lawfully grant to another.
(b) When the grantor in any conveyance reserves to himself, for his own benefit, an absolute power of revocation, such grantor must be taken as the absolute owner of the estate conveyed, as to the rights of creditors and purchasers.
(Code 1852, §§1324, 3529; Code 1867, §§1594, 1599; Code 1876, §§2203, 2208; Code 1886, §§1849, 1854; Code 1896, §§1045, 1050; Code 1907, §§3422, 3427; Code 1923, §§6927, 6932; Code 1940, T. 47, §§75, 80.)
Every power of disposition is deemed absolute, by means of which the donee of such power is enabled in his lifetime to dispose of the entire fee for his own benefit; and, where a general and beneficial power to devise the inheritance is given to a tenant for years or for life, it is absolute within the meaning of subsections (b) and (c) of section 35-4-292.
(Code 1852, §1328; Code 1867, §1598; Code 1876, §2207; Code 1886, §1853; Code 1896, §1049; Code 1907, §3426; Code 1923, §6981; Code 1940, T. 47, §79.)
(a) When an absolute power of disposition, not accompanied by any trust, is given to the owner of a particular estate for life or years, such estate is changed into a fee absolute, as to the rights of creditors and purchasers, but subject to any future estates limited thereon, in case the power is not executed or the lands sold for the satisfaction of debts during the continuance of such particular estate.
(b) When a like power of disposition is given to any person to whom no particular estate is limited, such person also takes a fee, subject to any future estate which may be limited thereon; but absolute in respect to creditors and purchasers.
(c) In all cases where such absolute power of disposition is given, not accompanied by any trust, and no remainder is limited on the estate of the donee of the power, he has an absolute fee.
(Code 1852, §§1325-1327; Code 1867, §§1595-1597; Code 1876, §§2204, 2206; Code 1886, §§1850-1852; Code 1896, §§1046-1048; Code 1907, §§3423-3425; Code 1923, §§6928-6930; Code 1940, T. 47, §§76-78.)
No disposition by virtue of a power is void on the ground that it is more extensive than was authorized by the power; but every estate or interest thus created is valid only so far as the same is embraced by the power.
(Code 1852, §1330; Code 1867, §1600; Code 1876, §2209; Code 1886, §1855; Code 1896, §1051; Code 1907, §3428; Code 1923, §6933; Code 1940, T. 47, §81.)
No power of disposing of real estate can be executed, except by an instrument in writing, which would be sufficient in law to pass the estate or interest intended to pass under such power if the person executing the power were the actual owner.
(Code 1852, §1331; Code 1867, §1601; Code 1876, §2210; Code 1886, §1856; Code 1896, §1052; Code 1907, §3429; Code 1923, §6934; Code 1940, T. 47, §82.)
When a power to dispose of lands is confined to a disposition by devise or will, the instrument of execution must be by will, duly executed as wills of real estate are required by law.
(Code 1852, §1332; Code 1867, §1602; Code 1876, §2211; Code 1886, §1857; Code 1896, §1053; Code 1907, §3430; Code 1923, §6935; Code 1940, T. 47, §83.)
When the donor of a power has directed it to be executed by an instrument not sufficient in law to pass the estate, the power is not void but may be executed by an instrument sufficient to pass such estate.
(Code 1852, §1333; Code 1867, §1603; Code 1876, §2212; Code 1886, §1858; Code 1896, §1054; Code 1907, §3431; Code 1923, §6936; Code 1940, T. 47, §84.)
When a disposition under a power is directed to be made by, between or among several persons, without specifying the sum or share to be allotted to each, all the persons designated are entitled to an equal proportion; but when the terms of the power import that the estate or fund is to be distributed between the persons so designated, in such manner or proportion as the trustee of the power may think proper, the distribution or apportionment made by such trustee cannot be impeached on the ground that it is unsubstantial, illusory, or nominal.
(Code 1852, §1334; Code 1867, §1604; Code 1876, §2213; Code 1886, §1859; Code 1896, §1055; Code 1907, §3432; Code 1923, §6937; Code 1940, T. 47, §85.)
If the trustee of a power, with the right of selection, dies, leaving the power unexecuted, its execution may be ordered for the equal benefit of all the persons designated as the objects of the trust.
(Code 1852, §1335; Code 1867, §1605; Code 1876, §2214; Code 1886, §1860; Code 1896, §1056; Code 1907, §3433; Code 1923, §6938; Code 1940, T. 47, §86.)
When the consent of a third person to the execution of a power is requisite, such consent must be expressed in the instrument by which the power is executed or must be certified in writing thereon; in the first case, the instrument and in the second, the writing must be signed by the party whose consent is required.
(Code 1852, §1336; Code 1867, §1606; Code 1876, §2215; Code 1886, §1861; Code 1896, §1057; Code 1907, §3434; Code 1923, §6939; Code 1940, T. 47, §87.)
When a disposition under an appointment or a power is directed to be made to or among the children of any person, without restricting it to any particular children, it may be exercised in favor of the grandchildren or other descendants of such person.
(Code 1852, §1337; Code 1867, §1607; Code 1876, §2216; Code 1886, §1862; Code 1896, §1058; Code 1907, §3435; Code 1923, §6940; Code 1940, T. 47, §88.)
Every power, beneficial or in trust, is irrevocable, unless an authority to revoke it is contained or reserved in the instrument creating the power.
(Code 1852, §1338; Code 1867, §1608; Code 1876, §2217; Code 1886, §1863; Code 1896, §1059; Code 1907, §3436; Code 1923, §6941; Code 1940, T. 47, §89.)
(a) Any power which is exercisable by deed, by will, by deed or will, or otherwise, whether general or special, other than a power in trust which is imperative, is releasable, either with or without consideration, by written instrument signed by the grantee and delivered as provided in this section.
(b) A power which is releasable may be released with respect to the whole or any part of the property subject to such power and may also be released in such manner as to reduce or limit the persons or objects, or classes of persons or objects, in whose favor such power would otherwise be exercisable. No release of a power shall be deemed to make imperative a power which was not imperative prior to such release unless the instrument of release expressly so provides.
(c) Such release may be delivered to any of the following:
(1) Any person specified for such purpose in the instrument creating the power.
(2) Any trustee of the property to which the power relates.
(3) Any person, other than the grantee, who could be adversely affected by an exercise of the power.
(4) The judge of probate of the county in which the grantee resides or has a place of business or in which the deed, will, or other instrument creating the power is filed, for recording as provided by law with reference to the recording of deeds.
(d) This section shall apply to releases hereafter delivered and also to releases delivered heretofore but on or after July 1, 1942.
(Acts 1945, No. 67, p. 64.)
Where lands are devised to one or more executors, or a naked power given by the will to sell, the survivor or survivors, where there are more than one named in the will, and the acting executor or executors, when any one or more of them dies, resigns, refuses to act, or is removed by a court of competent authority, and also an administrator with the will annexed has the same interest in and power over such lands for the purpose of making sale thereof as the executors named in such will might have had. Unless the contrary clearly appears by the terms of the will, it shall be presumed that the power or trust imposed is not a personal trust or confidence.
(Code 1852, §1339; Code 1867, §1609; Code 1876, §2218; Code 1886, §1864; Code 1896, §1060; Code 1907, §3437; Code 1923, §6942; Code 1940, T. 47, §90.)
When a power is vested in several persons and, previous to the execution, one or more of such persons dies, it may be executed by the survivor or survivors.
(Code 1852, §1340; Code 1867, §1610; Code 1876, §2219; Code 1886, §1865; Code 1896, §1061; Code 1907, §3438; Code 1923, §6943; Code 1940, T. 47, §91.)
Every special and beneficial power is liable to the claims of creditors, and the execution of the same may be ordered for their benefit.
(Code 1852, §1341; Code 1867, §1611; Code 1876, §2220; Code 1886, §1866; Code 1896, §1062; Code 1907, §3439; Code 1923, §6944; Code 1940, T. 47, §92.)
The provisions of this article in relation to powers do not extend to a simple power of attorney to convey lands in the name and for the benefit of the owner.
(Code 1852, §1342; Code 1867, §1612; Code 1876, §2221; Code 1886, §1867; Code 1896, §1063; Code 1907, §3440; Code 1923, §6945; Code 1940, T. 47, §93.)
In all cases of written agreements or contracts for the conveyance of lands in this state, where the person executing the same dies before the execution of the conveyance, the personal representative of such person may execute such conveyance according to the forms prescribed by law for the conveyance of real estate to the person to whom such agreement or contract was made, his heirs or assigns.
(Code 1852, §1345; Code 1867, §1615; Code 1876, §2224; Code 1886, §1871; Code 1896, §1069; Code 1907, §3441; Code 1923, §6946; Code 1940, T. 47, §36.)
If the personal representative refuses to execute the conveyance in the case provided for in Section 35-4-320, he may be compelled so to do by application to the judge of probate of the county in which letters testamentary or of administration were granted.
(Code 1852, §1346; Code 1867, §1616; Code 1876, §2225; Code 1886, §1872; Code 1896, §1070; Code 1907, §3442; Code 1923, §6947; Code 1940, T. 47, §37.)
Such application must be by petition, setting out the contract or agreement, the lands to be conveyed and stating the names of the heirs and personal representatives of the contracting party, which of them are of full age and which are minors; and the judge of probate must give notice of such petition by 20 days’ written notice to the personal representative and resident heirs of the contracting party, to be served by any sheriff and, if any one or more are nonresidents, by publication in some newspaper published in his county and in the county in which the lands lie; or, if none is published therein, the paper published in the place nearest to the county site of such county, once a week for three successive weeks; and if, on the hearing of such application, it appears that such agreement or contract was fairly made and the consideration or conditions of the same paid or performed, such judge must decree the conveyance to be executed by the personal representative of the party so contracting, according to the terms thereof; and such personal representative, failing to execute such conveyance in conformity with such decree, must be imprisoned until he executes the same; either party having the right to appeal as on other final judgments and decrees of the probate court.
(Code 1852, §1347; Code 1867, §1617; Code 1876, §2226; Code 1886, §1873; Code 1896, §1071; Code 1907, §3443; Code 1923, §6948; Code 1940, T. 47, §38.)
In all cases in which minor heirs are interested in such application, notice thereof must be given to the guardian; and, if there is no guardian, the judge must appoint a guardian ad litem to protect their interest.
(Code 1852, §1348; Code 1867, §1618; Code 1876, §2227; Code 1886, §1874; Code 1896, §1072; Code 1907, §3444; Code 1923, §6949; Code 1940, T. 47, §39.)
A majority of the trustees or any other authorized agent of any literary society, social society, Young Men’s Christian Association, or Young Women’s Christian Association may convey the title to all or any part of the real estate belonging to it by deed executed by a majority of the trustees or by any other authorized agent.
(Acts 1923, No. 374, p. 397; Code 1923, §6950; Code 1940, T. 47, §40.)
(a) Before such deed may be executed, a majority of the board of trustees of the literary society, social society, Young Men’s Christian Association, or Young Women’s Christian Association shall first recommend the execution of said deed and submit the proposition to a called meeting of the adult members of such literary society, social society, Young Men’s Christian Association, or Young Women’s Christian Association, such meeting to be assembled after 10 days’ notice of the time, place and object of such meeting, posted at the usual place of assembly and published by notice signed by a majority of such trustees in some newspaper published in the county where such literary society, social society, Young Men’s Christian Association, or Young Women’s Christian Association is situated or has its principal office; and, if a majority of the adult members present at such meeting shall vote in favor of the proposition, then a majority of the board of trustees or such agent as may be designated at such meeting shall execute a deed conveying the title to the real estate which they are authorized by such meeting to convey.
(b) A certified copy of the minutes of such meeting shall be prima facie evidence of the authority of the trustees or such other agent as may have been designated at such meeting to execute said conveyance and that a majority of the adult members were present at such meeting. Said certified copy must be made by the secretary of said meeting and attested by the chairman as a true copy, and acknowledged by them to be a true copy before some officer authorized to take acknowledgments, and said copy may be recorded in the office of the judge of probate of the county where the property is situated and, when recorded, shall be notice of the matters therein set forth and prima facie evidence thereof.
(Acts 1923, No. 374, p. 397; Code 1923, §§6951, 6952; Code 1940, T. 47, §§41, 42.)
The provisions of this article shall apply to the conveyance of real estate heretofore acquired or that may be hereafter acquired by such literary society, social society, Young Men’s Christian Association, or Young Women’s Christian Association.
(Acts 1923, No. 374, p. 397; Code 1923, §6953; Code 1940, T. 47, §43.)
Nothing in this article shall prevent any literary society, social society, Young Men’s Christian Association, or Young Women’s Christian Association from retaining a vendor’s lien on the property conveyed, nor from taking a mortgage to secure the balance of the purchase money nor from making an agreement as to the payment of the purchase money and the conditions of the sale.
(Acts 1923, No. 374, p. 397; Code 1923, §6953; Code 1940, T. 47, §43.)
This article shall not be construed as prescribing the exclusive way in which any literary society, social society, Young Men’s Christian Association, or Young Women’s Christian Association may convey their real estate or the manner in which they may execute conveyances.
(Acts 1923, No. 374, p. 397; Code 1923, §6953; Code 1940, T. 47, §45.)
(a) In all conveyances of standing timber by deed or other instrument, wherein no provision is made as to when the grantee shall cut and remove the timber, the grantee shall have 10 years in which to do so.
(b) In all conveyances of standing timber by deed or other instrument wherein it is stipulated that the grantee is to have a reasonable time in which to cut and remove the timber, 10 years shall be deemed a reasonable time.
(Acts 1919, No. 580, p. 836; Code 1923, §§6956, 6957; Code 1940, T. 47, §§46, 47.)
In all conveyances of standing timber, by deed or other instrument, containing no stipulation as to a right-of-way over and across the lands on which the timber is situated, the grantee shall have a free right-of-way over and across said lands for the purpose of cutting and removing the timber, provided he does not injure any crops growing thereon or do any unnecessary damage to the lands or timber not included in the contract.
(Acts 1919, No. 580, p. 836; Code 1923, §6958; Code 1940, T. 47, §48.)
In all conveyances of standing timber, by deed or other instrument, unless otherwise provided in said deed or other instrument, the title to all timber not cut and removed within 10 years from the date of the deed or other instrument conveying the same, or at the expiration of the time limit agreed upon by the parties, shall revert to the grantor or grantors.
(Acts 1919, No. 580, p. 836; Code 1923, §6959; Code 1940, T. 47, §49.)
All standing timber and trees, and cutting rights with respect thereto, while owned by or mortgaged to anyone other than the owner of the land upon which such timber or trees are located, under or by virtue of any conveyance, mortgage, or other instrument executed hereafter by the owner or owners of the entire fee simple title to the timber or trees or by the owner or owners of the full cutting rights with respect thereto shall be and shall be considered as chattels and not real property, or any interest therein, in all instances where the right or obligation to cut and remove such timber or trees is limited to a period not exceeding 10 years from the date of the conveyance, mortgage, or other instrument transferring such timber or trees, or rights with respect thereto.
(Acts 1951, No. 575, p. 1027.)
(a) The Commissioner of Conservation and Natural Resources by and with the approval of the Governor may lease the salt springs and lands granted to the state under the second clause of the sixth section of the act of Congress of March 2, 1819, to the best advantage, in conformity with the provisions of the grant or any amendment thereto, and may sell the timber on said lands or any part thereof whenever he shall deem it to the best interest of the state to do so.
(b) The Commissioner of Conservation and Natural Resources, by and with the approval of the Governor, on behalf of the state, is hereby authorized to lease upon such terms as he may approve, the lands granted to the state under the second clause of the sixth section of the act of Congress of March 2, 1819, or any right or interest therein for the purpose of exploring for and mining or producing therefrom oil, gas, or other minerals.
(c) If oil, gas, or other minerals or products are mined, produced, or taken from any of the lands mentioned in subsection (a) hereof, the state’s share of such production which may accrue to it under the terms of the leases authorized in this article may be taken in kind and sold on such terms as the Commissioner of Conservation and Natural Resources may deem to be to the best interest of the state, which delivery in kind and sale shall be approved in writing by the Governor.
(Code 1852, §549; Code 1867, §621; Code 1876, §526; Code 1886, §639; Code 1896, §2695; Code 1907, §883; Acts 1919, No. 28, p. 29; Code 1923, §1494; Code 1940, T. 47, §50; Acts 1945, No. 223, p. 348.)
The Governor may sell the right to quarry limestone and clays necessary or proper for the manufacture of cement upon the following lands: Sections 21 and 28, township 5 N., range 2 E., or any part thereof. He may sell the said rights for such price and upon such terms as to him appear just and reasonable. The sale of such rights shall confer upon the purchaser landing privileges, all necessary rights-of-way for the purpose of quarrying the material and moving the same, and all rights and privileges which are necessary for the enjoyment of the rights granted; but the state shall retain possession of the lands and have the right to the use and enjoyment thereof for every other purpose whatever.
(Code 1907, §884; Code 1923, §1495; Code 1940, T. 47, §51.)
All conveyances of real estate made by any department, commission, or other agency of the state, when the legal title to any property is vested in any department, commission, or other agency of the state, shall be invalid and void unless approved in writing by the Governor on the face of such conveyance.
(Acts 1931, No. 563, p. 663; Code 1940, T. 47, §54.)
(a) All leases, contracts of exchange, or other dispositions of real estate for more than one year made by any department, commission, or other agency of the State of Alabama shall be invalid and void unless approved in writing by the Governor on the face thereof.
(b) The Governor, on behalf of the state, is hereby authorized to lease, upon such terms as he may approve, any lands or interest therein owned by the state, including lands or any right or interest therein under any navigable stream or navigable waters, bays, estuaries, lagoons, bayous or lakes, and the shores along any navigable waters to ordinary high-tide mark, and lands under navigable waters within the three-mile limit from the shore line of any county or counties in Alabama for the exploration, development, and production of oil, gas, and other minerals, or any one or more of them, on, in, and under such lands. Any lease executed under the provisions of this section may authorize the lessee to pool or unitize the lease, the lands or minerals covered thereby, or any part thereof, with other lands, leases, or mineral estates, or parts thereof, upon such terms as the Governor may approve.
(c) The Governor is hereby authorized to execute upon such terms as he may approve:
(1) Pooling or unitization agreements affecting oil, gas, and other minerals, or any one or more of them, on, in, and under lands owned by the state of Alabama so as to pool or unitize such interests in oil, gas, and other minerals, or any one or more of them, with similar interests in other lands; and
(2) Agreements amending existing leases so as to authorize the lessee to pool or unitize the lease, the lands, or minerals covered thereby, or any part thereof, with other leases, lands, or mineral estates or parts thereof.
(Acts 1931, No. 563, p. 663; Code 1940, T. 47, §55; Acts 1951, No. 639, p. 1094, §1.)
Any state institution including schools, colleges, or other educational institutions which may own or be entitled to any contingent interest in any real estate situated in the State of Alabama, whether such interest is derived through a will or otherwise, is hereby authorized to sell or otherwise dispose of such contingent interest upon such terms and for such price as the managing head of such institution may deem fair and just; provided, that such sale shall be approved by the executive committee of the board of trustees, of such institution, if such institution has a board of trustees; provided further, that in the event such institution shall not have a board of trustees or there shall not be in existence an executive committee of such board of trustees, then such sale or disposition shall be approved by the Governor and the Attorney General. In the event of any such sale or disposition of any such interest, such institution is hereby authorized and empowered to execute to the purchaser a conveyance or conveyances of such interest sold or disposed of, and the said conveyance or conveyances shall be executed in the name of such institution by the presiding officer of its board of trustees, or in the name of the State of Alabama, by the Governor of Alabama; and the execution of the same shall be attested by the secretary of such board of trustees in the event the same is executed by the presiding officer of such board of trustees; or in the event that such conveyance is executed by the Governor, the same shall be attested by the Secretary of State, and the seal of the State of Alabama shall be affixed thereto.
(Acts 1927, No. 29, p. 32; Code 1940, T. 47, §56.)
When any department of the state, having power and authority to obtain and negotiate a sale of any lands claimed or owned by the state, shall certify to the Governor that such sale has been obtained and negotiated, that all requirements of law with respect to such sale have been complied with and such sale is concurred in by the Governor, the Governor may cause a patent to issue under the seal of the state, signed by the Governor and attested by the Secretary of State, conveying such property. The recitals contained in said conveyance shall be conclusive evidence that all requirements for the issuance thereof have been complied with.
(Code 1852, §1350; Code 1867, §1620; Code 1876, §2228; Code 1886, §1875; Code 1896, §2699; Code 1907, §888; Code 1923, §1498; Code 1940, T. 47, §57.)
Where patents for public lands have been or may be issued pursuant to any law of the State of Alabama to a person who has died before the date of such patent, the title to the land designated therein shall enure to and become vested in the heirs, devisees, or those who have succeeded to the interest of such deceased patentee as if the patent had issued to the deceased person during life.
(Acts 1961, No. 891, p. 1405.)
The Secretary of State must record, in well-bound books, all grants and patents issued by the state.
(Code 1852, §1351; Code 1867, §1621; Code 1876, §2229; Code 1886, §1876; Code 1896, §2700; Code 1907, §889; Code 1923, §1499; Code 1940, T. 47, §58.)
All purchasers of real property belonging to this state, their heirs and assigns, except in cases otherwise provided by this Code, are entitled to receive a patent therefor on producing to the Secretary of State a certificate signed by the State Treasurer that the amount due for such real estate has been paid into the State Treasury.
(Code 1852, §1352; Code 1867, §1622; Code 1876, §2230; Code 1886, §1877; Code 1896, §2701; Code 1907, §890; Code 1923, §1500; Code 1940, T. 47, §59.)
The Governor may issue patents to the purchasers of swamp and overflowed lands or lands in lieu of swamp and overflowed lands which were made prior to October 10, 1903, and which may have been patented to this state, or which may hereafter be so patented, upon satisfactory proof being made to him that such lands have been fully paid for in money or in scrip sold and transferred by him and authorized by the acts of Congress to be received in payment for such lands.
(Code 1896, §2702; Code 1907, §891; Code 1923, §1501; Code 1940, T. 47, §60.)
All conveyances of land owned or claimed by the state made by the Governor in the name of the state prior to August 17, 1924, are hereby ratified and confirmed as valid conveyances of such lands to the purchasers or grantees thereof.
(Acts 1923, No. 44, p. 26; Code 1923, §6852; Code 1940, T. 47, §61.)
When it is made to appear to the satisfaction of the Attorney General, by the owner or claimant of any land owned or claimed by the state, that such land has been previously conveyed by the state, and the original conveyance or a duly certified copy thereof cannot be located or obtained, or that the state has lost its interest in such land by adverse possession, a conveyance may be executed to the purchaser, owner, or claimant in the manner authorized in Section 35-4-385.
(Code 1923, §6851; Acts 1931, No. 592, p. 674; Code 1940, T. 47, §62.)
(a) WHEREAS, on December 13, 1982, the state issued to the university a patent to certain lands in Mobile County, herein called “the patent,” covering the following described property in Mobile County, Alabama, to wit:
Beginning at Alabama West Zone Coordinates Y = 118,606.82; X = 296,291.22 which point is on or near the intersection of the North line of Section 26, Township 8 South, Range 2 West and the East Shore line of Heron Bay, thence run North 77 degrees 54 minutes 52 seconds West a distance of 3883.84 feet to a point on the South shore line of Mon Louis Island, (Y = 119,419.98; X = 292,493.47) thence run due South a distance of 20,071.04 feet to coordinates Y = 99,348.94; X = 292,493.47 which point is in the Mississippi Sound, thence run North 79 degrees - 40 minutes - 28 seconds East a distance of 7805.85 feet to coordinates Y = 100,748.05; X = 300,172.90 which point is in the Mississippi Sound, thence run North 26 degrees - 35 minutes - 34 seconds East a distance of 4,273.18 feet to coordinates Y = 104,569.17; X = 302,085.78 which point is on the center line of Dauphin Island Bridge (Alabama Highway No. 163) at station 106 + 53.04, thence run South 67 degrees - 50 minutes - 12 seconds East a distance of 2358.05 feet to point No. L-D-3 as shown on the plat of Harbor Lines, Dauphin Island and Little Dauphin Island as recorded in Real Property Book 617, Page 610, in the Office of the Judge of Probate of Mobile County, Alabama, thence run South 53 degrees - 14 minutes - 12 seconds East along the Harbor Line of Little Dauphin Island a distance of 12,522.99 feet to coordinates Y = 96,184.54; X = 314,302.02 which point is in Mobile Bay, thence run due North a distance of 8815.46 feet to coordinates Y = 105,000.00; X = 314,302.02 which point is in Mobile Bay, thence run due West a distance of 7151.01 feet to coordinates Y = 105,000.00; X = 307,151.01 which point is in Mobile Bay, thence run due North a distance of 15,000.00 feet to coordinates Y = 120,000.00; X = 307,151.01, which point is in Mobile Bay, thence run due East a distance of 834.76 feet to coordinates Y = 120,000.00; X = 307,985.77, which point is in Mobile Bay, thence run due North a distance of 5945.61 feet to coordinates Y = 125,945.61; X = 307,985.77, which point is in Mobile Bay, thence run due West a distance of 4646.75 feet to a point on the West shore line of Mobile Bay and the East shore line of Mon Louis Island (Y = 125,945.61; X = 303,339.02) thence run Southwestwardly along the meanders of said East shore line of Mon Louis Island to coordinates Y = 120,000.00; X = 300,000.00, (chord bears South 29 degrees - 19 minutes - 06 seconds West a distance of 6819.04 feet) thence continue Southwestwardly along the meanders of the East shore line of Mon Louis Island to coordinates Y = 113,374.12; X = 298,664.12, which point is on station 11 + 69 more or less on the Northwest corner of Dauphin Island Bridge at Cedar Point (Alabama Highway No. 163) (chord bears South 11 degrees 23 minutes 56 seconds West a distance of 6759.21 feet) thence run Northwestwardly along the meanders of the West shore line of Cedar Point (Mon Louis Island) to coordinates Y = 116,364.22; X = 296,862.69 (chord bears North 31 degrees - 04 minutes - 03 seconds West a distance of 3490.82 feet) thence continue Northwestwardly along the meanders of said Cedar Point (Mon Louis Island) to the point of beginning (Y = 118,606.82; X = 296,291.22) chord bears North 14 degrees - 17 minutes - 45 seconds West a distance of 2314.27 feet) containing 7,664 acres more or less
and which lands are hereinafter referred to as “the subject property”; and
WHEREAS, by conveyance, the university on July 11, 1983, transferred and conveyed to the foundation all of its right, title, claim, or interest in the subject property arising under the patent; and
WHEREAS, the Legislature then passed an act attempting to void the patent; and
WHEREAS, the foundation then filed suit to have that act declared void as unconstitutional under the United States and Alabama Constitutions; and
WHEREAS, the state has heretofore disputed the validity of the patent, and, by reason of such dispute, the university and the foundation have heretofore commenced certain legal proceedings seeking to quiet title to the subject property in the foundation, and seeking other relief, which proceedings are presently pending in the Supreme Court of Alabama as Case No. 83-1405, and in the United States District Court for the Southern District of Alabama, Southern Division, as Cases Nos. 83-1218-H and 83-1397-H, all of which are herein sometimes called the “pending cases”; and
WHEREAS, on June 11, 1984, the Circuit Court of Montgomery County, Alabama, entered a judgment in Case No. CV 83-1242 declaring the patent to be null and void; and
WHEREAS, the foundation within the time permitted by law filed an appeal from the said judgment in the Circuit Court of Montgomery County to the Supreme Court of Alabama which such appeal (Case No. 83-1405) is presently pending before and unresolved by the Supreme Court of Alabama; and
WHEREAS, the foundation continues to claim that it is the owner of certain property rights or interests in the subject property arising from the patent, and the state continues to claim that the patent is void and of no effect; and
WHEREAS, the state has acknowledged that the decisions which may result from the said appeal, now pending before the Supreme Court of Alabama and from the two actions presently pending in the United States District Court for the Southern District of Alabama, above described, cannot presently be predicted with certainty; and
WHEREAS, the university and the foundation wish to make provision for the conclusion of all litigation relating to the validity of the patent and other issues surrounding the subject property, and to resolve all disputes relating thereto and, at the earliest possible date, to make the subject property available for leasing for the purpose of exploration for and production of oil, gas, and hydrocarbon minerals:
It is the intent of the Legislature by the adoption of this section that the State of Alabama, by and through the Governor of the state, shall forthwith conclude by settlement all pending litigation between and among the State of Alabama, the University of South Alabama, and the University of South Alabama Foundation, and all issues related thereto.
(b) As an inducement to such settlement, the University of South Alabama Foundation may be allowed to retain such a right in the subject property as will authorize it to receive, directly from any lessee thereof, a percentage of the proceeds or revenues from oil, gas, or other hydrocarbon mineral leases, bonuses, delay rentals, and royalties, which may arise from or be generated by the subject property.
(c) The Governor of the State of Alabama is hereby authorized and empowered to take all steps on behalf of the State of Alabama to conclude by settlement all pending cases involving directly or indirectly the validity of the patent, wherein the University of South Alabama, and the University of South Alabama Foundation are parties litigant, provided, however, (1) that in no case shall the foundation be allowed to retain a right in the said oil, gas, or other hydrocarbon mineral proceeds or revenues from the subject property in excess of a net of 28.5 percent, and (2) that upon such settlement, all right, title, claim, or interest in and to the subject property, under the patent, except the right herein authorized to be retained by the Foundation, shall be transferred and conveyed by the University of South Alabama and the University of South Alabama Foundation to the State of Alabama.
(Acts 1985, 2nd Ex. Sess., No. 85-795, p. 39.)
The governing bodies of counties, cities, towns, and other subdivisions of the state shall have full power and authority to alienate public parks and playgrounds, other public recreational facilities and public housing projects on such terms as may be agreeable to them, provided such alienation is first approved by a majority of the qualified electors of the county, city, town, or subdivision affected thereby voting in a referendum election held for such purpose.
(Acts 1956, 2nd Ex. Sess., No. 103, p. 425, §1.)
When the county commission, or the council or like governing body of a city or town, or governing body of any other subdivision determines to alienate any public improvement described in Section 35-4-410, it shall adopt a resolution or ordinance to that effect, describing the nature and extent of the proposed conveyance and the minimum consideration therefor, if any. The ordinance or resolution shall be published once a week for four consecutive weeks in some newspaper published in the county, city, or town, and, if no newspaper is published therein, it may be published in a newspaper having general circulation in the county, city, or town.
(Acts 1956, 2nd Ex. Sess., No. 103, p. 425, §2; Acts 1994, No. 94-480, p. 797, §1.)
The county or municipal governing body shall provide for a referendum election to be held on the proposal made in the resolution or ordinance, and the resolution or ordinance shall be effective only in the event the proposal is approved by a majority of the qualified electors of the county, city, town or other subdivision affected thereby voting in such referendum election.
(Acts 1956, 2nd Ex. Sess., No. 103, p. 425, §3.)
The Legislature finds and declares that the public policy of this state favors the marketability of real property and the transferability of interests in real property free of title defects or unreasonable restraints on alienation. The Legislature further finds and declares that private transfer fee obligations violate this public policy by impairing the marketability and transferability of real property and by constituting an unreasonable restraint on alienation regardless of the duration of the obligation to pay a private transfer fee, the amount of a private transfer fee, or the method by which any private transfer fee is created or imposed. Thus, the Legislature finds and declares that a private transfer fee obligation should not run with the title to property or otherwise bind subsequent owners of property under any common law or equitable principle.
(Act 2011-260, p. 474, §1.)
(a) As used in this article, the following words have the following meanings:
(1) ASSOCIATION. An association or unit owners’ association, as defined in Section 35-8A-103 of the Alabama Uniform Condominium Act of 1991; an association as defined in Section 35-8-2 of the Condominium Ownership Act; or a nonprofit or cooperative membership organization composed exclusively of owners of mobile homes, manufactured housing, time-shares, camping resort interests, or other interests in real property that is responsible for the maintenance, improvements, services, or expenses related to real property that is owned, used, or enjoyed in common by the members.
(2) PAYEE. The person or entity who claims the right to receive or collect a private transfer fee payable under a private transfer obligation. A payee may or may not have a pecuniary interest in the private transfer fee obligation.
(3) PRIVATE TRANSFER FEE. A fee or charge payable upon the transfer of an interest in real property, or payable for the right to make or accept such transfer, regardless of whether the fee or charge is a fixed amount or is determined as a percentage of the value of the property, the purchase price, or other consideration given for the transfer. The following are not private transfer fees for purposes of this article:
a. Any consideration payable by the grantee to the grantor for the interest in real property being transferred, including any subsequent additional consideration for the property payable by the grantee based upon any subsequent appreciation, development, or sale of the property, if such additional consideration is payable on a one-time basis only and the obligation to make such payment does not bind successors in title to the property. For the purposes of this paragraph, an interest in real property may include a separate mineral estate and its appurtenant surface access rights.
b. Any commission payable to a licensed real estate broker for the transfer of real property pursuant to an agreement between the broker and the grantor or the grantee, including, but not limited to, any subsequent additional commission for that transfer payable by the grantor or the grantee based upon any subsequent appreciation, development, or sale of the property.
c. Any interest, charges, fees, or other amounts payable by a borrower to a lender pursuant to a loan secured by a mortgage against real property, including, but not limited to, any fee payable to the lender for consenting to an assumption of the loan or a transfer of the real property subject to the mortgage, any fees or charges payable to the lender for estoppel letters or certificates, and any shared appreciation interest or profit participation or other consideration and payable to the lender in connection with the loan.
d. Any rent, reimbursement, charge, fee, or other amount payable by a lessee to a lessor under a lease, including, but not limited to, any fee payable to the lessor for consenting to an assignment, subletting, encumbrance, or transfer of the lease.
e. Any consideration payable to the holder of an option to purchase an interest in real property or the holder of a right of first refusal or first offer to purchase an interest in real property for waiving, releasing, or not exercising the option or right upon the transfer of the real property to another person.
f. Any tax, fee, charge, assessment, fine, or other amount payable to or imposed by a governmental authority.
g. Any fee, charge, assessment, dues, fine, contribution, or other amount payable to a homeowners’, condominium, cooperative, mobile home, or property owners’ association pursuant to a declaration or covenant or law applicable to such association, including, but not limited to, fees or charges payable for estoppel letters or certificates issued by the association or its authorized agent.
h. Any fee, charge, assessment, dues, fine, contribution, or other amount imposed by a declaration or covenant encumbering real property, and payable solely to a nonprofit or charitable organization for the purpose of supporting cultural, educational, charitable, recreational, environmental, conservation, or other similar activities benefitting the real property subject to the declaration or covenant or the community in which such real property is located.
i. Any fee, charge, assessment, dues, fine, contribution, or other amount pertaining solely to the purchase or transfer of a club membership relating to real property owned by the member, including, but not limited to, any amount determined by reference to the value, purchase price, or other consideration given for the transfer of the real property.
(4) PRIVATE TRANSFER FEE OBLIGATION. An obligation arising under a declaration or covenant recorded against the title to real property, or under any other contractual agreement or promise, whether or not recorded, that requires or purports to require the payment of a private transfer fee upon a subsequent transfer of an interest in the real property.
(5) TRANSFER. The sale, gift, conveyance, assignment, inheritance, or other transfer of an ownership interest in real property located in this state.
(Act 2011-260, p. 474, §1.)
A private transfer fee obligation recorded or entered into in this state on or after May 25, 2011, does not run with the title to real property and is not binding on or enforceable at law or in equity against any subsequent owner, purchaser, or mortgagee of any interest in real property as an equitable servitude or otherwise. Any private transfer fee obligation that is recorded or entered into in this state on or after May 25, 2011, is void and unenforceable. This section does not create a presumption that a private transfer fee obligation recorded or entered into in this state before May 25, 2011, is valid and enforceable.
(Act 2011-260, p. 474, §1.)
(a) Any person who records or enters into an agreement imposing a private transfer fee obligation in his or her favor after May 25, 2011, shall be liable for:
(1) Any and all damages resulting from the imposition of the private transfer fee obligation on the transfer of an interest in the real property, including, but not limited to, the amount of any transfer fee paid by a party to the transfer.
(2) All attorney fees, expenses, and costs incurred by a party to the transfer or mortgagee of the real property to recover any private transfer fee paid or in connection with an action to quiet title.
(b) Where an agent acts on behalf of a principal to record or secure a private transfer fee obligation, liability shall be assessed to the principal, rather than the agent.
(Act 2011-260, p. 474, §1.)
(a) Any contract for the sale of real property subject to a private transfer fee obligation shall include a provision disclosing the existence of that obligation, a description of the obligation, and a statement that private transfer fee obligations are subject to certain prohibitions under this article. A contract for sale of real property which does not conform to the requirements of this section is not enforceable by the seller against the buyer, nor is the buyer liable to the seller for damages under such a contract, and the buyer under the contract is entitled to the return of all deposits made in connection with the sale of the real property.
(b) Where a private transfer fee obligation is not disclosed under subsection (a) and a buyer subsequently discovers the existence of the private transfer fee obligation after title to the property has passed to the buyer, the buyer has the right to recover both:
(1) Any and all damages resulting from the failure to disclose the private transfer fee obligation, including, but not limited to, the amount of any private transfer fee paid by the buyer, or the difference between:
a. The market value of the real property if it were not subject to a private transfer fee obligation.
b. The market value of the real property as subject to a private transfer fee obligation.
(2) All attorney fees, expenses, and costs incurred by the buyer in seeking the buyer’s remedies under this subsection.
(c) Any provision in a contract for sale of real property that purports to waive the rights of a buyer under this section is void.
(d) A real estate licensee shall have no duty to discover the existence of any private transfer fee obligation.
(Act 2011-260, p. 474, §1.)
(a) The payee of a private transfer fee obligation imposed prior to May 25, 2011, shall record, prior to December 31, 2011, against the real property subject to the private transfer fee obligation, a separate document in the office of the judge of probate for each county in which the real property is located which complies with all of the following requirements:
(1) The title of the document shall be “Notice of Private Transfer Fee Obligation” in at least 14-point boldface type.
(2) The amount, if the private transfer fee is a flat amount, or the percentage of the sales price constituting the cost of the private transfer fee, or such other basis by which the private transfer fee is to be calculated.
(3) If the real property is residential property, actual dollar-cost examples of the private transfer fee for a home priced at two hundred fifty thousand dollars ($250,000), five hundred thousand dollars ($500,000), and seven hundred fifty thousand dollars ($750,000).
(4) The date or circumstances under which the private transfer fee obligation expires, if any.
(5) The purpose for which the funds from the private transfer fee obligation will be used.
(6) The name of the payee and specific contact information regarding where the funds are to be sent.
(7) The acknowledged signature of the payee, or a representative of the payee.
(8) The legal description of the real property purportedly burdened by the private transfer fee obligation.
(9) Where there is more than one person or entity who claims the right to receive or collect a private transfer fee under a private transfer fee obligation, those persons or entities shall designate a single person or entity as the payee for purposes of that private transfer fee obligation.
(b) The payee may file an amendment to the notice of private transfer fee containing new contact information, but such amendment must contain the recording information of the notice of private transfer fee which it amends and the legal description of the real property burdened by the private transfer fee obligation.
(c) If a payee fails to file the notice required under subsection (a) prior to December 31, 2011, the grantor or any real property burdened by the private transfer fee obligation may proceed with the conveyance of an interest in the real property to any grantee and in so doing shall be conclusively deemed to have acted in good faith and shall not be subject to any obligations under the private transfer fee obligation. In that event, the private transfer fee obligation is void and the real property thereafter shall be conveyed free and clear of the private transfer fee and private transfer fee obligation.
(d) If a payee fails to fully comply with subsection (a) in filing the notice required thereunder, then the grantor, on recording of an affidavit under subsection (e), may convey an interest in the real property to any grantee without payment of the private transfer fee and is not subject to any further obligations under the private transfer fee obligation. In that event, the private transfer fee obligation is void and the real property thereafter shall be conveyed free and clear of the private transfer fee and private transfer fee obligation.
(e) If the payee fails to provide a written statement of the private transfer fee payable within 30 days of the date of a written request for the same sent to the address shown in the notice of private transfer fee, then the grantor, on recording of an affidavit under subsection (f), may convey an interest in the real property to any grantee without payment of the private transfer fee and is not subject to any further obligations under the private transfer fee obligation. In that event, the private transfer fee obligation shall become null and void and the real property thereafter shall be conveyed free and clear of the private transfer fee and private transfer fee obligation.
(f) An affidavit stating the facts enumerated in subsection (g) shall be recorded in the office of the judge of probate for each county in which the real property is situated prior to or simultaneously with a conveyance pursuant to subsection (d) or (e) of real property unburdened by a private transfer fee obligation. An affidavit filed under this subsection shall state that the affiant has actual knowledge of, and is competent to testify to, the facts in the affidavit and shall include the legal description of the real property burdened by the private transfer fee obligation, the name of the person appearing by the record to be the owner of the real property at the time of the signing of the affidavit, a reference, by recording information, to the instrument of record containing the private transfer fee obligation, and an acknowledgment that the affiant is testifying under penalty of perjury.
(g) When recorded, an affidavit filed under subsection (f) is prima facie evidence that either of the following:
(1) The payee has failed to fully comply with subsection (a) in the respects stated in the affidavit.
(2) A request for the written statement of the private transfer fee was sent to the payee at the address shown on the notice of private transfer fee, and the payee failed to provide the written statement of the private transfer fee payable within 30 days of the date of the notice sent to the address shown in the notification.
(Act 2011-260, p. 474, §1.)
This chapter may be cited as the Alabama Uniform Statutory Rule Against Perpetuities.
(Act 2011-532, p. 880, §1.)
(a) A nonvested property interest is invalid unless:
(1) when the interest is created, it is certain to vest or terminate no later than 21 years after the death of an individual then alive; or
(2) the interest either vests or terminates within 100 years after its creation.
(b) A general power of appointment not presently exercisable because of a condition precedent is invalid unless:
(1) when the power is created, the condition precedent is certain to be satisfied or becomes impossible to satisfy no later than 21 years after the death of an individual then alive; or
(2) the condition precedent either is satisfied or becomes impossible to satisfy within 100 years after its creation.
(c) A nongeneral power of appointment or a general testamentary power of appointment is invalid unless:
(1) when the power is created, it is certain to be irrevocably exercised or otherwise to terminate no later than 21 years after the death of an individual then alive; or
(2) the power is irrevocably exercised or otherwise terminates within 100 years after its creation.
(d) In determining whether a nonvested property interest or a power of appointment is valid under subsection (a)(1), (b)(1), or (c)(1), the possibility that a child will be born to an individual after the individual’s death is disregarded.
(e) If, in measuring a period from the creation of a trust or other property arrangement, language in a governing instrument (i) seeks to disallow the vesting or termination of any interest or trust beyond, (ii) seeks to postpone the vesting or termination of any interest or trust until, or (iii) seeks to operate in effect in any similar fashion upon, the later of (A) the expiration of a period of time not exceeding 21 years after the death of the survivor of specified lives in being at the creation of the trust or other property arrangement or (B) the expiration of a period of time that exceeds or might exceed 21 years after the death of the survivor of lives in being at the creation of the trust or other property arrangement, that language is inoperative to the extent it produces a period of time that exceeds 21 years after the death of the survivor of the specified lives.
(Act 2011-532, p. 880, §1.)
(a) Except as provided in subsections (b), (c), and (d) and in Section 35-4A-5, the time of creation of a nonvested property interest or a power of appointment is determined under general principles of property law.
(b) For purposes of this chapter, if there is a person who alone can exercise a power created by a governing instrument to become the unqualified beneficial owner of (i) a nonvested property interest or (ii) a property interest subject to a power of appointment described in Section 35-4A-2(b) or (c), the nonvested property interest or power of appointment is created when the power to become the unqualified beneficial owner terminates.
(c) For purposes of this chapter, a nonvested property interest or a power of appointment arising from a transfer of property to a previously funded trust or other existing property arrangement is created when the nonvested property interest or power of appointment in the original contribution was created.
(d) For purposes of this chapter, if a nongeneral or testamentary power of appointment is exercised to create another nongeneral or testamentary power of appointment, every nonvested property interest or power of appointment created through the exercise of such other nongeneral or testamentary power is considered to have been created at the time of the creation of the first nongeneral or testamentary power of appointment.
(Act 2011-532, p. 880, §1.)
Upon the petition of an interested person, a circuit court shall reform a disposition in the manner that most closely approximates the transferor’s manifested plan of distribution and is within the 100 years allowed by Section 35-4A-2(a)(2), (b)(2), or (c)(2) or the 360 years allowed by Section 35-4A-5(9) if:
(1) a nonvested property interest or a power of appointment becomes invalid under Section 35-4A-2 (statutory rule against perpetuities);
(2) a class gift is not but might become invalid under Section 35-4A-2 (statutory rule against perpetuities) and the time has arrived when the share of any class member is to take effect in possession or enjoyment; or
(3) a nonvested property interest that is not validated by Section 35-4A-2(a)(1) can vest but not within 100 years after its creation or in the case of a trust which meets the requirements of Section 35-4A-5(9), 360 years of its creation.
(Act 2011-532, p. 880, §1.)
Section 35-4A-2, the statutory rule against perpetuities, does not apply to:
(1) a nonvested property interest or a power of appointment arising out of a nondonative transfer, except a nonvested property interest or a power of appointment arising out of (i) a premarital or postmarital agreement, (ii) a separation or divorce settlement, (iii) a spouse’s election, (iv) a similar arrangement arising out of a prospective, existing, or previous marital relationship between the parties, (v) a contract to make or not to revoke a will or trust, (vi) a contract to exercise or not to exercise a power of appointment, (vii) a transfer in satisfaction of a duty of support, or (viii) a reciprocal transfer;
(2) a fiduciary’s power relating to the administration or management of assets, including the power of a fiduciary to sell, lease, or mortgage property, and the power of a fiduciary to determine principal and income;
(3) a power to appoint a fiduciary;
(4) a discretionary power of a trustee to distribute principal before termination of a trust to a beneficiary having an indefeasibly vested interest in the income and principal;
(5) a nonvested property interest held by a charity, government, or governmental agency or subdivision, if the nonvested property interest is preceded by an interest held by another charity, government, or governmental agency or subdivision;
(6) a nonvested property interest in a trust or other property arrangement, which trust or other property arrangement is exclusively for the benefit of one or more charities, governments, or governmental agencies or subdivisions;
(7) a nonvested property interest in or a power of appointment with respect to a trust or other property arrangement forming part of a pension, profit-sharing, stock bonus, health, disability, death benefit, income deferral, or other current or deferred benefit plan for one or more employees, independent contractors, or their beneficiaries or spouses, to which contributions are made for the purpose of distributing to or for the benefit of the participants or their beneficiaries or spouses the property, income, or principal in the trust or other property arrangement, except a nonvested property interest or a power of appointment that is created by an election of a participant or a beneficiary or spouse;
(8) a property interest, power of appointment, or arrangement that was not subject to the common-law rule against perpetuities or is excluded by another statute of this state; or
(9) a trust, (i) which on its terms does not exceed 360 years in duration, (ii) which is governed by the laws of this state, and (iii) the instrument governing which includes a power of the trustee to sell, lease, and mortgage all property held in trust.
(Act 2011-532, p. 880, §1.)
This chapter applies to a nonvested property interest or a power of appointment that is created on or after January 1, 2012. For purposes of this section, a nonvested property interest or a power of appointment created by the exercise of a power of appointment is created when the power is irrevocably exercised or when a revocable exercise becomes irrevocable.
(Act 2011-532, p. 880, §1.)
This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.
(Act 2011-532, p. 880, §1.)
This chapter supersedes the rule of the common law known as the rule against perpetuities.
(Act 2011-532, p. 880, §1.)
This chapter may be cited as the “Alabama Uniform Transfers to Minors Act.”
(Acts 1986, No. 86-453, p. 819, §24.)
As used in this chapter, the following terms shall have the following meanings, respectively, unless the context clearly indicates otherwise:
(1) ADULT. An individual who has attained the age of 21 years.
(2) BENEFIT PLAN. An employer’s plan for the benefit of an employee or partner, or an individual retirement account.
(3) BROKER. A person lawfully engaged in the business of effecting transactions in securities or commodities for the person’s own account or for the account of others.
(4) CONSERVATOR. A person appointed or qualified by a court to act as general, limited, or temporary guardian of a minor’s property or a person legally authorized to perform substantially the same functions.
(5) COURT. Circuit court.
(6) CUSTODIAL PROPERTY.
a. Any interest in property transferred to a custodian under this chapter and
b. The income from and proceeds of that interest in property.
(7) CUSTODIAN. A person so designated under Section 35-5A-10 or a successor or substitute custodian designated under Section 35-5A-19.
(8) FINANCIAL INSTITUTION. A bank, trust company, savings institution, or credit union, chartered and supervised under state or federal law.
(9) LEGAL REPRESENTATIVE. An individual’s personal representative or conservator.
(10) MEMBER OF THE MINOR’S FAMILY. The minor’s parent, stepparent, spouse, grandparent, brother, sister, uncle, or aunt, whether of the whole or half blood or by adoption.
(11) MINOR. An individual who has not attained the age of 21 years.
(12) PERSON. An individual, corporation, organization, or other legal entity.
(13) PERSONAL REPRESENTATIVE. An executor, administrator, successor personal representative, or special administrator of a decedent’s estate or a person legally authorized to perform substantially the same functions.
(14) STATE. Includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.
(15) TRANSFER. A transaction that creates custodial property under Section 35-5A-10.
(16) TRANSFEROR. A person who makes a transfer under this chapter.
(17) TRUST COMPANY. A financial institution, corporation, or other legal entity, authorized to exercise general trust powers.
(Acts 1986, No. 86-453, p. 819, §1.)
(a) This chapter applies to a transfer that refers to this chapter in the designation under section 35-5A-10(a) by which the transfer is made if at the time of the transfer, the transferor, the minor, or the custodian is a resident of this state or the custodial property is located in this state. The custodianship so created remains subject to this chapter despite a subsequent change in residence of a transferor, the minor, or the custodian, or the removal of custodial property from this state. The custodianship so created remains subject to this chapter, even though the custodian so nominated subsequently declines to serve through renunciation or resignation.
(b) A person designated as custodian under this chapter is subject to personal jurisdiction in this state with respect to any matter relating to the custodianship.
(c) A transfer that purports to be made and which is valid under the Uniform Transfers to Minors Act, the Uniform Gifts to Minors Act, or a substantially similar act, of another state is governed by the law of the designated state and may be executed and is enforceable in this state if at the time of the transfer, the transferor, the minor, or the custodian is a resident of the designated state or the custodial property is located in the designated state.
(Acts 1986, No. 86-453, p. 819, §2.)
(a) A person having the right to designate the recipient of property transferable upon the occurrence of a future event may revocably nominate a custodian to receive the property for a minor beneficiary upon the occurrence of the event by naming the custodian followed in substance by the words: “as custodian for ________ (name of minor) under the Alabama Uniform Transfers to Minors Act.” The nomination may name one or more persons as substitute custodians to whom the property must be transferred, in the order named, if the first nominated custodian dies before the transfer or is unable, declines, or is ineligible to serve. The nomination may be made in a will, a trust, a deed, an instrument exercising a power of appointment, or in a writing designating a beneficiary of contractual rights which is registered with or delivered to the payor, issuer, or other obligor of the contractual rights.
(b) A custodian nominated under this section must be a person to whom a transfer of property of that kind may be made under Section 35-5A-10(a).
(c) The nomination of a custodian under this section does not create custodial property until the nominating instrument becomes irrevocable or a transfer to the nominated custodian is completed under Section 35-5A-10. Unless the nomination of a custodian has been revoked, upon the occurrence of the future event the custodianship becomes effective and the custodian shall enforce a transfer of the custodial property pursuant to Section 35-5A-10.
(Acts 1986, No. 86-453, p. 819, §3.)
A person may make a transfer by irrevocable gift to, or the irrevocable exercise of a power of appointment in favor of, a custodian for the benefit of a minor pursuant to Section 35-5A-10.
(Acts 1986, No. 86-453, p. 819, §4.)
(a) A personal representative or trustee may make an irrevocable transfer pursuant to Section 35-5A-10 to a custodian for the benefit of a minor as authorized in the governing will or trust.
(b) If the testator or settlor has nominated a custodian under Section 35-5A-4 to receive the custodial property, the transfer must be made to that person.
(c) If the testator or settlor has not nominated a custodian under Section 35-5A-4, or all persons so nominated as custodian dies before the transfer or are unable, decline, or are ineligible to serve, the personal representative or the trustee, as the case may be, shall designate the custodian from among those eligible to serve as custodian for property of that kind under subsection (a) of Section 35-5A-10.
(Acts 1986, No. 86-453, p. 819, §5.)
(a) Subject to subsection (c), a personal representative or trustee may make an irrevocable transfer to another adult or trust company as custodian for the benefit of a minor pursuant to Section 35-5A-10, in the absence of a will or under a will or trust that does not contain an authorization to do so.
(b) Subject to subsection (c), a conservator may make an irrevocable transfer to another adult or trust company as custodian for the benefit of the minor pursuant to Section 35-5A-10.
(c) A transfer under subsection (a) or (b) may be made only if (1) the personal representative, trustee, or conservator considers the transfer to be in the best interest of the minor, (2) the transfer is not prohibited by or inconsistent with provisions of the applicable will, trust agreement, or other governing instrument, and (3) transfers to a custodian for the benefit of a minor do not exceed $10,000 in aggregated value.
(Acts 1986, No. 86-453, p. 819, §6.)
(a) Subject to subsections (b) and (c), a person not subject to Section 35-5A-6 or 35-5A-7 who holds property of or owes a liquidated debt to a minor not having a conservator may make an irrevocable transfer to a custodian for the benefit of the minor pursuant to Section 35-5A-10.
(b) If a person having the right to do so under Section 35-5A-4 has nominated a custodian under that section to receive the custodial property, the transfer must be made to that person.
(c) If no custodian has been nominated under Section 35-5A-4, or all persons so nominated as custodian die before the transfer or are unable, decline, or are ineligible to serve, a transfer under this section may be made to an adult member of the minor’s family or to a trust company unless the property exceeds fifty thousand dollars ($50,000) in value.
(Acts 1986, No. 86-453, p. 819, §7; Act 2013-250, p. 624, §1.)
A written acknowledgment of delivery by a custodian constitutes a sufficient receipt and discharge for custodial property transferred to the custodian pursuant to this chapter. An acknowledgment of delivery by a custodian, who believes in good faith that the transfer does not exceed the limitations on value prescribed in Sections 35-5A-7(c) and 35-5A-8(c), is a sufficient receipt and discharge in accordance with this section, even though the values may subsequently be determined to exceed the value limitations.
(Acts 1986, No. 86-453, p. 819, §8.)
(a) Custodial property is created and a transfer is made whenever:
(1) An uncertificated security or a certificated security in registered form is either:
a. Registered in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: “as custodian for _____ (name of minor) under the Alabama Uniform Transfers to Minors Act”; or
b. Delivered if in certificated form, or any document necessary for the transfer of an uncertificated security is delivered, together with any necessary endorsement to an adult other than the transferor or to a trust company as custodian, accompanied by an instrument in substantially the form set forth in subsection (b);
(2) Money is paid or delivered to a broker or financial institution for credit to an account in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: “as custodian for ______ (name of minor) under the Alabama Uniform Transfers to Minors Act”;
(3) The ownership of a life or endowment insurance policy or annuity contract is either:
a. Registered with the issuer in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: “as custodian for ______ (name of minor) under the Alabama Uniform Transfers to Minors Act”; or
b. Assigned in a writing delivered to an adult other than the transferor or to a trust company whose name in the assignment is followed in substance by the words: “as custodian for ______ (name of minor) under the Alabama Uniform Transfers to Minors Act”;
(4) An irrevocable exercise of a power of appointment or an irrevocable present right to future payment under a contract is the subject of a written notification delivered to the payor, issuer, or other obligor that the right is transferred to the transferor, an adult other than the transferor, or a trust company, whose name in the notification is followed in substance by the words: “as custodian for ______ (name of minor) under the Alabama Uniform Transfers to Minors Act”;
(5) An interest in real property is conveyed in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: “as custodian for ______ (name of minor) under the Alabama Uniform Transfers to Minors Act”;
(6) A certificate of title issued by a department or agency of a state or of the United States which evidences title to tangible personal property is either:
a. Issued in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: “as custodian for ______ (name of minor) under the Alabama Uniform Transfers to Minors Act”; or
b. Delivered to an adult other than the transferor or to a trust company, endorsed to that person followed in substance by the words: “as custodian for ______ (name of minor) under the Alabama Uniform Transfers to Minors Act”; or
(7) An interest in any property not described in paragraphs (1) through (6) is transferred to an adult other than the transferor or to a trust company by a written instrument in substantially the form set forth in subsection (b).
(b) An instrument substantially in the following form satisfies the requirements of paragraph (1)(b) and subdivision (7) of subsection (a):
“TRANSFER UNDER THE ALABAMA UNIFORM TRANSFERS TO MINORS ACT
I, ______ (name of transferor or name and representative capacity if a fiduciary) hereby transfer to ______ (name of custodian), as custodian for ______ (name of minor) under Alabama Uniform Transfers to Minors Act, the following: (insert a description of the custodial property sufficient to identify it).
Dated: ________
_________________”
(Signature)
___________ (name of custodian) acknowledges receipt of the property described above a custodian for the minor named above under the Alabama Uniform Transfers to Minors Act.
Dated: ________
(Signature of Custodian)
(c) A transferor shall place the custodian in control of the custodial property as soon as practicable.
(Acts 1986, No. 86-453, p. 819, §9.)
A transfer may be made only for one minor, and only one person may be the custodian. All custodial property held under this chapter by the same custodian for the benefit of the same minor constitutes a single custodianship.
(Acts 1986, No. 86-453, p. 819, §10.)
(a) The validity of a transfer made in a manner prescribed in this chapter is not affected by:
(1) Failure of the transferor to comply with section 35-5A-10(c) concerning possession and control;
(2) Designation of an ineligible custodian, except designation of the transferor in the case of property for which the transferor is ineligible to serve as custodian under section 35-5A-10(a); or
(3) Death or incapacity of a person nominated under section 35-5A-4 or designated under section 35-5A-10 as custodian or the disclaimer of the office by that person.
(b) A transfer made pursuant to section 35-5A-10 is irrevocable, and conveys to the minor indefeasibly vested title to the custodial property, but the custodian has the rights, powers, duties, and authority provided in this chapter, and neither the minor nor the minor’s legal representative has any right, power, duty, or authority with respect to the custodial property except as provided in this chapter. Neither the minor nor the minor’s legal representative can transfer by assignment or otherwise custodial property.
(c) By making a transfer, the transferor incorporates in the disposition all the provisions of this chapter and grants to the custodian, and to any third person dealing with a person designated as custodian, the respective powers, rights, and immunities provided in this chapter.
(d) Making a transfer to a custodian pursuant to this chapter does not authorize the custodian to settle or release a claim of the minor against the transferor or a third party.
(Acts 1986, No. 86-453, p. 819, §11.)
(a) A custodian shall:
(1) Take control of custodial property;
(2) Register or record title to custodial property if appropriate; and
(3) Collect, hold, manage, invest, and reinvest custodial property.
(b) In dealing with custodial property, a custodian shall observe the standard of care that would be observed by a prudent person dealing with property of another and is not limited by any other statute restricting investments by fiduciaries. If a custodian has a special skill or expertise or is named custodian on the basis of representations of a special skill or expertise, the custodian shall use that skill or expertise. However, a custodian, in the custodian’s discretion and without liability to the minor or the minor’s estate, may retain any custodial property received from a transferor.
(c) A custodian may invest in or pay premiums on life insurance or endowment policies on (1) the life of the minor only if the minor or the minor’s estate is the sole beneficiary, or (2) the life of another person in whom the minor has an insurable interest only to the extent that the minor, the minor’s estate, or the custodian in the capacity of custodian, is the irrevocable beneficiary.
(d) A custodian at all times shall keep custodial property separate and distinct from all other property in a manner sufficient to identify it clearly as custodial property of the minor. Custodial property consisting of an undivided interest is so identified if the minor’s interest is held as a tenant in common and is fixed. Custodial property subject to recordation is so identified if it is recorded, and custodial property subject to registration is so identified if it is recorded, and custodial property subject to registration is so identified if it is either registered, or held in an account designated, in the name of the custodian, followed in substance by the words: “as a custodian for ______ (name of minor) under the Alabama Uniform Transfers to Minors Act.”
(e) A custodian shall keep records of all transactions with respect to custodial property, including information necessary for the preparation of the minor’s tax returns, and shall make them available for inspection at reasonable intervals by a parent or legal representative of the minor or by the minor if the minor has attained the age of 14 years.
(Acts 1986, No. 86-453, p. 819, §12.)
(a) A custodian, acting in a custodial capacity, has all the rights, powers, and authority over custodial property that unmarried adult owners have over their own property, but a custodian may exercise those rights, powers, and authority in that capacity only.
(b) This section does not relieve a custodian from liability for breach of Section 35-5A-13.
(Acts 1986, No. 86-453, p. 819, §13.)
(a) A custodian may deliver or pay to the minor or expend for the minor’s benefit so much of the custodial property as the custodian considers advisable for the use and benefit of the minor, without court order and without regard to (1) the duty or ability of the custodian personally or of any other person to support the minor, or (2) any other income or property of the minor which may be applicable or available for that purpose.
(b) On petition of an interested person or the minor if the minor has attained the age of 14 years, the court may order the custodian to deliver or pay to the minor or expend for the minor’s benefit so much of the custodial property as the court considers advisable for the use and benefit of the minor.
(c) A delivery, payment, or expenditure under this section is in addition to, not in substitution for, and does not affect any obligation of a person to support the minor.
(Acts 1986, No. 86-453, p. 819, §14.)
(a) A custodian is entitled to reimbursement from custodial property for reasonable expenses incurred in the performance of the custodian’s duties.
(b) Except for one who is a transferor under Section 35-5A-5, a custodian has a noncumulative election during each calendar year to charge reasonable compensation for services performed during that year.
(c) Except as provided in subsection (f) of Section 35-5A-19, a custodian need not give a bond.
(Acts 1986, No. 86-453, p. 819, §15.)
A third person in good faith and without court order may act on the instructions of or otherwise deal with any person purporting to make a transfer or purporting to act in the capacity of a custodian and, in the absence of knowledge, is not responsible for determining:
(1) The validity of the purported custodian’s designation;
(2) The propriety of, or the authority under this chapter for, any act of the purported custodian;
(3) The validity or propriety under this chapter of any instrument or instructions executed or given either by the person purporting to make a transfer or by the purported custodian; or
(4) The propriety of the application of any property of the minor delivered to the purported custodian.
(Acts 1986, No. 86-453, p. 819, §16.)
(a) A claim based on (1) a contract entered into by a custodian acting in a custodial capacity, (2) an obligation arising from the ownership or control of custodial property, or (3) a tort committed during the custodianship, may be asserted against the custodial property by proceeding against the custodian in the custodial capacity, whether or not the custodian or the minor is personally liable therefor.
(b) A custodian is not personally liable:
(1) On a contract properly entered into in the custodial capacity unless the custodian fails to reveal that capacity and to identify the custodianship in the contract; or
(2) For an obligation arising from control of custodial property or for a tort committed during the custodianship unless the custodian is personally at fault.
(c) A minor is not personally liable for an obligation arising from ownership of custodial property or for a tort committed during the custodianship unless the minor is personally at fault.
(Acts 1986, No. 86-453, p. 819, §17.)
(a) A person nominated under section 35-5A-4 or designated under section 35-5A-10 as custodian may decline to serve by delivering a valid disclaimer to the person who made the nomination or to the transferor or the transferor’s legal representative or by effecting a valid disclaimer in the manner that interests in property may be disclaimed under the Alabama Uniform Disclaimer of Property Interests Act. If the event giving rise to a transfer has not occurred and no substitute custodian able, willing, and eligible to serve was nominated under section 35-5A-4, the person who made the nomination may nominate a substitute custodian under section 35-5A-4; otherwise the transferor or the transferor’s legal representative shall designate a substitute custodian at the time of the transfer, in either case from among the persons eligible to serve as custodian for that kind of property under section 35-5A-10(a). The custodian so designated has the rights of a successor custodian.
(b) A custodian at any time may designate a trust company or an adult other than a transferor under section 35-5A-5 as successor custodian by executing and dating an instrument of designation before a subscribing witness other than the successor. If the instrument of designation does not contain or is not accompanied by the resignation of the custodian, the designation of the successor does not take effect until the custodian resigns, dies, becomes incapacitated, or is removed.
(c) A custodian may resign at any time by delivering written notice to the minor if the minor has attained the age of 14 years and to the successor custodian and by delivering the custodial property to the successor custodian.
(d) If a custodian is ineligible, dies, or becomes incapacitated without having effectively designated a successor and the minor has attained the age of 14 years, the minor may designate as successor custodian, in the manner prescribed in subsection (b), an adult member of the minor’s family, a conservator of the minor, or a trust company. If the minor has not acted, the transferor, the legal representative of the transferor or of the custodian, an adult member of the minor’s family, or any other interested person may petition the court to designate a successor custodian.
(e) A custodian who declines to serve under subsection (a) or resigns under subsection (c), or the legal representative of a deceased or incapacitated custodian, as soon as practicable, shall put the custodial property and records in the possession and control of the successor custodian. The successor custodian by action may enforce the obligation to deliver custodial property and records and becomes responsible for each item as received.
(f) A transferor, the legal representative of a transferor, an adult member of the minor’s family, a guardian of the person of the minor, the conservator of the minor, or the minor if the minor has attained the age of 14 years may petition the court to remove the custodian for cause and to designate a successor custodian other than a transferor under section 35-5A-5 or to require the custodian to give appropriate bond.
(Acts 1986, No. 86-453, p. 819, §18.)
(a) A minor who has attained the age of 14 years, the minor’s guardian of the person or legal representative, an adult member of the minor’s family, a transferor, or a transferor’s legal representative may petition the court (1) for an accounting by the custodian or the custodian’s legal representative; or (2) for a determination of responsibility, as between the custodial property and the custodian personally, for claims against the custodial property unless the responsibility has been adjudicated in an action under section 35-5A-18 to which the minor or the minor’s legal representative was a party.
(b) A successor custodian may petition the court for an accounting by the predecessor custodian.
(c) The court, in a proceeding under this chapter or in any other proceeding, may require or permit the custodian or the custodian’s legal representative to account.
(d) If a custodian is removed under section 35-5A-19(f), the court shall require an accounting and order delivery of the custodial property and records to the successor custodian and the execution of all instruments required for transfer of the custodial property.
(Acts 1986, No. 86-453, p. 819, §19.)
The custodian shall transfer in an appropriate manner the custodial property to the minor or to the minor’s estate upon the earlier of:
(1) The minor’s attainment of 21 years of age with respect to custodial property transferred under section 35-5A-5 or 35-5A-6;
(2) The minor’s attainment of majority under the laws of this state other than this chapter with respect to custodial property transferred under section 35-5A-7 or 35-5A-8; or
(3) The minor’s death.
(Acts 1986, No. 86-453, p. 819, §20.)
This chapter applies to a transfer within the scope of section 35-5A-3 made after October 1, 1986, if:
(1) The transfer purports to have been made under the Alabama Uniform Gifts to Minors Act; or
(2) The instrument by which the transfer purports to have been made uses in substance the designation “as custodian under the Uniform Gifts to Minors Act” or “as custodian under the Uniform Transfers to Minors Act” of any other state, and the application of this chapter is necessary to validate the transfer.
(Acts 1986, No. 86-453, p. 819, §21.)
(a) Any transfer of custodial property as now defined in this chapter made before October 1, 1986, is validated notwithstanding that there was no specific authority in the Alabama Uniform Gifts to Minors Act for the coverage of custodial property of that kind or for a transfer from that source at the time the transfer was made.
(b) This chapter applies to all transfers made before October 1, 1986, in a manner and form prescribed in the Alabama Uniform Gifts to Minors Act, except insofar as the application impairs constitutionally vested rights or extends the duration of custodianships in existence on October 1, 1986.
(c) Sections 35-5A-2 and 35-5A-21 with respect to the age of a minor for whom custodial property is held under this chapter do not apply to custodial property held in a custodianship that terminated because of the minor’s attainment of the age of 19 after July 22, 1975, and before October 1, 1986.
(Acts 1986, No. 86-453, p. 819, §22.)
This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.
(Acts 1986, No. 86-453, p. 819, §23.)
(a) When a sale of premises is made, and no person appears to claim such portion of the money as may belong to any nonresident or person whose name is unknown, the court shall require such money to be deposited in the county treasury, subject to the further order of the court. All money so required to be deposited shall be received by the county treasurer and paid upon the order of the court.
(b) When money is deposited in the county treasury under the provisions of this chapter, the person or persons entitled to the same may, at any time, apply to the court making the order of sale, and obtain an order for the same upon making satisfactory proof to the court of his or her right thereto.
(Code 1923, §§9336, 9337; Code 1940, T. 47, §§184, 185.)
In any judgment concerning real property under the chapter, the judgment shall be recorded in the same manner as provided under Section 6-6-544.
(Act 2023-520, §2.)
The circuit court shall have original jurisdiction to divide or partition, or sell for partition, any property, real or personal, held by joint owners or tenants in common; whether the defendant denies the title of plaintiff or sets up adverse possession or not; and the court in exercising its jurisdiction shall proceed according to the Alabama Rules of Civil Procedure and, where necessary, allow service of process by publication as prescribed therein.
(Code 1886, §3262; Code 1896, §3187; Code 1907, §5231; Acts 1909, No. 123, p. 124; Code 1923, §9331; Code 1940, T. 47, §186.)
During the pendency of any civil action for partition, any person claiming to be interested in the premises to be assigned or aparted may appear and answer the complaint, and assert his or her rights, by way of interpleader; and the court shall decide upon the rights of all persons appearing as aforesaid, as though they had been made parties in the first instance.
(Code 1923, §9332; Code 1940, T. 47, §187.)
The court shall ascertain and declare the rights, titles, and interest of all the parties to such action, the plaintiffs as well as the defendants, and shall give judgment according to the rights of the parties.
(Code 1923, §9333; Code 1940, T. 47, §188.)
(a) If the title of the plaintiffs seeking partition or sale of lands for a division shall be controverted, or should the title or claim of any of the parties to the action be adverse to that of one or more of the other parties, the question of title shall be tried and determined in the action by the circuit court, which shall have power to determine all questions of title, and to remove all clouds upon the title, if any, of the lands, whereof partition is sought and to apportion incumbrances, if partition be made of land incumbered and it be deemed proper to do so; and the court may adjust the equities between and determine all claims of the several cotenants or claimants as well as the equities and claims of the incumbrancers; and may adjust, settle, and determine all questions as to dower or curtesy as if separate proceedings had been brought to settle and determine these questions.
(b) In actions for partition of lands, either by metes and bounds or by sale for division when the same cannot be equitably partitioned among the owners, if the defendant denies the title of the plaintiff or asserts an adverse claim or title in himself, the circuit judge need not dismiss the complaint, but may direct the issue as to the title of the complainant, or as to such adverse claim or title of the defendant, to be tried as other issues of fact are triable.
(Code 1867, §3466; Code 1876, §3893; Code 1886, §3588; Code 1896, §828; Code 1907, §§3205, 5232; Acts 1920, No. 122, p. 164; Code 1923, §§6635, 9334; Code 1940, T. 47, §§189, 119.)
If, at the hearing, it appears that the intervention of commissioners is unnecessary to secure an equal partition in kind, or that the same can be effected by providing owelty, and that it would best promote the interest of the parties, the circuit court may order the partition and fix the amount to be paid by one or several cotenants to another or others; or this may be done on hearing the report of the commissioners.
(Code 1907, §5233; Code 1923, §9335; Code 1940, T. 47, §190.)
(a) When it is necessary to make any person a party defendant in any partition proceedings brought under the provisions of this article for partition sale of land, or any interest therein and the plaintiff, after exercising reasonable diligence, is unable to locate the whereabouts, and to ascertain whether any such defendant is alive at the time of the filing of the complaint, the facts showing just what diligence the plaintiff has exercised must be specifically alleged in the complaint, and such defendant may then be made a party, by publication as in the case of unknown defendants, in his name followed by the words: ” ____ and his heirs or devisees, if deceased.” If the defendant so sued does not appear in person or by attorney before expiration of the time for filing pleadings in the case, the court shall appoint a guardian ad litem to represent his interest. A valid judgment may be entered against such defendant, binding on both him and his heirs or devisees, regardless of whether it be later shown that such defendant was or was not living at the time of the filing of the complaint.
(b) This section is cumulative.
(Acts 1965, 2nd Ex. Sess., No. 100, p. 133.)
Any property, real, personal or mixed, held by joint owners or tenants in common, may be divided among them, on the written application of one or more of them to the probate court of the county in which the property is situated; and such application may be made by the executor or administrator of a deceased person in interest, or by the guardian of a minor or person of unsound mind.
(Code 1852, §2677; Code 1867, §3105; Code 1876, §3497; Code 1886, §3237; Code 1896, §3161; Code 1907, §5203; Code 1923, §9303; Code 1940, T. 47, §192.)
When partition is sought of a tract of land lying partly in different counties, the application may be made to the probate court of either county, and the partition shall be made at the courthouse of the county of the judge of such court; and when made, the judge of such court shall, on demand and payment of lawful fees therefor, furnish to each party in interest a certificate, under his official seal, of the lots or parcels allotted to him, and the book and page where the proceedings are recorded; and the record of such certificate in the proper office of the county in which such lots or parcels, or any part thereof, lie, shall operate as notice of its contents.
(Code 1876, §§3499, 3500; Code 1886, §3238; Code 1896, §3162; Code 1907, §5204; Code 1923, §9304; Code 1940, T. 47, §193.)
The application for division or partition must set forth the names of all the persons interested in the property, their residence, if known, whether they are over or under 19 years of age, a full and accurate description of the property sought to be divided or partitioned, the interest of each person in the same, and the number of shares into which it is to be divided.
(Code 1852, §2678; Code 1867, §3106; Code 1876, §3498; Code 1886, §3239; Code 1896, §3163; Code 1907, §5205; Code 1923, §9305; Code 1940, T. 47, §194.)
Upon the filing of the application, a day not less than 30 days thereafter must be appointed for hearing the same; and of the time and place of such hearing, all parties in interest must have at least 10 days’ notice; and when infants or persons of unsound mind are parties, if they have no general guardians, guardians ad litem must be appointed to represent them; and if any of the parties in interest are nonresidents, they must be made parties in the same manner, and to the same extent, as is done when property in the hands of an executor or administrator is to be divided or distributed.
(Code 1867, §3107; Code 1876, §3501; Code 1886, §3240; Code 1896, §3164; Code 1907, §5206; Code 1923, §9306; Code 1940, T. 47, §195.)
When it is necessary to make any persons defendant to a petition in the probate court filed for the partition of property or for a sale thereof because it cannot be equitably divided, and the names of all or any of such persons are unknown to the petitioner and cannot be ascertained on diligent inquiry, if the petitioner shall state in a petition, or in an affidavit thereto annexed, that the names of such persons are unknown, and that he has made diligent inquiry to ascertain the same, proceedings may be had against them without naming them; and the judge of probate must make publication as in case of nonresident defendants, describing such unknown parties as near as may be by the character in which they are sued, and with reference to their title or interest in the property sought to be partitioned or to be sold for division of the proceeds. Should petitioner, after exercising reasonable diligence be unable to locate the whereabouts, and to ascertain with certainty whether any defendant is alive at the time of the filing of the petition, the facts showing just what diligence the petitioner has exercised must be specifically alleged in the bill, and such defendant may then be made a party, by publication as in case of unknown defendants, in his name followed by the words: ” ____ and his heirs or devisees, if deceased.” If the defendant so named does not appear in person or by attorney before expiration of the time for filing pleadings, the court shall appoint a guardian ad litem to represent his interest. The shares or interest of such parties in the proceeds of any such sale shall be paid in the court under such directions as may be ordered by the court, and shall there be retained and paid out to the proper parties when ascertained.
(Code 1896, §3165; Code 1907, §5207; Code 1923, §9307; Code 1940, T. 47, §196; Acts 1965, 2nd Ex. Sess., No. 63, p. 89.)
If, upon the hearing, the court is satisfied from the proof that the property described in the application is held and owned jointly, or in common, it must decree the same to be divided or partitioned among the joint owners or tenants in common, according to their respective interests therein; and to effect such division or partition, it must appoint suitable commissioners, not more than five, any three of whom may act; but if the application is for the partition of lands, and any of the parties interested are minors, the court, before granting the application, must be satisfied by evidence taken as in actions before the circuit court that it is to the interest of such minors that the partition be made.
(Code 1867, §3108; Code 1876, §3502; Code 1886, §3241; Code 1896, §3166; Code 1907, §5208; Code 1923, §9308, Code 1940, T. 47, §197.)
The commissioners must be sworn faithfully to execute the trust reposed in them, and to make the division or partition fairly and impartially, if the same can be made; and the division or partition shall be conducted in all respects, as nearly as may be, consistently with the provisions of this article, as is done when property in the hands of an executor or administrator is to be distributed or divided; and in case of application for partition of lands, the commissioner must, after examining the lands, and a survey thereof, if necessary, proceed without delay to make division thereof into the necessary number of shares, having regard to the quality of the soil, and other advantages, so as to make the different shares as nearly equal in value as practicable; and they must make a plat and map thereof, showing the subdivisions of the lots, and numbering them progressively; and subdivisions and boundaries of the lots, and numbering them progressively; and they are authorized to employ a surveyor and chain bearers and other attendants, if necessary.
(Code 1852, §2681; Code 1867, §3109; Code 1876, §3503; Code 1886, §3242; Code 1896, §3167; Code 1907, §5209; Code 1923, §9309; Code 1940, T. 47, §198.)
In case of partition of lands, the commissioners must give notice, by publication in some newspaper published in the county, if there is one, or if not, in the one nearest thereto, to be made not less than three successive weeks, that they will, on a day designated, attend at the courthouse of the county to make partition.
(Code 1852, §2682; Code 1867, §3110; Code 1876, §3504; Code 1886, §3243; Code 1896, §3168; Code 1907, §5210; Code 1923, §9310; Code 1940, T. 47, §199.)
On the day designated, the commissioners must, in the presence of the judge of probate, determine by lot to whom each of the several parcels belongs, and make a statement in writing of the result, setting forth to whom the several parcels or lots were allotted, together with all the facts relating to the partition and allotment, which must be signed by them, and attested by the judge of probate.
(Code 1852, §2683; Code 1867, §3111; Code 1876, §3505; Code 1886, §3244; Code 1896, §3169; Code 1907, §5211; Code 1923, §9311; Code 1940, T. 47, §200.)
The application, commission, statement of the commissioners and plat and map must be filed in the office of the judge of probate, and, together with all orders made by him, must be recorded in a book kept by him for the record of conveyances of land, and when recorded, the record thereof shall be presumptive evidence of the truth of any fact therein stated.
(Code 1852, §2684; Code 1867, §3112; Code 1876, §3506; Code 1886, §3245; Code 1896, §3170; Code 1907, §5213; Code 1923, §9313; Code 1940, T. 47, §202.)
The partition so made vests a title in fee simple in the persons to whom the several shares are allotted, as fully and completely as if each had conveyed to the others; but if any fraud or undue influence be employed by any of the parties to obtain an unfair partition or allotment, such partition may be annulled by the circuit court, on a complaint filed within five years after the allotment.
(Code 1852, §2685; Code 1867, §3113; Code 1876, §3507; Code 1886, §3246; Code 1896, §3171; Code 1907, §5214; Code 1923, §9314; Code 1940, T. 47, §203.)
When there is a lien on an undivided interest of any of the parties, such lien, if a partition is made, is thenceforth a charge only on the share assigned to such party; but such share must first be charged with its just proportion of the costs of the partition, in preference to such lien.
(Code 1852, §2686; Code 1867, §3114; Code 1876, §3508; Code 1886, §3247; Code 1896, §3172; Code 1907, §5215; Code 1923, §9315; Code 1940, T. 47, §204.)
If any of the commissioners die, resign or neglect or refuse to act, at any time before the final allotment, others may be substituted in their stead by the probate court, and they shall have the same power in completing such partition and allotment as if they had been originally appointed.
(Code 1852, §2687; Code 1867, §3115; Code 1876, §3509; Code 1886, §3248; Code 1896, §3173; Code 1907, §5216; Code 1923, §9316; Code 1940, T. 47, §205.)
The commissioners are entitled to $2.00 per day for each day while they are engaged in such partition and allotment, and all expenses they may have incurred in causing survey, map, and plat to be made, or otherwise, in the discharge of their duties.
(Code 1852, §2688; Code 1867, §3116; Code 1876, §3510; Code 1886, §3249; Code 1896, §3174; Code 1907, §5217; Code 1923, §9317; Code 1940, T. 47, §206.)
The probate court must ascertain the costs and expenses attending the division, and make a record thereof, stating distinctly each item of such costs and expenses; and if the same are not paid within 30 days after the allotment, an execution may be issued against each of the persons to whom the land was allotted, for his aliquot portion thereof, which must be directed to the sheriff, to be levied as other executions, and may be levied on the land so allotted to him.
(Code 1852, §2689; Code 1867, §3117; Code 1876, §3511; Code 1886, §3250; Code 1896, §3175; Code 1907, §5218; Code 1923, §9318; Code 1940, T. 47, §207.)
No division or partition or sale for distribution can be made under this article, in the probate court when an adverse claim or title is asserted by anyone, or brought to the knowledge of the commissioners, or of the judge of probate.
(Code 1852, §2690; Code 1867, §3118; Code 1876, §3512; Code 1886, §3251; Code 1896, §3176; Code 1907, §5220; Code 1923, §9320; Code 1940, T. 47, §208.)
The power conferred in this article does not prevent a resort to any other lawful mode of obtaining partition of lands.
(Code 1852, §2691; Code 1867, §3119; Code 1876, §3513; Code 1886, §3252; Code 1896, §3177; Code 1907, §5221; Code 1923, §9321; Code 1940, T. 47, §209.)
If, after a decree for partition and the appointment of commissioners it shall appear from the report of the commissioners, or on exceptions to their report, that a just and equal division of the land cannot be made, or that a sale will better promote the interest of all the cotenants, the court shall order a sale of the land, or such part thereof as may be deemed proper, and a division of the proceeds among those interested, as provided for, and make an equitable partition as provided in this article of the land not sold.
(Code 1907, §5212; Code 1923, §9312; Code 1940, T. 47, §201.)
Any property, real or personal, held by joint owners or tenants in common, on the written application of any one or more of them, may be decreed to be sold by the probate court of the county in which such property is situated, or, in case of land lying in different counties, of either of such counties, whether such lands are adjacent or contiguous, when the same cannot be equitably divided or partitioned among them, notwithstanding they, or any of them, are infants or persons of unsound mind, and the application may be made by the executor or administrator of a deceased person in interest, or by the guardian of a minor or person of unsound mind. Such lands shall be sold in the county where the decree is rendered, unless otherwise directed by order of the court, upon rendition of the final decree ordering such sale. The decree of sale and the decree confirming the sale shall be recorded in all counties where any of the land is situate. A certified copy of such record of these decrees shall be admissible in and prima facie evidence of their contents in all the courts of this state.
(Code 1867, §3120; Code 1876, §3514; Code 1886, §3253; Code 1896, §3178; Code 1907, §5222; Acts 1923, No. 496, p. 659; Code 1923, §9322; Code 1940, T. 47, §210.)
Upon the filing of such application, setting forth that the property cannot be equitably divided or partitioned, without a sale thereof, a day must be appointed, not less than 30 days thereafter for hearing the same.
(Code 1867, §3121; Code 1876, §3515; Code 1886, §3254; Code 1896, §3179; Code 1907, §5223; Code 1923, §9323; Code 1940, T. 47, §211.)
All parties in interest must have at least 10 days’ notice of the time and place set for the hearing of such application; and when infants or persons of unsound mind are parties, and have no general guardians, guardians ad litem must be appointed to represent them; and if any of the parties in interest are nonresidents, they may be made parties in the same manner, and to the same extent as is done when property in the hands of an executor or administrator is to be divided or distributed.
(Code 1867, §3122; Code 1876, §3516; Code 1886, §3255; Code 1896, §3180; Code 1907, §5224; Code 1923, §9324; Code 1940, T. 47, §212.)
Evidence in support of such application must be taken as in actions before the circuit court, and before granting the decree of sale the probate court must be satisfied from the evidence that an equitable division or partition cannot be made; and when the application is by the guardian of an infant or person of unsound mind, the court must be satisfied from the evidence that it would be to the interest of such infant, or person of unsound mind, to sell the property for the purpose of division or partition.
(Code 1867, §3123; Code 1876, §3517; Code 1886, §3256; Code 1896, §3181; Code 1907, §5225; Code 1923, §9325; Code 1940, T. 47, §213.)
If, upon the hearing, the court is satisfied from the proof that such property cannot be equitably divided or partitioned among the parties in interest, it must decree the same to be sold, and make and issue all such orders as may be necessary to effect the sale thereof, and appoint a suitable commissioner to make the sale; and the sale shall be conducted, the purchase money collected, conveyance of the title made and all proceedings subsequent to the sale conducted in every respect as is done when property in the hands of an executor or administrator is to be distributed.
(Code 1867, §3124; Code 1876, §3518; Code 1886, §3257; Code 1896, §3182; Code 1907, §5226; Code 1923, §9326; Code 1940, T. 47, §214.)
Such commissioner may discharge himself from all liability for money received by him for the property sold, by paying over the same to the judge of probate, after deducting therefrom the costs and expenses attending the sale, including commissions to him at the same rate that executors or administrators receive for collecting, but in no case more than $100.00; and such net proceeds must be distributed by the judge of probate among the persons entitled thereto, according to their respective interests.
(Code 1867, §3125; Code 1876, §3519; Code 1886, §3258; Code 1896, §3183; Code 1907, §5227; Code 1923, §9327; Code 1940, T. 47, §215.)
If the commissioner dies, resigns or neglects or refuses to act, at any time before the sale, another may be substituted in his stead by the court, who shall have the same power in completing the sale as if originally appointed.
(Code 1886, §3259; Code 1896, §3184; Code 1907, §5228; Code 1923, §9328; Code 1940, T. 47, §216.)
Should any of the parties interested in property, real or personal, held by joint owners or tenants in common, die, the provisions of this article shall fully apply to his executor or administrator.
(Code 1867, §3126; Code 1876, §3520; Code 1886, §3260; Code 1896, §3185; Code 1907, §5229; Code 1923, §9329; Code 1940, T. 47, §217.)
The provisions of this article are not applicable to the partition of crops.
(Code 1886, §3261; Code 1896, §3186; Code 1907, §5230; Code 1923, §9330; Code 1940, T. 47, §218.)
In all cases in which any person of unsound mind or any minor shall hold an interest as tenant in common with others in one or more parcels of land or realty in this state, and there shall be no valid authority to sell such interest vested in any person by the terms of any instrument under which such person of unsound mind or such minor holds such interest, and such sale shall not be prohibited or restricted by such instrument, it shall be lawful for the guardian of such minor or person of unsound mind to join the other tenants in common in selling any such parcel of land or realty for a division of proceeds thereof, such sale to be made either publicly or privately, and upon such terms as to payment and security for unpaid installments as such guardian may deem to the interest of his ward, subject, however, to such sale being set aside as provided in this article.
(Code 1907, §5253; Code 1923, §9357; Code 1940, T. 47, §219.)
Within three months after making any such sale, such guardian shall report the same under oath to the court having jurisdiction of his administration of the estate of such ward. If the whole of the share of such ward in the proceeds of such sale shall have been paid when such report is made, such fact shall be stated therein, and the guardian shall therein apply to the court for authority to make a conveyance of the interest of said ward in the lands or realty so sold to the purchaser. Such report shall set forth the name, residence, and age of such ward, and of the person in whose custody he is, and the name and residence of the adult next of kin of said ward, resident in the state and not interested in such sale; if there be more than one such next of kin of the same degree, such report must set forth the names and residences of all of them resident in this state.
(Code 1907, §5254; Code 1923, §9358; Code 1940, T. 47, §220.)
Upon the filing of such report the court must appoint a day for the hearing of the same, not less than 20 days from the filing thereof, and must give notice thereof to any minor whose interest has been so sold who is over 14 years of age and resident in this state, and also to the person in whose custody such ward is, if deemed by the court in the interest of such ward, and also to the adult next of kin of such ward resident in this state, not interested in such sale, or where there is more than one such next of kin of equal degree, then to such one of them as may be selected by the court. Such notice shall be given by personal citation to be served not less than 10 days before the day appointed for such hearing.
(Code 1907, §5255; Code 1923, §9359; Code 1940, T. 47, §221.)
The court must appoint a guardian ad litem to represent the interest of such ward upon such hearing, as provided by law for the appointment of guardians ad litem in such court. The person so appointed such guardian ad litem must deny in writing the allegations of such report and resist the confirmation of such sale, and, if necessary, must, with the approval of the court, employ counsel to defend the interest of the person he so represents. He is entitled to reasonable compensation, and an allowance for reasonable fees of such counsel as he may so employ, to be fixed by the court and taxed and collected as costs in the action.
(Code 1907, §5256; Code 1923, §9360; Code 1940, T. 47, §222.)
The person in whose custody such ward is must be cited, and the next of kin so cited may also appear at such hearing and contest the confirmation of such sale.
(Code 1907, §5257; Code 1923, §9361; Code 1940, T. 47, §223.)
On the day appointed for such hearing, or on any other day to which it may be continued the court must proceed to hear such report and the evidence for and against the confirmation of such sale. Such evidence shall be taken orally in open court at the time of the hearing or by deposition as in actions before the circuit court. If upon such hearing it shall appear to the satisfaction of the court that such sale as made is to the interest of the ward, the court shall make an order confirming the same, and, if it shall appear to the court that full payment has been made to the guardian for the interest of the minor in such sale, such order shall direct the guardian, or any other person appointed by the court, to make conveyance of the interest of the ward in the land or realty to the purchaser thereof.
(Code 1907, §5258; Code 1923, §9362; Code 1940, T. 47, §224.)
Two or more sales of the interest of a ward in different parcels of land or realty made under the provisions of this article may be set forth by the guardian in one report, and be embraced in the hearing of such report and the order of the court made thereupon, the court dealing with each such sale as it may deem proper.
(Code 1907, §5259; Code 1923, §9363; Code 1940, T. 47, §225.)
Within 30 days after receiving full payment for the interest of his ward in any land or realty so sold, such sale having been confirmed under the provisions of this article, the guardian of such ward must report such payment under oath to the court and apply for an order to make a proper conveyance of such interest to the purchaser. The court must examine such report and may also examine witnesses in relation thereto; if, upon such examination, it is satisfied that such payment has been made, it must make an order for such conveyance to be made by said guardian or by some other person, appointed by the court conveying all right, title, and interest of such ward in such land or realty at the time of such sale thereof.
(Code 1907, §5260; Code 1923, §9364; Code 1940, T. 47, §226.)
Every conveyance made under the provisions of this article shall, before delivery, be presented by the person making the same to the judge of the court ordering it to be made. If such judge is satisfied that such sale has been duly confirmed and that such conveyance is properly made, he shall indorse upon such conveyance a certificate under the seal of the court of the confirmation of the sale under which conveyance is made, and of the confirmation of the conveyance as made. Such certificate must be recorded with the conveyance and shall be prima facie evidence of the confirmation of such sale and conveyance. If the court is not satisfied as to any such conveyance it must vacate the same, ordering a proper conveyance, as to which the same proceedings shall be had as provided by this section for the original conveyance.
(Code 1907, §5261; Code 1923, §9365; Code 1940, T. 47, §227.)
(a) If, on the hearing of the report of sale by the guardian, it shall appear to the court that the sale of any parcel of land or realty therein set forth is not to the advantage of the ward whose interest is so sold, the court shall order such sale set aside, whereupon the same shall become wholly void.
(b) No sale or conveyance of lands under this article shall be valid to divest the title of the minor or person of unsound mind on whose behalf it is made, unless such sale or conveyance shall be confirmed as provided in this article.
(Code 1907, §5262; Code 1923, §9366; Code 1940, T. 47, §228.)
The authority conferred under the provisions of this article shall remain in the guardian in whom it is vested only so long as he continues as such; but his successor shall have the authority to consummate any sale made by him in accordance with such provisions.
(Code 1907, §5263; Code 1923, §9367; Code 1940, T. 47, §229.)
The provisions of this article shall not be exclusive of other modes, remedies, or proceedings for selling or partitioning the lands of minors or insane persons; but shall be construed to be cumulative or alternative remedies.
(Code 1907, §5264; Code 1923, §9368; Code 1940, T. 47, §230.)
Upon the filing of any petition for a sale for division of any property, real or personal, held by joint owners or tenants in common, the court shall provide for the purchase of the interests of the joint owners or tenants in common filing for the petition or any others named therein who agree to the sale by the other joint owners or tenants in common or any one of them. Provided that the joint owners or tenants in common interested in purchasing such interests shall notify the court of same not later than 10 days prior to the date set for trial of the case and shall be allowed to purchase whether default has been entered against them or not.
(Acts 1979, No. 79-334, p. 532, §1.)
In such circumstances as described in section 35-6-100, and in the event the parties cannot reach agreement as to the price, the value of the interest or interests to be sold shall be determined by one or more competent real estate appraisers or commissioners, as the court shall approve, appointed for such purpose by the court. The appraisers or commissioners appointed under this section shall make their report in writing to the court within 30 days after their appointment.
(Acts 1979, No. 79-334, p. 532, §2.)
After the report of the appraisers or commissioners, the tenants in common or joint owners seeking to purchase the interests of those filing the petition shall have 30 days to pay into the court the price set as the value of those interests to be purchased. Upon such payment and approval of same by the court, the clerk shall execute and deliver or cause to be executed and delivered the proper instruments transferring title to the purchasers.
(Acts 1979, No. 79-334, p. 532, §3.)
Should the joint owners or tenants in common fail to pay the purchase price as provided in section 35-6-102, the court shall proceed according to its traditional practices in such cases as described in section 35-6-100.
(Acts 1979, No. 79-334, p. 532, §4.)
The costs of the appraisers or commissioners shall be taxed as a part of the cost of court to those seeking to or purchasing the interests.
(Acts 1979, No. 79-334, p. 532, §5.)
Matured crops of corn, cotton, or other produce, raised and made by persons in such manner as to make them joint owners or tenants in common therein, whether gathered or ungathered, may be divided among them, on the written application of any one or more of them to the probate court of the county in which such crops, or any portion thereof, are situated; and such application may be made by the administrator or executor of a deceased person, or by the guardian of a minor or person of unsound mind interested in such crops.
(Code 1876, §3521; Code 1886, §3263; Code 1896, §3188; Code 1907, §5234; Code 1923, §9338; Code 1940, T. 47, §231.)
Such application must set forth the names, ages, and places of residence of all the persons interested in the crops, the location, value, and description of the crops, the number of shares into which it is sought to divide them, the interest of each person therein, and who is in the actual possession thereof; and it must be sworn to by the applicant, his agent, or attorney.
(Code 1876, §3522; Code 1886, §3264; Code 1896, §3189; Code 1907, §5235; Code 1923, §9339; Code 1940, T. 47, §232.)
Upon the filing of such application, a day must be appointed for the hearing of the same, within 15 days thereafter, if the parties are residents of this state, but if they are nonresidents, within 30 days thereafter; and if any of the parties in interest are minors or persons of unsound mind, guardians ad litem must be appointed to represent them, unless they have general guardians who will represent them on the hearing.
(Code 1876, §3323; Code 1886, §3265; Code 1896, §3190; Code 1907, §5236; Code 1923, §9340; Code 1940, T. 47, §233.)
Notice of such application, and of the day appointed for its hearing, must be issued by the judge of probate to the parties in interest who are residents of this state, which must be served on them at least five days before the day appointed for the hearing; and if any of the parties in interest are nonresidents, such notice must be given by publication, once a week for three successive weeks, in some newspaper published in the county, or if no newspaper is published therein, then in one that is published in an adjoining county, a copy of which shall be mailed by the judge of probate, and directed to such nonresidents at their post offices, if the same are known, or can be ascertained by reasonable effort.
(Code 1876, §3523; Code 1886, §3266; Code 1896, §3191; Code 1907, §5237; Code 1928, §9341; Code 1940, T. 47, §234.)
(a) If, at the time of filing such application, or afterwards, any party interested in the crops, his agent or attorney, makes affidavit before the judge of probate that he has cause to believe that the crops, or any portion thereof, will be removed, sold, consumed, or destroyed before they can be divided, and gives bond, with sufficient surety, in double the value of the property to be divided, payable to the defendant or defendants, with condition to pay all costs and damages that may accrue from the wrongful filing of the application, the court shall order the sheriff to take possession of such crops, and to safely keep the same until final disposition thereof shall be made by the court, unless the other parties in interest, or some of them, give bond, with sufficient surety, to be approved by the sheriff, in double the value of the shares of those complaining, with condition for the delivery of such crops to the sheriff within five days after judgment, or, in case of default, to pay those entitled the value of their interest in the crops, together with all costs and damages for the detention of the same; and if the crops are not delivered according to the condition of the bond, any of the parties in interest may sue on the bond, jointly or severally, in the name of the sheriff for their use, and recover the value of their interests in the crops, and the costs and damages resulting from the detention.
(b) If a forthcoming bond is given under subsection (a) of this section and the crops are not delivered to the sheriff, as required by its condition, the sheriff must endorse on the bond the failure to deliver such crops to him, and must return the same to the judge of probate.
(Code 1876, §3524; Code 1886, §§3267, 3274; Code 1896, §§3192, 3199; Code 1907, §§5288, 5245; Code 1923, §§9342, 9349; Code 1940, T. 47, §§235, 242.)
(a) If, on the hearing, the court is satisfied from the evidence that the parties are joint owners or tenants in common in the crops, a decree must be entered, declaring the interest or share each has therein, and ordering the crops divided in specie, or sold for division, as may appear from the evidence more practicable and better for the interests of the parties; and if any liens exist on the crops, or on any interest or share therein, in favor of any of the parties, such liens, and the extent and amount thereof, must be declared; and if a division in specie is ordered, such liens shall be charges only on the shares of the parties against whom they exist, but if a sale is ordered, the proceeds of the shares or interest upon which they exist, after payment of their part of the costs, shall be applied to the satisfaction of such liens.
(b) When any lien exists on the crops, or on any share or interest therein, in favor of any person other than the joint owners or tenants in common, such person must be made a party to the application, and his lien declared and protected; and if division in specie is made, such lien shall thenceforth rest only on the share or interest of the party against whom it exists; but if a sale is made, such lien shall be satisfied out of the proceeds of the share or interest upon which it exists; but such share or interest must first be made to contribute its share of the costs.
(Code 1876, §§3525, 3534; Code 1886, §§3268, 3269; Code 1896, §§3193, 3194; Code 1907, §§5239, 5240; Code 1923, §§9343, 9344; Code 1940, T. 47, §§236, 237.)
If the crops are ordered sold, the judge of probate must forthwith issue a writ, directed to the sheriff, commanding him to sell such crops for division, at a place to be designated in the decree and writ; and thereupon the sheriff must proceed to advertise and sell such crops at the place designated, in the same manner as he is required to advertise and sell personal property under execution issuing from the circuit court; and after making the sale, he shall forthwith make due return, and pay over the proceeds thereof to the judge of probate, who shall distribute the same among the parties according to their respective interests. If a forthcoming bond has not been executed under section 35-6-114 and the sheriff is not in possession of the crops, he shall seize the same for the purpose of making a sale thereof, if in the hands of any of the parties to the proceedings.
(Code 1876, §3526; Code 1886, §3270; Code 1896, §3195; Code 1907, §5241; Code 1923, §9345; Code 1940, T. 47, §238.)
If a division of the crops is decreed, the judge of probate must forthwith issue a writ, directed to the sheriff, and commanding him to summon three disinterested and intelligent householders of the county, not related to either of the parties, to make such division, who shall divide the crops among the parties according to the decree, a copy of which must accompany the writ, and shall, within 10 days after their appointment, make due return of the division made by them in writing and under oath, which oath must be taken before the judge of probate, and must set forth that they made the division fairly and impartially, to the best of their knowledge and ability; and for the purpose of such division the sheriff, if not in possession, and no forthcoming bond has been given, must seize the crops to be divided, if in the possession of any of the parties to the proceedings.
(Code 1876, §3527; Code 1886, §3271; Code 1896, §3196; Code 1907, §5242; Code 1923, §9346; Code 1940, T. 47, §239.)
If the commissioners find it impracticable to make division of the crops in specie, or that it is necessary to sell a portion thereof to make or equalize the division, they shall at once report that fact to the probate court, which shall thereupon order the crops to be sold for division, and shall issue a writ to the sheriff commanding him to make such sale; and such sale, and the distribution of the proceeds thereof, shall be made as provided in section 35-6-116.
(Code 1876, §3527; Code 1886, §3272; Code 1896, §3197; Code 1907, §5243; Code 1923, §9347; Code 1940, T. 47, §240.)
If any of the commissioners for any cause fail to act, others may, at any time before division made, be appointed in their stead, and they shall have the same powers as if they had been originally appointed.
(Code 1886, §3273; Code 1896, §3198; Code 1907, §5244; Code 1923, §9348; Code 1940, T. 47, §241.)
Any of the parties may file objections to the report of the commissioners making the division, within 10 days after the same is returned, and, when filed, a day must be appointed to hear the same, of which notice, not exceeding 10 days, shall be given to all the other parties in interest; and on the evidence adduced on such hearing, the report shall be confirmed or set aside, as equity and justice may demand; and if the report is set aside, new commissioners shall be appointed to make division, who shall proceed as provided in this article for those originally appointed.
(Code 1876, §3528; Code 1886, §3275; Code 1896, §3200; Code 1907, §5246; Code 1923, §9350; Code 1940, T. 47, §243.)
If all the parties consent in writing, the sheriff, immediately after division is made, shall deliver to each party his share of the crops; but if such consent is not given, the crops must be held by him until after the report of the commissioners has been confirmed, when he shall deliver the same to the parties entitled thereto, unless a supersedeas bond on appeal is given.
(Code 1876, §3529; Code 1886, §3276; Code 1896, §3201; Code 1907, §5247; Code 1923, §9351; Code 1940, T. 47, §244.)
Either party shall be entitled to a trial by jury, on demand made therefor at any time before the hearing, and the jury shall decide the facts under the charge of the judge. When a jury is demanded, the court shall order the sheriff to summon 12 men, or, by agreement of the parties, any less number, competent to serve as jurors; and the mode of swearing, impaneling, challenging, and supplying the places of jurors shall be the same, so far as practicable, as in the circuit court, on the trial of civil actions.
(Code 1876, §3531; Code 1886, §3277; Code 1896, §3202; Code 1907, §5248; Code 1923, §9352; Code 1940, T. 47, §245.)
The probate court may tax the costs against the unsuccessful party litigating, or against the crops, which may be sold in amount sufficient to satisfy the same, if not paid; but each share shall be charged with only its proportion of the costs. If the crops involved are worth less than $100.00, the judge, sheriff, jurors, commissioners, and witnesses shall only be allowed half the fees for similar services in other cases; if over $100.00, the same fees as they are allowed for such services in other cases.
(Code 1876, §3532; Code 1886, §3278; Code 1896, §3203; Code 1907, §5249; Code 1923, §9353; Code 1940, T. 47, §246.)
Any of the parties, within 10 days thereafter, may appeal to the circuit or Supreme Court from the decree of partition or sale, or from a decree confirming or setting aside the commissioners’ report, under the regulations governing appeals in other cases from decrees of the probate court to the circuit or Supreme Court; and such decree may be superseded pending the appeal by the appellant, on giving bond in double the amount of the value of the interests of the other parties in the crops, with sufficient surety, to be approved by the judge of probate, and with condition to have the crops forthcoming to abide the decree to be finally rendered in the cause, and in the event of his failure to do so, to pay all costs and damages arising therefrom.
(Code 1876, §3530; Code 1886, §3279; Code 1896, §3204; Code 1907, §5250; Code 1923, §9354; Code 1940, T. 47, §247.)
All papers connected with the proceedings shall be filed, but shall not be recorded unless one or more of the parties request it, in which case such party or parties shall pay the costs thereof; and the papers, or the record thereof, shall be evidence of title between the parties and their privies, to their respective shares of the crops.
(Code 1876, §3533; Code 1886, §3280; Code 1896, §3205; Code 1907, §5251; Code 1923, §9355; Code 1940, T. 47, §248.)
The provisions of this article shall apply to the assignee of any joint owner or tenant in common; but the remedy hereby given shall not prevent a resort to any other remedy allowed by law.
(Code 1876, §3535; Code 1886, §3281; Code 1896, §3206; Code 1907, §5252; Code 1923, §9356; Code 1940, T. 47, §249.)
This chapter shall be known and may be cited as the Alabama Uniform Partition of Heirs Property Act.
(Act 2014-299, p. 1080, §1.)
For the purposes of this chapter, the following terms shall have the following meanings:
(1) ASCENDANT. An individual who precedes another individual in lineage, in the direct line of ascent from the other individual.
(2) COLLATERAL. An individual who could inherit from, or whose estate could descend to, the related individual under the law of intestate succession of Alabama but who is not the other individual’s ascendant or descendant.
(3) DESCENDANT. An individual who follows another individual in lineage, in the direct line of descent from the other individual.
(4) DETERMINATION OF VALUE. A court order determining the fair market value of heirs property under Section 35-6A-6 or Section 35-6A-10 or adopting the valuation of the property agreed to by all cotenants.
(5) HEIRS PROPERTY. Real property held in tenancy in common which satisfies all of the following requirements as of the filing of a partition action:
(A) There is no agreement in a record binding all the cotenants which governs the partition of the property;
(B) One or more of the cotenants acquired title from a relative, whether living or deceased; and
(C) Any of the following applies:
(i) Twenty percent or more of the interests are held by cotenants who are relatives;
(ii) Twenty percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; or
(iii) Twenty percent or more of the cotenants are relatives.
(6) PARTITION BY SALE. A court-ordered sale of the entire heirs property, whether by auction, sealed bids, or open market sale conducted under Section 35-6A-10.
(7) PARTITION IN KIND. The division of heirs property into physically distinct and separately titled parcels.
(8) RECORD. Information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(9) RELATIVE. An ascendant, descendant, or collateral or an individual otherwise related to another individual by blood, marriage, adoption, or law of this state other than this chapter.
(Act 2014-299, p. 1080, §2.)
(a) This chapter applies to partition actions filed on or after January 1, 2015.
(b) In an action to partition real property under Chapter 6 of this title, the court shall determine whether the property is heirs property. If the court determines that the property is heirs property, the property shall be partitioned under this chapter unless all of the cotenants otherwise agree in a record.
(c) This chapter supplements Chapter 6 of this title, and, if an action is governed by this chapter, replaces those provisions of Chapter 6, that are inconsistent with this chapter.
(d) This chapter does not supplant or otherwise change the provisions for fees as a part of the cost under Section 34-3-60.
(Act 2014-299, p. 1080, §3.)
(a) Service of process shall be in accordance with Section 35-6-20 and Section 35-6-25.
(b) When service of process is obtained by publication and the court determines that the property may be heirs property, the plaintiff, not later than 10 days after the court’s determination, shall post a conspicuous and durable sign of at least 11 x 17 inches in size on the property that is the subject of the action. The sign shall state that the action has commenced and identify the name and address of the court and the common designation by which the property is known. The court may require the plaintiff to publish on the sign the name of the plaintiff and the known defendants.
(Act 2014-299, p. 1080, §4.)
If the court appoints commissioners pursuant to Section 35-6-45 and Section 35-6-62, each commissioner, in addition to the requirements and disqualifications applicable to commissioners in Sections 35-6-45, 35-6-46, and 35-6-62, shall be disinterested and impartial and not a party to or a participant in the action.
(Act 2014-299, p. 1080, §5.)
(a) Except as otherwise provided in subsection (b) and subsection (c), if the court determines that the property that is the subject of a partition action is heirs property, the court shall determine the fair market value of the property by ordering an appraisal pursuant to subsection (d).
(b) If all cotenants have agreed to the value of the property or to another method of valuation, the court shall adopt that value or the value produced by the agreed method of valuation.
(c) If the court determines that the evidentiary value of an appraisal is outweighed by the cost of the appraisal, the court, after an evidentiary hearing, shall determine the fair market value of the property and send notice to the parties of the value.
(d) If the court orders an appraisal, the court shall appoint a disinterested real estate appraiser licensed in this state to determine the fair market value of the property assuming sole ownership of the fee simple estate. On completion of the appraisal, the appraiser shall file a sworn or verified appraisal with the court.
(e) If an appraisal is conducted pursuant to subsection (d), not later than 10 days after the appraisal is filed, the court shall send notice to each party with a known address, stating all of the following:
(1) The appraised fair market value of the property.
(2) That the appraisal is available at the clerk’s office.
(3) That a party may file with the court an objection to the appraisal not later than 30 days after the notice is sent, stating the grounds for the objection.
(f) If an appraisal is filed with the court pursuant to subsection (d), the court shall conduct a hearing to determine the fair market value of the property not sooner than 30 days after a copy of the notice of the appraisal is sent to each party under subsection (e), whether or not an objection to the appraisal is filed under subdivision (3) of subsection (e). In addition to the court-ordered appraisal, the court may consider any other evidence of value offered by a party.
(g) After a hearing under subsection (f), but before considering the merits of the partition action, the court shall determine the fair market value of the property and send notice to the parties of the value.
(Act 2014-299, p. 1080, §6.)
(a) In each petitioner’s initial pleading in a partition action, the petitioner shall state whether the petitioner requests partition by sale. If the petitioner fails to so state, the petitioner shall be deemed to have not requested partition by sale.
(b) In each cotenant’s initial responsive pleading, the cotenant shall state whether the cotenant requests partition by sale.
(1) If a cotenant files a responsive pleading but fails to so state, the cotenant shall be deemed to have not requested partition by sale.
(2) If a guardian ad litem is appointed to represent one or more cotenants including, but not limited to, unknown, unlocatable, and legally incapacitated cotenants, the guardian ad litem may, but is not required to, state whether or not such cotenant requests partition by sale, and the guardian ad litem shall have no liability for making or failing to make the election. If a guardian ad litem files a responsive pleading but fails to so state, such cotenant shall be deemed to have not requested partition by sale.
(c) If a cotenant is named as a defendant and served with the complaint but does not appear in the action, the cotenant shall be deemed to have not requested partition by sale, unless the court approves a request to authorize the sale of the cotenant’s interest as set forth in subdivisions (1) to (3), inclusive.
(1) Not later than 14 days after the court sends notice to the parties pursuant to subsection (e) or subdivision (1) of subsection (f), any cotenant entitled to buy an interest under this section may request the court to authorize the sale pursuant to this section of the interests of cotenants named as defendants and served with the complaint but not appearing in the action.
(2) If the court receives a timely request under subdivision (1), the court, after a hearing, may deny the request or may authorize the requested sale of the interests of any or all cotenants named as defendants and served with the complaint who did not appear in the action.
(3) If the court approves the request made pursuant to subdivision (1) with respect to any cotenant who was named as a defendant and served with the complaint but did not appear in the action, that cotenant shall be deemed to have requested partition by sale for purposes of this section, and shall be treated for all purposes hereunder as having requested partition by sale.
(d) If no cotenant, including the petitioner, has requested partition by sale, the court shall determine whether the property can be partitioned in kind pursuant to subsections (a), (c), and (d) of Section 35-6A-8 and Section 35-6A-9. If the court determines the property cannot be partitioned in kind, the court shall dismiss the action without prejudice.
(e) If any cotenant, including the petitioner, has requested partition by sale, after the determination of value under Section 35-6A-6, the court shall send notice to the parties that any cotenant except a cotenant that requested partition by sale may buy all the interests of the cotenants that requested partition by sale.
(1) Not later than 30 days after the notice is sent, any cotenant except a cotenant that requested partition by sale may give notice to the court that it elects to buy all the interests of the cotenants that requested partition by sale.
(2) The purchase price for the interests of a cotenant that requested partition by sale shall be the value of the entire parcel determined under Section 35-6A-6 multiplied by the cotenant’s fractional ownership of the entire parcel.
(3) After expiration of the period in subdivision (1), if only one cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall notify all the parties of that fact and of the price to be paid by the electing cotenant calculated pursuant to subdivision (2). If more than one cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall allocate the right to buy those interests among the electing cotenants based on each electing cotenant’s existing fractional ownership of the entire parcel divided by the total existing fractional ownership of all cotenants electing to buy and send notice to all the parties of that fact and of the price to be paid by each electing cotenant calculated pursuant to subdivision (2).
(4) The court shall set a date, not sooner than 60 days after the end of the applicable notice period in subdivision (1), by which electing cotenants must pay their apportioned price into the court.
(A) If all electing cotenants timely pay their apportioned price into court, the court shall issue an order reallocating all the interests of the cotenants and disburse the amounts held by the court to the persons entitled to them, and the court shall thereafter enter such other orders as may be appropriate and dismiss the action without prejudice.
(B) If one or more but not all of the electing cotenants fail to pay their apportioned price on time, the court shall give notice to the electing cotenants that paid their apportioned price of the remaining interests of the cotenants that requested partition by sale and the total price for those interests.
(C) If no electing cotenant timely pays its apportioned price, the court shall proceed according to subsection (f) as if the interests of the cotenants that requested partition by sale were not purchased pursuant to this subsection.
(5) Not later than 20 days after the court gives notice pursuant to paragraph (B) of subdivision (4), any cotenant that paid may elect to purchase all of the remaining interests of the cotenants that requested partition by sale by paying the entire price into the court.
(A) If only one cotenant timely pays the entire price for the remaining interests of the cotenants that requested partition by sale, the court shall issue an order reallocating the remaining interests of the cotenants that requested partition by sale to that cotenant. The court shall issue promptly an order reallocating the interests of all of the cotenants and disburse the amounts held by it to the persons entitled to them.
(B) If more than one cotenant timely pays the entire price for the remaining interests of the cotenants that requested partition by sale, the court shall reapportion the remaining interests of the cotenants that requested partition by sale among those paying cotenants, based on each paying cotenant’s original fractional ownership of the entire parcel divided by the total original fractional ownership of all cotenants that paid the entire price for the remaining interests of the cotenants that requested partition by sale. The court shall issue promptly an order reallocating all of the cotenants’ interests, disburse the amounts held by it to the persons entitled to them, and promptly refund any excess payment held by the court.
(C) If no cotenant pays the entire price for the remaining interests of the cotenants that requested partition by sale, the court shall proceed according to subsection (f) as if the interests of the cotenants that requested partition by sale were not purchased pursuant to subsection (f).
(f) If no cotenant elects pursuant to subsection (e) to buy all the interests of the cotenants that requested partition by sale, the court shall proceed as follows:
(1) The court shall send notice to the parties that no cotenant elected pursuant to subsection (e) to buy all the interests of the cotenants that requested partition by sale and that any cotenant that requested partition by sale may buy all the interests of the other cotenants that requested partition by sale.
(2) Not later than 30 days after the notice is sent under subdivision (1), any cotenant that requested partition by sale may give notice to the court that it elects to buy all the interests of the other cotenants that requested partition by sale.
(3) Notwithstanding the cotenant’s prior request for partition by sale, any cotenant making an election to buy pursuant to this subdivision, for purposes of this subsection, shall be deemed to have not requested partition by sale.
(4) The purchase price for the interest of a cotenant that requested partition by sale shall be the value of the entire parcel determined under Section 35-6A-6 multiplied by the cotenant’s fractional ownership of the entire parcel.
(5) If only one cotenant elects to buy all the interests of the other cotenants that requested partition by sale, the court shall notify all the parties of that fact and of the price to be paid by the electing cotenant calculated pursuant to subdivision (4). If more than one cotenant elects to buy all the interests of the other cotenants that requested partition by sale, the court shall allocate the right to buy those interests among the electing cotenants based on each electing cotenant’s existing fractional ownership of the entire parcel divided by the total existing fractional ownership of all cotenants electing to buy and send notice to all the parties of that fact and of the price to be paid by each electing cotenant calculated pursuant to subdivision (4).
(6) The court shall set a date, not sooner than 60 days after the end of the applicable notice period in subdivision (1), by which electing cotenants must pay their apportioned price into the court.
(A) If all electing cotenants timely pay their apportioned price into court, the court shall issue an order reallocating all the interests of the cotenants and disburse the amounts held by the court to the persons entitled to them, and the court shall thereafter enter such other orders as may be appropriate and dismiss the action without prejudice.
(B) If one or more but not all of the electing cotenants fail to pay their apportioned price on time, the court shall give notice to the electing cotenants that paid their apportioned price of the remaining interests of the cotenants that requested partition by sale and the total price for those interests.
(C) If no electing cotenant timely pays its apportioned price, the court shall resolve the partition action under Section 35-6A-8 to Section 35-6A-11, inclusive, as if the interests of the cotenants that requested partition by sale were not purchased.
(7) Not later than 20 days after the court gives notice pursuant to paragraph (B) of subdivision (6), any cotenant that paid may elect to purchase all of the remaining interests of the cotenants that requested partition by sale by paying the entire price into the court.
(A) If only one cotenant timely pays the entire price for the remaining interests of the cotenants that requested partition by sale, the court shall issue an order reallocating the remaining interests of the cotenants that requested partition by sale to that cotenant. The court shall issue promptly an order reallocating the interests of all of the cotenants and disburse the amounts held by it to the persons entitled to them.
(B) If more than one cotenant timely pays the entire price for the remaining interests of the cotenants that requested partition by sale, the court shall reapportion the remaining interests of the cotenants that requested partition by sale among those paying cotenants, based on each paying cotenant’s original fractional ownership of the entire parcel divided by the total original fractional ownership of all cotenants that paid the entire price for the remaining interests of the cotenants that requested partition by sale. The court shall issue promptly an order reallocating all of the cotenants’ interests, disburse the amounts held by it to the persons entitled to them, and promptly refund any excess payment held by the court.
(C) If no electing cotenant pays the entire price for the remaining interests of the cotenants that requested partition by sale, the court shall resolve the partition action under Section 35-6A-8 to Section 35-6A-11, inclusive, as if the interests of the cotenants that requested partition by sale were not purchased.
(8) If no cotenant elects to buy all the interests of the other cotenants that requested partition by sale, the court shall send notice to all the parties of that fact and resolve the partition action under Section 35-6A-8 to Section 35-6A-11, inclusive.
(Act 2014-299, p. 1080, §7.)
(a) If all the interests of all cotenants that requested partition by sale are not purchased by other cotenants pursuant to Section 35-6A-7, or, if after conclusion of the buyout under Section 35-6A-7, a cotenant remains that has requested partition in kind, the court shall order partition in kind unless the court, after consideration of the factors listed in Section 35-6A-9, finds that partition in kind will result in great prejudice to the cotenants. In considering whether to order partition in kind, the court shall approve a request by two or more parties to have their individual interests aggregated.
(b) If the court does not order partition in kind under subsection (a), the court shall order partition by sale pursuant to Section 35-6A-10 or, if no cotenant requested partition by sale, the court shall dismiss the action.
(c) If the court orders partition in kind pursuant to subsection (a), the court may require that one or more cotenants pay one or more other cotenants amounts so that the payments, taken together with the value of the in-kind distributions to the cotenants, will make the partition in kind just and proportionate in value to the fractional interests held.
(d) If the court orders partition in kind, the court shall allocate to the cotenants that are unknown, unlocatable, or the subject of a default judgment, if their interests were not bought out pursuant to Section 35-6A-7, a part of the property or value of the property representing the combined interests of these cotenants as determined by the court.
(Act 2014-299, p. 1080, §8.)
(a) In determining under subsection (a) of Section 35-6A-8 whether partition in kind would result in great prejudice to the cotenants, the court shall consider all of the following:
(1) Whether the heirs property practicably can be divided among the cotenants.
(2) Whether partition in kind would apportion the property in such a way that the aggregate fair market value of the parcels resulting from the division would be materially less than the value of the property if it were sold as a whole, taking into account the condition under which a court-ordered sale likely would occur.
(3) Evidence of the collective duration of ownership or possession of the property by a cotenant and one or more predecessors in title or predecessors in possession to the cotenant who are or were relatives of the cotenant or each other.
(4) A cotenant’s sentimental attachment to the property, including any attachment arising because the property has ancestral or other unique or special value to the cotenant.
(5) The lawful use being made of the property by a cotenant and the degree to which the cotenant would be harmed if the cotenant could not continue the same use of the property.
(6) The degree to which the cotenants have contributed their pro rata share of the property taxes, insurance, and other expenses associated with maintaining ownership of the property or have contributed to the physical improvement, maintenance, or upkeep of the property.
(7) Any other relevant factor.
(b) The court may not consider any one factor in subsection (a) to be dispositive without weighing the totality of all relevant factors and circumstances.
(Act 2014-299, p. 1080, §9.)
(a) If the court orders a sale of heirs property, the court shall order that the sale be conducted by one or more of the following methods of sale: Open market sale with or without a broker or brokers; by sealed bids; public auction; or private sale. The court shall choose a method which shall be more economically advantageous and in the best interest of the cotenants as a group.
(b) If the court orders an open market sale with or without a broker and the parties, not later than 10 days after the entry of the order, agree on a real estate broker or brokers licensed in this state to offer the property for sale, the court shall appoint the broker or brokers and establish terms of the listing agreement. If the parties do not agree on a broker or brokers, the court shall appoint a disinterested real estate broker licensed in this state to offer the property for sale and shall establish reasonable terms. The broker or brokers shall offer the property for sale in a commercially reasonable manner on the terms and conditions established by the court, at a price no lower than the determination of value unless the court orders otherwise for good cause shown.
(c) If, in an open market sale, an offer is obtained to purchase the property for at least the determination of value or the amount ordered by the court and within a reasonable time, not to exceed 180 days:
(1) The broker or seller shall comply with the reporting requirements in Section 35-6A-11; and
(2) The sale may be completed in accordance with state law.
(d) If, in an open market sale, an offer is not obtained to purchase the property within a reasonable time, not to exceed 180 days, for at least the determination of value or the amount ordered by the court, the court after hearing may:
(1) Approve the highest outstanding offer, if any.
(2) Order that the property continue to be offered for an additional time, with or without redetermining the value of the property.
(3) Order that the property be sold by sealed bids or at an auction.
(e) If the court orders a sale by auction, unless the parties otherwise agree or the court for good cause shown orders otherwise, the auction shall be conducted at the front door or main entrance to the courthouse of the county where the land or a substantial and material part thereof is located. The sale shall be held at a time specified by the court between the legal hours of sale of 11 a.m. to 4 p.m. on the day designated for the exercise of the auction to sell heirs property.
(f) If a purchaser is entitled to a share of the net proceeds of the sale, the purchaser is entitled to a credit against the price in an amount equal to the purchaser’s share of the proceeds.
(Act 2014-299, p. 1080, §10.)
(a) In an open market sale of heirs property, a broker or seller shall file a report with the court not later than seven days after receiving an offer to purchase the property for at least the determination of value or the amount ordered by the court.
(b) The report required by subsection (a) shall contain all of the following information:
(1) A description of the property to be sold to each buyer.
(2) The name of each buyer.
(3) The proposed purchase price.
(4) The terms and conditions of the proposed sale, including the terms of any owner financing.
(5) The amounts to be paid to lien holders.
(6) A statement of contractual or other arrangements or conditions of the broker’s commission.
(7) Other material facts relevant to the sale.
(Act 2014-299, p. 1080, §11.)
A partition, sale or other disposition of property pursuant to this chapter shall not affect or displace a mortgage or other lien on the property, and shall not affect or displace the obligations of any person who is a party to the mortgage or other lien or who is obligated on any note or other agreement secured by the mortgage or other lien.
(Act 2014-299, p. 1080, §12.)
In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact the uniform act.
(Act 2014-299, p. 1080, §13.)
This chapter modifies, limits, and supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).
(Act 2014-299, p. 1080, §14.)
Partition fences within the meaning of this chapter are fences erected on the line between lands owned by different persons.
(Code 1852, §1109; Code 1867, §1292; Code 1876, §1597; Code 1886, §1375; Code 1896, §2123; Code 1907, §4244; Code 1923, §7974; Code 1940, T. 47, §251.)
Where a partition fence has been, or may hereafter be established by agreement of adjacent owners of land, each to keep up a particular part of such fence, if either fails to keep such part assigned to him in good repair, it shall be lawful for the other joint owner to repair such fence, the cost thereof to be paid by the one so failing; and if they cannot agree as to the amount to be paid for such repairs, the same is to be ascertained and collected as provided by this chapter.
(Code 1876, §1596; Code 1886, §1374; Code 1896, §2122; Code 1907, §4243; Code 1923, §7973; Code 1940, T. 47, §250.)
Partition fences between improved lands are to be erected and repaired at the joint expense of the occupants; or if any person makes a fence a partition fence by joining to or using it as such, he must pay to the person erecting it his proportion of the expense, taking into consideration the condition of such fence at the time it is so joined to or used.
(Code 1852, §1105; Code 1867, §1288; Code 1876, §1592; Code 1886, §1370; Code 1896, §2118; Code 1907, §4247; Code 1923, §7977; Code 1940, T. 47, §252.)
If the parties cannot agree, on application by either to the district court in the county in which such fence is, such court must issue an order in writing to three disinterested freeholders of such county, not related to either of the parties, to examine such fence, and to ascertain the amount to be paid to the owner erecting the same; and such freeholders, on a day to be by them appointed, of which both parties must have notice, must examine such fence and report to the court the proportionate amount to be paid to the person erecting the fence; and if such amount is not paid within 10 days after such report, the court must issue execution therefor, with costs, as provided in section 35-7-5, to be collected and returned as other executions.
(Code 1852, §1106; Code 1867, §1289; Code 1876, §1593; Code 1886, §1371; Code 1896, §2119; Code 1907, §4248; Code 1923, §7978; Code 1940, T. 47, §253.)
The district court is entitled to $.50 for issuing the order, and the fence-viewers to $1.00 each; one half of which is to be paid by each party; and not being paid in 10 days after the report, execution must issue therefor, with costs for issuing such execution.
(Code 1852, §1107; Code 1867, §1290; Code 1876, §1594; Code 1886, §1372; Code 1896, §2120; Code 1907, §4249; Code 1923, §7979; Code 1940, T. 47, §254.)
The fence-viewers, before proceeding to act, must take an oath, which may be administered by one to the other, to discharge their duties fairly and impartially.
(Code 1852, §1108; Code 1867, §1291; Code 1876, §1595; Code 1886, §1373; Code 1896, §2121; Code 1907, §4250; Code 1923, §7980; Code 1940, T. 47, §255.)
If one joint owner or tenant in common of a partition fence, after 10 days’ notice from other joint owners or tenants in common of such partition fence to assist or join with them in the erection of a partition fence, shall fail or refuse to assist in the erection, repair, or maintaining, and fail or refuse to pay his pro rata or aliquot part of the costs and expenses of erecting, repairing, or maintaining such fence, he shall be liable to the other joint owners or tenants in common of such fence for his pro rata or aliquot part of the costs and expenses of erecting, repairing, or maintaining such fence, to be recovered in any court having jurisdiction of such action. In all such trials, however, the propriety, necessity, as well as the amount for erecting, repairing, and maintaining shall be questions for the determination of the court or jury trying the case; the object and purpose of the law being that each joint owner or tenant in common shall bear his aliquot or proportionate part of the costs and expenses of erecting, repairing, and maintaining partition fences; but one tenant in common shall not have the right, capriciously or unnecessarily to erect, repair, or expend money in maintaining such fences and thereby require other tenants in common or joint owners of such partition fences to expend money uselessly or unnecessarily, nor to contribute thereto when the fence is erected exclusively for the benefit of the owner so erecting it. The remedy given by this section shall not be exclusive of other remedies provided in this Code for similar cases.
(Code 1923, §7981; Code 1940, T. 47, §256.)
This chapter shall be known as the “Condominium Ownership Act.”
(Acts 1964, 1st Ex. Sess., No. 206, p. 266, §1; Acts 1973, No. 1059, p. 1732, §1.)
For the purposes of this chapter, the following terms shall have the meanings respectively ascribed to them by this section:
(1) ASSOCIATION. The entity responsible for the administration and management of the condominium property.
(2) COMMON ELEMENTS. A part or parts of the condominium property as set forth in the declaration in which all of the unit owners have an undivided interest.
(3) COMMON EXPENSES. The expenses arising out of ownership of common elements for which the unit owners are liable to the association in accordance with the declaration and bylaws.
(4) COMMON SURPLUS. The excess of all receipts of the association arising out of ownership of common elements over the amount of common expenses.
(5) CONDOMINIUM. The form of ownership of real or personal property or a combination thereof under a declaration providing for ownership of units of the property by one or more owners. Such units may consist of private elements together with an undivided interest in common and limited common elements.
(6) CONDOMINIUM PROPERTY. The property covered by the declaration and all easements, rights, and interests belonging thereto or intended for the benefit thereof. Where such property is real property there is no requirement that it be contiguous.
(7) DECLARATION. The declaration as described in Section 35-8-7, as such declaration may be amended from time to time.
(8) LIMITED COMMON ELEMENTS. A part or parts of the condominium property as set forth in the declaration in which more than one but not all unit owners have an undivided interest.
(9) LIMITED COMMON EXPENSES. The expenses arising out of ownership of limited common elements for which the unit owners are liable to the association in accordance with the declaration and bylaws.
(10) LIMITED COMMON SURPLUS. The excess of all receipts of the association arising out of ownership of limited common elements over the amount of limited common expenses.
(11) PERSON. Any individual, corporation, partnership, association, trustee, fiduciary, or other legal entity.
(12) PRIVATE ELEMENTS. A part or parts of the condominium property as set forth in the declaration and intended for exclusive ownership or possession by a unit owner.
(13) UNIT. The private elements of the condominium property together with the undivided interest in the common elements and limited common elements which are assigned thereto in the declaration or any amendment thereof.
(Acts 1964, 1st Ex. Sess., No. 206, p. 266, §2; Acts 1973, No. 1059, p. 1732, §2.)
This chapter shall be applicable only to property, the sole owner or all of the owners of which execute and record a declaration as provided in Section 35-8-7.
(Acts 1964, 1st Ex. Sess., No. 206, p. 266, §3; Acts 1973, No. 1059, p. 1732, §3.)
Each unit shall be deemed real property, the ownership of which may be in fee simple or any other estate in real property recognized by law in this state, including a lease or sublease.
(Acts 1964, 1st Ex. Sess., No. 206, p. 266, §4; Acts 1973, No. 1059, p. 1732, §4.)
Any unit may be held and owned by one or more persons in any form of ownership, real estate tenancy, or relationship recognized under the laws of this state. A unit may be used for residential, commercial, industrial, professional, or any other use not prohibited by law. There shall be included with each unit the following:
(1) The private elements as set forth in the declaration.
(2) An undivided interest in such limited common elements as may be set forth in the declaration.
(3) The right of ownership and to exclusive use and possession of such private elements.
(4) The right to use such common elements and limited common elements in accordance with the declaration and bylaws, but consistent with the lawful rights of other unit owners.
(5) An exclusive easement for the use of any air space occupied by the private elements as they exist at any particular time and as they may lawfully be altered or reconstructed from time to time.
(6) Easements through other units for conduits, ducts, plumbing, wiring, and other facilities for the furnishing of utility services to units and the common and limited common elements.
(7) An easement of support in every other unit which contributes to the support of such unit.
(8) The right of access to a public street or highway.
(9) Such other incidents to ownership, possession, and enjoyment as the declaration may provide.
(Acts 1973, No. 1059, p. 1732, §5.)
(a) The undivided interest in the common elements and limited common elements or the method for determining such interests shall be set forth in the declaration.
(b) Any conveyance, lease, devise, or other disposition or mortgage or encumbrance of any unit shall extend to and include such undivided interest in the common and limited common elements, whether or not expressly referred to in the instrument effecting the same.
(c) The common elements and limited common elements shall remain undivided from the condominium property and shall not be the object of an action for partition or division unless the condominium property is removed from the provisions of this chapter as provided in Section 35-8-20. Nothing in this chapter shall be construed as a limitation on partition of individual interests in a unit or units by co-owners of such unit or units.
(d) The undivided interest of each unit owner in the common elements and limited common elements or the method for determining such interests shall be as set forth in the declaration and shall not thereafter be changed unless the owners of record of the units affected thereby and the holders of record of any liens thereon shall have agreed to an amendment to the declaration which specifies such change. Such agreement may be made either in advance of or at the time of such amendment. The amended declaration shall be duly recorded.
(Acts 1964, 1st Ex. Sess., No. 206, p. 266, §6; Acts 1973, No. 1059, p. 1732, §6.)
Condominium property shall be established by recording a properly executed declaration as set forth in Section 35-8-11. A declaration shall be executed with the formalities of a deed to real property. It shall be executed by all persons having title of record or lien interests of record to such real property, not including mineral interests, royalty interests, rights-of-way, and easements. In addition to such other provisions as may be desired, not inconsistent with this chapter, the declaration shall contain:
(1) A statement submitting the property described to the provisions of this chapter;
(2) The name by which the condominium is to be identified, which name shall include the word “condominium” or be followed by the words “a condominium”;
(3) A legal description of the land included;
(4) Plans or other graphic or narrative description of the property in sufficient detail to identify common elements, limited common elements, and private elements;
(5) The undivided interest assigned to each unit in the common elements and limited common elements or the method for determining such interests;
(6) The voting rights, or the method of determining such rights, of the unit owners, with respect to matters arising out of ownership of the common elements which rights must correspond approximately with each unit owner’s undivided interest in such common elements;
(7) The voting rights, or the method of determining such rights, of the unit owners with respect to matters arising out of ownership of the limited common elements, which rights must correspond approximately with each unit owner’s undivided interest in such limited common elements;
(8) The proportion, or method for determining such proportion, of common expenses to be shared by each unit owner, which proportion must correspond approximately to each owner’s undivided interest in the common elements;
(9) The proportion, or method of determining such proportion, of limited common expenses to be shared by each unit owner, which proportion must correspond approximately to each unit owner’s undivided interest in the limited common elements;
(10) The proportion, or method of determining such proportion, of common surplus to be shared by each unit owner, which proportion must correspond approximately to each unit owner’s undivided interest in the common elements;
(11) The proportion, or method for determining such proportion, of limited common surplus to be shared by each unit owner, which proportion must correspond approximately to each unit owner’s undivided interest in the limited common elements;
(12) The name of the association and whether incorporated or unincorporated;
(13) Such covenants and restrictions concerning the use, occupancy, and transfer of units as may be desired, including the right of first refusal on the part of the association and its individual members, the type of independent use permitted for individual units, and such other covenants and restrictions as are permitted by law with reference to real property; provided, that the rule of property known as the rule against perpetuities shall not be applied to defeat a right given any person or entity by the declaration for the purpose of allowing unit owners to retain reasonable control over the use, occupancy, and transfer of units, such provisions of the declaration shall be enforceable equitable servitudes and shall run with the land and shall be effective until the declaration is revoked or the provisions amended; and
(14) The method of amending the declaration, which shall require recording of any such amendment before it shall become effective, but in no case shall any amendment change a unit unless the owner of record of such unit and the holders of record of any liens thereon shall have agreed to such amendment either at the time of such amendment or in advance of such amendment.
(Acts 1964, 1st Ex. Sess., No. 206, p. 266, §11; Acts 1973, No. 1059, p. 1732, §7.)
(a) Prior to the conveyance of any unit, plans or other graphic description, certified by a licensed or registered engineer or architect, in sufficient detail to identify the common elements, limited common elements, and private elements comprising such unit as built, shall be recorded as a part of the declaration or as an amendment thereto. Such unit shall be identified by assigning a distinctive letter, number, or other means of identification by which it may be separately identified from the other units. Where the plans or other graphic description of two or more elements of any unit or units are identical, a single plan or other graphic description of such elements shall be sufficient to satisfy the requirements of this chapter.
(b) Prior to the conveyance of any unit, a copy of the bylaws and any amendments thereto shall be recorded in the same public records as the declaration and amendments thereto.
(c) A deed, mortgage, lease, or other instrument pertaining to a unit shall have the same force and effect in regard to such unit as would be given to a like instrument pertaining to other real property which has been similarly made, executed, acknowledged, and recorded. In addition to such other matters as may be desired, not inconsistent with this chapter or the declaration, a unit deed shall contain the following:
(1) The name of the condominium property as set forth in the declaration.
(2) The name of the county or counties in which the condominium property is located.
(3) The distinctive unit identification required by subsection (a) of this section, together with a reference to the recording office and the book and page where the declaration and bylaws and amendments thereto are recorded.
(4) A statement of the proportionate undivided interests in the common elements and limited common elements assigned to such unit or the method for determining such interests as set forth in the declaration or any amendments thereto.
(Acts 1964, 1st Ex. Sess., No. 206, p. 266, §12; Acts 1973, No. 1059, p. 1732, §8.)
The association provided for by the declaration shall be responsible for the administration and management of the condominium property in accordance with this chapter, the declaration, and the bylaws. The association may be incorporated or unincorporated. All unit owners will be stockholders or members. Unless otherwise provided in the declaration, the association, acting through its officers or governing board, shall have the powers enumerated below:
(1) The association may maintain, repair, replace, clean, and sanitize the common and limited common elements.
(2) The association may assess and collect funds and may pay for common expenses and limited common expenses out of such funds as are appropriate.
(3) In addition to the enforcement of the covenants and restrictions concerning use, occupancy, and transfer of units which are included in the declaration pursuant to section 35-8-7, the association may adopt, distribute, amend, and enforce reasonable rules governing the administration and management of the condominium property and the use of the common and limited common elements.
(4) The association may maintain all forms of insurance coverage which are for the benefit of the unit owners. The amount of each unit owner’s liability for payment of premiums for such insurance shall be a part of his common expense or limited common expense as is appropriate. The association shall apprise each unit owner whether or not insurance coverage is maintained by the association and the type and amount of any insurance which is so maintained. An insurance trustee or trustees may be appointed to administer the proceeds of any such insurance. No unit owner or other person having an insurable risk may be precluded from obtaining insurance, individually, at his own expense and for his own benefit, against any risk, whether or not covered by insurance maintained by the association. Such forms of insurance maintained by the association may include but are not limited to the following:
a. Insurance covering the entire condominium property against loss by fire and such other hazards as may be desired.
b. Liability insurance against any risk, such as death, personal injury, or damage to property, faced by unit owners by virtue of their common or limited common ownership in the condominium property, including but not limited to the acts and omissions of the association, its servants, and employees.
(5) The association may have access to each unit from time to time during reasonable hours as may be necessary for the maintenance, repair, or replacement of any common elements or limited common elements therein or accessible therefrom or for making emergency repairs necessary to prevent damages to any other unit or units.
(6) The association may purchase units in the condominium and otherwise acquire, hold, lease, mortgage, and convey the same. It may also lease or license the use of common elements and limited common elements in a manner not inconsistent with the rights of unit owners.
(7) The association may acquire or enter into agreements whereby it acquires personal property, real property, leaseholds, memberships, or other possessory or use interests in lands or facilities including, but not limited to, country clubs, golf courses, marinas, and other recreational facilities intended for the use or benefit of the unit owners. No unit shall be changed except by amendment to the declaration, and no unit owner shall be charged with any cost or expense of such acquisition or any portion of the cost or expense of the administration, management, repair, or replacement thereof, or have any liability in connection therewith, without such unit owner’s express consent.
(8) The association may enter into agreements by which its powers and responsibilities or some of them may be exercised or performed by some other person or persons.
(Acts 1964, 1st Ex. Sess., No. 206, p. 266, §25; Acts 1973, No. 1059, p. 1732, §9.)
The bylaws govern the administration and management of the condominium property by the association. In addition to such other provisions as may be desired, not inconsistent with this chapter or the declaration, the bylaws shall contain:
(1) The form of administration, indicating the titles of the officers and governing board of the association, if any, and specifying the powers, duties, and manner of selection, removal, and compensation, if any, of officers and board members.
(2) The name and residence address of the person designated as agent to receive service of process upon the association if the association is not incorporated. Such agent must be a resident of this state.
(3) The method of calling meetings of unit owners, the percentage of unit owners or voting rights required to make decisions regarding administration and management of the condominium property and to constitute a quorum, but such bylaws may nevertheless provide that unit owners may waive notice of meetings or may act by written agreement without meetings.
(4) Provision for the maintenance of accounting records, in accordance with generally accepted accounting principles, open to inspection by unit owners at reasonable times. Such records shall include:
a. A record of all receipts and expenditures.
b. An account for each unit, setting forth any shares of common expenses or limited common expenses or other charges due, the due dates thereof, the present balance due and any interest in common surplus or limited common surplus.
(5) The method of amending the bylaws, which shall require recording of any such amendment before it shall become effective. Such method need not be the same as that used for amendment of the declaration.
(Acts 1964, 1st Ex. Sess., No. 206, p. 266, §§18, 19; Acts 1973, No. 1059, p. 1732, §10.)
The declaration and any amendments thereto, the bylaws and any amendments thereto, and all deeds, mortgages, liens, and other such documents and instruments relating to the condominium which are required to be recorded shall be recorded in the county or counties where the real property is located.
(Acts 1964, 1st Ex. Sess., No. 206, p. 266, §15; Acts 1973, No. 1059, p. 1732, §11.)
(a) Neither the association nor any unit owner shall be liable for the individual acts or omissions of any other unit owner.
(b) All actions seeking liability of unit owners arising by virtue of their condominium ownership and who are not liable by reason of any act or omission on their own part shall be directed against the association and defended by the association. Where plaintiff’s demand exceeds unit owner insurance established by the association, such unit owner must be given notice by the association and shall have the right at his own expense to individual representation by counsel.
(c) A unit owner, not liable by reason of any act or omission on his own part, shall have no liability for any settlement, judgment, or cost of defense incurred by the association with relation to limited common elements in which he has no interest.
(d) A unit owner shall be liable for no more than a pro rata share of any settlement, judgment, or cost of defense incurred by the association. Where liability arises with relation to common elements or limited common elements in which a unit owner has an interest, such pro rata share shall be based on such interest. Where liability arises with relation to private elements, such pro rata share shall be based on the relation that the value of such unit owners private element bears the value of all private elements. In no event may such pro rata share exceed the value of such unit owner’s interest in the condominium. Unpaid portions of a judgment which has been so prorated shall not be reassessed among remaining unit owners should those held liable fail to pay.
(e) A unit owner shall be liable for acts or omissions on his own part in the same manner and to the same extent as any other owner of property.
(f) No unit owner, except as an officer of the association, shall have any authority to act for or obligate the association.
(g) Failure of a unit owner to comply with the covenants and restrictions set forth in the declaration or in deeds of units or to comply with the bylaws shall be grounds for an action for the recovery of damages or for injunctive relief, or both, maintainable by the association or by any other unit owner or by any person who holds a lien of record upon a unit and is aggrieved by any such noncompliance.
(h) Whether incorporated or unincorporated, the association shall act through its officers and may enter into contracts, bring suit and be sued. If the association is unincorporated, process may be served upon the association by serving any officer of the association or by serving the agent designated in the bylaws for service of process. Service of process upon any member of the association shall not constitute service of process upon the association.
(i) A unit owner shall have the capacity to sue the association and other unit owners who may be liable by reason of any act or omission on their own part, in tort as if he were a member of the public, and such action shall not be barred on the ground that the plaintiff is a co-owner. Such action shall be at the expense of such plaintiff unit owner, and he shall nevertheless be required to pay any pro rata cost of defense, settlement, or judgment of such action which may be assessed against unit owners by the association.
(Acts 1964, 1st Ex. Sess., No. 206, p. 266, §27; Acts 1973, No. 1059, p. 1732, §12.)
The common expenses and limited common expenses shall be charged to unit owners in such amount that the charge corresponds approximately to their respective undivided interests in the common elements and limited common elements as set forth or determined by the declaration and amendments thereto. The amount of such expenses charged to each unit shall be a lien against such unit subject to the provisions of Section 35-8-17. A unit owner shall, by acceptance of title, be conclusively presumed to have agreed to pay his proportionate share of such expenses accruing while he is the owner of a unit. However, the liability of a unit owner for such expenses shall be limited to amounts duly assessed in accordance with this chapter, the declaration, and bylaws. No unit owner may exempt himself from liability for his share of such expenses arising out of common elements and limited common elements in which he has an interest by waiver of the enjoyment of the right to use any of the common elements, or limited common elements or by abandonment of his unit or otherwise. Such expenses charged to any unit shall bear interest from the due date set by the association. The interest rate, not to exceed the legal interest rate, may be established by the association or, if no rate is so established, it shall be the legal rate.
(Acts 1964, 1st Ex. Sess., No. 206, p. 266, §§21, 23; Acts 1973, No. 1059, p. 1732, §13.)
There shall be no material alteration of or substantial addition to the common elements or limited common elements except as authorized by the declaration. No unit owner shall contract for or perform any maintenance, repair, replacement, removal, alteration, or modification of the common elements, or limited common elements, or any additions thereto, except through the association and its officers. No unit owner shall take or cause to be taken any action within his unit which would jeopardize the soundness or safety of any part of the condominium property or impair any easement or right of any unit owner or affect the common elements, or limited common elements, without the unanimous consent of all unit owners who might be affected thereby.
(Acts 1964, 1st Ex. Sess., No. 206, p. 266, §8; Acts 1973, No. 1059, p. 1732, §14.)
All property taxes, special assessments, and other charges imposed by any taxing authority shall be separately assessed against and collected on each unit as a single parcel, and not on the condominium property as a whole. Such taxes, assessments, and charges shall constitute a lien only upon the unit and upon no other portion of the condominium property. All laws authorizing exemptions or deductions from taxation shall be applicable to each individual unit to the same extent they are applicable to other property. The total of the assessments for tax purposes against the aggregate of all units constituting the condominium property shall not exceed the assessment which would otherwise have been made against such condominium property as a single parcel had it not been submitted to this chapter.
(Acts 1964, 1st Ex. Sess., No. 206, p. 266, §22; Acts 1973, No. 1059, p. 1732, §15.)
(a) Except as otherwise provided in Section 35-8-18, subsequent to recording the declaration as provided in this chapter and while the property remains subject to this chapter, no lien shall arise or be effective against the condominium property as a whole. During such period, liens or encumbrances shall arise or be created only against each unit in the same manner and under the same conditions in every respect as liens or encumbrances may arise or be created upon or against any other separate parcel of real property subject to individual ownership; provided, that no labor performed or materials furnished with the consent or at the request of a unit owner or his agent, his contractor or subcontractor shall be the basis for the filing of a lien against the unit or any other property of any other unit owner not expressly consenting to or requesting the same, except that such express consent shall be deemed to be given by the owner of any unit in the case of emergency repairs thereto. Labor performed or materials furnished for the common elements and limited common elements, if duly authorized by the association in accordance with this chapter, the declaration, or bylaws, shall be deemed to be performed or furnished with the express consent of each unit owner benefited by such labor or materials and shall be the basis for the filing of a lien pursuant to the lien laws against each of the units so benefited and shall be subject to the provisions of subsection (b) of this section.
(b) In the event a lien against two or more units becomes effective, the owner of each separate unit may remove his unit from the lien and obtain a discharge and satisfaction by payment of the proportion thereof attributable to such unit. The proportion so attributable to each unit subject to the lien shall be the proportion in which all units subject to the lien share among themselves in liability for common expenses or limited common expenses as appropriate. Subsequent to any such payment, the lien on such unit shall be discharged or otherwise satisfied of record, and the unit shall thereafter be free and clear of such lien. Such partial payment discharge and satisfaction shall not prevent the lienor from proceeding to enforce his rights against any other unit not so paid, satisfied, or discharged.
(Acts 1964, 1st Ex. Sess., No. 206, p. 266, §9; Acts 1973, No. 1059, p. 1732, §16.)
The association shall have a lien on each unit for any unpaid assessment duly made by the association for a share of common expenses, limited common expenses or otherwise, together with interest thereon and, if authorized by the declaration or bylaws, reasonable attorney’s fees. Such lien shall be effective from and after the time of recording in the public records of the county in which the unit is located of a claim of lien stating the description of the unit, the name of the record owner, the amount due, and the date when due. Such claim of lien shall include only sums which are due and payable when the claim of lien is recorded and shall be signed and verified by an officer or agent of the association. Upon full payment of all sums secured by the lien, the party making payment shall be entitled to a recordable satisfaction of lien. All such liens shall be subordinate to any lien for taxes, the lien of any mortgage of record, and any other lien recorded prior to the time of recording of the claim of the association’s lien.
(1) Upon any voluntary conveyance of a unit, the grantor and grantee of such unit shall be jointly and severally liable for all unpaid assessments pertaining to such unit duly made by the association or accrued up to the date of such conveyance without prejudice to the right of the grantee to recover from the grantor any amounts paid by the grantee, but the grantee shall be exclusively liable for those accruing while he is the unit owner.
(2) Any unit owner or any purchaser of a unit prior to completion of a voluntary sale may require from the association a certificate showing the amount of unpaid assessments pertaining to such unit, and the association shall provide such certificate within 10 days after request therefor. The holder of a mortgage or other lien on any unit may request a similar certificate with respect to such unit. Any person other than the unit owner at the time of issuance of any such certificate who relies upon such certificate shall be entitled to rely thereon, and his liability for such unpaid assessments shall be limited to the amounts set forth in such certificate.
(3) If a holder of a first lien of record or other purchaser of a unit obtains title to such unit as a result of foreclosure of the first lien, such acquirer of title, his successors and assigns shall not be fully liable for the share of common expenses, limited common expenses, or other assessments by the association pertaining to such unit or chargeable to the former unit owner which became due prior to acquisition of title as a result of the foreclosure. Such unpaid share of common expenses, limited common expenses, or other assessments shall be deemed to be common expenses or limited common expenses collectable from all of the remaining unit owners including such acquirer, his successors and assigns.
(4) Liens for unpaid assessments may be foreclosed by an action brought in the name of the association in the same manner as a foreclosure of a mortgage on real property. The association shall have the power, unless prohibited by the declaration or bylaws, to bid in the unit at foreclosure sale and to acquire, hold, lease, mortgage, and convey the same. An action to recover a money judgment for unpaid assessments may be maintained without waiving the lien securing the same.
(Acts 1964, 1st Ex. Sess., No. 206, p. 266, §§23, 24; Acts 1973, No. 1059, p. 1732, §17.)
Notwithstanding any other provision of this chapter, if the declaration or bylaws so permit, the entire condominium property or some or all of the units included therein may be subject to a single or blanket mortgage constituting a first lien thereon created by recordable instrument by all of the owners of the property or units covered thereby; and any unit included under the lien of such mortgage may be sold or otherwise conveyed or transferred subject thereto. The instrument creating any such mortgage shall provide a method whereby any unit owner may obtain a release of his unit from the lien of such mortgage and a satisfaction and discharge in recordable form upon payment to the holder of the mortgage of a sum equal to the proportionate share attributable to his unit of the then outstanding balance of unpaid principal and accrued interest and any other charges then due and unpaid. Such proportionate share attributable to each unit shall be the proportion in which all unit owners whose units are then subject to the lien of the mortgage own among themselves the common elements and limited common elements as provided in the declaration, and the private elements, or such other reasonable proportion as shall be specifically provided in the mortgage instrument. Such mortgage may contain provisions for converting such mortgage to individual mortgages on the individual units included therein. In the event of such conversion, the mortgage on the individual units shall be entitled to recordation without the payment of the mortgage tax provided for by Section 40-22-2.
(Acts 1973, No. 1059, p. 1732, §18.)
All persons, as defined in Section 35-8-2, including but not limited to insurance companies, banking organizations, mortgage companies and savings and loan associations, may be permitted to invest in bonds, notes, and evidences of indebtedness which are secured by mortgages or deeds of trust upon condominium property or units thereof wherever such persons may invest and subject to all of the rules and limitations applicable to such investment in bonds, notes, and evidences of indebtedness which are secured by like instruments of the same priority upon real property. Where the applicable limitations are dependent upon the type of use of the real property, only the type of use of the particular unit or units which constitute the security for such investment shall be taken into consideration for the purpose of such limitations.
(Acts 1973, No. 1059, p. 1732, §19.)
(a) The condominium property may be removed from the provisions of this chapter provided that all unit owners agree and all holders of record of liens affecting any of the units consent or agree, in either case by instruments duly recorded, that their liens be transferred to the undivided share of the unit owner in the property as hereinafter provided.
(b) A circuit court may grant the petition of any unit owner for a removal of the condominium property from the provisions of this chapter and a partition under the following circumstances:
(1) In the event of total destruction of all improvements of the condominium property and no agreement is reached to rebuild such improvements within a reasonable time, or such rebuilding has not been completed within a reasonable time.
(2) In the event of substantial destruction, deterioration, or obsolescence of the condominium property and no agreement is reached to repair, reconstruct, or rebuild such property within a reasonable time, or such repair, reconstruction, or rebuilding has not been completed within a reasonable time, and at least a majority of votes of unit owners shall be cast in favor of such removal.
(c) Upon removal of the condominium property from the provisions of this chapter, the property shall be deemed to be owned in common by those who were unit owners at the time of such removal. The undivided share in the property owned in common by each such owner with respect to the previous common elements shall be the undivided interest previously owned by such owner in the previous common elements. The undivided share in the property owned in common by each such owner with respect to the previous limited common elements shall be the undivided interest previously owned by each such owner in the previous limited common elements. The undivided share in the property owned in common by each such owner with respect to the previous private elements may be determined by an appraisal of all previous private elements and a computation of the relation that the value of each such owner’s previous private elements bears to the value of all previous private elements or such other reasonable method of determination as the declaration may provide. Under no circumstances shall anyone other than the owner of a unit at the time of removal be entitled to the use of any previous element of such previous unit subsequent to the removal of the condominium property from the provisions of this chapter and prior to the sale of such previous element.
(d) After termination of a condominium in any manner, the liens upon the previous units shall be upon the respective undivided interests of the owners as tenants in common.
(e) The termination of a condominium shall not bar the creation of another condominium affecting all or part of the same property.
(Acts 1964, 1st Ex. Sess., No. 206, p. 266, §16; Acts 1973, No. 1059, p. 1732, §20.)
All laws, ordinances, and regulations concerning buildings or zoning shall be construed and applied with reference to condominium property for dwelling purposes in the same manner as to other multi-family dwelling projects and developments of similar nature and use without regard to the form of ownership. No law, ordinance, or regulation shall establish any requirement concerning the use or location, placement, or construction of other buildings or other improvements which are or may thereafter be subjected to the condominium form of ownership, unless such requirement shall be equally applicable to all buildings and improvements of the same kind not then or thereafter to be subjected to the condominium form of ownership.
(Acts 1973, No. 1059, p. 1732, §21.)
Notwithstanding a finding that this chapter is in derogation of the common law, it should be liberally construed to effectuate its purpose of encouraging development and construction of condominium property under the provisions of this chapter.
(Acts 1973, No. 1059, p. 1732, §22.)
This chapter shall be known and may be cited as the “Alabama Uniform Condominium Act of 1991.”
(Acts 1990, No. 90-551, p. 858, §1-101.)
(a) This chapter applies to all condominiums created within this state after January 1, 1991. Sections 35-8A-104 (Variation by agreement), 35-8A-105 (Separate titles and taxation), 35-8A-106 (Applicability of local ordinances, regulations, and building codes), 35-8A-107 (Eminent domain), 35-8A-203 (Construction and validity of declaration and bylaws), 35-8A-204 (Description of units), 35-8A-302(a)(1) through (a)(6) and (a)(11) through (a)(16) (Powers of unit owners’ association), 35-8A-311 (Tort and contract liability), 35-8A-316 (Lien for assessments), 35-8A-318 (Association records), 35-8A-409 (Resales of units), and 35-8A-417 (Substantial completion of units), and Section 35-8A-103 (Definitions), to the extent necessary in construing any of those sections, apply to all condominiums created in this state before January 1, 1991; but those sections apply only with respect to events and circumstances occurring after January 1, 1991, and do not invalidate existing provisions of the declaration, bylaws, plats or plans of those condominiums.
(b) The provisions of Sections 35-8-1 through 35-8-22 do not apply to condominiums created after January 1, 1991, unless the declaration so provides in the case of a condominium containing four or fewer units and do not invalidate any amendment to the declaration, bylaws, plats, or plans of any condominium created before January 1, 1991, if the amendment would be permitted by this chapter. The amendment must be adopted in conformity with the procedures and requirements specified by those instruments and by Sections 35-8-1 through 35-8-22. If the amendment grants to any person any rights, powers, or privileges permitted by this chapter, all correlative obligations, liabilities, and restrictions in this chapter also apply to that person.
(c) This chapter does not apply to condominiums or units located outside this state, but the offering statement provisions (Sections 35-8A-402 through 35-8A-408) apply to all contracts for the disposition thereof signed by a resident of this state unless: (i) the transaction is exempt under Section 35-8A-401(b); (ii) the transaction is exempt pursuant to Section 35-8A-407; or (iii) the state in which the condominium is located has statutory disclosure requirements and all terms thereof have been met.
(d) If a condominium contains no more than four units and is not subject to any development rights, the condominium may be created pursuant to this chapter or pursuant to Sections 35-8-1 to 35-8-22, inclusive, and the declaration of condominium shall declare the chapter that shall govern the condominium.
(Acts 1990, No. 90-551, p. 858, §1-102; Act 2018-403, §1.)
In the declaration and bylaws, unless specifically provided otherwise or the context otherwise requires, and in this chapter, the following terms are defined as set forth below:
(1) AFFILIATE OF A DECLARANT. Any person who controls, is controlled by, or is under common control with a declarant. A person “controls” a declarant if the person (i) is a general partner, officer, director, or employer of the declarant, (ii) directly or indirectly or acting in concert with one or more other persons, or through one or more subsidiaries, owns, controls, holds with power to vote, or holds proxies representing more than 20 percent of the voting interest in the declarant, (iii) controls in any manner the election of a majority of the directors of the declarant, or (iv) has contributed more than 20 percent of the capital of the declarant. A person “is controlled by” a declarant if the declarant (i) is a general partner, officer, director, or employer of the person, (ii) directly or indirectly or acting in concert with one or more other persons, or through one or more subsidiaries, owns, controls, holds with power to vote, or holds proxies representing more than 20 percent of the voting interest in the person, (iii) controls in any manner the election of a majority of the directors of the person, or (iv) has contributed more than 20 percent of the capital of the person. Control does not exist if the powers described in this paragraph are held solely as security for an obligation and are not exercised.
(2) ALLOCATED INTERESTS. The undivided interest in the common elements, the common expense liability, and votes in the association allocated to each unit.
(3) ASSOCIATION. The corporation organized under Section 35-8A-301.
(4) COMMON ELEMENTS. All portions of a condominium other than the units, and any other interests in real estate for the benefit of the unit owners which are declared to be subject to the declaration.
(5) COMMON EXPENSES. Expenditures made by or financial liabilities of the association, together with any allocations to reserves.
(6) COMMON EXPENSE LIABILITY. The liability for common expenses allocated to each unit pursuant to Section 35-8A-207.
(7) CONDOMINIUM. Real estate, portions of which are designated for separate ownership and the remainder of which is designated for common ownership solely by the owners of those portions. Real estate is not a condominium unless the undivided interests in the common elements are vested in the unit owners.
(8) CONVERSION BUILDING. A building that at any time before creation of the condominium was occupied wholly or partially by persons other than purchasers and persons who occupy with the consent of purchasers.
(9) DECLARANT. Any person who offers to dispose of an interest in a condominium unit not previously disposed of or who succeeds to any special declarant right.
(10) DECLARATION. Any instrument, however denominated, that creates a condominium, and any amendments to that instrument.
(11) DEVELOPMENT RIGHTS. Any right or combination of rights reserved by a declarant in the declaration to: (i) add real estate to a condominium; (ii) create units, common elements, or limited common elements within a condominium; (iii) subdivide units or convert units into common elements or common elements into units; or (iv) withdraw real estate from a condominium.
(12) DISPOSE or DISPOSITION. A transfer to a purchaser of title to in a unit, but does not include the transfer or release of a security interest.
(13) BOARD. The body governing the association.
(14) IDENTIFYING NUMBER. A number, letter, or combination thereof that identifies only one unit in a condominium.
(15) LEASEHOLD CONDOMINIUM. A condominium in which all or a portion of the real estate is subject to a lease, the expiration or termination of which will terminate the condominium or reduce its size.
(16) LIMITED COMMON ELEMENTS. A portion of the common elements allocated by the declaration or by operation of Section 35-8A-202(2) or (4) for the exclusive use by one or more but fewer than all of the units.
(17) MASTER ASSOCIATION. An organization described in Section 35-8A-220, whether it is also an association described in Section 35-8A-301.
(18) OFFERING. Any advertisement, inducement, solicitation, or attempt to encourage any person to acquire any interest in a unit, other than as security for an obligation.
(19) PERSON. A natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or other legal or commercial entity.
(20) PURCHASER. Any person, other than a declarant or a person in the business of selling real estate for his or her own account, who by means of a voluntary transfer acquires a legal or equitable interest in a unit other than: (i) a leasehold interest (including renewal options) of less than 20 years, or (ii) as security for an obligation.
(21) REAL ESTATE. Any leasehold or other estate or interest in, over, or under land, including structures, fixtures, and other improvements and interests which by custom, usage, or law pass with a conveyance of land though not described in the contract of sale or instrument of conveyance. “Real estate” includes parcels with or without upper or lower boundaries, and spaces that may be filled with air or water.
(22) RESIDENTIAL PURPOSES. Use for dwelling or recreational purposes, or both.
(23) SECURITY INTEREST. An interest in real estate or personal property created by contract or conveyance, which secures payment or performance of an obligation. The term includes a lien created by a mortgage, vendor’s lien, deed of trust, contract for deed, land sales contract, lease intended as security, assignment of lease, rents intended as security, or any similar security device, pledge of an ownership interest in an association, and any other consensual lien or title retention contract intended as security for an obligation.
(24) SPECIAL DECLARANT RIGHTS. Rights reserved for the benefit of a declarant (i) to complete improvements indicated on plats and plans filed with the declaration (Section 35-8A-209); (ii) to exercise any development right (Section 35-8A-210); (iii) to maintain sales offices, management offices, signs advertising the condominium, and models (Section 35-8A-215); (iv) to use easements through the common elements for the purpose of making improvements within the condominium or within real estate which may be added to the condominium (Section 35-8A-216); (v) to make the condominium subject to a master association (Section 35-8A-220); (vi) or to appoint or remove any officer of the association or any master association or any board member during any period of declarant control (Section 35-8A-303(d)).
(25) TIME SHARE. A right to occupy a unit or any of several units during five or more separated time periods over a period of at least five years, including renewal options, whether or not coupled with an estate or interest in a condominium or a specified portion thereof.
(26) UNIT. A physical portion of the condominium designated for separate ownership or occupancy, the boundaries of which are described pursuant to Section 35-8A-205(a)(5).
(27) UNIT OWNER. A person who owns a unit, or the owner of the right to use a unit in a leasehold condominium whose interest expires simultaneously with any interest the expiration or termination of which will remove the unit from the condominium, but does not include a person having an interest in a unit solely as security for an obligation. The declarant is the initial unit owner of any unit created in the condominium.
(Acts 1990, No. 90-551, p. 858, §1-103; Act 2018-403, §1.)
Except as expressly provided in this chapter, provisions of this chapter may not be varied by agreement, and rights conferred by this chapter may not be waived. A declarant may not act under a power of attorney, or use any other device, to evade the limitations or prohibitions of this chapter or the declaration.
(Acts 1990, No. 90-551, p. 858, §1-104.)
(a) If there is any unit owner other than a declarant, each unit that has been created, together with its interest in the common elements, constitutes for all purposes a separate parcel of real estate.
(b) If there is any unit owner other than a declarant, each unit must be separately taxed and assessed, and no separate tax or assessment may be rendered against any common elements for which a declarant has reserved no development rights.
(c) Any portion of the common elements for which the declarant has reserved any development right may be separately taxed and assessed against the declarant, and, if separately taxed and assessed, the declarant alone would be liable for payment of those taxes.
(d) If there is no unit owner other than a declarant, the real estate comprising the condominium may be taxed and assessed in any manner provided by law.
(e) All laws authorizing exemptions or deductions from taxation shall be applicable to each individual unit to the same extent they are applicable to other property.
(Acts 1990, No. 90-551, p. 858, §1-105; Act 2018-403, §1.)
(a) A building code may not impose any requirements upon any structure in a condominium which it would not impose upon a physically identical structure under a different form of ownership.
(b) No zoning, subdivision, or other real estate use law, ordinance, or regulation may prohibit the condominium form of ownership or impose any requirement upon a condominium which it would not impose upon a physically identical development under a different form of ownership.
(c) Except as provided in subsections (a) and (b), the provisions of this chapter do not invalidate or modify any provision of any zoning, subdivision, building code, or other real estate use law, ordinance, rule, or regulation governing the use of real estate.
(Acts 1990, No. 90-551, p. 858, §1-106; Act 2018-403, §1.)
(a) If a unit is acquired by eminent domain, or if part of a unit is acquired by eminent domain leaving the unit owner with a remnant which may not practically or lawfully be used for any purpose permitted by the declaration, the award must compensate the unit owner for the unit and its interest in the common elements, whether or not any common elements are acquired. Upon acquisition, unless the decree otherwise provides, that unit’s allocated interests are automatically reallocated to the remaining units in proportion to the respective allocated interests of those units before the taking, and the association shall promptly prepare, execute, and record an amendment to the declaration reflecting the reallocations. Any remnant of a unit remaining after part of a unit is taken under this subsection is thereafter a common element.
(b) Except as provided in subsection (a), if part of a unit is acquired by eminent domain, the award must compensate the unit owner for the reduction in value of the unit and its interest in the common elements, whether or not any common elements are acquired. Upon acquisition, unless the decree otherwise provides, (i) that unit’s allocated interests are reduced in proportion to the reduction in the size of the unit, or on any other basis specified in the declaration, and (ii) the portion of the allocated interests divested from the partially acquired unit are automatically reallocated to that unit and the remaining units in proportion to the respective allocated interests of those units before the taking, with the partially acquired unit participating in the reallocation on the basis of its reduced allocated interests.
(c) If part of the common elements is acquired by eminent domain the portion of the award attributable to the common elements taken must be paid to the association. Unless the declaration provides otherwise, any portion of the award attributable to the acquisition of a limited common element must be divided among the owners of the units in accordance with the value of the interest assigned to the unit in that particular limited common element to which that limited common element was allocated at the time of acquisition.
(d) The court decree shall be recorded in every county in which any portion of the condominium is located.
(Acts 1990, No 90-551, p. 858, §1-107; Act 2018-403, §1.)
The principles of law and equity, including the law of corporations, the law of real property and the law relative to capacity to contract, principal and agent, eminent domain, estoppel, fraud, misrepresentation, duress, coercion, mistake, receivership, substantial performance, or other validating or invalidating cause supplement the provisions of this chapter, except to the extent inconsistent with this chapter.
(Acts 1990, No. 90-551, p. 858, §1-108.)
This chapter being a general act intended as a unified coverage of its subject matter, no part of it shall be construed to be impliedly repealed by subsequent legislation if that construction can reasonably be avoided.
(Acts 1990, No. 90-551, p. 858, §1-109).
(a) Notwithstanding a finding that this chapter is in derogation of the common law, it should be liberally construed to effectuate its purpose of encouraging development and construction of condominium property under the provisions of this chapter. The remedies provided by this chapter shall be liberally administered to the end that the aggrieved party is put in as good a position as if the other party had fully performed.
(b) Any right or obligation declared by this chapter is enforceable by judicial proceeding.
(Acts 1990, No. 90-551, p. 858, §1-112.)
(a) A condominium may be created pursuant to this chapter only by filing a declaration executed in the same manner as a deed with the judge of probate in every county in which any portion of the condominium is located.
(b) The judge of probate shall index the declaration of condominium in the grantee’s index in the name of the condominium and the association and in the grantor’s index in the name of each person executing the declaration.
(c) A declaration or an amendment to a declaration adding units to a condominium is not effective unless all structural components and mechanical systems of all buildings containing or comprising any units thereby created are substantially complete, as evidenced by a recorded certificate of substantial completion of structural and mechanical systems executed by an independent registered engineer or independent registered architect.
(Acts 1990, No. 90-551, p. 858, §2-101; Act 2018-403, §1.)
Except as provided by the declaration:
(1) If walls, floors, or ceilings are designated as boundaries of a unit, all lath, furring, wallboard, plasterboard, plaster, paneling, tiles, wallpaper, paint, finished flooring, and any other materials constituting any part of the finished surfaces thereof are a part of the unit, and all other portions of the walls, floors, or ceilings are a part of the common elements.
(2) If any chute, flue, duct, wire, conduit, bearing wall, bearing column, or any other fixture lies partially within and partially outside the designated boundaries of a unit, any portion thereof serving only that unit is a limited common element allocated solely to that unit, and any portion thereof serving more than one unit or any portion of the common elements is a part of the common elements.
(3) Subject to the provisions of subdivision (2), all spaces, interior partitions, and other fixtures and improvements within the boundaries of a unit are a part of the unit.
(4) Any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, and all exterior doors and windows or other fixtures designed to serve a single unit, but located outside the unit’s boundaries, are limited common elements allocated exclusively to that unit.
(Acts 1990, No. 90-551, p. 858, §2-102.)
(a) All provisions of the declaration and bylaws are severable.
(b) The rule against perpetuities may not be applied to defeat any provision of the declaration, bylaws, rules, or regulations adopted pursuant to section 35-8A-302(a)(1).
(c) In the event of a conflict between the provisions of the declaration and the bylaws, the declaration prevails except to the extent the declaration is inconsistent with this chapter.
(d) Title to a unit and common elements is not rendered unmarketable or otherwise affected by reason of an insubstantial failure of the declaration to comply with this chapter. The determination of whether a substantial failure impairs marketability is not governed by this chapter.
(Acts 1990, No. 90-551, p. 858, §2-103.)
A description of a unit which sets forth the name of the condominium, the recording data for the declaration, the county in which the condominium is located, and the identifying number of the unit, is a sufficient legal description of that unit and all rights, obligations, and interests appurtenant to that unit which were created by the declaration or bylaws.
(Acts 1990, No. 90-551, p. 858, §2-104.)
(a) The declaration for a condominium must contain:
(1) The name of the condominium, which must include the word “condominium” or be followed by the words “a condominium,” and the name of the association;
(2) The name of every county in which any part of the condominium is situated;
(3) A legally sufficient description of the real estate included in the condominium;
(4) A statement of the maximum number of units which the declarant reserves the right to create;
(5) A description of the boundaries of each unit created by the declaration, including the unit’s identifying number;
(6) A description of any limited common elements, other than those specified in Section 35-8A-202(2) and (4), as provided in Section 35-8A-209(b)(10);
(7) A description of any common elements (except real estate subject to development rights) which may be allocated subsequently as limited common elements, other than limited common elements specified in Section 35-8A-202(2) and (4), together with a statement that they may be so allocated;
(8) A description of any development rights specified in Section 35-8A-103(11) and other special declarant rights specified in Section 35-8A-103(24) reserved by the declarant, together with a legally sufficient description of the real estate to which each of those rights applies, and a time limit within which each of those rights must be exercised;
(9) If any development right may be exercised with respect to different parcels of real estate at different times, a statement to that effect together with (i) either a statement fixing the boundaries of those portions and regulating the order in which those portions may be subjected to the exercise of each development right, or a statement that no assurances are made in those regards, and (ii) a statement as to whether, if any development right is exercised in any portion of the real estate subject to that development right, that development right must be exercised in all or in any other portion of the remainder of that real estate;
(10) Any other conditions or limitations under which the rights described in subdivision (8) may be exercised or will lapse;
(11) An allocation to each unit of the allocated interests in the manner described in Section 35-8A-207;
(12) Any restrictions on (i) use, occupancy, leasing, or alienation of the units, provided that reasonable rules and regulations related to conduct by unit owners or aesthetic considerations which are adopted by the association from time to time need not be included in the declaration, and (ii) the amount for which a unit may be sold or the amount that may be received by a unit owner on sale, condemnation, casualty loss to the unit or to the condominium, or on the termination of the condominium;
(13) The recording data for recorded easements and licenses appurtenant to or included in the condominium or to which any portion of the condominium is or may become subject by virtue of a reservation in the declaration;
(14) A statement of the number and identity of units which the declarant reserves the right to dispose of in time shares; and
(15) All matters required by Sections 35-8A-206 through 35-8A-209, 35-8A-215, 35-8A-216, and 35-8A-303(d).
(b) The declaration may contain any other matters the declarant deems appropriate.
(Acts 1990, No. 90-551, p. 858, §2-105; Act 2018-403, §1.)
(a) Any lease the expiration or termination of which may terminate the condominium or reduce its size shall be recorded. Every lessor of those leases must sign the declaration, and the declaration must state:
(1) The recording data for the lease, the date of the lease, and the date of its recordation;
(2) The date on which the lease is scheduled to expire;
(3) A legally sufficient description of the real estate subject to the lease;
(4) Any right of the unit owners to redeem the reversion and the manner whereby those rights may be exercised, or a statement that they do not have those rights;
(5) Any right of the unit owners to remove any improvements within a reasonable time after the expiration or termination of the lease, or a statement that they do not have those rights; and
(6) Any rights of the unit owners to renew the lease and the conditions of any renewal, or a statement that they do not have those rights.
(b) After the declaration for a leasehold condominium is recorded, neither the lessor nor his successor in interest may terminate the leasehold interest of a unit owner who makes timely payment of his share of the rent and otherwise complies with all covenants which, if violated, would entitle the lessor to terminate the lease. A unit owner’s leasehold interest in a condominium is not affected by failure of any other person to pay rent or fulfill any other covenant.
(c) Acquisition of the leasehold interest of any unit owner by the owner of the reversion or remainder does not merge the leasehold and fee simple interests unless the leasehold interests of all unit owners subject to that reversion or remainder are acquired.
(d) If the expiration or termination of a lease decreases the number of units in a condominium, the allocated interests must be reallocated in accordance with Section 35-8A-107(a) as though those units had been taken by eminent domain. Reallocations shall be confirmed by an amendment to the declaration prepared, executed, and recorded by the association.
(Acts 1990, No. 90-551, p. 858, §2-106.)
(a) The declaration must allocate to each unit in a condominium a fraction or percentage of undivided interests in the common elements and in the common expenses of the association specified in section 35-8A-315(a), and a portion of the votes in the association, to each unit and state the formulas used to establish allocations of interest. Those allocations may not discriminate in favor of units owned by the declarant or an affiliate of the declarant.
(b) If units may be added to or withdrawn from the condominium, the declaration must state the formulas to be used to reallocate the allocated interests among all units included in the condominium after the addition or withdrawal.
(c) The declaration may provide: (i) that different allocations of votes shall be made to the units on particular matters specified in the declaration; (ii) for cumulative voting only for the purpose of electing members of the board; and (iii) for class voting on specified issues affecting the class if necessary to protect valid interests of the class. A declarant may not utilize cumulative or class voting for the purpose of evading any limitation imposed on declarants by this chapter, nor may units constitute a class because they are owned by a declarant.
(d) Except for minor variations due to rounding, the sum of the undivided interests in the common elements and common expense liabilities allocated at any time to all the units must each equal one if stated as fractions or 100 percent if stated as percentages. In the event of discrepancy between an allocated interest and the result derived from application of the pertinent formula, the allocated interest prevails.
(e) In a condominium the common elements are not subject to partition, and any purported conveyance, encumbrance, judicial sale, or other voluntary or involuntary transfer of an undivided interest in the common elements made without the unit to which that interest is allocated, is void.
(Acts 1990, No. 90-551, p. 858, §2-107.)
(a) Except for the limited common elements described in Section 35-8A-202(2) and (4), the declaration must specify to which unit or units each limited common element is allocated. An allocation may not be altered without the consent of the association and the unit owners whose units are affected by the amendment.
(b) Except as the declaration otherwise provides, a limited common element may be reallocated by an amendment to the declaration executed by the unit owners between or among whose units the reallocation is made. The association shall prepare, execute, and record the amendment which is subject to Section 35-8A-217(e), and the cost shall be borne by the unit owners executing the amendment. The amendment shall be recorded and indexed in the names of the unit owners executing the amendment, the condominium, and the association.
(c) A common element not previously allocated as a limited common element may not be so allocated except pursuant to provisions in the declaration made in accordance with Section 35-8A-205(a)(7). The allocations must be made by amendments to the declaration.
(Acts 1990, No. 90-551, p. 858, §2-108; Act 2018-403, §1.)
(a) A clear and legible plat of the condominium property and plans, if required under subsection (d), shall be recorded in the office of the judge of probate in every county in which any portion of the condominium is located and shall contain a certification that the plat and plans, if any contain all information required by this section. If the plat contains all of the information described in subsections (b), (c), (d), and (g), plans are not required. The recorded plan and plans are part of the declaration.
(b) Each plat must show:
(1) The name of the condominium and a survey of the real property included in the condominium;
(2) The location and dimensions of all existing improvements located on the condominium property;
(3) The location and dimensions of any real estate subject to development rights reserved over any part of the condominium property, labeled to identify the rights applicable to each identified portion, but the plat need not designate or label which development rights are applicable if that information is clearly described in the declaration;
(4) The extent of any encroachments by or upon any portion of the condominium property;
(5) To the extent any easements can be shown on the plat, the location and dimensions of all easements serving or burdening any portion of the condominium property;
(6) To the extent they can be shown on the plat, the location and dimensions of any vertical unit boundaries and the identifying number of each unit;
(7) To the extent they can be shown on the plat, any horizontal unit boundaries with reference to an established datum and the identifying number of each unit;
(8) To the extent they can be shown on the plat, the location and dimensions of any limited common elements other than parking spaces and the limited common elements described in subdivisions (2) and (4) of Section 35-8A-202;
(9) A legally sufficient description of any real estate in which the unit owners will own only an estate for years, labeled as “leasehold real estate”;
(10) The distance between noncontiguous parcels of real property included in the condominium;
(11) A certification as to whether any portion of the real property contained in the condominium is located within a flood zone as determined by the federal agency charged with implementation of the National Flood Insurance Act and, if so, the flood zone classification. When any portion of the condominium property is located within a flood zone, the flood zone boundary shall be shown on the plat, together with the elevations and locations of all existing structures located within the flood zone area;
(12) The intended location and dimensions of any contemplated or proposed improvements to be constructed on the condominium property pursuant to any development right, which must be clearly labeled either “MUST BE BUILT” or “NEED NOT BE BUILT”; and
(13) All other matters customarily shown on land surveys.
(c) A general schematic map or a legal description of any real property that may be added to the condominium in the future pursuant to a development right reserved under Section 35-8A-205(a)(8) must either be included in the declaration or shown on an additional page of the plat. If the additional real property is shown on the plat, it must be clearly labeled that it is not part of the condominium property.
(d) To the extent not contained on the plat of the condominium property, plans of the condominium property improvements must be prepared and recorded that show:
(1) The location and dimensions of the vertical boundaries of each unit, and the identifying number for each unit;
(2) Any horizontal boundaries with reference to an established datum, and the identifying number for each unit; and
(3) The location and dimensions of any limited common elements other than parking spaces and the limited common elements described in subdivisions (2) and (4) of Section 35-8A-202; and
(4) The location and dimensions of any units in which the declarant has reserved the right to create additional units or common elements described in Section 35-8A-210(c) identified appropriately, unless the development rights are adequately described in the declaration.
(e) Unless the declaration provides otherwise, the horizontal boundaries of any part of a unit located outside of a building have the same elevation as the horizontal boundaries inside the building, and need not be depicted on the plats and plans.
(f) Upon exercising any development right that affects the condominium property, the declarant shall record new plats and plans necessary to conform to the requirements of subsections (a), (b), and (d), or new certifications of the plats and plans previously recorded if those plats and plans otherwise conform to the requirements of those subsections.
(g) Any certification of a plat or plan required by this section must be made by a registered engineer, a registered architect, or a licensed surveyor.
(Acts 1990, No. 90-551, p. 858, §2-109; Act 2018-403, §1.)
(a) To exercise any development right reserved under Section 35-8A-205(a)(8), the declarant shall prepare, execute, and record an amendment to the declaration as specified in Section 35-8A-217 and comply with Section 35-8A-209. The declarant is the unit owner of any units thereby created. The amendment to the declaration must assign an identifying number to each new unit created, and, except in the case of subdivision or conversion of units described in subdivision (2) of subsection (c), reallocate the allocated interests among all units. The amendment must describe any common elements and any limited common elements thereby created and, in the case of limited common elements, designate the unit to which each is allocated to the extent required by Section 35-8A-208.
(b) Development rights may be reserved within any real estate added to the condominium if the amendment adding that real estate includes all matters required by Section 35-8A-205 or 35-8A-206, as the case may be, and the plats and plans include all matters required by Section 35-8A-209. This provision does not extend the time limit on the exercise of development rights imposed by the declaration pursuant to Section 35-8A-205(a)(8).
(c) Whenever a declarant exercises a development right to subdivide or convert a unit previously created into additional units, common elements, or both:
(1) If the declarant converts the unit entirely to common elements, the amendment to the declaration must reallocate all the allocated interests of that unit among the other units as if that unit had been taken by eminent domain; and
(2) If the declarant subdivides the unit into two or more units, whether or not any part of the unit is converted into common elements, the amendment to the declaration must reallocate all the allocated interests of the unit among the units created by the subdivision in any reasonable manner prescribed by the declarant.
(d) If the declaration provides, pursuant to Section 35-8A-205(a)(8), that all or a portion of the real estate is subject to the development right of withdrawal:
(1) If all the real estate is subject to withdrawal, and the declaration does not describe separate portions of real estate subject to that right, none of the real estate may be withdrawn after a unit has been conveyed to a purchaser; and
(2) If a portion or portions are subject to withdrawal, no portion may be withdrawn after a unit in that portion has been conveyed to a purchaser.
(Acts 1990, No. 90-551, p. 858, §2-110; Act 2018-403, §1.)
Subject to the provisions of the declaration and other provisions of law, a unit owner:
(1) May make any improvements or alterations to his or her unit that do not impair the structural integrity, or mechanical systems, or lessen the support of any portion of the condominium;
(2) May not substantially or adversely change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the condominium, without permission of the association;
(3) After acquiring an adjoining unit, or an adjoining part of an adjoining unit, may remove or alter any intervening partition or create apertures therein, even if the partition in whole or in part is a common element, if those acts do not impair the structural integrity or mechanical systems or lessen the support of any portion of the condominium. Removal of partitions or creation of apertures under this subdivision is not an alteration of boundaries.
(Acts 1990, No. 90-551, p. 858, §2-111; Act 2018-403, §1.)
(a) Subject to the provisions of the declaration and other provisions of law, the boundaries between adjoining units may be relocated by an amendment to the declaration upon application to the association by the owners of those units. If the owners of the adjoining units have specified a reallocation between their units of their allocated interests, the application must state the proposed reallocations. Unless the board determines, within 30 days, that the reallocations are unreasonable, the association shall prepare an amendment that identifies the units involved, states the reallocations, is executed by those unit owners, contains words of conveyance between them, and upon recordation, is indexed in the name of the grantor, grantee, and shall be recorded as an amendment to the declaration.
(b) The association shall prepare and record plats or plans necessary to show the altered boundaries between adjoining units, and their dimensions and identifying numbers.
(c) Any costs incurred utilizing the procedures described in subsections (a) and (b) above shall be borne by the requesting unit owners.
(Acts 1990, No. 90-551, p. 858, §2-112.)
(a) If the declaration expressly so permits, a unit may be subdivided into two or more units. Subject to the provisions of the declaration and other provisions of law, upon application of a unit owner to subdivide a unit, the association shall prepare, execute, and record an amendment to the declaration, including the plats and plans, subdividing that unit.
(b) The amendment to the declaration must be executed by the owner of the unit to be subdivided, assign an identifying number to each unit created, and reallocate the allocated interests formerly allocated to the subdivided unit to the new units in any reasonable manner prescribed by the owner of the subdivided unit.
(c) Any costs incurred utilizing the procedures described in subsections (a) and (b) above shall be borne by the requesting unit owners.
(Act 1990, No. 90-551, p. 858, §2-113.)
The existing physical boundaries of a unit or the physical boundaries of a unit reconstructed in substantial accordance with the original plats and plans thereof become its boundaries rather than the metes and bounds expressed in the deed or plat or plan, regardless of settling or lateral movement of the building, or minor variance between boundaries shown on the plats or plans or in the deed and those of the building. This section does not relieve a unit owner of liability in case of his or her willful misconduct nor relieve a declarant or any other person of liability for failure to adhere to the plats and plans.
(Acts 1990, No. 90-551, p. 858, §2-114; Act 2018-403, §1.)
A declarant may maintain sales offices, management offices, and models in units or on common elements in the condominium only if the declaration so provides and specifies the rights of a declarant with regard to the number, size, location, and relocation thereof. Any sales office, management office, or model not designated a unit by the declaration is a common element, and if a declarant ceases to be a unit owner, he or she ceases to have any rights with regard thereto unless it is removed promptly from the condominium in accordance with a right to remove reserved in the declaration. Subject to any limitations in the declaration, a declarant may maintain signs on the common elements advertising the condominium. The provisions of this section are subject to the provisions of other state law, and to local ordinances.
(Acts 1990, No. 90-551, p. 858, §2-115; Act 2018-403, §1.)
Subject to the provisions of the declaration, a declarant has an easement through the common elements as may be reasonably necessary for the purpose of discharging a declarant’s obligations or exercising special declarant rights, whether arising under this chapter or reserved in the declaration.
(Acts 1990, No. 90-551, p. 858, §2-116.)
(a) Except in cases of amendments that may be executed by a declarant under Section 35-8A-209(f) or 35-8A-210; the association under Section 35-8A-107, 35-8A-206(d), 35-8A-208(c), 35-8A-212(a), or 35-8A-213; or by certain unit owners under Section 35-8A-208(b), 35-8A-212(a), 35-8A-213(b), or 35-8A-218(b), and except as limited by subsection (d), the declaration, including the plats and plans, may be amended only by the affirmative vote or agreement of unit owners of units to which at least two-thirds of the votes in the association are allocated, or any larger majority the declaration specifies. The declaration may specify a smaller number only if all of the units are restricted exclusively to non-residential use.
(b) No action to challenge the validity of an amendment adopted by the association pursuant to this section may be brought more than one year after the amendment is recorded.
(c) Every amendment to the declaration must be recorded in every county in which any portion of the condominium is located, and is effective only upon recordation. An amendment shall be indexed in the grantee’s index in the name of the condominium and the association and in the grantor’s index in the name of the parties executing the amendment.
(d) Except to the extent expressly permitted or required by other provisions of this chapter, no amendment in the absence of unanimous consent of the unit owners may: Create or increase special declarant rights, create or increase the number or identity of units that may be disposed of on a time share basis, increase the number of units; change the boundaries of any unit, the allocated interests of a unit, or the uses to which any unit is restricted.
(e) Amendments to the declaration required by this chapter to be recorded by the association shall be prepared, executed, recorded, and certified on behalf of the association by any officer of the association designated for that purpose or, in the absence of designation, by the president of the association.
(f) Where a specific right is given a lender, pursuant to Section 35-8A-219 no amendment affecting those rights may be made without the consent of the lender or specified number or percentage thereof as required by the declaration.
(Acts 1990, No. 90-551, p. 858, §2-117.)
(a) Except in the case of a taking of all the units by eminent domain specified in Section 35-8A-107, a condominium may be terminated only by agreement of unit owners of units to which at least 80 percent of the votes in the association are allocated, or any larger percentage the declaration specifies. The declaration may specify a smaller percentage only if all of the units in the condominium are restricted exclusively to nonresidential uses.
(b) An agreement to terminate must be evidenced by the execution of a termination agreement, or ratifications thereof, in the same manner as a deed, by the requisite number of unit owners. The termination agreement must specify a date after which the agreement will be void unless it is recorded before that date. A termination agreement and all ratifications thereof must be recorded in every county in which a portion of the condominium is situated, and is effective only upon recordation.
(c) In the case of a condominium containing only units having horizontal boundaries described in the declaration, a termination agreement may provide that all the common elements and units of the condominium shall be sold following termination. If, pursuant to the agreement, any real estate in the condominium is to be sold following termination, the termination agreement must set forth the minimum terms of the sale.
(d) In the case of a condominium containing any units not having horizontal boundaries described in the declaration, a termination agreement may provide for sale of the common elements, but may not require that the units be sold following termination, unless the declaration as originally recorded provided otherwise or unless all the unit owners consent to the sale.
(e) The association, on behalf of the unit owners, may contract for the sale of real estate in the condominium, but the contract is not binding on the unit owners until approved pursuant to subsections (a) and (b). If any real estate in the condominium is to be sold following termination, title to that real estate, upon termination, vests in the association as trustee for the holders of all interests in the units. Thereafter, the association has all powers necessary and appropriate to effect the sale. Until the sale has been concluded and the proceeds thereof distributed, the association continues in existence with all powers it had before termination. Proceeds of the sale must be distributed to unit owners and lien holders as their interests may appear, in accordance with subsections (i), (j), and (k). Unless otherwise specified in the termination agreement, as long as the association holds title to the real estate, each unit owner and his or her successors in interest have an exclusive right to occupancy of the portion of the real estate that formerly constituted his or her unit. During the period of that occupancy, each unit owner and his or her successors in interest remain liable for all assessments and other obligations imposed on unit owners by this chapter or the declaration.
(f) If the real estate constituting the condominium is not to be sold following termination, title to the common elements and, in a condominium containing only units having horizontal boundaries described in the declaration, title to all the real estate in the condominium, vests in the unit owners upon termination as tenants in common in proportion to their respective interests as provided in subsection (h), and liens on the units shift accordingly. While the tenancy in common exists, each unit owner and his or her successors in interest have an exclusive right to occupancy of the portion of the real estate that formerly constituted his or her unit.
(g) Following termination of the condominium, the proceeds of any sale of real estate, together with the assets of the association, are held by the association as trustee for unit owners and holders of liens on the units as their interests may appear.
(h) Following termination, creditors of the association holding liens on the units which were recorded before termination, may enforce those liens in the same manner as any lien holder. All other creditors of the association are to be treated as if they had perfected liens on the units immediately before termination.
(i) The respective interests of unit owners referred to in subsections (e), (f), (g), and (h) are as follows:
(1) Except as provided in subdivision (2), the respective interests of unit owners are the fair market values of their units, limited common elements, and common element interests immediately before the termination, as determined by one or more independent appraisers selected by the association. The decision of the independent appraisers shall be distributed to the unit owners and becomes final unless disapproved within 30 days after distribution by unit owners of units to which 25 percent of the votes in the association are allocated. The proportion of any unit owner’s interest to that of all unit owners is determined by dividing the fair market value of that unit and common element interest by the total fair market values of all the units and common elements.
(2) If any unit or any limited common element is destroyed to the extent that an appraisal of the fair market value thereof before destruction cannot be made, the interests of all unit owners are their respective common element interests immediately before the termination.
(j) Except as provided in subsection (k), foreclosure or enforcement of a lien or encumbrance against the entire condominium does not of itself terminate the condominium, and foreclosure or enforcement of a lien or encumbrance against a portion of the condominium, other than withdrawable real estate, does not withdraw that portion from the condominium. Foreclosure or enforcement of a lien or encumbrance against withdrawable real estate does not of itself withdraw that real estate from the condominium, but the person taking title thereto has the right to require from the association, upon request, an amendment excluding the real estate from the condominium.
(k) If a lien or encumbrance against a portion of the real estate comprising the condominium has priority over the declaration, and the lien or encumbrance has not been partially released, the parties foreclosing the lien or encumbrance may upon foreclosure, record an instrument excluding the real estate subject to that lien or encumbrance from the condominium.
(Acts 1990, No. 90-551, p. 858, §2-118; Act 2018-403, §1.)
The declaration may require that all or a specified number or percentage of the mortgagees or beneficiaries of deeds of trust encumbering the units approve specified actions of the unit owners or the association as a condition to the effectiveness of those actions, but no requirement for approval may operate to (i) deny or delegate control over the general administrative affairs of the association by the unit owners or the board, or (ii) prevent the association or the board from commencing, intervening in, or settling any litigation or proceeding, or receiving and distributing any insurance proceeds except pursuant to section 35-8A-313.
(Acts 1990, No. 90-551, p. 858, §2-119.)
(a) If the declaration for a condominium provides that any of the powers described in Section 35-8A-302 are to be exercised by or may be delegated to a profit or nonprofit corporation which exercises those or other powers on behalf of one or more condominiums or for the benefit of the unit owners of one or more condominiums, all provisions of this chapter applicable to unit owners’ associations apply to any such corporation with regard to such delegated power except as modified by this section.
(b) Unless it is acting in the capacity of an association described in Section 35-8A-301, a master association may exercise the powers set forth in Section 35-8A-302(a)(2) only to the extent expressly permitted in the declarations of condominiums which are part of the master association or expressly described in the delegations of power from those condominiums to the master association.
(c) If the declaration of any condominium provides that the board may delegate certain powers to a master association, the members of the board have no liability for the acts or omissions of the master association with respect to those powers following delegation.
(d) The rights and responsibilities of unit owners with respect to the unit owners’ association set forth in Sections 35-8A-303, 35-8A-308 through 35-8A-310, and 35-8A-312 apply in the conduct of the affairs of a master association only to those persons who elect the board of a master association, whether or not those persons are otherwise unit owners within the meaning of this chapter.
(e) Even if a master association is also an association described in Section 35-8A-301, the certificate of incorporation or other instrument creating the master association and the declaration of each condominium the powers of which are assigned by the declaration or delegated to the master association, may provide that the executive board of the master association must be elected after the period of declarant control in any of the following ways:
(1) All unit owners of all condominiums subject to the master association may elect all members of that executive board.
(2) All members of the executive boards of all condominiums subject to the master association may elect all members of that executive board.
(3) All unit owners of each condominium subject to the master association may elect specified members of that executive board.
(4) All members of the executive board of each condominium subject to the master association may elect specified members of that executive board.
(Acts 1990, No. 90-551, p. 858, §2-120; Act 2018-403, §1.)
(a) Any two or more condominiums, by agreement of the unit owners as provided in subsection (b), may be merged or consolidated into a single condominium. In the event of a merger or consolidation, unless the agreement otherwise provides, the resultant condominium is, for all purposes, the legal successor of all of the preexisting condominiums and the operations and activities of all associations of the preexisting condominiums shall be merged or consolidated into a single association that holds all powers, rights, obligations, assets, and liabilities of all pre-existing associations.
(b) An agreement of two or more condominiums to merge or consolidate pursuant to subsection (a) must be evidenced by an agreement prepared, executed, recorded, and certified by the president of the association of each of the pre-existing condominiums following approval by owners of units to which are allocated the percentage of votes in each condominium required to terminate that condominium. The agreement must be recorded in every county in which a portion of the condominium is located and is not effective until recorded.
(c) Every merger or consolidation agreement must provide for the reallocation of the allocated interests in the new association among the units of the resultant condominium either (i) by stating the reallocations or the formulas upon which they are based or (ii) by stating the percentage of overall allocated interests of the new condominium which are allocated to all of the units comprising each of the pre-existing condominiums, and providing that the portion of the percentages allocated to each unit formerly comprising a part of the pre-existing condominium must be equal to the percentages of allocated interests allocated to that unit by the declaration of the pre-existing condominium.
(Acts 1990, No. 90-551, p. 858, §2-121.)
A unit owners’ association must be organized no later than the date the first unit in the condominium is conveyed. The membership of the association at all times shall consist exclusively of all the unit owners or, following termination of the condominium, of all former unit owners entitled to distributions of proceeds under section 35-8A-218, or their heirs, successors, or assigns. The association must be organized as a profit or nonprofit corporation.
(Acts 1990, No. 90-551, p. 858, §3-101.)
(a) Except as provided in subsection (b), and subject to the provisions of the declaration, the association may:
(1) Adopt and amend bylaws and rules and regulations;
(2) Adopt and amend budgets for revenues, expenditures, and reserves and impose and collect assessments for common expenses from unit owners;
(3) Hire and discharge managing agents and other employees, agents, and independent contractors;
(4) Institute, defend, or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more unit owners on matters affecting the condominium;
(5) Make contracts and incur liabilities;
(6) Regulate the use, maintenance, repair, replacement, and modification of common elements;
(7) Cause additional improvements to be made as a part of the common elements;
(8) Acquire, hold, encumber, and convey in its own name any right, title, or interest to real or personal property, but interests in the common elements other than those set forth in subdivision (9) may be conveyed or subjected to a security interest only pursuant to Section 35-8A-312;
(9) Grant easements, encroachments, leases, licenses, and concessions through or over the common elements;
(10) Impose and receive any payments, fees, or charges for the use, rental, or operation of the common elements, other than limited common elements described in Section 35-8A-202(2) and (4), and for services provided to unit owners;
(11) Impose against owners of units charges for late payment of assessments and, after notice and an opportunity to be heard, levy reasonable fines for violations of the declaration, bylaws, and rules and regulations of the association;
(12) Impose reasonable charges for the preparation and recordation of amendments to the declaration, resale certificates required by Section 35-8A-409, or statements of unpaid assessments;
(13) Provide for the indemnification of its officers and board and maintain directors’ and officers’ liability insurance;
(14) Assign its right to future income, including the right to receive common expense assessments, but only to the extent the declaration expressly so provides, or as required to secure a loan that is otherwise allowed or provided for in the governing documents;
(15) Exercise any other powers conferred by the declaration or bylaws;
(16) Exercise all other powers that may be exercised in this state by legal entities of the same type as the association; and
(17) Exercise any other powers necessary and proper for the governance and operation of the association.
(b) The declaration may not impose limitations on the power of the association to deal with the declarant which are more restrictive than the limitations imposed on the power of the association to deal with other persons.
(Acts 1990, No. 90-551, p. 858, §3-102; Act 98-149, p. 252, §1; Act 2018-403, §1.)
(a) Except as provided in the declaration, the bylaws, the articles of incorporation in subsection (b), or other provisions of this chapter, the board may act in all instances on behalf of the association. In the performance of their duties, the officers and members of the board are required to exercise: (i) if appointed by the declarant; the care required of fiduciaries of the unit owners other than the declarant and (ii) if elected by the unit owners other than declarant, ordinary and reasonable care.
(b) The board may not act on behalf of the association to amend the declaration as specified in Section 35-8A-217, to terminate the condominium described in Section 35-8A-218, or to elect members of the board or to determine the qualifications, powers and duties, or terms of office of board members as provided in Section 35-8A-303(f), but the board may fill vacancies in its membership for the unexpired portion of any term.
(c) Within 30 days after adoption of any proposed budget for the condominium, the board shall provide a copy of the budget to all the unit owners, and shall set a date for a meeting of the unit owners to consider ratification of the budget not less than 10 nor more than 50 days after delivery or mailing of the budget to the unit owners. Unless at that meeting a majority of all the unit owners present in person or by proxy or any larger vote specified in the declaration reject the budget, the budget is ratified, whether or not a quorum is present. In the event the proposed budget is rejected, the periodic budget last ratified by the unit owners shall be continued until such time as the unit owners ratify a subsequent budget proposed by the board.
(d) Subject to subsection (e), the declaration may provide for a period of declarant control of the association, during which period a declarant, or persons designated by him or her, may appoint and remove the officers and members of the board. Regardless of the period provided in the declaration, a period of declarant control terminates no later than the earliest of: (i) 60 days after conveyance of 75 percent of the units which may be created to unit owners other than a declarant; (ii) two years after all declarants have ceased to offer units for sale in the ordinary course of business; or (iii) two years after any development right to add new units was last exercised. A declarant may voluntarily surrender the right to appoint and remove officers and members of the board before termination of that period, but in that event he or she may require, for the duration of the period of declarant control, that specified actions of the association or board, as described in a recorded instrument executed by the declarant, be approved by the declarant before they become effective.
(e) Not later than 90 days after conveyance of 25 percent of the units which may be created to unit owners other than a declarant, at least one member and not less than 25 percent of the members of the board must be elected by unit owners other than the declarant. Not later than 90 days after conveyance of 50 percent of the units which may be created to unit owners other than a declarant, not less than 33 1/3 percent of the members of the board must be elected by unit owners other than the declarant.
(f) Except as otherwise provided in Section 35-8A-220(e), not later than the termination of any period of declarant control, the unit owners shall elect a board of at least three members.
(g) Notwithstanding any provision of the declaration or bylaws to the contrary, the unit owners, by a two-thirds vote of all persons present in person and entitled to vote at any meeting of the unit owners at which a quorum in person is present, may remove any member of the board with or without cause, other than a member appointed by the declarant.
(Acts 1990, No. 90-551, p. 858, §3-103; Act 2018-403, §1.)
(a) No special declarant right specified in Section 35-8A-103(24) created or reserved under this chapter may be transferred except by an instrument evidencing the transfer recorded in every county in which any portion of the condominium is located. The instrument is not effective unless executed by the transferor and the transferee in the same formality as a conveyance of real property.
(b) Upon transfer of any special declarant right, the liability of a transferor declarant is as follows:
(1) A transferor is not relieved of any obligation or liability arising before the transfer and remains liable for warranty obligations imposed upon him or her by this chapter. Lack of privity does not deprive any unit owner of standing to maintain an action to enforce any obligation of the transferor.
(2) If a successor to any special declarant right is an affiliate of a declarant specified in Section 35-8A-103(1), the transferor is jointly and severally liable with the successor for any obligations or liabilities of the successor relating to the condominium.
(3) If a transferor retains any special declarant right, but transfers other special declarant rights to a successor who is not an affiliate of the declarant, the transferor is liable for any obligations or liabilities imposed on a declarant by this chapter or by the declaration relating to the retained special declarant rights and arising after the transfer.
(4) A transferor has no liability for any act or omission or any breach of a contractual or warranty obligation arising from the exercise of a special declarant right by a successor declarant who is not an affiliate of the transferor.
(c) Unless otherwise provided in a mortgage instrument or deed of trust or other agreement creating a security interest, in case of foreclosure of a security interest, sale by a trustee under an agreement creating a security interest, tax sale, judicial sale, or sale under federal bankruptcy law or receivership proceedings, of any units owned by a declarant or real estate in a condominium subject to development rights, a person acquiring title to all the real estate being foreclosed or sold succeeds to all special declarant rights related to that real estate held by that declarant, or only to any rights reserved in the declaration pursuant to Section 35-8A-215 and held by that declarant to maintain models, sales offices and signs.
(d) Upon foreclosure of a security interest, sale by a trustee under an agreement creating a security interest, tax sale, judicial sale, or sale under federal bankruptcy law or receivership proceedings, of all units and other real estate in a condominium owned by a declarant:
(1) The declarant ceases to have any special declarant rights, and
(2) The period of declarant control specified in Section 35-8A-303(d) terminates unless the judgment or instrument conveying title provides for transfer of all special declarant rights held by that declarant to a successor declarant.
(e) The liabilities and obligations of a person who succeeds to special declarant rights are as follows:
(1) A successor to any special declarant right who is an affiliate of a declarant is subject to all obligations and liabilities imposed on the transferor by this chapter or by the declaration.
(2) A successor to any special declarant right, other than a successor described in subdivisions (3) or (4), who is not an affiliate of a declarant, is subject to all obligations and liabilities imposed by this chapter or the declaration:
a. On a declarant which relates to his or her exercise or nonexercise of special declarant rights; or
b. On his or her transferor, other than:
Misrepresentations by any previous declarant;
Warranty obligations on improvements made by any previous declarant, or made before the condominium was created;
Breach of any fiduciary obligation by any previous declarant or his or her appointees to the board; or
Any liability or obligation imposed on the transferor as a result of the transferor’s acts or omissions after the transfer.
(3) A successor to only a right reserved in the declaration to maintain models, sales offices, and signs pursuant to Section 35-8A-215, may not exercise any other special declarant right, and is not subject to any liability or obligation as a declarant, except the obligation to provide an offering statement and any liability arising as a result thereof.
(4) A successor to all special declarant rights held by his or her transferor who is not an affiliate of that declarant and who succeeded to those rights pursuant to a deed in lieu of foreclosure or a judgment or instrument conveying title to units under subsection (c), may declare the intention in a recorded instrument to hold those rights solely for transfer to another person. Thereafter, until transferring all special declarant rights to any person acquiring title to any unit owned by the successor, or until recording an instrument permitting exercise of all those rights, that successor may not exercise any of those rights other than any right held by his or her transferor to control the board in accordance with the provisions of Section 35-8A-303(d) for the duration of any period of declarant control, and any attempted exercise of those rights is void. So long as a successor declarant may not exercise special declarant rights under this subsection, he or she is not subject to any liability or obligation as a declarant other than liability for his or her acts and omissions under Section 35-8A-303(d).
(f) Nothing in this section subjects any successor to a special declarant right to any claims against or other obligations of a transferor declarant, other than claims and obligations arising under this chapter or the declaration.
(Acts 1990, No. 90-551, p. 858, §3-104; Act 2018-403, §1.)
If entered into before the board elected by the unit owners pursuant to Section 35-8A-303(f) takes office: (i) any management contract, employment contract, or lease of recreational or parking areas or facilities; (ii) any other contract or lease between the association and a declarant or an affiliate of a declarant; or (iii) any contract or lease that is not bona fide or was unconscionable to the unit owners at the time entered into under the circumstances then prevailing, may be terminated without penalty by the association during the current term of the contract or lease after the board elected by the unit owners pursuant to Section 35-8A-303(f) takes office upon not less than 90 days’ notice to the other party. This section does not apply to any lease the termination of which would terminate the condominium or reduce its size, unless the real estate subject to that lease was included in the condominium for the purpose of avoiding the right of the association to terminate a lease under this section.
(Acts 1990, No. 90-551, p. 858, §3-105; Act 2018-403, §1.)
(a) The bylaws of the association must provide for:
(1) The number of members of the board and the titles of the officers of the association;
(2) Election by the board of a president, treasurer, secretary, and any other officers of the association the bylaws specify;
(3) The qualifications, powers and duties, terms of office, and manner of electing and removing board members and officers and filling vacancies;
(4) Which, if any, of its powers the board or officers may delegate to other persons or to a managing agent;
(5) Which of its officers may prepare, execute, certify, and record amendments to the declaration on behalf of the association; and
(6) The method of amending the bylaws, but in no event shall the required percentage for amendment of the bylaws exceed two-thirds of the total association.
(b) Subject to the provisions of the declaration, the bylaws may provide for any other matters the association deems necessary and appropriate.
(Acts 1990, No. 90-551, p. 858, §3-106.)
(a) Except to the extent provided by the declaration, subsection (b), or Section 35-8A-313(h), the association is responsible for maintenance, repair, and replacement of the common elements, and each unit owner is responsible for maintenance, repair, and replacement of his or her unit. Each unit owner shall afford to the association and the other unit owners, and to their agents or employees, access through his or her unit reasonably necessary for those purposes. If damage is inflicted on the common elements, or on any unit through which access is taken, the unit owner responsible for the damage, or the association if it is responsible, is liable for the prompt repair thereof.
(b) In addition to the liability that a declarant as a unit owner has under this chapter, the declarant alone is liable for all expenses in connection with real estate subject to development rights. No other unit owner and no other portion of the condominium is subject to a claim for payment of those expenses. Unless the declaration provides otherwise, any income or proceeds from real estate subject to development rights inures to the declarant.
(Acts 1990, No. 90-551, p. 858, §3-107; Act 2018-403, §1.)
A meeting of the association must be held at least once each year. Special meetings of the association may be called by the president, a majority of the board or by unit owners having 20 percent, or any lower percentage specified in the bylaws, of the votes in the association. Not less than 10 nor more than 60 days in advance of any meeting, the secretary or other officer specified in the bylaws shall cause notice to be hand-delivered or sent prepaid by United States mail to the mailing address of each unit or to any other mailing address designated in writing by the unit owner. The notice of any meeting must state the time and place of the meeting and the items on the agenda, including the general nature of any proposed amendment to the declaration or bylaws, any budget changes, and any proposal to remove an officer or a member of the board.
(Acts 1990, No. 90-551, p. 858, §3-108.)
(a) Unless the bylaws provide otherwise, a quorum is present throughout any meeting of the association if persons entitled to cast 20 percent of the votes which may be cast for election of the board are present in person or by proxy at the beginning of the meeting.
(b) Unless the bylaws specify a larger percentage, a quorum is deemed present throughout any meeting of the board if persons entitled to cast 50 percent of the votes on that board are present at the beginning of the meeting.
(Acts 1990, No. 90-551, p. 858, §3-109.)
(a) If only one of the multiple owners of a unit is present at a meeting of the association, he or she is entitled to cast all the votes allocated to that unit. If more than one of the multiple owners are present, the votes allocated to that unit may be cast only in accordance with the agreement of a majority in interest of the multiple owners, unless either the declaration or bylaws expressly provides otherwise. There is majority agreement if any one of the multiple owners casts the votes allocated to that unit without protest being made promptly to the person presiding over the meeting by any of the other owners of the unit.
(b) Votes allocated to a unit may be cast pursuant to a proxy duly executed by the unit owner except as provided in Section 35-8A-303(g). If a unit is owned by more than one person, each owner of the unit may vote or register protest to the casting of votes by the other owners of the unit through a duly executed proxy. A unit owner may not revoke a proxy given pursuant to this section except by actual notice of revocation to the person presiding over a meeting of the association. A proxy is void if it is not dated or purports to be revocable without notice. A proxy terminates one year after its date, unless it specifies a shorter term.
(c) If the declaration requires that votes on specified matters affecting the condominium be cast by lessees rather than unit owners of leased units: (i) the provisions of subsections (a) and (b) apply to lessees as if they were unit owners; (ii) unit owners who have leased their units to other persons may not cast votes on those specified matters; and (iii) lessees are entitled to notice of meetings, access to records, and other rights respecting those matters as if they were unit owners. Unit owners must also be given notice, in the manner provided in Section 35-8A-308, of all meetings at which lessees may be entitled to vote.
(d) No votes allocated to a unit owned by the association may be cast.
(Acts 1990, No. 90-551, p. 858, §3-110; Act 2018-403, §1.)
Neither the association, any association mortgagee, nor any unit owner except the declarant is liable for that declarant’s torts in connection with any part of the condominium which that declarant has the responsibility to maintain. Otherwise, an action alleging a wrong done by the association shall be brought against the association and not against any unit owner. If the wrong occurred during any period of declarant control and the association gives the declarant reasonable notice of and an opportunity to defend against the action, the declarant who then controlled the association is liable to the association or to any unit owner: (i) for all tort losses not covered by insurance suffered by the association or that unit owner; and (ii) for all costs which the association would not have incurred but for a breach of contract or other wrongful act or omission. Whenever the declarant is liable to the association under this section, the declarant is also liable for all reasonable litigation expenses, including reasonable attorneys fees, incurred by the association. Any statute of limitation affecting the association’s right of action under this section is tolled until the period of declarant control terminates. A unit owner is not precluded from bringing an action contemplated by this section solely because he or she is a unit owner, or a member or officer of the association. Liens resulting from judgments against the association are governed by Section 35-8A-317.
(Acts 1990, No. 90-551, p. 858, §3-111; Act 2018-403, §1.)
(a) In a condominium portions of the common elements may be conveyed or subjected to a security interest by the association if persons entitled to cast at least 80 percent of the votes in the association, including 80 percent of the votes allocated to units not owned by a declarant, or any larger percentage the declaration specifies, agree to that action; but all the owners of units to which any limited common element is allocated must agree in order to convey that limited common element or subject it to a security interest. The declaration may specify a smaller percentage only if all of the units are restricted exclusively to nonresidential uses. Proceeds of the sale or loan are an asset of the association.
(b) An agreement to convey common elements in a condominium or subject them to a security interest must be evidenced by the execution of an agreement, or ratifications thereof, in the same manner as a deed, by the requisite number of unit owners. The agreement must specify a date after which the agreement will be void unless recorded before that date. The agreement and all ratifications thereof must be recorded in every county in which a portion of the condominium is situated, and is effective only upon recordation.
(c) The association, on behalf of the unit owners, may contract to convey an interest in a condominium pursuant to subsection (a), but the contract is not enforceable against the association until approved pursuant to subsections (a) and (b). Thereafter, the association has all powers necessary and appropriate to effect the conveyance or encumbrance, including the power to execute deeds or other instruments.
(d) Any purported conveyance, encumbrance, judicial sale, or other voluntary transfer of common elements, unless made pursuant to this section, is void.
(e) A conveyance or encumbrance of common elements pursuant to this section does not deprive any unit of its rights of access and support.
(f) Unless the declaration otherwise provides, a conveyance or encumbrance of common elements pursuant to this section does not affect the priority or validity of pre-existing encumbrances.
(Acts 1990, No. 90-551, p. 858, §3-112; Act 2018-403, §1.)
(a) Commencing not later than the time of the first conveyance of a unit to a person other than a declarant, the association shall maintain, to the extent reasonably available:
(1) Property insurance on the common elements insuring against all risks of direct physical loss commonly insured against or, in the case of a conversion building, against fire and extended coverage perils. The total amount of insurance after application of any deductibles shall be not less than the greater of 80 percent of the actual cash value of the insured property at the time the insurance is purchased or such greater percentage of such actual cash value as may be necessary to prevent the applicability of any co-insurance provision and at each renewal date, exclusive of land, excavations, foundations, and other items normally excluded from property policies; and
(2) Liability insurance, including medical payments insurance, in an amount determined by the board but not less than any amount specified in the declaration, covering all occurrences commonly insured against for death, bodily injury, and property damage arising out of or in connection with the use, ownership, or maintenance of the common elements.
(b) In the case of a building containing units having horizontal boundaries described in the declaration, the insurance maintained under subdivision (a)(1), to the extent reasonably available, must include the units, but need not include improvements and betterments installed by unit owners.
(c) If the insurance described in subsections (a) and (b) is not reasonably available, the association promptly shall cause notice of that fact to be hand-delivered or sent prepaid by United States mail to all unit owners. The declaration may require the association to carry any other insurance, and the association in any event may carry any other insurance it deems appropriate to protect the association or the unit owners.
(d) Insurance policies carried pursuant to subsection (a) must provide that:
(1) Each unit owner is an insured person under the policy with respect to liability arising out of his or her interest in the common elements or membership in the association;
(2) The insurer waives its right to subrogation under the policy against any unit owner or member of his or her household;
(3) No act or omission by any unit owner, unless acting within the scope of his or her authority on behalf of the association, will void the policy or be a condition to recovery under the policy; and
(4) If, at the time of a loss under the policy, there is other insurance in the name of a unit owner covering the same risk covered by the policy, the association’s policy provides primary insurance.
(e) Any loss covered by the property policy under subsections (a)(1) and (b) must be adjusted with the association, but the insurance proceeds for that loss are payable to any insurance trustee designated for that purpose, or otherwise to the association, and not to any holder of a security interest. The insurance trustee or the association shall hold any insurance proceeds in trust for unit owners and lien holders as their interests may appear. Subject to the provisions of subsection (h), the proceeds must be disbursed first for the repair or restoration of the damaged property, and the association unit owners and lien holders are not entitled to receive payment of any portion of the proceeds unless there is a surplus of proceeds after the property has been completely repaired or restored, or the condominium is terminated.
(f) An insurance policy issued to the association does not prevent a unit owner from obtaining insurance for his or her own benefit.
(g) An insurer that has issued an insurance policy under this section shall issue certificates or memoranda of insurance to the association and, upon written request, to any unit owner, or holder of a security interest. The insurer issuing the policy may not cancel or refuse to renew it until 30 days after notice of the proposed cancellation or nonrenewal has been mailed to the association, each unit owner and each mortgagee or beneficiary under a deed of trust to whom a certificate or memorandum of insurance has been issued at their respective last known addresses.
(h) Any portion of the condominium for which insurance is required under this section which is damaged or destroyed must be repaired or replaced promptly by the association unless:
(1) The condominium is terminated, in which case Section 35-8A-218 applies,
(2) Repair or replacement would be illegal under any state or local statute or ordinance governing health or safety, or
(3) Eighty percent of the unit owners, including every owner of a unit or assigned limited common element which will not be rebuilt, vote not to rebuild. The cost of repair or replacement in excess of insurance proceeds, including any deductible or retention under any contract of insurance, and reserves is a common expense.
If the entire condominium is not repaired or replaced, (i) the insurance proceeds attributable to the damaged common elements must be used to restore the damaged area to a condition compatible with the remainder of the condominium, (ii) except to the extent that other persons will be distributees under Section 35-8A-205(a)(12)(ii),
(1) The insurance proceeds attributable to units and limited common elements which are not rebuilt must be distributed to the owners of those units and the owners of the units to which those limited common elements were allocated, or to lienholders, as their interests may appear, and
(2) The remainder of the proceeds must be distributed to all the unit owners or lienholders, as their interests may appear, in proportion to the common element interests of all the units.
If the unit owners vote not to rebuild any unit, that unit’s allocated interests are automatically reallocated upon the vote as if the unit had been condemned under Section 35-8A-107(a), and the association promptly shall prepare, execute, and record an amendment to the declaration reflecting the reallocations.
(i) The provisions of this section may be varied or waived in the case of a condominium all of whose units are restricted to nonresidential use.
(j) Unless the declaration provides otherwise, the association shall pay any cost in excess of insurance proceeds, including any deductible or retention under any contract of insurance as a common expense.
(Acts 1990, No. 90-551, p. 858, §3-113; Act 2018-403, §1.)
Unless otherwise provided in the declaration or bylaws, any surplus funds of the association remaining after payment of or provision for common expenses and any prepayment of reserves must be paid to the unit owners in proportion to their common expense liabilities or credited to them to reduce their future common expense assessments, or held in reserve.
(Acts 1990, No. 90-551, p. 858, §3-114; Act 2018-403, §1.)
(a) Until the association makes a common expense assessment, the declarant must pay all common expenses. After any assessment has been made by the association, assessments must be made at least annually, based on a budget adopted at least annually by the association.
(b) Except for assessments under subsections (c), (d), and (e), all common expenses must be assessed against all the units in accordance with the allocations set forth in the declaration pursuant to Section 35-8A-207(a) and (b). Any past due common expense assessment or installment thereof bears interest at the rate established by the association not exceeding 18 percent per year.
(c) To the extent required by the declaration:
(1) Any common expense associated with the maintenance, repair, or replacement of a limited common element must be assessed against the units to which that limited common element is assigned, equally, or in any other proportion that the declaration provides;
(2) Any common expense or portion thereof benefiting fewer than all of the units must be assessed exclusively against the units benefited; and
(3) The costs of insurance must be assessed in proportion to risk and the costs of utilities may be assessed in proportion to usage.
(d) Assessments to pay a judgment against the association under Section 35-8A-317(a) may be made only against the units in the condominium at the time the judgment was entered, in proportion to their common expense liabilities.
(e) If any common expense is caused by the misconduct of any unit owner or such unit owner’s invitee, the association may assess that expense exclusively against his or her unit after notice and an opportunity to be heard.
(f) If common expense liabilities are reallocated, common expense assessments and any installment thereof not yet due shall be recalculated in accordance with the reallocated common expense liabilities.
(g) All assessments, including utilities, fees, and other charges shall also constitute the personal obligation of the unit owner to the association.
(h) No unit owner other than the association shall be exempted from any liability for any assessment under this code section or under any condominium instrument for any reason whatsoever, including, without limitation, abandonment, nonuse, or waiver of the use or enjoyment of his or her unit or any part of the common elements.
(Acts 1990, No. 90-551, p. 858, §3-115; Act 2018-403, §1.)
(a) The association has a lien on a unit for any assessment and any other moneys due the association for special assessments or services or charges, such as water or repairs, levied against that unit or fines imposed against its unit owner from the time the assessment or fine becomes due. The association’s lien may be foreclosed in like manner as a mortgage on real estate provided the declaration is in conformity with Article 1A of Chapter 10 of this title and subject to the rights under Article 14A of Chapter 5 of Title 6. The association shall send reasonable advance notice of its proposed action to the unit owner and all lienholders of record of the unit. Unless the declaration otherwise provides, fees, charges, late charges, fines, and interest charged pursuant to Section 35-8A-302(a)(10), (11), and (12) are enforceable as assessments under this section. If an assessment is payable in installments, the full amount of the assessment is a lien from the time the first installment thereof becomes due.
(b) A lien under this section is prior to all other liens and encumbrances on a unit except: (i) liens and encumbrances recorded before the recordation of the declaration; (ii) a first security interest on the unit recorded before the date on which the assessment sought to be enforced became delinquent; and (iii) liens for real estate taxes and other governmental assessments or charges against the unit. The lien is also prior to the mortgages and deeds of trust described in clause (ii) above to the extent of the common expense assessments based on the periodic budget adopted by the association pursuant to Section 35-8A-315(a) which would have become due in the absence of acceleration during the six months immediately preceding: (i) the association’s institution of a civil action to enforce its lien; or (ii) a foreclosure of a mortgage or deed of trust described in clause (ii). The association’s six-month priority lien does not include the association’s costs or attorney fees in enforcing its lien under this subsection. Notwithstanding anything in Act 2018–403 to the contrary, upon a showing by the holder of a mortgage or deed of trust described in clause (ii) that the instrument has been assigned to or is owned or guaranteed by the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association, or the Government National Mortgage Association, the six-month priority lien is subject to and shall not be interpreted to exceed any period of time or amount allowed for priority under regulations, rules, guidelines, or requirements adopted by or applicable to any of the above entities. This subsection does not affect the priority of mechanics’ or materialmen’s liens. The lien under this section is not subject to the provisions of homestead or other exemptions.
(c) Unless the declaration otherwise provides, if two or more associations have liens for assessments created at any time on the same real estate, those liens have equal priority.
(d) Recording of the declaration constitutes record notice and perfection of the lien. No further recordation of any claim of lien for assessment under this section is required.
(e) A lien for unpaid assessments is extinguished unless proceedings to enforce the lien are instituted within three years after the full amount of the assessments becomes due.
(f) This section does not prohibit actions to recover sums for which subsection (a) creates a lien or prohibit an association from taking a deed in lieu of foreclosure.
(g) A judgment or decree in any action brought under this or the preceding section must include costs and reasonable attorney’s fees to the prevailing party.
(h) Any unit owner, mortgagee of a unit, person having executed a contract for the purchase of a condominium unit, or lender considering the loan of funds to be secured by a condominium unit shall be entitled upon request to a statement from the association or its management agent setting forth the amount of assessments levied against the unit, including information regarding whether such assessments are past due and the amount past due together with late charges and interest applicable thereto against that condominium unit. Such request shall be in writing, shall be delivered to the registered office of the association, and shall state an address to which the statement is to be directed. Failure on the part of the association to mail or otherwise furnish such statement regarding amounts due and payable if specified in the written request therefor within 10 business days from the receipt of such request releases the association’s lien against the unit for the amount of the assessment as of that date, but does not discharge the unit owner’s debt to the association. The information specified in such statement shall be binding upon the association and upon every unit owner. Payment of a reasonable fee not exceeding twenty-five dollars ($25) may be required as a prerequisite to the issuance of such a statement if the condominium instruments so provide.
(Acts 1990, No. 90-551, p. 858, §3-116; Act 2018-403, §1.)
(a) Except as provided in subsection (b), a judgment for money against the association if recorded is not a lien on the common elements, but is a lien in favor of the judgment lienholder against all of the units in the condominium at the time the judgment was entered. No other property of a unit owner is subject to the claims of creditors of the association.
(b) If the association has granted a security interest in the common elements to a creditor of the association pursuant to Section 35-8A-312, the holder of that security interest shall exercise its right against the common elements before its judgment lien on any unit may be enforced.
(c) Whether perfected before or after the creation of the condominium, if a lien other than a deed of trust or mortgage, including a judgment lien or lien attributable to work performed or materials supplied before creation of the condominium, becomes effective against two or more units, the unit owner of an affected unit may pay to the lienholder the amount of the lien attributable to his or her unit, and the lienholder, upon receipt of payment, promptly shall deliver a release of the lien covering that unit. The amount of the payment must be proportionate to the ratio which that unit owner’s common expense liability bears to the common expense liabilities of all unit owners whose units are subject to the lien. After payment, the association may not assess or have a lien against that unit owner’s unit for any portion of the common expenses incurred in connection with that lien.
(d) A judgment against the association must be indexed in the name of the condominium and the association and, when so indexed, is notice of the lien against the units.
(Acts 1990, No. 90-551, p. 858, §3-117; Acts 1991, No. 91-553, §1(3); Act 2018-403, §1.)
The association shall keep financial records sufficiently detailed to enable the association to comply with Section 35-8A-409. All financial and other records shall be made reasonably available for examination by any unit owner and his or her authorized agents and such records shall be made available in the county where the condominium is located. A reasonable fee or hourly charge may be assessed for this service.
(Acts 1990, No. 90-551, p. 858, §3-118; Act 2018-403, §1.)
With respect to a third person dealing with the association in the association’s capacity as a trustee, the existence of trust powers and their proper exercise by the association may be assumed without inquiry. A third person is not bound to inquire whether the association has power to act as trustee or is properly exercising trust powers. A third person, without actual knowledge that the association is exceeding or improperly exercising its powers, is fully protected in dealing with the association as if it possessed and properly exercised the powers it purports to exercise. A third person is not bound to assure the proper application of trust assets paid or delivered to the association in its capacity as trustee.
(Acts 1990, No. 90-551, p. 858, §3-119.)
(a) This article applies to all units subject to this chapter, except as provided in subsection (b) or as modified or waived in writing by agreement of purchasers of units in a condominium in which all units are restricted to nonresidential use.
(b) Neither an offering statement nor a resale certificate need be prepared or delivered in the case of:
(1) A gratuitous disposition of a unit;
(2) A transfer pursuant to court order;
(3) A disposition by a government or governmental agency;
(4) A transfer by foreclosure or disposition by deed in lieu of foreclosure;
(5) A disposition to a person in the business of selling real estate who intends to offer those units to purchasers where the responsibility for preparing and delivering the offering statement has been transferred to the person pursuant to subsection (b) of Section 35-8A-402;
(6) A disposition that may be canceled at any time and for any reason by the purchaser without penalty; or
(7) A disposition of a time share interest in a unit.
(Acts 1990, No. 90-551, p. 858, §4-101; Act 2018-403, §1.)
(a) Except as provided in subsection (b), a declarant, prior to the offering of any interest in a unit to the public, shall prepare an offering statement conforming to the requirements of Sections 35-8A-403 through 35-8A-406.
(b) A declarant may transfer responsibility for preparation of all or a part of the offering statement to a successor declarant specified in Section 35-8A-304 or to a person in the business of selling real estate who intends to offer units in the condominium for the offeror’s own account. In the event of any such transfer, the transferor shall provide the transferee with any information necessary to enable the transferee to fulfill the requirements of subsection (a).
(c) Any declarant or other person in the business of selling real estate who offers to a purchaser a unit for the offeror’s own account to whom such responsibility for preparation and delivery of an offering statement has been transferred shall deliver an offering statement in the manner prescribed in Section 35-8A-408(a) and is liable under Sections 35-8A-408 and 35-8A-414 for any false or misleading statement set forth therein or for any omission of material fact.
(d) If a unit is part of a condominium and is part of any other real estate regime in connection with the sale of which the delivery of an offering statement is required under the laws of this state, a single offering statement conforming to the requirements of Sections 35-8A-403 through 35-8A-406 as those requirements relate to each regime in which the unit is located and to any other requirements imposed under the laws of this state, may be prepared and delivered in lieu of providing two or more offering statements.
(Acts 1990, No. 90-551, p. 858, §4-102; Act 2018-403, §1.)
(a) Except as provided in subsection (b), an offering statement must contain or fully and accurately disclose the following information with regard to the condominium, including a proposed condominium:
(1) The name and principal address of the declarant;
(2) The name and the address, legal description, or other description of the location of the condominium, and the number and types of units in the condominium;
(3) A general description of the condominium, including to the extent possible, number and types of buildings, structures, and amenities the declarant is obligated to build, and declarant’s schedule of commencement and completion of construction of buildings, structures, and amenities the declarant is obligated to include in the condominium;
(4) Copies of the declaration, as well as any recorded plats, plans, easements, covenants, conditions, restrictions, and reservations affecting the condominium; the certificate or the proposed certificate of formation and the bylaws of the association created or to be created to manage the condominium, any rules or regulations of the association, a copy of the lease for any leasehold condominium, copies of any contracts and leases to be signed by purchasers at closing, and copies of any contracts or leases that will or may be subject to cancellation by the association under Section 35-8A-305;
(5) A projected budget for the association for at least one year after the date or anticipated date of the first conveyance to a purchaser, and thereafter the current budget along with the current balance sheet of the association, a statement of who prepared the budget, and a statement of the budget’s assumption concerning occupancy. The budget must include, without limitation:
a. A statement of the amount, or a statement that there is no amount, included in the budget as a reserve for repairs and replacement;
b. A statement of any other reserves included in the budget;
c. The projected common expenses by category of expenditures for the association; and
d. The projected monthly common expense assessment for each type of unit;
(6) Any services not reflected in the budget that the declarant provides, or expenses that he or she pays, and that he or she expects may become at any subsequent time a common expense of the association and the projected common expense assessment attributable to each of those services or expenses for the association and for each type of unit;
(7) Any initial or special fee due from the purchaser at closing together with a description of the purpose and method of calculating the fee;
(8) A reference to, and a brief description of, any liens, known defects, or encumbrances on or affecting the title to the condominium;
(9) A description of any financing offered or arranged by the declarant and if the contract of sale offered to the purchaser does not contain a provision conditioning purchaser’s obligation to perform the contract on obtaining financing, a statement that the purchaser will forfeit any deposit he or she has paid if the purchaser requires such financing but does not qualify for such financing as is offered or arranged by declarant;
(10) The terms and significant limitations of any warranties provided by the declarant, including statutory warranties provided in this chapter and limitations on the enforcement thereof or on damages;
(11) A statement that:
a. Within seven days after receipt of an offering statement a purchaser, before conveyance, may cancel any contract for purchase of a unit from a declarant;
b. If a declarant fails to provide an offering statement to a purchaser before conveying a unit, that purchaser may rescind the conveyance within seven days after first receiving the offering statement; and
c. If a purchaser receives the offering statement more than seven days before signing a contract, he or she cannot cancel the contract;
(12) A statement of any unsatisfied judgments or pending lawsuits against the association; and the status of any pending lawsuits material to the condominium of which a declarant has actual knowledge;
(13) A statement that any deposit made in connection with the purchase of a unit will be held in an escrow account until closing and will be returned to the purchaser if the purchaser cancels the contract pursuant to Section 35-8A-408, together with the name and address of the escrow agent;
(14) Any restraints on sale or lease of any units in the condominium and any restrictions:
a. On use, occupancy or alienation of the units, and
b. On the amount for which a unit may be sold or on the amount that may be received by a unit owner on sale, condemnation, casualty loss to the unit or to the condominium or on the termination of the condominium;
(15) A brief description of the insurance coverage provided for the benefit of unit owners;
(16) Any current or expected fees or charges to be paid by unit owners for the use of the common elements and other facilities related to the condominium;
(17) The extent to which financial arrangements have been provided for completion of all improvements that the declarant is obligated to build pursuant to Section 35-8A-416 (Declarant’s obligation to complete and restore);
(18) A brief narrative description of any zoning affecting the condominium; and
(19) The applicable amendment requirements as provided in the declaration or as provided by Alabama law.
(b) If a condominium composed of not more than 12 units is not subject to any development rights, and no power is reserved to a declarant to make the condominium part of a larger condominium, group of condominiums, or other real estate, an offering statement may but need not include the information otherwise required by subdivisions (9), (10), (15), (16), (17), and (18) of subsection (a).
(c) A declarant shall promptly amend the offering statement to report any material change in the information required by this section.
(Acts 1990, No. 90-551, p. 858, §4-103; Act 2018-403, §1.)
If the declaration provides that a condominium is subject to any development rights, the offering statement must disclose, in addition to the information required by Section 35-8A-403:
(1) The maximum number of units that may be created;
(2) A statement of how many or what percentage of the units which may be created will be restricted exclusively to residential use, or a statement that no representations are made regarding use restrictions;
(3) If any of the units that may be built within real estate subject to development rights are not to be restricted exclusively to residential use, a statement as to whether there is a maximum percentage of the units which may be used for nonresidential purposes;
(4) A statement of any development rights reserved by a declarant and of any conditions relating to or limitations upon the exercise of development rights;
(5) A statement of the maximum extent to which the allocated interests of each unit may be changed by the exercise of any development right described in subdivision (4);
(6) A statement of the extent to which any buildings or other improvements that may be erected pursuant to any development right in any part of the condominium will be compatible with existing buildings and improvements in the condominium in terms of architectural style, quality of construction, and size, or a statement that no assurances are made in those regards;
(7) General descriptions of all other improvements that may be made and limited common elements that may be created within any part of the condominium pursuant to any development right reserved by the declarant, or a statement that no assurances are made in that regard;
(8) A statement of any limitations as to the locations of any building or other improvement that may be made within any part of the condominium property that may be added to the condominium pursuant to any development right reserved by the declarant, or a statement that no assurances are made in that regard;
(9) A statement that any common elements or limited common elements created pursuant to any development right reserved by the declarant will be of the same general types and sizes as the common elements and the limited common elements within other parts of the condominium, or a statement of the types and sizes planned, or a statement that no assurances are made in that regard;
(10) A statement that the proportion of limited common elements to units created pursuant to any development right reserved by the declarant will be approximately equal to the proportion existing within other parts of the condominium, or a statement of any other assurances in that regard, or a statement that no assurances are made in that regard;
(11) A statement that all restrictions in the declaration affecting use, occupancy, and sale or lease of units will apply to any units created pursuant to any development right reserved by the declarant, or a statement of any differentiations that may be made as to those units, or a statement that no assurances are made in that regard; and
(12) A statement of the extent to which any assurances made pursuant to this section apply or do not apply in the event that any development right is not exercised by the declarant.
(Acts 1990, No. 90-551, p. 858, §4-104; Act 2018-403, §1.)
If the declaration provides that ownership or occupancy of any units is or may be in time shares, the offering statement shall disclose, in addition to the information required by section 35-8A-403:
(1) The number and identity of units in which time shares may be created;
(2) The total number of time shares that may be created;
(3) The minimum duration of any time shares that may be created; and
(4) The extent to which the creation of time shares will or may affect the enforceability of the association’s lien for assessments provided in section 35-8A-316.
(Acts 1990, No. 90-551, p. 858, §4-105.)
The offering statement of a condominium containing any conversion building containing units that may be occupied for residential use must contain, in addition to the information required by Section 35-8A-403:
(1) A statement by the declarant, to the best of declarant’s knowledge, of the approximate age of structural components and mechanical and electrical installations which are material to the use and enjoyment of the buildings or an affirmative statement in bold face print that no representations are made in that regard and;
(2) A list of any outstanding notices of uncured violations of building code or other municipal regulations, together with the estimated cost of curing those violations.
(Acts 1990, No. 90-551, p. 858, §4-106; Act 2018-403, §1.)
If an interest in a condominium is currently registered with the Securities and Exchange Commission of the United States or registered pursuant to the Interstate Land Sales Full Disclosure Act, a declarant satisfies all requirements relating to the preparation and delivery of an offering statement of this chapter if he or she delivers to the purchaser a copy of the offering statement filed with the Securities and Exchange Commission or a copy of the property report approved in accordance with the Interstate Land Sales Full Disclosure Act as a part of the registration process.
(Acts 1990, No. 90-551, p. 858, §4-107; Act 2018-403, §1.)
(a) A person required to deliver the required documents or report pursuant to Section 35-8A-402(c) or 35-8A-407 shall provide a purchaser of a unit with a copy of the offering statement and all amendments thereto not later than the date of any contract of sale. Unless a purchaser is given the required documents more than seven days before execution of a contract for the purchase of a unit, the purchaser may cancel the contract within seven days after first receiving the required documents or report.
(b) If a purchaser elects to cancel a contract or conveyance pursuant to subsection (a), he or she may do so by hand-delivering notice thereof to the offeror or by mailing notice thereof by prepaid United States mail to the offeror or to his or her agent for service of process. Cancellation is without penalty, and all payments made by the purchaser before cancellation shall be refunded promptly.
(c) If a person required to deliver an offering statement or report pursuant to Section 35-8A-402(c) or 35-8A-407 fails to provide a purchaser to whom a unit is conveyed with the documents required by subsection (a), the purchaser, at the purchaser’s option and in lieu of any rights to damages or other relief, is entitled to receive from that person an amount equal to five percent of the sales price of the unit if the purchaser provides notice of the election to that person in the same manner as described in subsection (b) within six months of the date of conveyance of the unit.
(Acts 1990, No. 90-551, p. 858, §4-108; Act 2018-403, §1.)
(a) Except in the case of a sale where delivery of an offering statement is required, or unless exempt under Section 35-8A-401(b), a unit owner upon written request by a purchaser of a unit previously disposed of, which written request must be made within 14 days of the date the purchaser signs the contract with a purchaser, shall furnish to a purchaser before the conveyance and in any event within 15 days of receipt of the written request, a copy of the declaration, the bylaws, the rules, and the regulations of the association, and a certificate containing:
(1) A statement setting forth the amount of the periodic common expense assessment;
(2) A statement setting forth the amount of any unpaid common expense or special assessments against the unit either past due or then due owing;
(3) A statement of any other assessments or fees assessed against the unit or the unit owner either past due or then due and owing;
(4) The most recent regularly prepared balance sheet, and income and expense statement, or any other reports regularly prepared showing cash flow of the association;
(5) The current operating budget of the association;
(6) A statement of any unsatisfied judgments against the association and any pending suit in which the association is a party;
(7) A statement describing any insurance coverage provided for the benefit of unit owners;
(8) A statement of the remaining term of any leasehold estate affecting the condominium and the provisions governing any extension or renewal thereof; and
(9) A statement of any restrictions in the declaration affecting the amount that may be received by a unit owner upon sale, condemnation, casualty loss to the unit or condominium or on termination of the condominium.
(b) The association, within 10 days after a request by a unit owner, shall furnish a certificate containing the above listed information necessary to enable the unit owner to comply with this section. A unit owner providing a certificate pursuant to subsection (a) is not liable to the purchaser for any erroneous information provided by the association and included in the certificate.
(c) A purchaser who receives a copy of the certificate prepared by the association is not liable after closing for any unpaid assessments or fees greater than the amount set forth in the certificate prepared by the association. The unit owner is not liable to a purchaser for the failure or delay of the association to provide the certificate in accordance with the time set forth in subsection (b). If the purchaser timely requested the information in accordance with subsection (a), the purchase contract remains voidable by the purchaser until the requested information has been provided and for five days thereafter or until conveyance, whichever first occurs.
(Acts 1990, No. 90-551, p. 858, §4-109; Act 2018-403, §1.)
(a) As used in this section, except as otherwise provided, the following terms shall have the following meanings:
(1) HARD COSTS. Any and all costs associated with the actual building and construction of the condominium project, including, but not limited to, site preparation, building materials, shell features, interior enclosures, fit-out costs, mechanical and electrical systems, and fixtures. The term hard costs does not include financing costs, compensation paid to architects, engineers, consultants, sales persons, or attorneys or for advertising or other marketing costs.
(2) QUALIFIED PURCHASER. a. An individual, a group of individuals, or an entity owned directly or indirectly solely by individuals where each individual shall have an income of more than two hundred thousand dollars ($200,000) for the calendar year immediately preceding the date of the purchaser’s signing of the purchase contract, or a joint income with his or her spouse of three hundred thousand dollars ($300,000) for the calendar year immediately preceding the date of the purchaser’s signing of the purchase contract, with a good faith reasonable expectation to maintain the same level of income for the current calendar year; b. an individual, a group of individuals, or an entity owned directly or indirectly solely by individuals where each individual shall have a net worth, either individually or jointly with his or her spouse, exceeding one million dollars ($1,000,000) on the date of the purchaser’s signing of the purchase contract; or c. an individual, a group of individuals, or an entity owned directly or indirectly solely by individuals where each individual shall have an income for the calendar year immediately preceding the date of the purchaser’s signing of the purchase contract of more than 30 percent of the condominium’s purchase price, or a joint income with his or her spouse of more than 50 percent of the condominium’s purchase price for such calendar year, with a good faith reasonable expectation to maintain the same level of income for the current calendar year. Any purchaser providing a written statement to declarant attesting that purchaser satisfies the qualifications of this subdivision shall be conclusively presumed to be a qualified purchaser within the meaning of this section and any such statement may be relied upon by declarant for purposes of this section.
(3) SUBSTANTIALLY COMPLETED. The issuance of a certificate of occupancy for the improvements, or the equivalent authorization issued by the governmental body having jurisdiction, and, in a jurisdiction where no certificate of occupancy or equivalent authorization is issued, shall mean substantial completion of construction of the improvements in accordance with the applicable plans and specifications.
(b) Except as provided in subsection (c), any deposit made in connection with the purchase or reservation of a unit from a person required to deliver an offering statement pursuant to Section 35-8A-402(c) shall be placed in escrow and held in this state by a licensed title insurance company, a licensed title agent, an attorney, a licensed real estate broker, or an institution whose accounts are insured by a governmental agency or instrumentality until: (1) delivered to the declarant at closing; (2) delivered to the declarant because of purchaser’s default under a contract to purchase the unit; or (3) refunded to the purchaser. Declarant shall be permitted to accept a letter of credit in lieu of a portion or all of the deposit. Notwithstanding the foregoing, the escrow agent shall not be located outside of the state. Except as provided in subsection (c) and as otherwise provided herein, the funds representing the deposit shall be held in an interest bearing account and the interest shall belong to the party entitled to the principal deposit. Notwithstanding anything in this subsection to the contrary, funds deposited pursuant to a reservation agreement that provides the prospective purchaser is not bound to purchase a unit and that the prospective purchaser may choose to have the deposit returned to him or her, need not bear interest unless the reservation agreement specifically states that the deposit will bear interest.
(c) Notwithstanding subsection (b), provided that (1) the time period during which a purchaser may cancel an agreement to purchase a unit pursuant to Section 35-8A-408 has expired without the purchaser having properly and timely exercised the right to cancel and construction of the project in which the unit is located is not substantially completed; (2) the purchase contract between the declarant and the purchaser authorizes the declarant to withdraw deposited funds pursuant to this subsection; and (3) the declarant has acquired an interest in the land on which the condominium project will be built, the existence of a mortgage on the declarant’s interest in the land shall not preclude the declarant’s satisfaction of this condition, then the declarant shall be permitted to: a. withdraw deposited funds in excess of 10 percent of the purchase price from the escrow account for use in paying the hard costs incurred in the actual building and construction of the condominium project provided that at least 10 percent of the purchase price remains on deposit after any such withdrawals and provided that the purchaser whose funds are being withdrawn is a qualified purchaser; or b. after the declarant has caused a bond to be issued by a surety insurer licensed in this state in favor of a qualified purchaser for the full amount of the escrow deposit to be withdrawn, withdraw deposited funds from the escrow account up to the amount in the escrow account for use in paying the hard costs incurred in the actual building and construction of the condominium project.
(d) If declarant elects to post the bond pursuant to subsection (c)(3)b., the declarant may not withdraw more than the face amount of the bond, the bond shall name the purchaser as the beneficiary thereof and shall be payable to the purchaser if the purchaser obtains a final judgment against declarant requiring the declarant to return the deposit to the purchaser pursuant to the purchase contract, and the declarant may satisfy this bond requirement by causing one or more blanket bonds to be issued in favor of all purchasers whose deposited funds may be used pursuant to this subsection.
(e) In the event of a withdrawal pursuant to this subsection, the withdrawn funds need not bear interest and the declarant shall not owe the purchaser interest on any withdrawn funds if the purchase contract provides that interest on withdrawn funds will not accrue or be owed to the purchaser.
(f) A purchase contract that permits use of deposits in accordance with subsections (c)(3)a. and (c)(3)b. shall include the following legend conspicuously printed or stamped in boldfaced type on the first page of the contract and immediately above the place for the signature of the purchaser: DEPOSITS MAY BE USED BY DECLARANT FOR HARD COSTS INCURRED IN THE ACTUAL BUILDING AND CONSTRUCTION OF THE CONDOMINIUM PROJECT PURSUANT TO SECTION 35-8A-410, CODE OF ALABAMA 1975. Additionally, an offering statement given to a prospective purchaser whose deposit may be used as provided in this subsection shall contain the same legend, which may be contained within the body of the offering statement. The funds deposited into escrow pursuant to subsection (b) and subsection (c) may be held in one or more escrow accounts by the escrow agent. If only one escrow account is used, then the escrow agent must maintain separate accounting records for each purchaser and the amounts separately covered under subsections (b) and (c). For the purposes of subsection (c)(3)a., in determining whether more than 10 percent of the purchase price has been deposited, the face amount of any letter of credit accepted by declarant as part of the deposit shall be considered.
(g) Any escrow agent holding deposited funds pursuant to this section is protected from liability arising from disbursing funds pursuant to subsections (c) or (d), or both, if such disbursement is pursuant to a draw requested by the declarant and the declarant certifies in such writing to the escrow agent that the declarant is entitled to such disbursement pursuant to subsection (c) or, as the case may be, pursuant to subsection (d).
(Acts 1990, No. 90-551, p. 858, §4-110; Act 2005-300, 1st Sp. Sess., p. 570, §1; Act 2016-350, §1.)
(a) In the case of a sale of a unit where delivery of an offering statement is required pursuant to Section 35-8A-402(c) or a disclosure is made pursuant to Section 35-8A-407, a seller shall record or furnish to the purchaser releases of all liens or an agreement to release any liens that encumber that unit and its common element interest, except liens on real estate that a declarant has the right to withdraw from the condominium, that the purchaser does not expressly agree in a written contract of sale which specifically identifies such lien and its amount to take subject to or assume, or provide a surety bond or substitute collateral for or insurance against the lien in the manner provided for liens on real estate in Section 35-11-233(b).
(b) In conveying real estate to the association the declarant shall have that real estate released from: (i) all liens the foreclosure of which would deprive unit owners of any right of access to or easement of support of their units, and (ii) all other liens on that real estate unless the offering statement describes certain real estate which may be conveyed subject to liens in specified amounts.
(Acts 1990, No. 90-551, p. 858, §4-111; Act 2018-403, §1.)
(a) A declarant of a condominium containing conversion buildings, and any person in the business of selling real estate for his or her own account who intends to offer units in such a condominium shall give each of the residential tenants and any residential subtenant in possession of a portion of a conversion building notice of the conversion no later than 60 days before the tenants and any subtenant in possession are required to vacate. The notice must set forth generally the rights of tenants and subtenants under this section and shall be hand-delivered to the unit or mailed by prepaid United States mail to the tenant and subtenant at the address of the unit or any other mailing address provided by a tenant. No tenant or subtenant may be required to vacate upon less than 60 days’ notice, except by reason of nonpayment of rent, waste, or conduct that disturbs other tenants’ peaceful enjoyment of the premises, and the terms of the tenancy may not be altered during that period. Failure to give notice as required by this section is a defense to an action for possession.
(b) If a notice of conversion specifies a date by which a unit or proposed unit must be vacated, and otherwise complies with the provisions of Chapter 9A, the notice also constitutes a notice to terminate specified by that statute.
(c) Nothing in this section permits termination of a lease by a declarant in violation of the terms of the lease.
(Acts 1990, No. 90-551, p. 858, §4-112; Act 2018-403, §1.)
(a) Express warranties made by the declarant, an affiliate of the declarant, or any person in the business of selling real estate for his or her own account, to a purchaser of a unit, if relied upon by the purchaser, are created as follows:
(1) Any affirmation of material fact or material promise which relates to the unit, its use, or rights appurtenant thereto, improvements to the condominium that would directly benefit the unit, or the right to use or have the benefit of facilities not located in the condominium, creates an express warranty that the unit and related rights and uses will conform to the affirmation or promise;
(2) Any model or description of the physical characteristics of the condominium, including plans and specifications of or for improvements, creates an express warranty that the condominium will substantially conform to the model or description;
(3) Any description of the quantity or extent of the real estate comprising the condominium, including plats or surveys, creates an express warranty that the condominium will conform to the description, subject to customary tolerances; and
(4) A statement that a buyer may put a unit only to a specified use is an express warranty that the specified use is lawful.
(b) Neither formal words, such as “warranty” or “guarantee,” nor a specific intention to make a warranty, are necessary to create an express warranty of quality, but a statement purporting to be merely an opinion or commendation of the real estate or its value does not create a warranty.
(Acts 1990, No. 90-551, p. 858, §4-113; Act 2018-403, §1.)
If a declarant or any other person subject to this chapter fails to comply with any provision hereof or any provision of the declaration or bylaws, any person or class of persons adversely affected by the failure to comply has a claim for actual damages or appropriate equitable relief. The court, in an appropriate case, may award reasonable attorney’s fees to either party.
(Acts 1990, No. 90-551, p. 858, §4-114.)
No promotional material may be displayed or delivered to prospective purchasers which describes or portrays an improvement that the declarant is not obligated to build unless the description or portrayal of the improvement that is not in existence and is displayed in the promotional material is conspicuously labeled or identified as, “NEED NOT BE BUILT.”
(Acts 1990, No. 90-551, p. 858, §4-115; Act 2018-403, §1.)
(a) Except for improvements labeled, “NEED NOT BE BUILT” the declarant shall complete all improvements depicted on any site plan or graphic representation including plats or plans prepared pursuant to section 35-8A-209, whether or not that site plan or other graphic representation is contained in the offering statement or any promotional material distributed by or for the declarant.
(b) The declarant is subject to liability for the prompt repair and restoration, to a condition compatible with the remainder of the condominium, of any portion of the condominium affected by the declarant’s exercise of rights reserved pursuant to or created by sections 35-8A-210 through 35-8A-213, 35-8A-215, and 35-8A-216.
(Acts 1990, No. 90-551, p. 858, §4-116.)
In the case of a sale of a unit where delivery of an offering statement is required or a disclosure is made pursuant to Section 35-8A-407, a contract of sale may be executed, but no interest in that unit may be conveyed, or voted until the declaration is recorded and the unit is substantially completed, as evidenced by a recorded certificate of substantial completion executed by an independent registered architect, or independent registered engineer, or by issuance of a certificate of occupancy authorized by law.
(Acts 1990, No. 90-551, p. 858, §4-117; Act 2018-403, §1.)
(a)(1) “Community development district” means a private residential development that meets all of the following criteria:
a. Is a size of at least 250 acres of contiguous land area.
b. Has at least 100 residential sites, platted and recorded in the probate office of the county as a residential subdivision.
c. Has streets that were or will be built with private funds.
d. Has a social club with all of the following:
An 18-hole golf course of regulation size.
A restaurant or eatery used exclusively for the purpose of preparing and serving meals, with a seating capacity of at least 60 patrons.
Social club memberships with at least 100 paid-up members who have paid a membership initiation fee of not less than two hundred fifty dollars ($250) per membership.
Membership policies whereby membership is not denied or impacted by an applicant’s race, color, creed, religion, or national origin.
A full-time management staff for the social activities of the club, including the management of the premises where food and drink are sold.
(2) The sale of any alcoholic beverages in any community development district established under this subsection shall be subject to a tax levied by the county on any sale at the same rate as the tax on any sale of liquor in the largest municipality in the county in which the district is established and shall be distributed as provided in Section 35-8B-5.
(b) “Community development district” also means privately owned property used for social purposes that meets all of the following criteria:
(1) Is a size of at least 250 acres of contiguous land area.
(2) Is located in a dry county that has one or more wet municipalities, but outside the corporate limits of any municipality.
(3) Is a social club with all of the following:
a. An 18-hole golf course of regulation size.
b. A marina and boat storage facility with at least 35 spaces.
c. A clubhouse with more than 20,000 square feet.
d. A restaurant or eatery used exclusively for the purpose of preparing and serving meals, with a seating capacity of at least 88 patrons.
e. At least 600 paid-up golf or social members who have paid a membership initiation fee of not less than two thousand dollars ($2,000) per family or individual membership.
f. Membership policies whereby membership is not denied or impacted by an applicant’s race, color, creed, religion, or national origin.
g. A full-time management staff for the social activities of the club, including the management of the premises where food and drink are sold.
(c) In addition to the limitations specified in Section 35-8B-3, with regard to a community development district defined in subsections (a) and (b), alcoholic beverages shall be sold only for on-premises consumption, as defined in Section 35-8B-3(a)(3), and in regard to a community development district defined in subsection (b), alcoholic beverages shall not be sold within 3,000 feet of the south right-of-way of any state or federal highway adjacent to any such district.
(d)(1) “Community development district” also means a private residential development that may or may not include additional contiguous privately-owned property used for residential, social, commercial, or charitable purposes that meets all of the following criteria:
a. Is the size of at least 650 acres of contiguous land area, but may also contain noncontiguous land if so divided by a public highway which shall be made part of the district per the articles of establishment.
b. Is located in a dry county that has one or more wet municipalities, but may be outside the corporate limits of any municipality or within the corporate limits of a municipality.
c. Has all of the following:
At least a 9-hole golf course.
An amenity complex to include a fitness center and a swimming pool.
A clubhouse with at least 7,000 square feet.
A restaurant or eatery used for the purpose of preparing and serving meals, with a seating capacity of at least 50 patrons.
A recreational lake of at least 30 acres.
At least 200 paid-up golf or club memberships paid initially by either the developer, residential landowners, or commercial entities located within the district at the rate of at least five hundred dollars ($500) per membership provided the developer reserves the right through residential and commercial lease and purchase agreements to require additional membership and initiation fees and further provided the developer has the discretion to restrict use of the golf course to district landowners and guests or at the developer’s discretion to extend use of the golf course to the general public subject to fees set and determined by the developer which may differ from fees applicable to residential and commercial lease and purchase agreements.
Membership policies whereby membership is not denied or impacted by an applicant’s race, color, religion, or national origin.
d. May include a multi-purpose use entertainment facility with a minimum capacity to accommodate at least 7,500 patrons.
e. May include commercial establishments.
(2) Notwithstanding any other provisions of law, the sale and distribution of alcoholic beverages, including draft or keg beer, by licensees of the Alcoholic Beverage Control Board shall be authorized in a community development district defined under this subsection, and Section 35-8B-3 shall not apply.
(e) “Community development district” also means a commercial district located in a wet county that does not authorize Sunday sales and outside the corporate limits and police jurisdiction of any municipality and which has a restaurant with a seating capacity of at least 120, a grocery-delicatessen, riding stables and riding trails, a community information center, outdoor programming activities, and rural lifestyle demonstrations.
(f) “Community development district” also means a commercial district located in a wet county that does not authorize Sunday sales, has a restaurant with a seating capacity of at least 120, is adjacent to a marina with at least 34 boat slips, and is located on property where the marina and restaurant are under common ownership.
(g) “Community development district” also means a commercial district that includes a marina located on a river in an unincorporated area of a wet county that does not authorize seven-day sales with two separate food and beverage buildings with a combined space of at least 7,500 square feet connected by a boardwalk and separated by a patio with an entertainment stage.
(h) “Community development district” also means a commercial district located in a dry county that shares a geographic border with another state, has an elevation of at least 1,500 feet, and has a recreational waterway, specialty shops and restaurants, summer camps and retreat centers, an art gallery, and annual festivals showcasing the area.
(i)(1) “Community development district” also means a commercial district that borders on a lake that is formed by an impounded reservoir of a river whose source is in a federal wilderness area and has a marina with not less than 30 boat slips and a restaurant with seating capacity of not less than 100 seats of which not less than 50 seats must be inside seating and is located on property where the marina and restaurant are under common ownership. In addition to any other requirements by law, the restaurant shall obtain a business license from the local governing body having primary jurisdiction of the property where the restaurant is located and shall be subject to additional regulation as determined necessary by the local governing body. Only one restaurant license per community development district shall be allowed.
(2) The sale of any alcoholic beverages in any community development district established under this subsection shall be subject to a tax levied by the county on any sale at the same rate as the tax on any sale of liquor in the largest municipality in the county in which the district is established and shall be distributed as provided in Section 35-8B-5.
(j) “Community development district” also means a parcel of real property that meets all of the following criteria:
(1) It is owned by the same person or entity.
(2) It consists of not less than 160 acres.
(3) It is located partially in a dry county and partially in a wet county.
(4) It contains a lake of not less than 70 acres with a fishing resort consisting of a rental boathouse, campsites, and a community room.
(k) “Community development district” also means a parcel of real property that meets all of the following:
(1) Consists of at least 1,600 acres.
(2) Holds concerts and other family-oriented events.
(3) Is located in a dry county with at least one wet municipality.
(l) “Community development district” also means a commercial district located in a wet county that does not authorize Sunday sales which district is composed of resort property consisting of 3,000 or more contiguous acres under common ownership, has a public golf course with a practice area and clubhouse, has a restaurant on the property, has overnight accommodations consisting of 40 or more guest suites, and has a shooting range.
(m) “Community development district” also means a parcel of land in a resort area consisting of a lodge for overnight accommodations and homesites that include vacation rentals and meets all of the following:
(1) The development was originally developed by entities owned by the same family.
(2) It consists of not less than 180 acres located in a dry county which borders an adjoining state and has an elevation of not less than 1,100 feet.
(3) It has a lodge providing overnight accommodations, including a dining facility with a seating capacity of not less than 50 which is open to the public.
(4) It contains a platted subdivision of not less than 90 homesites, including homes available for vacation rental with plans for additional development.
(5) It is located on a bluff over the backwaters of a major river that flows through an adjoining state and flows through or borders on another adjoining state.
(n) “Community development district” also means a commercial district located in a wet county that does not authorize Sunday sales, has a restaurant with a seating capacity of at least 96 seats inside and 24 seats outside, is located on a lake and adjacent to docking facilities and boat slips for at least 24 boats, is licensed only to sell beer and wine, and is located on property where the restaurant and boat slips and docking facilities are under common ownership.
(o) “Community development district” also means privately owned property that meets all of the following criteria:
(1) It is used for social purposes.
(2) It is located in a dry county that has one or more wet municipalities, but outside the corporate limits of any municipality.
(3) It has a marina and a boat storage facility with at least 150 spaces.
(4) It has a shipstore with at least 2,200 square feet.
(5) It is adjacent to a lake of at least 100,000 acres.
(6) It has a restaurant or eatery used for the purpose of preparing and serving meals, with a seating capacity of at least 40 patrons.
(p) “Community development district” also means an area owned by an industrial development board located in a dry county with a wet municipality, but in a municipality that has more than 750 persons, according to the 2010 federal decennial census, and the property meets all of the following:
(1) The property is in a county bordering on two other states.
(2) The property is on a bluff overlooking a river flowing through two adjoining states.
(3) The property would be used only for a hotel having not less than 50 rooms and a restaurant.
(q)(1) “Community development district” also means privately owned property that meets all of the following criteria:
a. It is located in a dry county that has one or more wet municipalities, but outside the corporate limits of any municipality.
b. It consists of at least 60 acres.
c. It has facilities on the property which employ a full-time management staff for the social activities of the facilities, including the management of the premises where food and drink are sold.
d. It has a restaurant or eatery used for the purpose of preparing and serving meals, with a seating capacity of at least 500 patrons operated on the property.
e. It has concerts and other family-oriented events held on the property.
f. It has overnight accommodations with the capacity to sleep at least 70 individuals.
g. It has at least five fishing ponds.
h. It has an amphitheater for outdoor entertainment events.
i. It has a chapel for wedding services.
j. It has an RV park with a capacity of at least four RVs.
k. It has five reception halls with a seating capacity of at least 1,900 individuals.
l. It has an outdoor stage.
(2) The sale of any alcoholic beverages in any community development district established under this subsection shall be subject to a tax levied by the county on any sale at the same rate as the tax on any sale of liquor in the largest municipality in the county in which the district is established and shall be distributed as provided in Section 35-8B-5.
(r)(1) “Community development district” also means property that meets all of the following criteria:
a. It is located in a dry county that shares a border with another state and which contains at least one wet municipality, but the property is located outside the corporate limits of any municipality.
b. It is adjacent to a river flowing through two adjoining states.
c. It has at least one restaurant with a seating capacity of at least 40 patrons.
d. It contains a contiguous land area of private residential development amounting to more than 250 acres.
e. It contains over 100 residential sites, platted and recorded.
f. It contains streets that are, or will be, built with private funds.
g. It contains an 18-hole public golf course of regulation size, which offers an annual subscription or membership to cover the cost of greens fees.
(2) Notwithstanding any other provisions of law, the sale and distribution of alcoholic beverages, including draft or keg beer, by licensees of the Alcoholic Beverage Control Board shall be authorized in a community development district defined under this subsection and Section 35-8B-3 shall not apply.
(s)(1) “Community development district” also means a commercial district or resort that borders on a lake that is formed by an impounded reservoir of a river whose source is in a federal wilderness area that meets the following criteria:
a. Is a size of at least 500 or more acres of contiguous land area;
b. Is located in a dry county that has one or more wet municipalities, but is located outside the corporate limits of any wet municipality;
c. Has a hotel or lodge or rental homes with a minimum of 100 rooms;
d. Has at least one 18-hole golf course of regulation size;
e. Has a marina with not less than 50 boat slips or storage spaces;
f. Has a clubhouse;
g. Has more than one restaurant, bar, or tavern or other eatery used exclusively for the purpose of preparing and serving meals or beverages or both, seven days per week, with at least one restaurant having a seating capacity for at least 50 patrons;
h. Has a conference center; and
i. Has membership policies that provide that membership is not denied or impacted by an applicant’s race, color, creed, religion, or national origin.
(2) In a community development district as defined in this subsection, alcoholic beverages shall be sold only by licensees of the Alabama Alcoholic Beverage Control Board for consumption, including Sunday sales, within or on a licensee’s property and as otherwise provided herein. An Alcoholic Beverage Control licensee in the district may operate a resort-owned luxury fine dining dinner cruise and special events yacht which may serve meals or alcoholic beverages, or both, while on the water, provided, the following minimum criteria are met: (i) length of not less than 60 feet; (ii) U.S. Coast Guard approved seating capacity of not less than 40; and (iii) operated by a USCG licensed captain. The restaurant or tavern shall obtain a business license from the local governing body having primary jurisdiction of the property where the restaurant is located and shall be subject to additional regulation as determined necessary by the local governing body.
(t) If a community development district is located in any county, including within any wet or dry municipality located within the county, the county shall participate in the distribution of taxes and license fees pursuant to Chapters 3 and 3A of Title 28.
(u) Any alcohol revenues received by a county under Act 2007-417 shall offset in an equal amount any T.V.A. in-lieu-of-taxes payments received by the county. Any T.V.A. in-lieu-of-taxes payments replaced by alcohol revenues under this subsection shall be distributed to T.V.A.-served counties.
(v) If a community development district established prior to June 1, 2014, becomes a new municipality pursuant to Sections 11-41-1 and 11-41-2, the section requiring a vote of the residents of the property described in the petition, the new municipality created thereby shall be wet and the sale and distribution of alcoholic beverages therein shall be authorized to the full extent of any other wet municipality. In addition to the other requirements for incorporating into a municipality set forth in Sections 11-41-1 and 11-41-2, the petition shall provide notice to potential voters that if the new municipality is incorporated it shall be wet.
(Acts 1992, No. 92-532, p. 1074, §1; Act 2000-470, p. 892, §1; Act 2004-541, p. 1143, §1; Act 2007-417, p. 869, §1; Act 2012-327, p. 769, §1; Act 2014-87, p. 138, §1; Act 2016-222, p. 570, §1; Act 2017-350, §1; Act 2017-359, p. 1122, §1; Act 2018-433, §1; Act 2020-176, §1; Act 2021-463, §1; Act 2022-406, §1; Act 2022-153, §1; Act 2024-365, §1; 2025-294, §1; Act 2026-2, §1.)
The exclusive and uniform method for the establishment of a community development district shall be by the filing of the articles of establishment of a community development district with the judge of probate of the county in which the district is to be located, or if located in more than one county, of the county wherein is located the largest area of the community development district.
(1) The articles of establishment of a district defined in subsection (a) of Section 35-8B-1 shall contain the following:
a. The written consent to the establishment of the district by the owner or owners of at least 51 percent of the real property to be included in the district, or documentation demonstrating that the petitioner has control by deed, trust agreement, contract, or option of at least 51 percent of the real property to be included in the district.
b. A metes and bounds description of the external boundaries of the district, with a specific metes and bounds description of any real property within the external boundaries of the district, which is to be excluded from the district.
c. A schematic layout of the proposed district with a map of the proposed and existing residential subdivisions, streets, and roads in the district, and of the building and grounds to be used in common by members of the club operating in the district, together with a commitment that the owner or owners of the real property located within the district will bear the costs of the construction of such proposed streets and roads, if such proposed roads and streets do not exist on the day the articles of establishment are filed.
d. The proposed name of the district, and the location and the mailing address of the principal office of the district.
e. A designation of five individuals to be the initial members of the board of control of the district, two of whom shall serve in that office until replaced by elected members; provided, the two elected members of the board of control shall be elected by the members of the club who may vote in person or by proxy in writing at an annual meeting of the district, which date shall be specified in the petition. Each club member shall be entitled to cast one vote. The two candidates receiving the highest number of votes shall be elected to the board of control for a period of one year, or until his or her successor shall be duly elected. Upon the death or resignation of a non-elected member of the board of control, the remaining board members shall elect, by majority vote at a called board meeting, a new non-elected board member.
(2) The articles of establishment of a district defined in subsections (b) and (d) of Section 35-8B-1 shall contain the following:
a. The written consent to the establishment of the district by the owner of the real property to be included in the district.
b. A metes and bounds description of the external boundaries of the district.
c. A schematic layout of the proposed district with a map of the buildings and grounds to be used in common by the members of the club operating in the district.
d. The proposed name of the district and the location and the mailing address of the principal office of the district.
e. A designation of members of the board of governors of the club operating in the district who shall be the members of the board of control of the district.
(3) The articles of establishment of a district described in Section 35-8B-1(e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o), (p), (q), (r), or (s) shall contain the following:
a. The written consent to the establishment of the district by the owner of the real property to be included within the district.
b. A metes and bounds description of the external boundaries of the district.
c. A schematic layout of the proposed district with a map of the buildings and grounds to be used in common by guests in the district.
d. The proposed name of the district and the location and the mailing address of the principal office of the district.
e. A designation of members of the board of governors of the district who shall be elected by the owner of the real property included in the district.
(4) The articles of establishment and two copies thereof shall be delivered to the judge of probate who shall, upon the payment of the fees hereinafter prescribed:
a. Endorse on the articles and on each of the copies the word “Filed,” and the hour, day, month, and year of the filing thereof;
b. File the articles in his or her office and certify the two copies thereof; and
c. Issue a certificate of establishment to which he or she shall affix one certified copy of the articles of establishment, and return the certificate with a certified copy of the articles of establishment affixed thereto to the district.
(5) Upon the filing of the articles of establishment of the community development district with the judge of probate, the district’s existence shall begin.
(6) In lieu of all other charges and fees for a community development district formed under Section 35-8B-1(a), (b), or (d), the judge of probate shall charge and collect for filing the articles of establishment and issuing a certificate of establishment, one thousand dollars ($1,000) payable to the municipality in which is located the largest area of the community development district if located in a municipality, and if not, to the county in which is located the largest area of the community development district and three hundred fifty dollars ($350) to the county for the purpose of providing additional funds for the office of the judge of probate. On or before the anniversary date of the filing of the articles of establishment, excluding the actual year of filing, the board of control shall pay to the judge of probate a fee of three hundred fifty dollars ($350) and a fee of one thousand dollars ($1,000) payable to the municipality in which is located the largest area of the community development district if located in a municipality, and if not, to the county in which is located the largest area of the community development district for the purpose of providing additional funds for the office of the judge of probate.
(7) In lieu of all other charges and fees for a community development district formed under Section 35-8B-1(e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o), (p), (q), (r), or (s), the judge of probate shall charge and collect a one-time fee for filing the articles of establishment and issuing a certificate of establishment of five hundred dollars ($500) payable to the county in which is located the largest area of the district for the purpose of providing additional funds to the judge of probate.
(Acts 1992, No. 92-532, p. 1074, §2; Act 2000-470, p. 892, §1; Act 2004-541, p. 1143, §1; Act 2007-417, p. 869, §1; Act 2012-327, p. 769, §1; Act 2016-222, p. 570, §1; Act 2017-350, §1; Act 2017-359, §1; Act 2018-433, §1; Act 2020-176, §1; Act 2022-406, §1; Act 2024-365, §1; Act 2025-294, §1; Act 2026-2, §1.)
(a) If a majority of the board of control of a community development district formed under Section 35-8B-1(a), (b), or (d) consents to and approves the sale and distribution of alcoholic beverages within the district, it shall be lawful to sell and distribute alcoholic beverages in the community development district in the following manner and subject to the following terms, definitions, and conditions:
(1) Upon being licensed by the Alabama Alcoholic Beverage Control Board, alcoholic beverages may be sold by the club of the district to members and their guests for on-premises consumption only. The club shall be licensed to sell alcoholic beverages to its members and their guests as a club liquor retail licensee by the Alabama Alcoholic Beverage Control Board, upon the club’s compliance with the provisions of the alcoholic beverage licensing code and the rules adopted thereunder. The original application shall be accompanied by a certificate from the board of control of the district in which the licensed club is located, consenting to and approving the sale of alcoholic beverages at the club. The club shall not be required to present its application or obtain the consent and approval of any authority other than the board of control of the district.
(2) MEMBER. Any person or entity whose membership application has been approved by the club.
(3) ON-PREMISES CONSUMPTION. Consumption on the property of the club, including the club house, the golf course, and other recreational facilities of the club. Sales of alcoholic beverages for on-premises consumption shall be made only by authorized charge to a member’s account.
(b) If a majority of the board of control of a community development district formed pursuant to Section 35-8B-1(e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (p), (q), or (s) consents to and approves the sale and distribution of alcoholic beverages within the district for seven days a week, any person within the district licensed by the Alabama Alcoholic Beverage Control Board may sell alcoholic beverages in the district for on-premises consumption.
(c) If a majority of the board of a community development district formed pursuant to Section 35-8B-1(h) consents to and approves the sale of alcoholic beverages within the district for seven days a week, any person within the district with the appropriate license from the Alabama Alcoholic Beverage Control Board may sell alcoholic beverages in the district for on-premises or off-premises consumption, subject to approval by a referendum as provided herein.
(1) If the community development district is situated entirely within the corporate limits of a municipality, then upon a petition by the board of the district being filed with the city or town clerk or governing body of the municipality, the governing body must call a municipal referendum election on the question of whether to authorize the sale of alcoholic beverages in the district as provided in the petition. The municipal election shall be held at the time of the primary, general, county-wide, or municipal election next succeeding the date of the filing of the petition but not less than 82 days from the date of the filing of the petition. The cost of the municipal election, including the cost of notice by publication, shall be paid out of the general fund of the municipality.
(2) If the community development district is not situated entirely within the corporate limits of a municipality, then upon a petition by the board of the district being filed with the judge of probate of the county, the judge of probate must call a county-wide referendum election on the question of whether to authorize the sale of alcoholic beverages in the district as provided in the petition. The county-wide election shall be held at the time of the regularly scheduled primary or general election next succeeding the date of the filing of the petition but not less than 82 days from the date of the filing of the petition. The cost of the election, including the cost of notice by publication, shall be paid out of the general funds of the county.
(3) Notice of any referendum election called pursuant to this subsection shall be given by the city or town clerk for municipal elections, or by the judge of probate for county-wide elections, by publication at least three weeks before the date of the election, in a newspaper in the municipality or county, as appropriate, or, if there be none, by posting the notice at the town or city hall or county courthouse, as appropriate, apprising the voters of the municipality or county that an election will be held to determine whether alcoholic beverages may be sold within the district as provided in the petition.
(4) If a majority of the electors voting in a referendum called pursuant to this subsection votes “yes” in favor of the question, then the sale of alcoholic beverages in the district as provided in the petition shall be authorized. If a majority of the electors votes “no,” then the sale of alcoholic beverages in the district shall be authorized only as provided by the laws in effect for the district prior to the filing of the petition, and the board of the community development district shall not file another petition under this subsection within 12 months of the referendum election.
(d)(1) In any community development district formed pursuant to Section 35-8B-1(e) or (f) in which the sale of alcoholic beverages has been approved pursuant to this section, the board of that district may establish an entertainment district within the district, which may not exceed one-half mile by one-half mile in area, but may be irregularly shaped.
(2) The Alabama Alcoholic Beverage Control Board may issue an entertainment district designation to any retailer licensee that is licensed to sell alcoholic beverages for on-premises consumption and to any manufacturer licensee that conducts tastings or samplings on the licensed premises, provided the licensees are located in an entertainment district established pursuant to this subsection.
(3) Notwithstanding any provision of law to the contrary, a licensee who receives an entertainment district designation under this subsection shall comply with all laws and rules governing its license type, as well as the limitations specified in this section, except that patrons, guests, or members of that licensee may exit that licensed premises with open containers of alcoholic beverages and consumer alcoholic beverages anywhere within the confines of the entertainment district.
(4)a. For purposes of this subsection, the term “on-premises” as applied to consumption within the entertainment district shall include anywhere within the district.
b. The permission granted by this subsection permitting the consumption of alcoholic beverages anywhere within the confines of the entertainment district shall not be construed to extend the confines of the licensed premises.
(5) The operation of an entertainment district established in a community development district pursuant to this subsection shall not be affected by any future annexation of that district or any part of that district into a municipality.
(e) In addition to the limitations specified in this section, with regard to a community development district defined in subsections (a) and (b), alcoholic beverages shall be sold only for on-premises consumption, as defined in subdivision (a)(3), and with regard to a community development district defined in subsection (b), alcoholic beverages shall not be sold within 3,000 feet of the south right-of-way of any state or federal highway adjacent to any such district.
(Acts 1992, No. 92-532, p. 1074, §3; Act 2004-541, p. 1143, §1; Act 2012-327, p. 769, §1; Act 2016-222, p. 570, §1; Act 2017-350, p. 1097, §1; Act 2017-359, p. 1122, §1; Act 2018-287, §1; Act 2018-433, §1; Act 2020-176, §1; Act 2022-50, §1; Act 2024-365, §1.)
All laws and regulations of the state relating to the sale, taxing, and regulation of alcoholic beverages shall apply to a community development district, except when in conflict with the special provisions of this chapter.
(Acts 1992, No. 92-532, p. 1074, §4.)
(a) Notwithstanding any other provision of law, beginning on October 1, 2021, any proceeds of the sales tax on alcoholic beverages collected by a county in a community development district as provided in Section 35-8B-1(a)(2), (i)(2), and (q)(2), shall be deposited into a special fund in the county treasury to be used for grants to support education, civic, community, and tourism activities within the county in which the taxes were collected.
(b) Grants awarded pursuant to subsection (a) shall be distributed based on the recommendation of each legislator representing a portion of the county, based on the proportion of the population he or she represents in the county. In the event that a legislative position is vacant, the funds allocated to that portion of the county may be distributed upon approval of any other two legislators representing a portion of the county.
(Act 2021-463, §2; Act 2025-112, §1.)
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.)
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.)
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.)
[Repealed]
Repealed by Act 2006-316, p. 668, §3, effective January 1, 2007.
(Code 1923, §8821; Code 1940, T. 31, §4.)
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.)
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 notifed 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.)
(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.)
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.)
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.)
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.)
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.)
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.)
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.)
Notwithstanding any other provision of law, any bill for sewer service received in the name of a tenant or tenants, shall be the sole responsibility of the tenant or tenants and shall not constitute a lien on the property where the sewer service was received.
(Act 2004-522, p. 1067, §1.)
The provider of goods or services may not require a landlord or real property owner to pay the delinquent bill of a tenant for goods or services provided to the tenant of the landlord if the account for the goods or services is in the name of the tenant. In addition, the provider of goods or services shall not have a lien on the real property for any goods or services provided in the name of the tenant.
(Act 2009-570, p. 1673, §1.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
The landlord of any storehouse or other building shall have a lien on the goods, furniture, and effects belonging to the tenant, and subtenant, for rent, which shall be superior to all other liens, except those for taxes, and except as otherwise provided in Section 7-9A-333. In case the tenant or subtenant is adjudged a bankrupt, such lien on such goods, furniture, and effects of the bankrupt 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); Act 2001-481, p. 647, §2; Act 2006-316, p. 668, §2.)
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.)
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.)
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.)
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.)
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.)
[Repealed]
Repealed by Act 2006-316, p. 668, §3, effective January 1, 2007.
(Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, §35.)
[Repealed]
Repealed by Act 2006-316, p. 668, §3, effective January 1, 2007.
(Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, §36.)
[Repealed]
Repealed by Act 2006-316, p. 668, §3, effective January 1, 2007.
(Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, §38; Acts 1990, No. 90-218, p. 255.)
[Repealed]
Repealed by Act 2006-316, p. 668, §3, effective January 1, 2007.
(Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, §44.)
[Repealed]
Repealed by Act 2006-316, p. 668, §3, effective January 1, 2007.
(Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, §37.)
[Repealed]
Repealed by Act 2006-316, p. 668, §3, effective January 1, 2007.
(Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, §39.)
[Repealed]
Repealed by Act 2006-316, p. 668, §3, effective January 1, 2007.
(Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, §40.)
[Repealed]
Repealed by Act 2006-316, p. 668, §3, effective January 1, 2007.
(Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, §§41-43.)
[Repealed]
Repealed by Act 2006-316, p. 668, §3, effective January 1, 2007.
(Acts 1932, Ex. Sess., No. 133, p. 164; Code 1940, T. 31, §45.)
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.)
This chapter shall be known and may be cited as the “Alabama Uniform Residential Landlord and Tenant Act.”
(Act 2006-316, p. 668, §1.)
(a) This chapter shall be liberally construed and applied to promote its underlying purposes and policies.
(b) Underlying purposes and policies of this chapter are:
(1) to simplify, clarify, modernize, and revise the law governing the rental of dwelling units and the rights and obligations of landlords and tenants;
(2) to encourage landlords and tenants to maintain and improve the quality of housing; and
(3) to make uniform the law with respect to the subject of this chapter among those states which enact it.
(c) This chapter shall be construed as applying only to the residential landlord and tenant relationship. The chapter does not create any duties in tort or causes of action in tort, nor does it deprive anyone of any causes of action in tort that may exist apart from this chapter.
(Act 2006-316, p. 668, §1.)
Unless displaced by the provisions of this chapter, the principles of law and equity, including, but not limited to, the law relating to capacity to contract, mutuality of obligations, principal and agent, real property, public health, safety and fire prevention, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause supplement its provisions.
(Act 2006-316, p. 668, §1.)
This chapter being a general act intended as a unified coverage of its subject matter, no part of it is to be construed as impliedly repealed by subsequent legislation if that construction can reasonably be avoided.
(Act 2006-316, p. 668, §1.)
(a) The remedies provided by this chapter shall be so administered that an aggrieved party may recover appropriate damages. The aggrieved party has a duty to mitigate damages; provided, the duty of a landlord shall not take priority over the landlord’s right to first rent other vacant units.
(b) Any right or obligation declared by this chapter is enforceable by action unless the provision declaring it specifies a different and limited effect.
(Act 2006-316, p. 668, §1.)
A claim or right arising under this chapter or on a rental agreement, if disputed in good faith, may be settled by agreement.
(Act 2006-316, p. 668, §1.)
A cause of action or civil complaint initiated pursuant to this chapter is not subject to the notice requirement of subsection (j) of Section 34-27-31.
(Act 2006-316, p. 668, §1.)
This chapter applies to and is the exclusive remedy to regulate and determine rights, obligations, and remedies under a rental agreement, wherever made, for a dwelling unit located within this state. No resolution or ordinance relative to residential landlords, rental housing codes, or the rights and obligations governing residential landlord and tenant relationships shall be enacted or enforced by any county or municipality, and any such resolution or ordinance enacted both prior to or after January 1, 2007, is superseded by this chapter. Notwithstanding these provisions, a county or municipality may enact and enforce building codes, health codes, and other general laws that affect rental property provided that such codes equally affect similarly situated owner-occupied residential property.
(Act 2006-316, p. 668, §1; Act 2009-633, p. 1939, §1.)
Unless created to avoid the application of this chapter, the following arrangements are not governed by this chapter:
(1) residence at an institution, public or private, if incidental to detention or the provision of medical, geriatric, educational, counseling, religious, or similar service;
(2) occupancy under a contract of sale of a dwelling unit or the property of which it is a part, if the occupant is the purchaser or a person who succeeds to the interest of the purchaser;
(3) occupancy by a member of a fraternal or social organization in the portion of a structure operated for the benefit of the organization;
(4) transient occupancy in a hotel, motel, or lodgings;
(5) occupancy by an employee of a landlord whose right to occupancy is conditional upon employment in and about the premises;
(6) occupancy by an owner of a condominium unit or a holder of a proprietary lease in a cooperative;
(7) occupancy under a rental agreement covering premises rented by the occupant primarily for agricultural purposes;
(8) continuation of occupancy by the seller or a member of the seller’s family for a period of not more than 36 months after the sale of a dwelling unit or the property of which it is a part.
(Act 2006-316, p. 668, §1.)
(a) The district and circuit courts of this state, according to their respective established jurisdictions, may exercise jurisdiction over any landlord with respect to any conduct in this state governed by this chapter or with respect to any claim arising from a transaction subject to this chapter. In addition to any other method provided by rule or by statute, personal jurisdiction over a landlord may be acquired in a civil action or proceeding instituted in the court by the service of process in the manner provided by this section.
(b) If a landlord is not a resident of this state or is a business entity not authorized to do business in this state and engages in any conduct in this state governed by this chapter, or engages in a transaction subject to this chapter, the entity may be served as provided by Rule 4 of the Alabama Rules of Civil Procedure.
(Act 2006-316, p. 668, §1.)
Subject to additional definitions contained in subsequent articles of this chapter which apply to specific articles or divisions thereof, and unless the context otherwise requires, in this chapter:
(1) “action” includes recoupment, counterclaim, set-off, suit in equity, and any other proceeding in which rights are determined, including an action for possession;
(2) “building and housing codes” include any law, ordinance, or governmental regulation concerning fitness for habitation, or the construction, maintenance, operation, occupancy, use, or appearance of any premises or dwelling unit;
(3) “day” means calendar day, notwithstanding Rule 6 of the Alabama Rules of Civil Procedure; however, in any case where the application of a time period in this chapter consisting of a specific number of days results in the last day of that time period falling on a weekend or an official holiday, then the last day of that time period shall be considered the next official business day when the court is open;
(4) “dwelling unit” means a structure or the part of a structure, including a manufactured home, that is rented as a home, residence, or sleeping place by one or more persons;
(5) “eviction” means a civil action filed as a remedy, where a tenant has lawfully taken possession of a premises and fails or refuses, after the termination of the possessory interest of the tenant, to deliver possession of the premises to anyone lawfully entitled or to his or her agent or attorney;
(6) “good faith” means honesty in fact in the conduct of the transaction concerned;
(7) “landlord” means the owner, lessor, or sublessor of the dwelling unit or the building of which it is a part, and it also means a manager of the premises;
(8) “organization” includes a corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, and any business entity;
(9) “owner” means one or more persons, jointly or severally, in whom is vested (i) all or part of the legal title to property or (ii) all or part of the beneficial ownership and a right to present use and enjoyment of the premises. The term includes a mortgagee only when in possession;
(10) “person” includes an individual, individuals, or organization;
(11) “premises” means a dwelling unit and the structure of which it is a part and facilities and appurtenances therein and grounds, areas, and facilities held out for the use of tenants generally or whose use is promised by the rental agreement to the tenant;
(12) “rent” means all payments to be made to or for the benefit of the landlord under the rental agreement;
(13) “rental agreement” means all agreements, written or oral, and valid rules and regulations adopted under Section 35-9A-302 embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises;
(14) “roomer” means a person occupying a dwelling unit that does not include a toilet, a refrigerator, stove, kitchen sink, and either a bath tub or a shower, all provided by the landlord, and where one or more of these facilities are used in common by occupants in the structure;
(15) “single family residence” means a structure maintained and used as a single dwelling unit. Notwithstanding that a dwelling unit shares one or more walls with another dwelling unit, it is a single family residence if it has direct access to a street or thoroughfare and shares neither heating facilities, hot water equipment, nor any other essential facility or service with any other dwelling unit; and
(16) “tenant” means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others.
(Act 2006-316, p. 668, §1; Act 2009-633, p. 1939, §1; Act 2011-700, p. 2154, §1.)
Every agreement and duty under this chapter and every act which must be performed as a condition precedent to the exercise of a right or remedy under this chapter imposes an obligation of good faith in its performance or enforcement.
(Act 2006-316, p. 668, §1.)
(a) If the court, as a matter of law, finds:
(1) a rental agreement or any provision thereof was unconscionable when made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result; or
(2) a settlement in which a party waives or agrees to forego a claim or right under this chapter or under a rental agreement was unconscionable when made, the court may refuse to enforce the settlement, enforce the remainder of the settlement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result.
(b) If unconscionability is put into issue by a party or by the court upon its own motion, the parties shall be afforded a reasonable opportunity to present evidence as to the setting, purpose, and effect of the rental agreement or settlement to aid the court in making the determination.
(Act 2006-316, p. 668, §1.)
(a) A person has notice of a fact if:
(1) the person has actual knowledge of it;
(2) the person has received a notice or notification of it; or
(3) from all the facts and circumstances known to the person at the time in question, the person has reason to know that it exists.
(b) A person “knows” or “has knowledge” of a fact if the person has actual knowledge of it.
(c) A person “notifies” or “gives” a notice or notification to another person by taking steps reasonably calculated to inform the other in ordinary course whether or not the other actually comes to know of it. A person presumatively “receives” a notice or notification when:
(1) it comes to the person’s attention;
(2) in the case of the landlord, it is delivered at the place of business of the landlord or mailed to any place designated by the landlord as the place for receipt of the communication; or
(3) in the case of the tenant, it is delivered in hand to the tenant or three days after mailing with adequate prepaid postage in the United States mail to the tenant’s last known place of residence.
(d) “Notice,” knowledge of a notice, or notification received by an organization is effective for a particular transaction from the time it is brought to the attention of the organization.
(e) Notice provided in this section does not apply to the notice required to terminate a tenancy or evict a tenant.
(Act 2006-316, p. 668, §1.)
(a) A landlord and a tenant may include in a rental agreement terms and conditions not prohibited by this chapter or other law, including rent, term of the agreement, and other provisions governing the rights and obligations of the parties.
(b) In absence of agreement, the tenant shall pay as rent the fair rental value for the use and occupancy of the dwelling unit.
(c) Rent is payable without demand or notice at the time and place agreed upon by the parties. Unless otherwise agreed, rent is payable at the dwelling unit and periodic rent is payable at the beginning of any term of one month or less and otherwise in equal monthly installments at the beginning of each month. Unless otherwise agreed, rent is uniformly apportionable from day-to-day.
(d) Unless the rental agreement fixes a definite term, the tenancy is week-to-week in case of a tenant who pays weekly rent, and in all other cases month-to-month.
(Act 2006-316, p. 668, §1.)
(a) If a landlord does not sign and deliver a written rental agreement signed and delivered to the landlord by the tenant, acceptance of rent without reservation by the landlord gives the rental agreement the same effect as if it had been signed and delivered by the landlord.
(b) If a tenant does not sign and deliver a written rental agreement signed and delivered to the tenant by the landlord, acceptance of possession and payment of rent without reservation gives the rental agreement the same effect as if it had been signed and delivered by the tenant.
(c) If a rental agreement given effect by the operation of this section provides for a term longer than one year, it is effective for only one year.
(Act 2006-316, p. 668, §1.)
(a) A rental agreement may not provide that the tenant:
(1) agrees to waive or forego rights or remedies established under Section 35-9A-204, 35-9A-401, or 35-9A-404, or requirements of security deposits established by this chapter or under the law of unlawful detainer;
(2) authorizes any person to confess judgment on a claim arising out of the rental agreement;
(3) agrees to pay the landlord’s attorney’s fees or cost of collection; or
(4) agrees to the exculpation or limitation of any liability of the landlord arising under law or to indemnify the landlord for that liability or the costs connected therewith.
(b) A provision prohibited by subsection (a) included in a rental agreement is unenforceable. If a landlord seeks to enforce a provision in a rental agreement containing provisions known by the landlord to be prohibited, the tenant may recover in addition to actual damages an amount up to one month’s periodic rent and reasonable attorney’s fees.
(Act 2006-316, p. 668, §1; Act 2011-700, p. 2154, §1.)
The tenant may not withhold payment of rent to the landlord, while in possession, to enforce any of the tenant’s rights under this chapter.
(Act 2006-316, p. 668, §1.)
(a) A landlord may not demand or receive money as security, in an amount in excess of one month’s periodic rent, except for pets, changes to the premises, or increased liability risks to the landlord or premises, for tenant’s obligations under a rental agreement.
(b) Upon termination of the tenancy, money held by the landlord as security may be applied to the payment of accrued rent and the amount of damages that the landlord has suffered by reason of the tenant’s noncompliance with Section 35-9A-301 all as itemized by the landlord in a written notice delivered to the tenant together with the amount due 60 days after termination of the tenancy and delivery of possession.
(c) If the landlord does not refund the entire deposit, the landlord, within the 60-day period, shall provide the tenant an itemized list of amounts withheld.
(d) Upon vacating the premises, the tenant shall provide to the landlord a valid forwarding address, in writing, to which the deposit or itemized accounting, or both, may be mailed. If the tenant fails to provide a valid forwarding address, the landlord shall mail, by first class mail, the deposit or itemized accounting, or both, to the last known address of the tenant or, if none, to the tenant at the address of the property. Any deposit unclaimed by the tenant as well as any check outstanding shall be forfeited by the tenant after a period of 90 days.
(e) The landlord’s mailing by first class mail to the address provided in writing by the tenant, within 60 days of the refund or itemized accounting, or both, is sufficient compliance with this chapter.
(f) If the landlord fails to mail a timely refund or accounting within the 60-day period, the landlord shall pay the tenant double the amount of the tenant’s original deposit.
(g) This section does not preclude the landlord or tenant from recovering other damages to which the landlord or tenant may be entitled.
(h) The holder of the landlord’s interest in the premises at the time of the termination of the tenancy is bound by this section.
(Act 2006-316, p. 668, §1; Act 2014-279, p. 886, §1.)
(a) A landlord or any person authorized to enter into a rental agreement on the landlord’s behalf shall disclose to the tenant in writing at or before the commencement of the tenancy the name and business address of:
(1) the person authorized to manage the premises; and
(2) an owner of the premises or a person authorized to act for and on behalf of the owner for the purpose of service of process and receiving and receipting for notices and demands.
(b) The information required to be furnished by this section shall be kept current and this section extends to and is enforceable against any successor landlord, owner, or manager.
(c) A person who fails to comply with subsection (a) becomes an agent of each person who is a landlord for:
(1) service of process and receiving and receipting for notices and demands; and
(2) performing the obligations of the landlord under this chapter and under the rental agreement and expending or making available for the purpose all rent collected from the premises.
(Act 2006-316, p. 668, §1.)
At the commencement of the term, a landlord shall deliver possession of the premises to the tenant in compliance with the rental agreement and Section 35-9A-204. The landlord may bring an action for possession against any person wrongfully in possession and may recover the damages provided in Section 35-9A-441(c).
(Act 2006-316, p. 668, §1.)
(a) A landlord shall:
(1) comply with the requirements of applicable building and housing codes materially affecting health and safety;
(2) make all repairs and do whatever is necessary to put and keep the premises in a habitable condition;
(3) keep all common areas of the premises in a clean and safe condition;
(4) maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances, including elevators, supplied or required to be supplied by the landlord;
(5) provide and maintain appropriate receptacles and conveniences for the removal of garbage, rubbish, and other waste incidental to the occupancy of the dwelling unit and arrange for their removal; and
(6) supply running water and reasonable amounts of hot water at all times and reasonable heat except where the building that includes the dwelling unit is not required by law to be equipped for that purpose, or the dwelling unit is so constructed that heat or hot water is generated by an installation within the exclusive control of the tenant and supplied by a direct public utility connection.
(b) If the duty imposed by subdivision (1) of subsection (a) is greater than any duty imposed by any other subdivision of that subsection, the landlord’s duty shall be determined by reference to subdivision (1) of subsection (a).
(c) The landlord and tenant of a single family residence may agree in writing that the tenant perform the landlord’s duties specified in subdivisions (5) and (6) of subsection (a) and also specified repairs, maintenance tasks, alterations, and remodeling.
(d) The landlord and tenant of any dwelling unit other than a single family residence may agree that the tenant is to perform specified repairs, maintenance tasks, alterations, or remodeling only if:
(1) the agreement of the parties is set forth in a separate writing signed by the parties and supported by adequate consideration;
(2) the work is not necessary to cure noncompliance with subdivision (1) of subsection (a); and
(3) the agreement does not diminish or affect the obligation of the landlord to other tenants in the premises.
(e) The landlord may not treat performance of the separate agreement described in subsection (d) as a condition to any obligation or performance of any rental agreement.
(f) Rights of the tenant under this section do not arise if the condition was caused by the willful or negligent act or omission of the tenant, a member of the tenant’s family, a licensee, or other person on the premises with the tenant’s consent.
(Act 2006-316, p. 668, §1.)
(a) Unless otherwise agreed, a landlord who conveys premises that include a dwelling unit subject to a rental agreement in a good faith sale to a bona fide purchaser is relieved of liability under the rental agreement and this chapter as to events occurring after written notice to the tenant of the conveyance. However, the landlord remains liable to the tenant for all security recoverable by the tenant under Section 35-9A-201 and all prepaid rent.
(b) Unless otherwise agreed, a manager of premises that include a dwelling unit is relieved of liability under the rental agreement and this chapter as to events occurring after written notice to the tenant of the termination of management by the manager.
(Act 2006-316, p. 668, §1.)
A tenant shall:
(1) comply with all obligations primarily imposed upon tenants by applicable provisions of building and housing codes materially affecting health and safety;
(2) keep that part of the premises that the tenant occupies and uses as clean and safe as the condition of the premises permit;
(3) dispose from the dwelling unit all ashes, garbage, rubbish, and other waste in a clean and safe manner;
(4) keep all plumbing fixtures in the dwelling unit or used by the tenant as clear as their condition permits;
(5) use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances including elevators in the premises;
(6) not deliberately or negligently destroy, deface, damage, impair, or remove any part of the premises; or knowingly, recklessly, or negligently permit any person to do so; and
(7) conduct himself or herself and require other persons on the premises with the tenant’s consent to conduct themselves in a manner that will not disturb the neighbors’ peaceful enjoyment of the premises.
(Act 2006-316, p. 668, §1.)
(a) “Rules” or “regulations” pertaining to a residential lease are defined as policies of the landlord affecting the maintenance, operation, or governance of the common areas of the premises, or concerning the general conduct of tenants in their use and enjoyment of the leased premises.
(b) A landlord, from time to time, may adopt a rule or regulation. It is enforceable against the tenant only if:
(1) its purpose is to promote the convenience, safety, or welfare of the tenants in the premises, preserve the landlord’s property from abusive use, or make a fair distribution of services and facilities held out for the tenants generally;
(2) it is reasonably related to the purpose of which it is adopted;
(3) it applies to all tenants in the premises in a fair manner;
(4) it is sufficiently explicit in its prohibition, direction, or limitation of the tenant’s conduct to fairly inform the tenant of what the tenant must or must not do to comply;
(5) it is not for the purpose of evading the obligations of the landlord; and
(6) the tenant has notice of it at the time the tenant enters into the rental agreement, or when it is adopted.
(c) If a rule or regulation is adopted after the tenant enters into the rental agreement that works a substantial modification of the tenant’s use of the leased premises, it is not valid unless the tenant consents to it in writing. In the case of any variance between the lease and a rule or regulation, the lease prevails.
(Act 2006-316, p. 668, §1.)
(a) A tenant shall not unreasonably withhold consent to the landlord to enter into the dwelling unit in order to inspect the premises, make necessary or agreed repairs, decorations, alterations, or improvements, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workmen, or contractors.
(b) A landlord may enter the dwelling unit without consent of the tenant only in the following circumstances:
(1) In case of emergency.
(2) Pursuant to court order.
(3) As permitted by Sections 35-9A-422 and 35-9A-423(b).
(4) At reasonable times and with prior notice as provided in subsection (c), to show the premises to a prospective tenant or purchaser, if a landlord provides the tenant separate from the rental agreement a general notice signed by the tenant for the right to access for such a purpose within four months of the expiration of the rental agreement, and only in the company of a prospective tenant or purchaser.
(5) When the landlord has reasonable cause to believe the tenant has abandoned or surrendered the premises.
(c) A landlord shall not abuse the right of access or use it to harass the tenant. Except as provided in this section or unless it is impracticable to do so, the landlord may show the premises at any reasonable time by giving the tenant at least two days’ notice of the landlord’s intent to enter and may enter only at reasonable times. Posting of a note on the primary door of entry to the residence of the tenant stating the intended time and purpose of the entry shall be a permitted method of notice for the purpose of the landlord’s right of access to the premises.
(d) If a landlord provides separate from the lease in a general notice or an advance schedule in excess of two days for repairs, maintenance, pest control, or for service relating to health or safety, whether such notice is for a specific time or within a designated time period, then no additional day’s notice is required to access the premises. A tenant may consent to provide a landlord with access to the premises with less than two days’ notice.
(e) If a tenant requests repairs or maintenance or improvements to a dwelling unit, the tenant shall be deemed to have granted consent to the landlord to enter into the dwelling unit and make the repairs, maintenance, or improvements as requested by the tenant.
(Act 2006-316, p. 668, §1; Act 2009-633, p. 1939, §1; Act 2011-700, p. 2154, §1.)
Unless otherwise agreed, a tenant shall occupy the dwelling unit only as a dwelling unit. The rental agreement may require that the tenant notify the landlord of any anticipated extended absence from the premises in excess of 14 days no later than the fifth day of the extended absence.
(Act 2006-316, p. 668, §1.)
(a) Except as provided in this chapter, if there is a material noncompliance by the landlord with the rental agreement or a noncompliance with Section 35-9A-204 materially affecting health and safety, the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than 14 days after receipt of the notice if the breach is not remedied within that period, and the rental agreement shall terminate as provided in the notice subject to the following:
(1) if the breach is remediable by repairs or the payment of damages or otherwise and the landlord adequately remedies the breach before the date specified in the notice, the rental agreement shall not terminate by reason of the breach.
(2) the tenant may not terminate for a condition caused by the deliberate or negligent act or omission of the tenant, a member of the tenant’s family, a licensee, or other person on the premises with the tenant’s consent.
(b) Except as provided in this chapter, the tenant may recover actual damages and reasonable attorney fees and obtain injunctive relief for noncompliance by the landlord with the rental agreement or Section 35-9A-204.
(c) The remedy provided in subsection (b) is in addition to any right of the tenant arising under subsection (a).
(d) If the rental agreement is terminated pursuant to this section, the landlord shall return all security recoverable by the tenant under Section 35-9A-201 and all unearned prepaid rent.
(Act 2006-316, p. 668, §1; Act 2011-700, p. 2154, §1.)
(a) If the landlord fails to deliver possession of the dwelling unit to the tenant as provided in Section 35-9A-203, rent abates until possession is delivered and the tenant may:
(1) terminate the rental agreement upon written notice to the landlord and within five days thereafter the landlord shall return all prepaid rent and security; or
(2) demand performance of the rental agreement by the landlord and, if the tenant elects, bring an action for possession of the dwelling unit from the person wrongfully in possession and recover the actual damages sustained by the tenant.
(b) If a person’s failure to deliver possession is willful and not in good faith, an aggrieved party may recover from that person an amount equal to not more than three months’ periodic rent or the actual damages sustained, whichever is greater, and reasonable attorney’s fees.
(Act 2006-316, p. 668, §1.)
[Reserved]
(a) The landlord is not responsible for the payment of utility services unless agreed in the lease.
(b) If contrary to the rental agreement or Section 35-9A-204, after receiving notice of the breach from the tenant, the landlord willfully or negligently fails to promptly make available heat, running water, hot water, electric, gas, or other essential service, the tenant may:
(1) send a written notice specifying the date of termination not less than 14 days after receipt of notice and upon vacation of the premises, the rental agreement shall be rightfully terminated without further obligation or penalty. If the rental agreement is terminated pursuant to this section, the landlord shall return all security recoverable by the tenant under Section 35-9A-201 and all unearned prepaid rent; or
(2) recover damages based upon the diminution in the fair rental value of the dwelling unit.
(c) If the tenant proceeds under this section, the tenant may not proceed under Section 35-9A-401 as to that breach.
(d) Rights of the tenant under this section do not arise if the condition was caused by the willful or negligent act or omission of the tenant, a member of the tenant’s family, a licensee, or other person on the premises with the tenant’s consent.
(Act 2006-316, p. 668, §1.)
(a) In an action for possession or in an action for rent when the tenant is in possession, the tenant may counterclaim for any amount the tenant may recover under the rental agreement or this chapter. It is in the court’s discretion whether the tenant is to remain in possession. The tenant shall pay into court rent accrued and thereafter accruing as it comes due. The court shall determine the amount due to each party. The party to whom a net amount is owed shall be paid first from the money paid into court, and the balance by the other party. If no rent remains due after application of this section, judgment shall be entered for the tenant in the action for possession. If the defense or counterclaim by the tenant is without merit and is not raised in good faith, the landlord may recover reasonable attorney’s fees.
(b) In an action for rent when the tenant is not in possession, the tenant may counterclaim as provided in subsection (a) but is not required to pay any rent into court.
(Act 2006-316, p. 668, §1.)
(a) If the dwelling unit or premises are damaged or destroyed by fire or casualty not caused by the tenant to an extent that enjoyment of the dwelling unit is substantially impaired, the tenant may:
(1) immediately vacate the premises and notify the landlord in writing within 14 days thereafter of the tenant’s intention to terminate the rental agreement, in which case the rental agreement terminates as of the date of vacating; or
(2) if continued occupancy is lawful, vacate any part of the dwelling unit rendered unusable by the fire or casualty, in which case the tenant’s liability for rent is reduced in proportion to the diminution in the fair rental value of the dwelling unit.
(b) If the rental agreement is terminated pursuant to this section, the landlord shall return all security recoverable under Section 35-9A-201 and all unearned prepaid rent. Accounting for rent in the event of termination or apportionment shall be made as of the date of the fire or casualty.
(Act 2006-316, p. 668, §1.)
If a landlord unlawfully removes or excludes the tenant from the premises or willfully diminishes services to the tenant by interrupting or causing the interruption of heat, running water, hot water, electric, gas, or other essential service, the tenant may recover possession or terminate the rental agreement and, in either case, recover an amount equal to not more than three months’ periodic rent or the actual damages sustained by the tenant, whichever is greater, and reasonable attorney’s fees. If the rental agreement is terminated under this section, the landlord shall return all security recoverable under Section 35-9A-201 and all unearned prepaid rent.
(Act 2006-316, p. 668, §1.)
(a) Except as provided in this chapter, if there is a material noncompliance by the tenant with the rental agreement, an intentional misrepresentation of a material fact in a rental agreement or application, or a noncompliance with Section 35-9A-301 materially affecting health and safety, the landlord may deliver a written notice to terminate the lease to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than seven business days after receipt of the notice. An intentional misrepresentation of a material fact in a rental agreement or application may not be remedied or cured. If the breach is not remedied within the seven business days after receipt of the notice to terminate the lease, the rental agreement shall terminate on the date provided in the notice to terminate the lease unless the tenant adequately remedies the breach before the date specified in the notice, in which case the rental agreement shall not terminate.
(b) If rent is unpaid when due, the landlord may deliver a written notice to terminate the lease to the tenant specifying the amount of rent and any late fees owed to remedy the breach and that the rental agreement will terminate upon a date not less than seven business days after receipt of the notice. If the breach is not remedied within the seven business days, the rental agreement shall terminate. If a noncompliance of rental agreement occurs under both subsection (a) and this subsection, the seven-day notice period to terminate the lease for nonpayment of rent in this subsection shall govern.
(c) Except as provided in this chapter, a landlord may recover actual damages and reasonable attorney fees and obtain injunctive relief for noncompliance by the tenant with the rental agreement or Section 35-9A-301.
(d) Notwithstanding Section 35-9A-141, no breach of any of the terms or obligations of the lease may be cured by a tenant more than two times in any 12-month period except by the express written consent of the landlord. The following acts or omissions by a tenant or occupant shall constitute a noncurable default of the rental agreement, and in such cases the landlord may terminate the rental agreement upon a seven-day notice. The tenant shall have no right to remedy such a default unless the landlord consents. Such acts and omissions include, but are not limited to, the following:
(1) Manufacture, cultivation, importation, transportation, possession, furnishing, administering, or use of illegal drugs in the dwelling unit or in the common areas.
(2) Illegal use, manufacture, importation, possession, furnishing, or discharging of a firearm or firearm ammunition on the premises of the rental property, except for the use or discharge of a firearm or firearm ammunition in cases of self-defense, defense of a third party, or as permissible in Section 13A-3-23.
(3) Criminal assault of a tenant or guest on the premises of the rental property, except in cases of self-defense, defense of a third party, or as permissible in Section 13A-3-23.
(4) Any breach involving substantially the same acts or omissions as a breach for which a notice to terminate has previously been provided for by the landlord and cured by the tenant, if the second breach occurs within six months of the first breach.
(Act 2006-316, p. 668, §1; Act 2009-633, p. 1939, §1; Act 2011-700, p. 2154, §1; Act 2014-279, p. 886, §1; Act 2018-473, §1.)
If there is noncompliance by the tenant with Section 35-9A-301 materially affecting health and safety that can be remedied by repair, replacement of a damaged item, or cleaning, and the tenant fails to comply as promptly as conditions require in case of emergency or within seven days after written notice by the landlord specifying the breach and requesting that the tenant remedy it within that period of time, the landlord may enter the dwelling unit and cause the work to be done in a workmanlike manner and submit the itemized bill for the actual and reasonable cost or the fair and reasonable value thereof as rent on the next date periodic rent is due, or if the rental agreement has terminated, for immediate payment.
(Act 2006-316, p. 668, §1.)
(a) If a rental agreement requires the tenant to give notice to the landlord of an anticipated extended absence in excess of 14 days pursuant to Section 35-9A-304 and the tenant willfully fails to do so, the landlord may recover actual damages from the tenant.
(b) During any absence of a tenant in excess of 14 days, the landlord may enter the dwelling unit at times reasonably necessary.
(c) If a tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent it at a fair rental. But such duty shall not take priority over the landlord’s right to first rent other vacant units. If the landlord rents the dwelling unit for a term beginning before the expiration of the rental agreement, it terminates as of the date of the new tenancy. If the tenancy is from month-to-month or week-to-week, the term of the rental agreement for this purpose is deemed to be a month or a week, as the case may be.
(d) If a tenant leaves property in the unit more than 14 days after termination pursuant to this chapter, the landlord has no duty to store or protect the tenant’s property in the unit and may dispose of it without obligation.
(e) In addition to any other means by which a landlord determines that a property has been abandoned by the tenant, a property shall be considered abandoned if the electric service to the property has been terminated for seven consecutive days.
(Act 2006-316, p. 668, §1; Act 2011-700, p. 2154, §1; Act 2014-279, p. 886, §1.)
Acceptance of rent with knowledge of a default by the tenant or acceptance of performance by the tenant that varies from the terms of the rental agreement constitutes a waiver of the landlord’s right to terminate the rental agreement for that breach, unless otherwise agreed after the breach has occurred.
(Act 2006-316, p. 668, §1.)
(a) A lien or security interest on behalf of the landlord in the tenant’s household goods is not enforceable unless perfected before January 1, 2007.
(b) Distraint for rent is abolished.
(Act 2006-316, p. 668, §1.)
If a rental agreement is terminated, the landlord has a claim for possession and for rent and a separate claim for actual damages for breach of the rental agreement and reasonable attorney’s fees.
(Act 2006-316, p. 668, §1; Act 2011-700, p. 2154, §1.)
A landlord may not recover or take possession of the dwelling unit by action or otherwise, including willful diminution of services to the tenant by interrupting or causing the interruption of heat, running water, hot water, electric, gas, or other essential service to the tenant, except in case of abandonment, surrender, or as permitted in this chapter.
(Act 2006-316, p. 668, §1.)
(a) The landlord or the tenant may terminate a week-to-week tenancy by a written notice given to the other at least seven days before the termination date specified in the notice.
(b) The landlord or the tenant may terminate a month-to-month tenancy by a written notice given to the other at least 30 days before the periodic rental date specified in the notice.
(c) If a tenant remains in possession without the landlord’s consent after expiration of the term of the rental agreement or its termination, the landlord may bring an action for possession and if the tenant’s holdover is willful and not in good faith the landlord may also recover an amount equal to not more than three month’s periodic rent or the actual damages sustained by the landlord, whichever is greater, and reasonable attorney’s fees. If the landlord consents to the tenant’s continued occupancy, subsection (d) of Section 35-9A-161 applies.
(Act 2006-316, p. 668, §1.)
(a) If a tenant refuses to allow lawful access, the landlord may obtain injunctive relief to compel access, or terminate the rental agreement pursuant to Section 35-9A-421. In either case, the landlord may recover actual damages.
(b) If a landlord makes an unlawful entry or a lawful entry in an unreasonable manner or makes excessive demands for entry otherwise lawful but which have the effect of unreasonably harassing the tenant, the tenant may obtain injunctive relief to prevent the recurrence of the conduct, or terminate the rental agreement pursuant to Section 35-9A-401. In either case, the tenant may recover actual damages.
(Act 2006-316, p. 668, §1.)
(a) A landlord’s action for eviction, rent, monetary damages, or other relief relating to a tenancy subject to this chapter shall be governed by the Alabama Rules of Civil Procedure and the Alabama Rules of Appellate Procedure except as modified by this chapter.
(b) District courts and circuit courts, according to their respective established jurisdictions, shall have jurisdiction over eviction actions, and venue shall lie in the county in which the leased property is located. Eviction actions shall be entitled to precedence in scheduling over all other civil cases.
(c) Service of process shall be made in accordance with the Alabama Rules of Civil Procedure. However, if a sheriff, constable, or process server 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 return filed in the case. Service of the notice by posting shall be complete as of the date of mailing the notice.
(d) Notwithstanding subsection (a) of Section 12-12-70, any party may appeal from an eviction judgment entered by a district court to the circuit court at any time within seven days after the entry thereof. The filing of a timely post-judgment motion pursuant to the Alabama Rules of Civil Procedure shall suspend the running of the time for filing a notice of appeal. In cases where post-judgment motions are filed, the full time fixed for filing a notice of appeal shall be computed from the date of the entry in the civil docket of an order granting or denying such motion, or the date of the denial of such motion by operation of law pursuant to Rule 59.1 of the Alabama Rules of Civil Procedure. Upon filing of an appeal by either party, 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 the filing of the appeal. In eviction actions, an appeal by a tenant to circuit court or to an appellate court does not prevent the issuance of a writ of restitution or possession unless the tenant pays to the clerk of the circuit court all rents properly payable 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 properly payable under the terms of the lease as they become due, during the pendency of the appeal. In the event of dispute, the amounts properly payable shall be ascertained by the court.
(1) If the tenant should fail to make any payments determined to be properly payable as they become due under this subsection, upon motion, the court shall issue a writ of restitution or possession and the landlord shall be placed in full possession of the premises.
(2) Upon disposition of the appeal, the court shall direct the clerk as to the disposition of the funds paid to the clerk pursuant to this subsection.
(e) If an eviction judgment enters in favor of a landlord, a writ of possession shall issue upon application by the landlord. Notwithstanding Rule 62 of the Alabama Rules of Civil Procedure, the automatic stay on the issuance of the writ of possession or restitution shall be for a period of seven days. If a tenant without just cause re-enters the premises, the tenant can be held in contempt and successive writs may issue as are necessary to effectuate the eviction judgment.
(f) In the event that the landlord is placed in possession under a writ of restitution or possession, and on appeal the judgment is reversed and one entered for the tenant or the proceeding on appeal is quashed or dismissed, the circuit court may award a writ of restitution or possession to restore the tenant to possession as against the landlord, but not as against a third party. The issuance of the writ rests in the discretion of the appellate court, and the circuit court, in all cases, may 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.
(Act 2006-316, p. 668, §1; Act 2009-633, p. 1939, §1.)
(a) Except as provided in this section, a landlord may not retaliate by discriminatorily increasing rent or decreasing services or by bringing or threatening to bring an action for possession because:
(1) the tenant has complained to a governmental agency charged with responsibility for enforcement of a building or housing code of a violation applicable to the premises materially affecting health and safety;
(2) the tenant has complained to the landlord of a violation under Section 35-9A-204; or
(3) the tenant has organized or become a member of a tenant’s union or similar organization.
(b) If a landlord acts in violation of subsection (a), the tenant is entitled to the remedies provided in Section 35-9A-407 and has a defense in any retaliatory action against the tenant for possession.
(c) Notwithstanding subsections (a) and (b), a landlord may bring an action for possession if:
(1) the violation of the applicable building or housing code was caused primarily by lack of reasonable care by the tenant, a member of the tenant’s family, or other person on the premises with the tenant’s consent;
(2) the tenant is in default in rent;
(3) compliance with the applicable building or housing code requires alteration, remodeling, or demolition which would effectively deprive the tenant of use of the dwelling unit; or
(4) other material violations of the lease.
(d) The maintenance of an action under subsection (c) does not release the landlord from liability under subsection (b) of Section 35-9A-401.
(Act 2006-316, p. 668, §1.)
Except for subsection (b) of Section 35-9A-163 which shall become effective January 1, 2008, this chapter shall become effective on January 1, 2007. It applies to rental agreements entered into or extended or renewed on and after that date.
(Act 2006-316, p. 668, §1.)
Transactions entered into before January 1, 2007, and not extended or renewed on and after that date, and the rights, duties, and interests flowing from them remain valid and may be terminated, completed, consummated, or enforced as required or permitted by any statute or other law amended or repealed by this chapter as though the repeal or amendment had not occurred.
(Act 2006-316, p. 668, §1.)
If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or application of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
(Act 2006-316, p. 668, §1.)
For the purposes of this section, the term “dwelling” has the same meaning as provided in Section 13A-7-1.
(Act 2024-237, §4(a).)
(a) The owner of a dwelling or the agent of the owner of a dwelling may request the removal of an unauthorized individual from the dwelling by submitting a sworn affidavit to a law enforcement agency in the county where the dwelling is located containing all of the following elements:
(1) The affiant is the owner of the dwelling or the agent of the owner of the dwelling.
(2) An individual has entered and is remaining unlawfully in the dwelling.
(3) The individual was not authorized to enter the dwelling or remain in the dwelling.
(4) The individual is not a tenant, as defined in Section 35-9A-141, or a holdover tenant, as described in Section 34-9A-441.
(5) The affiant has requested that the unauthorized individual vacate the dwelling as provided under this section and the individual has not done so.
(6) The unauthorized individual is not an immediate family member of the property owner.
(7) There is no pending litigation related to the dwelling between the property owner and the unauthorized individual.
(b) The sworn affidavit requesting the removal of an unauthorized individual from a dwelling must be substantially in the following form:
Affidavit to Remove An Individual Unauthorized to Occupy Dwelling
I, the owner, or authorized agent of the owner, of the dwelling located at ______________ declare under the penalty of perjury that:
I am the owner of the dwelling or the authorized agent of the owner of the dwelling.
The real property is a dwelling.
An unauthorized individual has unlawfully entered or remained in the dwelling.
The unauthorized individual is not a tenant, a holdover tenant, or an immediate family member of the owner, and any lease that may be produced by the unauthorized individual is fraudulent.
The unauthorized individual does not have an ownership interest in the property and is not listed on the title to the property unless the individual has engaged in title fraud.
There is no litigation related to the dwelling pending between the owner, or his or her agent, and any unauthorized individual.
Notice was provided by hand delivery to the unauthorized individual occupying the dwelling or by posting notice on the front door or entrance of the dwelling, and evidence of the notice, including the date and time of delivery, is attached.
I understand that an individual removed from the property pursuant to this affidavit may bring a cause of action against me for any false statements made in this affidavit, or for wrongfully using this procedure, and that, as a result of such action, I may be held liable for actual damages, penalties, costs, and reasonable attorney fees.
I am requesting law enforcement to remove, as soon as possible, the unauthorized individual from the dwelling.
A copy of my valid government-issued identification is attached, or I am an agent of the property owner, and documents evidencing my authority to act on the property owner’s behalf are attached.
I have read and assert the truth of every statement made in this affidavit. I understand that my statements in this affidavit are being made under penalty of perjury as provided in Section 13A-10-9.
[Signature of Property Owner or Agent of Property Owner]
[Contact Information of Property Owner or Agent of Property Owner]
(c) The affiant must provide notice at the dwelling notifying the unauthorized individual that he or she has no right to the dwelling and must vacate immediately. The notice must include the street address of the law enforcement agency where the affidavit will be delivered. A copy of the notice with the date and time of delivery must be attached to the affidavit.
(Act 2024-237, §§4(b), 4(c), 4(e).)
(a) Upon receipt of the affidavit, the law enforcement agency shall verify that the affiant is the record owner of the dwelling or the authorized agent of the owner of the dwelling and appears otherwise entitled to relief. Upon verification and after at least 24 hours from receipt of the affidavit, the law enforcement agency shall serve a notice to immediately vacate on the unauthorized individual. Service may be accomplished by hand delivery of the notice to any unauthorized individual occupying the dwelling or by posting notice on the front door or entrance of the dwelling. Law enforcement shall also attempt to verify the identities of all individuals occupying the dwelling and note the identities on the return of service. If appropriate, a law enforcement officer may arrest any individual found in the dwelling for trespass, burglary, theft, or any other criminal act, or for an outstanding warrant.
(b) A law enforcement agency may charge a fee of not more than fifty dollars ($50) to process an affidavit filed pursuant to this section.
(Act 2024-237, §§4(d), 4(k).)
An affiant who knowingly provides a false affidavit to law enforcement pursuant to this chapter may be prosecuted for false reporting to law enforcement authorities pursuant to Section 13A-10-9.
(Act 2024-237, §4(f).)
No law enforcement officer, governmental entity, or political subdivision of the state may be held liable for any action or omission made in good faith pursuant to this chapter, to the extent that state immunity provides. A law enforcement officer is not liable to an unauthorized individual or any other party for loss, destruction, or damage of property.
(Act 2024-237, §4(g).)
An individual may bring a civil cause of action for wrongful removal under this chapter against the affiant. An individual harmed by a wrongful removal under this chapter may have the possession of the dwelling restored and may recover actual costs and damages incurred, as well as punitive damages of triple the fair market rent of the dwelling, plus court costs and reasonable attorney fees.
(Act 2024-237, §4(h).)
A utility may rely upon or require a writ of possession under Chapter 9 or 9A when discontinuing or refusing to discontinue service at a dwelling, dwelling unit, or premises, and the utility shall not be liable for an action if based upon a writ of possession.
(Act 2024-237, §4(i).)
This chapter does not limit the rights of a property owner or limit the authority of a law enforcement officer to arrest an unlawful occupant for trespassing, theft, burglary, or other crimes.
(Act 2024-237, §4(j).)
(a) For the purposes of this chapter, the term “squatter” means a person occupying a dwelling who is not entitled to occupy the dwelling under a lease or rental agreement nor authorized by a tenant to occupy the dwelling. The term does not include a tenant who holds over in periodic tenancy as described in Section 35-9A-441.
(b) Occupancy by a squatter is excluded from the application of Chapters 9 and 9A, and the removal of a squatter shall not require the use of an eviction action under those chapters.
(Act 2024-237, §5.)
Where a power to sell lands is given to the grantee in any mortgage, or other conveyance intended to secure the payment of money, the power is part of the security, and may be executed by any person, or the personal representative of any person who, by assignment or otherwise, becomes entitled to the money thus secured; and a conveyance of the lands sold under such power of sale to the purchaser at the sale, executed by the mortgagee, any assignee or other person entitled to the money thus secured, his agent or attorney, or the auctioneer making the sale, vests the legal title thereto in such purchaser. Probate judges shall index foreclosure deeds by the names of the original grantor and grantee in the mortgage, and also by the names of the grantor and grantee in the foreclosure deeds.
(Code 1852, §1319; Code 1967, §1589; Code 1876, §2198; Code 1886, §1844; Code 1896, §1040; Code 1907, §4896; Code 1923, §9010; Code 1940, T. 47, §164.)
If a deed of trust or mortgage, with power of sale, is silent as to the place or terms of sale, or as to the character or mode of notice, a sale may be made at the courthouse door of the county wherein the land is situated, after condition broken, for cash to the highest bidder, after 30 days’ notice of the time, place and terms of sale by publishing such notice once a week for four consecutive weeks in a newspaper published in the county wherein said lands or property in said mortgage or deed of trust are situated.
(Code 1923, §9011; Code 1940, T. 47, §165.)
If no power of sale is contained in a mortgage or deed of trust, the grantee or any assignee thereof, at his option, after condition broken, may foreclose same either in a court having jurisdiction of the subject matter, or by selling for cash at the courthouse door of the county where the property is situated, to the highest bidder, the lands embraced in said mortgage or deed of trust, after notice of the time, place, terms, and purpose of such sale has been given by four consecutive weekly insertions of such notice in some newspaper published in the county wherein said lands, or a portion thereof are situated.
(Code 1923, §9012; Code 1940, T. 47, §166.)
Where the lands embraced in any mortgage or deed of trust are situated in two or more counties and no provision is made in said mortgage for the sale, on condition broken, of all of said lands or any portion thereof, then, at the option of the grantee or of any assignee or owner of said mortgage or deed of trust, said lands may be sold at the courthouse door of any county wherein any portion of said lands is situated, after 30 days’ notice of the time, place, terms, and purpose of such sale, by publishing such notice once a week for four consecutive weeks in some newspaper published in each county in which said lands or any portion thereof are situated.
(Code 1923, §9013; Code 1940, T. 47, §167.)
In the case of a foreclosure under Sections 35-10-2 through 35-10-4, the foreclosure deed executed by the mortgagee or his transferee, or the owner of the debt secured thereby, or his agent or attorney or personal representative, shall operate to convey the legal title to the lands sold to the purchaser at such sale.
(Code 1923 §9014; Code 1940, T. 47, §168.)
The sale of any part of the property conveyed by mortgage, either under power of sale contained in the mortgage, or by foreclosure, shall operate as a foreclosure of the mortgage only as to the property sold, and if the mortgage indebtedness is not thereby satisfied in full, the other property contained in the mortgage continues as security for the mortgage debt and there may be a further foreclosure of the mortgage, either by sale under power of sale or by foreclosure. Every power of sale contained in the mortgages hereafter executed shall, unless otherwise expressly provided therein, be held to give a continuing power of sale authorizing the mortgagee or his assignee after the law day of the mortgage to sell the mortgaged property from time to time in separate lots or parcels as it comes into his possession.
(Code 1923, §9015; Code 1940, T. 47, §169.)
All sales of real estate, under powers of sale contained in mortgages and deeds of trust shall be held in the county where all or part of said real estate is situated.
(Acts 1923, No. 494, p. 658; Code 1923, §9016; Code 1940, T. 47, §170.)
Notice of said sale shall be given in the manner provided in such mortgage or deed of trust or in this Code in the county where the mortgagor resides and the land, or a part thereof, is located; but, if said mortgagor does not reside in the county where the land or any part thereof is located, then such notice must be published in the county where said land, or any material part thereof, is located; provided, that notice of all sales under powers of sale contained in mortgages and deeds of trust executed after July 1, 1936, where the amount secured is $500.00 or more, shall be given by publication once a week for three successive weeks in some newspaper published in the county in which such land or any portion thereof is situated, and said notice of sale must give the time, place and terms of said sale, together with a description of the property to be sold.
(Acts 1923, No. 494, p. 658; Code 1923, §9017; Acts 1936, Ex. Sess., No. 123, p. 82; Code 1940, T. 47, §171.)
All sales of real estate, made under powers contained in mortgages or deeds of trust contrary to the provisions of this article, shall be null and void, notwithstanding any agreement or stipulation to the contrary.
(Code 1923, §9018; Code 1940, T. 47, §172.)
The provisions of sections 35-10-7 through 35-10-9 shall not apply to mortgages or deeds of trust executed before September 29, 1923.
(Code 1923, §9019; Code 1940, T. 47, §173.)
Unless the context otherwise requires, the words defined in this section shall have the following meanings when they appear in this article:
(1) MORTGAGE. Any mortgage, deed of trust, or any other instrument intended to secure the payment of money, such as an instrument which includes a vendor’s lien.
(2) MORTGAGEE. All mortgagees, grantees or creditors in any mortgages, any trustees under deeds of trust, or any persons entitled to the money secured by any instrument intended to secure the payment of money such as an instrument which includes a vendor’s lien.
(Acts 1988, 1st Ex. Sess., No. 88-906, p. 479, §1.)
Where a power to sell lands is given in any mortgage, the power is part of the security and may be executed by any person, or the personal representative of any person who, by assignment or otherwise, becomes entitled to the money thus secured. A conveyance of the lands sold under such power of sale to the purchaser at the sale may be executed by the mortgagee, their agents, attorneys or any person making the sale. Such conveyance vests the legal title of the lands sold under the power of sale to the purchaser at the sale. Probate judges shall index foreclosure deeds by the name of the original grantor and grantee in the mortgage, deed of trust, or other conveyance intended to secure the payment of money, and also by the names of the grantor and grantee in the foreclosure deed.
(Acts 1988, 1st Ex. Sess., No. 88-906, p. 479 §2.)
Notice of said sale shall be given in the county where said land is located.
Notice of all sales under this article shall be given by publication once a week for three successive weeks in a newspaper published in the county or counties in which such land is located. If there is land under the mortgage in more than one county the publication is to be made in all counties where the land is located. The notice of sale must give the time, place and terms of said sale, together with a description of the property.
If no newspaper is published in the county where the lands are located, the notice shall be placed in a newspaper published in an adjoining county. The notice shall be published in said adjoining county for three successive weeks.
(Acts 1988, 1st Ex. Sess., No. 88-906, p. 479, §3.)
The power to sell lands under this article must be exercised at the appropriate courthouse door considered the front or main door to the courthouse, of the county where the mortgaged land or a substantial and material part thereof, is located.
The sale shall be held between the hours of 11 A.M. and 4 P.M. on the day designated for the exercise of the power to sell the land.
(Acts 1988, 1st Ex. Sess., No. 88-906, p. 479, §4.)
The sale of any part of the property conveyed by mortgage, deed of trust, or other instruments intended to secure the payment of money, either under a power of sale contained in a mortgage, or by a judicial foreclosure, shall operate as a foreclosure of the mortgage only as to the property sold, and if the mortgage indebtedness is not thereby satisfied in full, the other property contained in the mortgage continues as security for the mortgage debt and there may be a further foreclosure of the mortgage, either by sale under power of sale or by foreclosure.
Every power of sale contained in mortgages unless otherwise expressly provided therein, is held to give a continuing power of sale authorizing the mortgagee or his assignee after default, to sell the mortgaged property from time to time in separate lots or parcels.
(Acts 1988, 1st Ex. Sess., No. 88-906, p. 479, §5.)
Mortgages executed prior to January 1, 1989, shall be governed by article 1 of chapter 10, Title 35.
This law shall apply only to mortgages executed after December 31, 1988.
(Acts 1988, 1st Ex. Sess., No. 88-906, p. 479, §6.)
As to third parties without actual notice or knowledge to the contrary, the indebtedness secured by any recorded mortgage, or reservation of vendor’s lien, either in deed of conveyance or note, bond or contract of purchase covering real estate 20 years past due according to the original maturity date, or some new date fixed by a duly recorded extension agreement, shall be conclusively presumed to have been paid unless the record of such mortgage or lien shows a credit by the mortgagee, or lienee, or owner of the debt, or his assignee of one or more payments upon such indebtedness within the 20 years last passed. And if the final maturity date of the debt is not shown by the mortgage or lien, or a recorded extension agreement, or cannot be determined by calculation from the recitals contained therein, then the time shall run from the date of the mortgage or lien.
The notation of credits mentioned in the next preceding paragraph may be made upon the record of any such mortgage, or vendor’s lien, by the owner of the indebtedness, or someone holding a duly recorded power of attorney authorizing it. Such notation must show the date of the payment made, the date the entry was made upon the record, and be witnessed by the probate judge of the county, or his duly authorized clerk.
Nothing in this section shall be interpreted as changing existing laws as to the rights of parties, or their devisees, or heirs-at-law to such mortgagees and lienholders as among themselves.
This section shall not apply to mortgages and deeds of trust executed by corporations and political subdivisions securing bonds and in which the maturity dates of the respective series of bonds which are permitted to be issued thereunder are not fixed in the mortgage or deed of trust.
(Acts 1939, No. 190, p. 347; Code 1940, T. 47, §174.)
The owner or holder of any recorded lien other than those specified in section 35-10-22, who has received payment in full or partial payments of the debt so secured by the recorded lien, must, upon request in writing, enter on the margin of the record of such recorded lien, the amount and date of such payment and the amount of the debt which remains unpaid at that date which was so secured by the recorded lien.
(Code 1923, §9021; Code 1940, T. 47, §176.)
A mortgagee or the assignee or transferee of a debt secured by mortgage, or trustee or his assignee or transferee or cestui que trust of a deed of trust to secure a debt, who has received partial payment, if the mortgage or deed of trust is of record, must, upon request in writing to enter the date and amount of such partial payment by the mortgagor, or by a judgment creditor, or other creditor of the mortgagor having a lien or claim on the property mortgaged, or by a purchaser from the mortgagor, or upon the written request of the debtor in a deed of trust, enter on the margin of the record of the mortgage or deed of trust the date and amount of such partial payment or payments; a mortgagee or the assignee or transferee of a debt secured by mortgage, or trustee or his assignee or transferee or cestui que trust of a deed of trust to secure a debt, if the mortgage or deed of trust is of record, must, upon request in writing, of any judgment creditor or other creditor of the mortgagor having a lien or claim on the property mortgaged, or by a purchaser from the mortgagor, or upon the written request of the debtor or mortgagor, enter on the margin of record of the mortgage or deed of trust a statement of the total unpaid amount secured by said mortgage or deed of trust.
(Code 1886, §1868; Code 1896, §1065; Code 1907, §4897; Acts 1915, No. 386, p. 353; Code 1923, §9020; Code 1940, T. 47, §175.)
All notices or demands to enter partial payments or satisfaction of balance of debt secured as is provided in section 35-10-21 shall be in writing and signed by the party or parties who are entitled to have the entries of record made, or by their personal representative, or by their agents duly authorized in writing to give such notices or make such demand; and the notice or demand shall be served in person upon the owner or holder of such lien or upon his agent who is authorized to receive payment of such debt, or any part secured by the lien, or by mailing by registered or certified mail with request for return receipt, a copy of such written demand or notice to such owner or holder of the lien or to any agent of his who would be authorized to receive such payments of the debts or demands so secured by the recorded lien. This letter must be addressed to the usual known address of such owner or holder of such lien or his agent as above specified with sufficient postage prepaid; but such notice or demand given by public mail as above provided shall be only prima facie evidence that the notice or demand so mailed was received by the addressee.
(Code 1923, §9022; Acts 1932, Ex. Sess., No. 60, p. 82; Code 1940, T. 47, §177.)
(a) Any person required by the provisions of this article, and more particularly Sections 35-10-21 through 35-10-24 thereof, to make any entry of partial payment on the margin of the record may fully discharge his obligation to make such entry by executing a separate instrument which properly identifies such mortgage, deed of trust, or other encumbrance, and which clearly states the information required otherwise to be entered on the record or margin thereof, and by delivering such instrument or depositing the same in the United States mail properly stamped and addressed, to the person who requests such entry, but the person requested to make such entry shall not be required to file such separate instrument for record; provided, that such separate instrument so to be furnished shall be so prepared and acknowledged that the same shall be admitted to record in the office of the judge of probate where such mortgage, deed of trust, or other encumbrance is recorded.
(b) The execution and delivery, as provided in this section, of the separate instrument setting forth the date and amount of credit or partial payment shall be conclusively deemed to be a full compliance with any requirement of the provisions of said sections 35-10-21 through 35-10-24 for entry of partial payments on any record in any probate office of this state.
(Acts 1969, No. 221, p. 542.)
Any executor of a will or administrator of an estate duly appointed by the proper court shall have authority to execute releases and discharges and may enter satisfaction on the margin of the record of any mortgage, lien, or other encumbrance in favor of a decedent when payment of such mortgage, lien, or encumbrance was made to said decedent in his lifetime.
(Code 1923, §9025; Code 1940, T. 47, §180.)
The payment or satisfaction of the real property mortgage debt divests the title passing by the mortgage. “Payment or satisfaction of the real property mortgage debt” shall not occur until there is no outstanding indebtedness or other obligation secured by the mortgage, and no commitment or agreement by the mortgagee to make advances, incur obligations or otherwise give value (collectively referred to as “extend value”), under any agreement, including, without limitation, agreements providing for future advances, open end, revolving or other lines of credit, or letters of credit. Except as otherwise specifically provided to the contrary in the Alabama Residential Mortgage Satisfaction Act, upon the written request to satisfy a mortgage signed by the mortgagors and by all other persons who have a right to require the mortgagee to extend value or signed by other authorized representatives on behalf of the mortgagors and such other persons, which notice shall actually be served upon the mortgagee, and provided there is no outstanding obligation secured by the mortgage at that time, the mortgagee shall file a properly executed and notarized satisfaction of the mortgage or otherwise cause the mortgage to be satisfied in accordance with other applicable provisions of law. From and after such written request for mortgage satisfaction, neither the mortgagors nor any other person who signed such request, or on whose behalf such request was signed, shall have the right to request or demand that the mortgagee extend value under the mortgage or other agreements and the mortgagee shall be released from all obligations and commitments to extend value thereunder.
(Code 1886, §1870; Code 1896, §1067; Code 1907, §4899; Code 1923, §9026; Code 1940, T. 47, §181; Acts 1988, No. 88-89, p. 115; Act 2012-278, p. 554, §10.)
If a mortgage or deed of trust which is of record has been fully paid or satisfied, the mortgagee or transferee or assignee of the mortgage, or trustee or cestui que trust of the deed of trust, who has received payment or satisfaction, must on request in writing of the mortgagor, or of a creditor of the mortgagor having a lien or claim on the property mortgaged, or of a purchaser from the mortgagor, or owner of the lands mortgaged, or a junior mortgagee, or of the debtor in a deed of trust, enter the fact of payment or satisfaction on the margin of the record of the mortgage or deed of trust. Such entry must be witnessed by the judge of probate, or his clerk, who, in his official capacity, must attest said satisfaction, and for making such attestation the judge of probate is entitled to a fee of $.25. Or satisfaction may be made by an attorney-in-fact authorized by an instrument executed and acknowledged as is required of conveyances and filed for record, which entry need not be attested. Such entry operates as a release of the mortgage or deed of trust, and is a bar to all actions thereon.
(Code 1852, §§1343, 1344; Code 1867, §§1613, 1614; Code 1876, §§2222, 2223; Code 1886, §1869; Code 1896, §1066; Code 1907, §4898; Code 1923, §9023; Code 1940, T. 47, §178.)
The satisfaction in full by any one of several joint mortgagees, or his successors or assigns, on the margin of the record, and properly attested by the probate judge, or his chief clerk, or the filing of a release by such party properly notarized, acknowledging full satisfaction of any mortgage in the names of two or more persons jointly as mortgagees standing on the probate records of any county in this state, shall be sufficient to extinguish the lien of such mortgage.
The provisions of this section shall also relate to and be effective as to vendor’s liens reserved in deeds or other instruments of record in any probate office in this state.
(Acts 1966, Ex. Sess., No. 406, p. 552, §§1, 2.)
When a vendor’s or other lien is reserved in any conveyance, which is of record, of real or personal property to secure the payment of the purchase money recited in such conveyance, upon the payment in full of such purchase money, the grantor, or his executor, administrator or other person in whom the ownership of such lien is vested at the time of the payment of such purchase money, must, on the request in writing of the grantee, his executor, administrator or assigns, or of a judgment or other creditor of the grantee, enter the fact of payment on the margin of the record of such conveyance in the manner as required by this article. Such entry operates a release of such lien and is a bar to all actions thereon. If for 30 days after such request, the grantor, or his executor, administrator or other person in whom the ownership of such lien is vested at the time of such payment, fails to make such entry, he forfeits to the party making the request $200.00; unless there is pending, or there is instituted an action within that time, in which the fact of payment or satisfaction is or may be contested.
(Code 1896, §1068; Code 1907, §4900; Code 1923, §9027; Code 1940, T. 47, §182.)
(a) If, for 30 days after such request, the mortgagee or assignee or transferee, trustee or cestui que trust, fails to make any entry required by this article he forfeits to the party making the request $200.00 unless there is pending, or there is instituted, an action within that time, in which the fact of partial payment or satisfaction is or may be contested. In construing this article, the right of action given herein shall be considered as a personal right, and shall not be lost or waived by a sale of the property covered by the mortgage or deed of trust before a demand was made for the satisfaction to be entered upon the record.
(b) All actions for the recovery of the penalties mentioned in this article shall be brought in the county where such mortgage or other instrument is recorded.
(c) This section does not apply to satisfactions of residential mortgages which are governed by the Alabama Residential Mortgage Satisfaction Act.
(Code 1852, §§1343, 1344; Code 1867, §§1613, 1614; Code 1876, §§2222, 2223; Code 1886, §1869; Code 1896, §1066; Code 1907, §4898; Code 1923, §§9024, 9028; Code 1940, T. 47, §§179, 183; Act 2012-278, p. 554, §10.)
Unless the context otherwise requires, the words defined in this section shall have the following meanings in this article.
(1) DEED IN LIEU OF FORECLOSURE. Any instrument, however denominated, whereby a mortgagor transfers to a mortgagee the mortgagor’s rights in mortgaged property.
(2) MORTGAGE. A mortgage, deed of trust, or similar security instrument on real property, or instrument creating a vendor’s lien on real property, securing the payment of money.
(3) MORTGAGOR. An owner of an interest in mortgaged property.
(4) MORTGAGEE. The owner of the debt secured by a mortgage.
(5) MORTGAGED PROPERTY. Any real property or interest therein that is subject to a mortgage.
(6) EQUITY OF REDEMPTION. The interest the mortgagor has in the mortgaged property.
(Acts 1987, No. 87-660, p. 1168, §1.)
A deed in lieu of foreclosure:
(1) Transfers to the mortgagee all right, title, and interest of the mortgagor in the mortgaged property, including, but not limited to, all rights of redemption, statutory or equitable, unless expressly otherwise provided therein;
(2) Does not effect a foreclosure of the mortgage covering the mortgaged property;
(3) Does not give rise to a statutory right of redemption in the mortgagor or in any other person;
(4) Does not result in a merger of the mortgagee’s rights with the mortgagor’s equity of redemption for any purpose; and
(5) Does not affect the rights or interests of any person or entity other than the mortgagor in the mortgaged property.
(Acts 1987, No. 87-660, p. 1168, §2.)
As used in this chapter, the following terms have the following meanings:
(1) ACTIVE DUTY. Full-time duty in the active military service of the United States. Active duty includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a military service school by law or by the secretary of the military department concerned. Active duty does not include full-time national guard duty.
(2) MILITARY SERVICE. Any of the following:
a. Active duty.
b. If the service member is a member of the Alabama National Guard, service under a call to active service authorized by the President or the Secretary of Defense of the United States for a period of more than 30 consecutive days under §32 USC 502(f) to respond to a national emergency declared by the President of the United States and supported by federal money.
c. A period during which the service member is absent from active duty because of sickness, wounds, leave, or other lawful cause.
(3) SERVICE MEMBER. An individual who is in military service and is a member of the armed services or reserve forces of the United States or a member of the Alabama National Guard.
(Act 2009-626, p. 1905, §1.)
(a) A mortgagee shall not initiate a foreclosure proceeding pursuant to this chapter against the surviving spouse or the estate of a mortgagor who is a service member who dies while deployed overseas on active duty military service for at least 180 days following the death of the service member; provided that the surviving spouse or the estate gives the mortgagee written notice identifying the service member, stating that the service member died while being deployed overseas, describing the mortgage or the property subject to the mortgage and the debt, providing a telephone number or other means to communicate with the surviving spouse or the estate, and asking that foreclosure be delayed for six months. No particular phrasing of the notice shall be required.
(b) A mortgagee shall not, individually or acting through another person, foreclose, sell, or attempt to foreclose or sell real estate with the knowledge that the foreclosure or sale is invalid under this section. A person who violates this subsection is subject to a civil fine of two thousand dollars ($2,000); provided that the surviving spouse or the estate gives the mortgagee written notice identifying the service member, stating that the service member died while being deployed overseas, describing the mortgage or the property subject to the mortgage and the debt, providing a telephone number or other means to communicate with the surviving spouse or the estate, and asking that foreclosure be delayed for six months. No particular phrasing of the notice shall be required.
(c) The Attorney General may file an action in the circuit court to collect a civil fine under this section. A civil fine collected under this section shall be deposited into the Military Family Relief Fund created in the State Treasury and used by the Department of Veterans’ Affairs, at its discretion, to assist military families in need.
(d) This section does not apply to a mortgage entered into before August 1, 2009.
(Act 2009-626, p. 1905, §2.)
(a) This article shall be known as the Alabama Residential Mortgage Satisfaction Act. This article applies only to mortgages securing residential real property located in this state which is used primarily for personal, family, or household purposes and is improved by one to four dwelling units. Without limitation, this article does not apply to mortgages on commercial or other types of property. This article also does not apply to a security interest exclusively in one or more fixtures as defined in Title 7, Article 9A.
(b) For purposes of this article, the following terms shall have the following meanings:
(1) ENTITLED PERSON. The person or persons liable for payment or performance of the obligation secured by the real property described in a security instrument.
(2) EQUITY LINE SECURITY INSTRUMENT. A security instrument securing, in whole or in part, indebtedness created under a line of credit, a revolving or open-end credit agreement, or a credit agreement that provides for future advances. The credit agreement may be referred to in this article as an “equity line” or an “equity line of credit.”
(3) RESIDENTIAL REAL PROPERTY or REAL PROPERTY. Real property located in this state which is used primarily for personal, family, or household purposes and is improved by one to four dwelling units.
(4) SECURED CREDITOR. At any particular time, the person that currently holds or is the beneficiary of a security interest or that is authorized both to receive payments on behalf of a person that currently holds a security interest and to record a satisfaction of the security instrument upon receiving full performance of the secured obligation. The term does not include a trustee under a security instrument.
(5) SECURITY INSTRUMENT. A mortgage or other agreement that creates or provides for an interest in residential real property to secure payment or performance of an obligation.
(6) SECURITY INTEREST. An interest in residential real property created by a security instrument. For purposes of this article, a security interest exclusively in one or more fixtures, as defined in Title 7, Article 9A, does not constitute an interest in residential real property.
(7) SUBMIT FOR RECORDING. To deliver, with required fees and taxes, a document, sufficient to be recorded, to the judge of probate of the county in which the property is located. For purposes of this article, without limitation, mailing, delivering, or sending by overnight or other delivery service a satisfaction of mortgage or other document to be submitted for recording to the address of the office for recording satisfactions of mortgages or other documents, as applicable, is sufficient to constitute submission for recording.
(8) TITLE INSURANCE COMPANY. An organization authorized to conduct the business of insuring titles to real property in this state and licensed by the Department of Insurance as defined in subdivision (9) of Section 27-25-3.
(Act 2012-278, p. 554, §1.)
(a) A person liable for payment or performance of the obligation secured by the real property described in a security instrument who makes proper notice pursuant to this section shall be entitled to receive a payoff statement.
(b) Proper notice must contain all of the following:
(1) The entitled person’s name.
(2) If given by a person other than an entitled person, the name of the person giving the notification and a statement, if required by the secured party evidence, that the person is an authorized agent of the entitled person.
(3) The address to which the creditor must send the statement.
(4) The account number assigned by the secured creditor or other sufficient information to enable the creditor to identify the secured obligation and the real property encumbered by the security interest.
(5) If the secured obligation is an equity line, a statement that the entitled person requests the secured creditor to close the equity line upon receipt of full payment of the equity line on the payoff date specified in the notification and authorizes the secured creditor, at the secured creditor’s sole discretion and upon notification to the entitled person or to the entitled person’s authorized agent, to suspend the extension of any additional amounts under the equity line for a period of time prior to the payoff date as designated by the secured creditor. Any payoff statement on an equity line may qualify the payoff amount as being subject to change.
(c) Within 14 days after the receipt of a notification that complies with subsection (b), the secured creditor shall issue a payoff statement. A secured creditor may take reasonable measures to verify the identity of any person acting on behalf of the entitled person and to obtain the entitled person’s authorization to release information to that person before the 14-day time period begins. If a secured obligation cannot be prepaid, a statement of that fact is sufficient; otherwise, a payoff statement must contain, in substance and with no particular phrasing required, the following:
(1) The date on which it was prepared and the payoff amount as of that date, including the amount of unpaid principal, interest and fees, or other charges included within the payoff amount.
(2) The information reasonably necessary to calculate the payoff amount as of the requested payoff date, including the per diem interest amount. This subdivision does not apply to equity line security instruments.
(3) The payment cutoff time, if any, the address or place where payment must be made, and any limitation as to the authorized method of payment.
(d) A secured creditor may qualify a payoff amount or state that it is subject to change before the payoff date and provide in the payoff statement information sufficient to permit the entitled person or the person’s authorized agent to request an updated payoff amount and to obtain that updated payoff amount during the secured creditor’s normal business hours on the stated payoff date or the immediately preceding business day.
(e) A secured creditor is not required to send a payoff statement by means other than first class mail, facsimile, or electronic mail.
(f) If a secured creditor determines that the payoff statement it provided was erroneous, the creditor may send a corrected payoff statement. If the entitled person or the person’s authorized agent receives and has a reasonable opportunity to act upon a corrected payoff statement before making payment, the corrected statement supersedes an earlier statement. This article does not affect the right of a secured creditor to recover any sum that it did not include in a payoff amount from any person liable for payment of the secured obligation, including, without limitation, the entitled person who requested the payoff statement.
(g) This section does not preclude, nor does it apply to, other methods of obtaining payoff information such as telephone calls, electronically, or other methods.
(Act 2012-278, p. 554, §2.)
(a) A secured creditor shall submit for recording a satisfaction of a security instrument within 30 days after the creditor receives full payment and performance of the secured obligation, and the secured creditor has no obligation to make advances, incur obligations, or otherwise give value under any agreement. Equity line security instruments are fully paid and performed only if, in addition to full payment and performance, the equity line previously has been closed pursuant to the request of the entitled person or the entitled person’s authorized agent or otherwise closed as provided by law and all secured obligations have been paid in full.
(b) Notwithstanding anything to the contrary in this article, any notification demanding satisfaction of the security instrument must be sent to the secured creditor’s address by a method that also provides proof of receipt by the secured creditor.
(c) A secured creditor that is required to submit a satisfaction of a security instrument for recording and does not do so by the end of the period specified in subsection (a) is liable to the mortgagors for five hundred dollars ($500) if following the expiration of the time period in subsection (a) the mortgagors make a written request to the secured creditor to record a satisfaction and the secured creditor fails to do so within 21 days after receipt of the written request. The written request must be signed by the mortgagors and by all other persons who have a right to require the mortgage to extend value or signed by an authorized agent of these persons.
(d) A secured creditor that is required to submit a satisfaction of a security instrument for recording and does not do so by the end of the period specified in subsection (c) is not liable to the mortgagors other than for the penalty set forth in subsection (c) and any actual economic damages directly caused by the failure to comply with this section.
(e) A secured creditor is not liable under this article if it does the following:
(1) Establishes a reasonable procedure to achieve compliance with its obligations under this article.
(2) Complies with that procedure in good faith as defined in Section 7-9A-102(43).
(3) Fails to comply with its obligations either because of circumstances beyond its reasonable control or as a result of a bona fide error, notwithstanding maintenance of reasonable procedures of compliance.
(f) Subsections (a), (b), (c), and (d) do not apply if the secured creditor receives full payment or performance of the secured obligation before March 1, 2013.
(Act 2012-278, p. 554, §3.)
(a) Only a title insurance company or an attorney licensed in this state acting as the agent of and for a title insurance company pursuant to a certificate of authority and within the scope of his or her agency agreement with a title insurance company may serve as a satisfaction agent pursuant to this article.
(b) This article does not require a title insurance company to agree to serve as a satisfaction agent or any attorney or other agent to act on behalf of a title insurance company.
(Act 2012-278, p. 554, §4.)
(a) If a secured creditor has not submitted for recording a satisfaction of a security instrument within the time set forth in Section 35-10-92 after full and complete payment of all indebtedness secured by the security instrument, a satisfaction agent acting for and with authority from the mortgagors may give the secured creditor a notification that the satisfaction agent intends to submit for recording an affidavit of satisfaction of the security instrument. The notification must include all of the following:
(1) The identity and mailing address of the satisfaction agent.
(2) Identification of the security instrument for which a recorded satisfaction is sought, including the names of the original parties to, and the recording data for, the security instrument.
(3) A statement that the satisfaction agent has determined all of the following:
a. That the real property described in the security instrument is residential real property or, at the time the security interest was made, was residential real property.
b. That the person to which the notification is being given is the secured creditor.
c. That the secured creditor has received full payment and performance of the secured obligation.
(4) A statement that a satisfaction of the security instrument does not appear of record in the chain of title.
(5) A statement that the satisfaction agent, acting with the authorization of the mortgagors of the real property described in the security instrument, intends to sign and submit for recording an affidavit of satisfaction of the security instrument unless, within 30 days after receipt of the notification by the secured creditor, any of the following occurs:
a. The secured creditor submits a satisfaction of the security instrument for recording.
b. The satisfaction agent receives from the secured creditor a notification stating that the secured obligation remains unsatisfied.
c. The satisfaction agent receives from the secured creditor a notification stating that the secured creditor has assigned the security instrument or otherwise does not claim an interest in the security instrument. In this event, the satisfaction agent will use all reasonable efforts to determine the name and address of, and notify, the secured creditor then owning the securing instrument.
(b) A notification to the secured creditor under subsection (a) must be sent by a method that provides proof of receipt by the secured creditor for giving a notification for the purpose of requesting a payoff statement or, if the satisfaction agent cannot ascertain that address, to the secured creditor’s address for notification for any other purpose.
(Act 2012-278, p. 554, §5.)
(a) Subject to subsections (b) and (c), a satisfaction agent may sign and submit for recording an affidavit of satisfaction of a security instrument complying with this article if either of the following occurs:
(1) There does not appear of record a satisfaction of a security instrument within 30 days after the receipt by the secured creditor of the notification.
(2) The secured creditor authorizes the satisfaction agent to do so.
(b) A satisfaction agent may not sign and submit for recording an affidavit of satisfaction of a security instrument if it has received a notification stating that the secured obligation remains unsatisfied or information that the security instrument has been assigned.
(c) If a satisfaction agent receives information that the security instrument has been assigned, the satisfaction agent may not submit for recording an affidavit of satisfaction of the security instrument without giving a notification of intent to submit for recording an affidavit of satisfaction to the assignee.
(Act 2012-278, p. 554, §6.)
An affidavit of satisfaction of a security instrument must do all of the following:
(1) Identify the original parties to the security instrument, the secured creditor, and the recording data for the security instrument.
(2) State the basis upon which the person signing the affidavit is a satisfaction agent including, without limitation, that the person signing the affidavit is authorized to sign on behalf of, and to bind, the insurance company acting as satisfaction agent.
(3) State that the person signing the affidavit has determined that the real property described in the security instrument is residential real property or was residential real property at the time the security instrument was made.
(4) State that the person signing the affidavit determined that the secured creditor has received full payment or performance of the secured obligation and, if the security instrument is an equity line security instrument, that the equity line has been closed.
(5) State that the person signing the affidavit, acting with the authority of the owner of the real property described in the security instrument, gave notification to the secured creditor of its intention to sign and submit for recording an affidavit of satisfaction.
(6) Describe the method by which the person signing the affidavit gave notification in compliance with this article.
(7) State either of the following:
a. That more than 30 days have elapsed since the receipt of notification by the secured party, no satisfaction has been recorded, and the satisfaction agent has not received a notification that the secured obligation remains unsatisfied or received information that the secured obligation has been assigned.
b. That the secured creditor authorized the person signing the affidavit to sign and record an affidavit of satisfaction.
(8) Be sworn or affirmed, signed, and acknowledged as required by law for a conveyance of an interest in real property.
(Act 2012-278, p. 554, §7.)
(a) Upon recording, an affidavit complying with the requirements of this article constitutes a termination of the security interest described in the affidavit.
(b) The recording of an affidavit of satisfaction of a security instrument does not extinguish, offset, or otherwise affect any responsibility or liability of a person for payment or performance of the debt or other obligation secured by the security instrument.
(Act 2012-278, p. 554, §8.)
(a) Except as otherwise provided in subsection (b), a satisfaction agent or any other person who executes an affidavit of satisfaction of a security instrument erroneously or as a result of negligence or non-compliance with this article is liable to the secured creditor for any actual economic damages caused by the recording of the satisfaction.
(b) This article does not apply to the liability of a satisfaction agent who executes an affidavit of satisfaction of a security instrument erroneously as a result of wantonness, recklessness, or deliberate misconduct, nor does this article apply to the liability of a person other than a satisfaction agent who erroneously executes an affidavit of satisfaction.
(Act 2012-278, p. 554, §9.)
(a) For purposes of this section, the following terms have the following meanings:
(1) BIWEEKLY. Occurring every two weeks.
(2) CONTRACTUAL MORTGAGE PAYMENT. The total amount of the monthly mortgage loan payment, comprised of the principal payment, interest payment, and any additional amounts being collected and held in an escrow account.
(3) ESCROW AMOUNT. The amount of any additional funds that are collected by a mortgage servicer pursuant to a mortgage loan and set aside in an escrow account to cover future expenses, including property taxes and homeowners insurance.
(4) ESCROW ANALYSIS. The accounting that a financial institution conducts pursuant to 12 C.F.R. § 1024.17 to determine the appropriate target balances, compute the borrower’s monthly payments or deposits needed for the next year, and determine whether escrow shortages exist.
(5) MORTGAGE SERVICER. A servicer as defined in 12 U.S.C. § 2605(i)(2).
(6) MORTGAGOR. A person that borrows money by granting a mortgage or a successor in ownership of the real property described in the mortgage.
(7) PRINCIPAL. The outstanding balance of the original mortgage loan granted by the mortgage servicer, exclusive of interest.
(8) SEMI-MONTHLY. Occurring twice each month.
(b) A mortgage servicer may allow a mortgagor, without the imposition of any penalty, to:
(1) Make biweekly mortgage payments, in which any amount paid in excess of the total annual contractual mortgage payments due shall be applied to the mortgage loan principal; or
(2) Make semi-monthly mortgage payments in the amount of half of the total monthly contractual mortgage payment due.
(c) If allowed by the mortgage servicer, the mortgagor may elect to submit a payment to the mortgage servicer to reduce or eliminate any escrow shortage. A mortgagor that elects to make additional mortgage payments pursuant to this subsection shall notify the mortgage servicer of his or her intent to make the payments in a manner prescribed by the mortgage servicer. The payments shall be treated separately and independent of payments applied to the mortgage loan principal pursuant to subsection (b).
(d) A mortgage servicer shall not be precluded from requiring mortgagors to opt-in to any payment structure authorized by this section.
(e)(1) This section shall apply only to consumer mortgages that are secured by real property located in this state and that are originated after October 1, 2026.
(2) This section shall not apply to any open-end mortgage or home equity products.
(3) This section shall not apply to any mortgage servicer that allows mortgagors to make biweekly or semi-monthly mortgage payments without penalty or that offer a closed-end mortgage product that allows a mortgagor to make biweekly or semi-monthly mortgage payments without penalty.
(Act 2026-513, §1.)
This chapter may be referred to as the “Asset-Backed Securities Facilitation Act.” It is intended by the Legislature that the term “securitization transaction” be construed broadly.
(Act 2001-779, p. 584, §1.)
(a) Notwithstanding any other provision of law including, but not limited to, Section 7-9-506 and Section 7-9A-623, to the extent set forth in the transaction documents relating to a securitization transaction:
(1) Any property, assets, or rights purported to be transferred, in whole or in part, in the securitization transaction shall be deemed to no longer be the property, assets, or rights of the transferor;
(2) A transferor in the securitization transaction, its creditors or, in any insolvency proceeding with respect to the transferor or the transferor’s property, a bankruptcy trustee, receiver, debtor, debtor in possession, or similar person, to the extent the issue is governed by Alabama law, shall have no rights, legal or equitable, whatsoever to reacquire, reclaim, recover, repudiate, disaffirm, redeem, or recharacterize as property of the transferor any property, assets, or rights purported to be transferred, in whole or in part, by the transferor; and
(3) In the event of a bankruptcy, receivership, or other insolvency proceeding with respect to the transferor or the transferor’s property, to the extent the issue is governed by Alabama law, such property, assets, and rights shall not be deemed to be part of the transferor’s property, assets, rights, or estate.
(b) Nothing contained in this chapter shall be deemed to require any securitization transaction to be treated as a sale for federal or state tax purposes or to preclude the treatment of any securitization transaction as debt for federal or state tax purposes or to change any applicable laws relating to the perfection and priority of security or ownership interests of persons other than the transferor, hypothetical lien creditor or, in the event of a bankruptcy, receivership, or other insolvency proceeding with respect to the transferor or its property, a bankruptcy trustee, receiver, debtor, debtor in possession, or similar person.
(Act 2001-779, p. 584, §2.)
Any act which becomes effective after September 12, 2001, shall not be construed to amend or repeal any provision of this chapter unless the subsequent act specifically references this chapter and states that this chapter is repealed or states the manner in which this chapter is to be amended. Without limiting the foregoing, Act 2001-481, 2001 Regular Session, does not amend or repeal any provision of this chapter.
(Act 2001-779, p. 584, §3.)
The statutory modes provided in this chapter for the enforcement of liens are not the exclusive modes of enforcing such liens, but are cumulative merely. Any lien may be enforced in the manner provided by statute, if so provided, or by attachment for enforcing liens, or by any similar mode or remedy existing at common law.
(Code 1907, §4829; Code 1923, §8935; Code 1940, T. 33, §1.)
One who has a lien inferior to another, upon the same property, has a right:
(1) To redeem the property in the same manner as its owner might, from the superior lien; and
(2) To be subrogated to all the benefits of the superior lien, when necessary for the protection of his interests, upon satisfying the claim secured thereby.
(Code 1923, §8936; Code 1940, T. 33, §2.)
Every person, having an interest in property subject to a lien, has a right to discharge the lien at any time after the claim is due, and before his right of redemption is foreclosed, and, by such redemption, becomes subrogated to all the benefits of the lien, as against all owners of other interests in the property, except insofar as he was bound to make such redemption for their benefit.
(Code 1923, §8937; Code 1940, T. 33, §3.)
Where one has a lien upon different things, and other persons have subordinate liens upon, or interests in, some but not all of the same things, the person having the prior lien, if he can do so without risk of loss to himself, or of injustice to other persons, must resort to the property in the following order, on the written demand of any party interested:
(1) To the things upon which he has an exclusive lien;
(2) To the things which are subject to the fewest subordinate liens;
(3) In like manner inversely to the number of subordinate liens upon the same thing; and
(4) When several things are within one of the foregoing classes, and subject to the same number of liens, resort must be had:
a. To the things which have not been transferred since the prior lien was created;
b. To the things which have been so transferred without a valuable consideration; and
c. To the things which have been so transferred for a valuable consideration in the inverse order of the transfer.
(Code 1923, §8938; Code 1940, T. 33, §4.)
In all cases in this chapter where the process of attachment is authorized, and unless otherwise particularly provided for in the article declaring the lien, before such attachment shall issue, the plaintiff, his agent or attorney must make affidavit setting forth the amount of such claim, or if a toll is claimed, the reasonable value thereof, that one of the enumerated causes for attachment prescribed in the applicable article exists, that the attachment is not sued out for the purpose of vexing or harassing the defendant, whether or not the debt or toll is due, and if not, when the same will be due, that said debt or toll remains unpaid, and must describe therein, as near as practicable, the property on which the lien is claimed. He must also execute a bond in double the amount claimed, with sufficient sureties to be approved by the officer issuing the attachment, payable to the defendant and with the 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 1940, T. 33, §5.)
All cases arising under the provisions of this chapter where the process of attachment is authorized for the enforcement of any lien declared hereby, except in cases of agisters or trainer liens and the lien declared to the owners of the stallions, jacks, bulls, etc., and, unless otherwise particularly provided for, must be commenced within six months after the demand becomes due; and unless commenced within that time, the lien is lost. All cases of attachment arising under the provisions of this chapter shall stand for trial at the time and shall be tried in the manner and upon the notice required in other attachment cases.
(Code 1940, T. 33, §6.)
Owners of land, or their assignees, shall have a lien upon timber sold therefrom for purposes of rafting, shipping, or manufacture, for the stipulated price or value thereof, commonly known as stumpage.
(Code 1896, §2780; Code 1907, §4814; Code 1923, §8906; Code 1940, T. 33, §7.)
For the enforcement of such lien, the owners of such land or their assignees, may have process of attachment from any court having jurisdiction of the amount claimed leviable upon the timber upon which the lien exists:
(1) When such claim is due and the defendant, on demand, fails or refuses to pay the same.
(2) Whether such claim is due or not, when the defendant has removed any part of such timber from such land without paying the stipulated price, or the value thereof, when no price has been stipulated, and without the consent of the owners of such lands, or, if the claim has been assigned, without the consent of the assignee.
(3) Whether such claim is due or not, when the plaintiff has good cause to believe that the defendant is about to remove any part of such timber from such land without paying the stipulated price thereof, or, in the event no price has been stipulated, the value thereof, and without the consent of the owners of such lands, or, if the claim has been assigned, without the consent of the assignee.
(Code 1896, §2781; Code 1907, §4815; Code 1923, §8907; Code 1940, T. 33, §8.)
[Repealed]
Repealed by Acts 1989, No. 89-948, p. 1868.
(Acts 1923, No. 71, p. 43; Code 1923, §§8875, 8877; Code 1940, T. 33, §§9, 11; Acts 1975, No. 1195, §3.)
[Repealed]
Repealed by Acts 1989, No. 89-948, p. 1868.
(Acts 1923, No. 71, p. 43; Code 1923, §8876; Code 1940, T. 33, §10.)
This division may be cited as the “Alabama Uniform Federal Lien Registration Act.”
(Acts 1989, No. 89-948, p. 1868, §1.)
This division applies only to federal tax liens and to other federal liens notices of which under any act of congress or any regulation adopted pursuant thereto are required or permitted to be filed in the same manner as notices of federal tax liens.
(Acts 1989, No. 89-948, p. 1868, §2.)
(a) Notices of liens, certificates, and other notices affecting federal tax liens or other federal liens must be filed in accordance with this division.
(b) Notices of federal liens upon real property for obligations payable to the United States and certificates and notices affecting the liens shall be filed in the office of the judge of probate of the county in which the real property subject to the liens is situated.
(c) Notices of federal liens upon personal property, whether tangible or intangible, for obligations payable to the United States and certificates and notices affecting the liens shall be filed as follows:
(1) If the person against whose interest the lien applies is a corporation or a partnership whose principal executive office is in this state, as those entities are defined in the internal revenue laws of the United States, in the office of the Secretary of State;
(2) If the person against whose interest the lien applies is a trust that is not covered by subdivision (1), in the office of the Secretary of State;
(3) If the person against whose interest the lien applies is the estate of a decedent, in the office of the judge of probate of the county in the courts of which the estate is being administered;
(4) In all other cases, in the office of the judge of probate of the county where the person against whose interest the lien applies resides at the time of filing of the notice of lien.
(Acts 1989, No. 89-948, p. 1868, §3.)
Certification of notices of liens, certificates, or other notices affecting federal liens by the Secretary of the Treasury of the United States or his delegate, or by any official or entity of the United States responsible for filing or certifying of notice of any other lien, entitles them to be filed, and no other attestation, certification, or acknowledgment is necessary.
(Acts 1989, No. 89-948, p. 1868, §4.)
(a) If a notice of a federal lien, a refiling of a notice of federal lien, or a notice of revocation of any certificate described in subsection (b) is presented for filing, the filing officer shall cause the notice to be marked, held, and indexed in accordance with the provisions of Section 7-9A-519 of the Uniform Commercial Code, as if the notice were a financing statement within the meaning of that Code, and if the filing officer is the judge of probate, the filing officer also shall cause the notice to be cross-indexed in the real estate mortgage records under the name of the person against whose interest the lien applies in the same fashion as if such person were the mortgagor in a mortgage of real estate and also under the name of the person claiming the lien as if such person were the mortgagee thereunder.
(b) If a certificate of release, nonattachment, discharge, or subordination of any lien is presented to the filing officer for filing, the filing officer shall:
(1) Cause a certificate of release or nonattachment to be marked, held, and indexed as if the certificate were a termination statement within the meaning of the Uniform Commercial Code, but the notice of lien to which the certificate relates may not be removed from the files; and
(2) Cause a certificate of discharge or subordination to be marked, held, and indexed as if the certificate were a release of collateral within the meaning of the Uniform Commercial Code.
(c) When the filing officer is the Secretary of State, the Secretary of State shall issue a filing officer’s certificate upon the request of any person. When the filing officer is the probate judge, the probate judge may issue a filing officer’s certificate upon the request of any person. The certificate shall show whether there is on file, on the date and hour stated therein, any notice of lien or certificate or notice affecting any lien filed under this division or Sections 35-11-40 and 35-11-41, naming a particular person, and if a notice or certificate is on file, giving the date and hour of filing of each notice or certificate. The fee for a certificate shall be the same as the then applicable uniform fee for obtaining information from the filing officer pursuant to Section 7-9A-525 of the Uniform Commercial Code. Upon request, the filing officer shall furnish a copy of any notice of federal lien, or notice or certificate affecting a federal lien, for a fee that is the same as the then applicable uniform fee for obtaining copies from the filing officer pursuant to Section 7-9A-525 of the Uniform Commercial Code.
(Acts 1989, No. 89-454, p. 931, §5; Acts 1990, No. 90-636, p. 1168, §1; Act 2001-481, p. 647, §2.)
The fee for filing and indexing each notice of lien or certificate or notice affecting the lien is:
(1) For a lien on real estate, the same as the then applicable uniform fee for filing and indexing financing statements pursuant to Section 7-9A-525 of the Uniform Commercial Code;
(2) For a lien on tangible and intangible personal property, the same as the then applicable uniform fee for filing and indexing financing statements established by Section 7-9A-525 of the Uniform Commercial Code;
(3) For a certificate of discharge or subordination of a lien filed under subdivision (1) or (2) prior to July 1, 2000 --$5 for the first page and $1 for each additional page;
(4) For a certificate of discharge or subordination of a lien filed under subdivision (1) or (2) on or after July 1, 2000 --no fee; and
(5) For all other notices, including a certificate of release or nonattachment --$5 for the first page and $1 for each additional page.
For purposes of this section, any notice or other document filed under the Alabama Uniform Federal Lien Registration Act pursuant to federal law or federal regulation shall be deemed to be in the standard form prescribed by the Secretary of State. Only those fees specifically enumerated in Section 7-9A-525 of the Uniform Commercial Code shall be charged.
(Acts 1989, No. 89-948, p. 1868, §6; Acts 1990, No. 90-636, p. 1168, §2; Act 2001-481, p. 647, §2.)
This division shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this division among states enacting it.
(Acts 1989, No. 89-948, p. 1868, §7.)
A lien is hereby declared on any ship, steamboat, or other watercraft, whether registered, enrolled, or licensed or not, that may be built, repaired, fitted, furnished, supplied, or victualed within this state, for work done, or material supplied by any person within this state, in or about the building, repairing, fitting, furnishing, supplying, or victualing such ship, steamboat, or other watercraft, and for the wages of the masters, laborers, stevedores, and shipkeepers of such ship, steamboat, or other watercraft, in preference to other liens thereon for debts contracted by, or owing from, the owners thereof; and for wharfage and dockage; and such lien may be asserted in any court of competent jurisdiction.
(Code 1876, §3465; Code 1886, §3054; Code 1896, §2758; Code 1907, §4790; Code 1923, §8870; Code 1940, T. 33, §12.)
(a) Any keeper, owner, operator, or proprietor of any pasture kept for grazing stock or of any cattle or livestock feed or fattening lot, or any keeper, owner, or proprietor of any stable for the development or training of horses, or any person who keeps, fattens, feeds, cares for, trains, or develops any horse, horses, cattle, or livestock for another shall have a lien on all such horses, cattle, or livestock so kept, fed, pastured, trained, cared for, fattened, or developed by him, or under his control, for the payment of his charges for keeping, feeding, pasturing, training, caring for, fattening, or developing the same, and he shall have the right to retain such horse, horses, cattle, livestock, or stock, or so many thereof as may be necessary for the payment of such charges.
(b) If the charges, claims, or demands under subsection (a) of this section when due are not paid within 10 days after demand therefor, such person, keeper, owner, operator, proprietor, or trainer is authorized, on giving 10 days’ notice of the time and place of such sale, by advertisement in some newspaper published in the county in which said stable, pasture, or cattle, or livestock feed or fattening lot is located, once a week for two successive weeks, or if there is no such paper, by posting the notice in three conspicuous places in the county, to sell the stock for the payment of the charges and expenses for keeping, feeding, pasturing, training, caring for, fattening, or developing said stock, and also the costs and expenses of the sale and advertising and the balance, if any, he shall pay over to the owner of such stock.
(Code 1907, §§4808, 4809; Code 1923, §§8892, 8893; Code 1940, T. 33, §§13, 14; Acts 1961, No. 714, p. 1012, §§1, 2.)
The owner, keeper, or proprietor of any premises kept for grazing, feeding, boarding, training, or confining birds or animals for another shall have a lien on all such birds or animals so kept, fed, boarded, or trained, located or confined for the payment of his charges, and shall have the right to retain the same and enforce his lien in the manner prescribed by section 35-11-70 for enforcement of liens on stock.
(Acts 1961, Ex. Sess., No. 237, p. 2250.)
(a) Owners of land, or their assignees, shall have a lien upon all livestock raised, grown, or grazed upon rented land for the rent of said land for the current year, and which shall be paramount to all other liens. The lien shall exist only when the land is leased or rented or used for pasturing or grazing purposes.
(b) For the enforcement of such lien, the owners of such land, or their assignees, may have process of attachment from any court having jurisdiction of the amount claimed, leviable upon the stock upon which the lien exists
(1) When such claim is due and the defendant upon demand fails or refuses to pay the same;
(2) Whether such claim is due or not when the defendant has removed any part of such stock from such land without the consent of the landlord without paying the rent, or if the claim has been assigned without the consent of the assignees;
(3) Whether such claim is due or not, when the plaintiff has good cause to believe that the defendant is about to remove any part of such stock from the land without paying the rent and without the consent of the owner of such land or the assignee, if the claim has been assigned.
(Acts 1919, No. 734, p. 1084; Code 1923, §§8894, 8895; Code 1940, T. 33, §§15, 16.)
Laborers and employees of each railroad company operated in this state, except the officers thereof, shall have a lien for all debts due to them for work and labor done and performed by them for such company, which shall extend to and cover all the property, rights, effects, and credits of every description belonging to such company, and situated in this state.
(Code 1876, §3481; Code 1886, §3077; Code 1896, §2762; Code 1907, §4794; Code 1923, §8878; Code 1940, T. 33, §17.)
Agricultural laborers and superintendents of plantations shall have a lien upon the crops grown during the current year in and about which they are employed, for the hire and wages due them for labor and services rendered by them in and about the cultivation of such crops under any contract for such labor and services; but such liens shall be subordinate to the landlord’s lien for rent and advances, and to any other lien for supplies furnished to make the crops.
(Code 1876, §3482; Code 1886, §3078; Code 1896, §2763; Code 1907, §4795; Code 1923, §8879; Code 1940, T. 33, §18.)
For the enforcement of such liens the persons entitled may sue out attachments before any officer authorized to issue such writs, returnable before any court of competent jurisdiction.
(Code 1876, §3485; Code 1886, §3080; Code 1896, §2765; Code 1907, §4797; Code 1923, §8881; Code 1940, T. 33, §19.)
An agricultural laborer or superintendent of a plantation may sue out an attachment, whether his demand is due or not; but, in either event, he shall in addition to the affidavit required under the general provisions of this chapter, make affidavit that such demand is or will be due, as the case may be, and that the defendant, without the consent of, and contrary to his agreement with the plaintiff, is about to remove the crop from the premises without paying such demand, or that the defendant has so removed such crop or some portion thereof.
(Code 1876, §3486; Code 1886, §3081; Code 1896, §2766; Code 1907, §4798; Code 1923; §8882; Code 1940, T. 33, §20.)
When an attachment is sued out by an agricultural laborer or superintendent of a plantation, it shall not be levied on a greater portion of the crop than is sufficient to satisfy the plaintiff’s demand and the costs of the action.
(Code 1876, §3483; Code 1886, §3083; Code 1896, §2768; Code 1907, §4800; Code 1923, §8884; Code 1940, T. 33, §21.)
All the property upon which a lien is created under the provisions of this division, or the proceeds thereof, in the hands of third parties, shall be subject to garnishment for the enforcement and satisfaction of such lien; and such garnishment, and the proceedings thereunder, shall be governed by the laws in force relating to other garnishments, so far as the same are applicable.
(Code 1876, §3490; Code 1886, §3085; Code 1896, §2770; Code 1907, §4802; Code 1923, §8886; Code 1940, T. 33, §22.)
No part of any crop levied on under the provisions of this division shall be removed from the premises on which it was raised until all claims for rent and advances for the current year have been satisfied.
(Code 1876, §3492; Code 1886, §3087; Code 1896, §2772; Code 1907, §4804; Code 1923, §8888; Code 1940, T. 33, §23.)
Any officer enforcing the satisfaction of any lien under the provisions of this division shall first apply the proceeds of the crop or property in his hands to the payment of any debt or claim of any third party which constitutes a prior lien upon such crop or property, if the priority of such lien has been established, and the claim ordered to be paid by the court before which the case is tried.
(Code 1876, §3493; Code 1886, §3088; Code 1896, §2773; Code 1907, §4805; Code 1923, §8889; Code 1940, T. 33, §24.)
Any blacksmith, woodworkman, or other mechanic who contributes his labor and material, or either, to the production, manufacture, or repair of any vehicle, implement, machine, or article of any kind, shall have a lien thereon in the hands of any person for whom such vehicle, implement, machine, or article was made or repaired, or to whom sold, and in the hands of any purchaser with notice of such lien, for the agreed price, or the value if no price was agreed upon, of the labor and material, or either, contributed to the production, manufacture, or repair of the same. Said lien shall be subordinate to any security interest under the Uniform Commercial Code in such vehicle, implement, machine, or article, which security interest was perfected prior to the time said labor or material was contributed, unless the secured party holding said security interest authorized the contribution of said labor or material.
(Code 1876, §3462; Code 1886, §3049; Code 1896, §2753; Code 1907, §4785; Code 1923, §8863; Code 1940, T. 33, §25; Acts 1965, No. 549, p. 811.)
Any person entitled thereto may enforce such lien in any court of competent jurisdiction, by attachment issued by any officer authorized to issue such writs, upon executing bond as in other cases of attachment, and upon making affidavit that the attachment is not sued out for the purpose of vexing or harassing the defendant, and describing the property on which the lien is claimed and setting forth all the facts necessary to the creation of the lien under Section 35-11-110, and the amount due, and that one of the following causes of attachment exists:
(1) That the person for whom such vehicle, implement, machine, or article was made or repaired, or to whom sold, is the owner thereof, and that the price, if agreed on, or if not, the value of the same, or of the repair thereof, or some part of either, is due and unpaid.
(2) That the person for whom such vehicle, implement, machine, or article was made or repaired, or to whom sold, has transferred or sold the same to a purchaser with notice of the lien, and that the price, if agreed on, or if not, the value of the same, or of the repair thereof, or of some part of either, is due and unpaid.
(Code 1876, §3464; Code 1886, §3050; Code 1896, §2754; Code 1907, §4786; Code 1923, §8864; Code 1940, T. 33, §26.)
(a) Persons having liens under the provisions of this division, on the same property, may join in the same action for the enforcement of their respective liens; and when there is such joinder, the court or jury trying the action must ascertain the amount due to each of the plaintiffs secured by the lien, and judgment must be rendered accordingly; but the failure of one or more of the plaintiffs to establish his or their liens shall not defeat a recovery by the others. The proceeds of the sale of the property levied on, if not sufficient to satisfy the demands of all the plaintiffs, shall be distributed, after payment of the costs, pro rata among them.
(b) When persons having such liens on the same property refuse, after notice in writing, to join in such action, the persons giving the notice may proceed without them on making affidavit of the fact of such notice and refusal; and notice of the levy of the attachment must be served on the persons refusing to join in the manner and within the time required for the service of such notice on the defendant; and such persons, either at the trial, or at any time prior thereto, on making affidavit setting forth all facts necessary to the creation of their liens, and the amounts thereof, may be made plaintiffs in the action, and the action shall then proceed as if commenced jointly by them with the original plaintiffs; but on their failure to thus join, the action shall proceed for the benefit of the original plaintiffs, who shall, in that event, be entitled to priority of satisfaction.
(Code 1876, §3463; Code 1886, §§3051, 3052; Code 1896, §§2755, 2756; Code 1907, §§4787, 4788; Code 1923, §§8865, 8866; Code 1940, T. 33, §§27, 28.)
Keepers of hotels, inns, boarding houses, and restaurants shall have a lien on the goods and personal baggage of their guests and boarders to secure the payment of any money due from them for board and lodging.
(Code 1907, §4827; Code 1923, §8933; Code 1940, T. 33, §29.)
The lien of keepers of hotels, inns, boarding houses, and restaurants on the goods and personal baggage of their guests and boarders may be enforced by a seizure and sale of such goods and baggage in the manner provided by law. If the charges, when due, are not paid within 10 days after demand therefor, such hotel, inn, boarding house, or restaurant keeper may, on giving 10 days’ notice of the time and place of such sale, by advertisement, by one insertion in some newspaper published in the county in which the hotel, inn, boarding house, or restaurant is located, or, if there be no such paper, by posting the notice in a conspicuous place in the lobby of such hotel, inn, boarding house, or restaurant, and in one other public place in the county, sell such goods and baggage to the highest bidder, and apply the proceeds to the payment of the charges for and expense of keeping such goods and baggage, and of the sale thereof, and to the satisfaction, in whole or in part, as the case may be, of said lien, and the balance, if any there be, shall be paid over to the owner on demand. The demand herein first provided for may be made in person, or by letter or writing, duly stamped, addressed and mailed to such owner, to his address, if known to such keeper, or to the address appearing on the register of such hotel, inn, boarding house, or restaurant.
(Code 1907, §4828; Acts 1915, No. 194, p. 265; Code 1923, §8934; Code 1940, T. 33, §30.)
Every jeweler, watchmaker, and silversmith who shall alter, repair, or do any work on any article of personal property at the request of the owner or legal possessor of said property shall have a lien upon and may retain possession of any such article until the charges for such altering, repairing, or work has been paid.
(Acts 1923, No. 441, p. 589; Code 1923, §8868; Code 1940, T. 33, §31.)
If such debt remains unpaid for 12 months or more, then the jeweler, watchmaker, or silversmith may sell such article at private or public sale after 10 days’ notice and the proceeds, after first paying the expenses of the sale shall be applied on the payment of the debt, the balance, if any, to be held for the debtor. If the debtor’s residence is known, notice in writing must be given the debtor of the amount due and the time and place of the sale before said sale, notice to be mailed to his street address. If the debtor’s residence is unknown, notice must be given by posting in the county courthouse of the city, town, or village where the jeweler, watchmaker, or silversmith resides, or the courthouse nearest thereto, statement that the sale will be made, setting out the time, place, and article or articles to be sold and the name of the debtor.
(Acts 1923, No. 441, p. 589; Code 1923, §8869; Code 1940, T. 33, §32.)
Every person, firm, or corporation engaged in the business of laundering, cleaning, pressing, and mending or otherwise renovating wearing apparel, household linens, and articles of like kind, including hats and shoes, at the request of the owner or legal possessor of said property, shall have a lien upon and may retain possession of any such article until the charges for such service have been paid.
(Acts 1936, Ex. Sess., No. 7, p. 5; Code 1940, T. 33, §33.)
If such debt remains unpaid for three months or more, the party rendering such service may sell such article at private or public sale and the proceeds, after first paying the expenses of the sale shall be applied on the payment of the debt, the balance, if any to be held for the debtor. If the debtor’s residence is known, notice in writing must be given the debtor of the amount due and the time and place of the sale before said sale, said notice to be mailed to his street address. If debtor’s address is unknown, notice may be given by posting it in the county courthouse of the city or town where the service is rendered or the courthouse nearest thereto, for two weeks before said sale, said notice setting out the time and place said sale will be made and the article or articles to be sold and the name of the debtor or debtors. Such notice may also be published in a newspaper published in the county in which such sale is to be had and when so published for two consecutive weeks shall be sufficient notice of said sale whether said notice is also posted at said courthouse or not.
(Acts 1936, Ex. Sess., No. 7, p. 5; Code 1940, T. 33, §34.)
Any keeper, owner or proprietor of a livery stable, or other place for feeding and caring for stock for pay, shall have a lien on all stock kept and fed by him, for the payment of his charges, for keeping and feeding such stock, and he shall have the right to retain the stock, or so much thereof as may be necessary for the payment of such charges; and said lien shall continue for six months on any stock so kept, fed and cared for in possession of persons with notice of such lien.
(Code 1876, §3494; Code 1886, §3089; Code 1896, §2774; Code 1907, §4806; Code 1923, §8890; Code 1940, T. 33, §35.)
If the charges when due are not paid within 10 days after demand therefor, such keeper, owner, or proprietor is authorized, on giving 10 days’ notice of the time and place of such sale, by advertisement in some newspaper published in the county in which the stable is located, once a week for three successive weeks, or, if there be no such paper, by posting the notice in three conspicuous places in the county, to sell the stock for the payment of the charges and expenses of keeping and of the sale; and the balance, if any there be, he shall pay over to the owner.
(Code 1876, §3495; Code 1886, §3090; Code 1896, §2775; Code 1907, §4807; Code 1923, §8891; Code 1940, T. 33, §36.)
Every mechanic, person, firm, or corporation who shall do or perform any work, or labor upon, or furnish any material, fixture, engine, boiler, waste disposal services and equipment, or machinery for any building or improvement on land, or for repairing, altering, or beautifying the same, under or by virtue of any contract with the owner or proprietor thereof, or his or her agent, architect, trustee, contractor, or subcontractor, upon complying with the provisions of this division, shall have a lien therefor on such building or improvements and on the land on which the same is situated, to the extent in ownership of all the right, title, and interest therein of the owner or proprietor, and to the extent in area of the entire lot or parcel of land in a city or town; or, if not in a city or town, of one acre in addition to the land upon which the building or improvement is situated; or, if employees of the contractor or persons furnishing material to him or her, the lien shall extend only to the amount of any unpaid balance due the contractor by the owner or proprietor, and the employees and materialmen shall also have a lien on the unpaid balance. But if the person, firm, or corporation, before furnishing any material, shall notify the owner or his or her agent in writing that certain specified material will be furnished by him or her to the contractor or subcontractor for use in the building or improvements on the land of the owner or proprietor at certain specified prices, unless the owner or proprietor or his or her agent objects thereto, the furnisher of the material shall have a lien for the full price thereof as specified in the notice to the owner or proprietor without regard to whether or not the amount of the claim for the material so furnished exceeds the unpaid balance due the contractor, unless on the notice herein provided for being given, the owner or proprietor or his or her agent shall notify the furnisher in writing before the material is used, that he or she will not be responsible for the price thereof. The notice may be given in the following form, which shall be sufficient:
“To __________, owner or proprietor:
“Take notice, that the undersigned is about to furnish __________, your contractor or subcontractor, certain material for the construction, or for the repairing, altering, or beautifying of a building or buildings, or improvement or improvements, on the following described property:
and there will become due to the undersigned on account thereof the price of the material, for the payment of which the undersigned will claim a lien.”
(Code 1876, §§3440, 3441; Code 1886, §3018; Code 1896, §2723; Code 1907, §4754; Code 1923, §8832; Code 1940, T. 33, §37; Acts 1996, 1st Ex. Sess., No. 96-26, p. 32, §1.)
(a) Such lien as to the land and buildings or improvements thereon, shall have priority over all other liens, mortgages, or incumbrances created subsequent to the commencement of work on the building or improvement. Except to the extent provided in subsection (b) below, all liens, mortgages, and incumbrances (in this section, “mortgages and other liens”) created prior to the commencement of such work shall have priority over all liens for such work. Enforcement of such lien of a mechanic, materialman, or other person created by Section 35-11-210 (in this section, “mechanic or materialman lien”) shall not affect any prior mortgage or other lien, and the purchaser in connection with the enforcement of such mechanic or materialman lien shall take the property subject to such prior mortgages and other liens of which the purchaser has actual or constructive notice on the date of the purchase. Foreclosure of any prior mortgage or other lien shall terminate and extinguish such subordinate mechanic or materialman lien or other interest as to the land and the buildings and improvements thereon, whether or not at the time of such foreclosure such lien or interest has been perfected in accordance with the provisions of this division, and the mechanic, materialman, or other person thereafter shall have, to the extent of his lawful claim under this division, the statutory right of redemption afforded under applicable redemption laws to a judgment creditor whose judgment was recorded on the date such work was commenced and such rights in any excess proceeds received by the foreclosing lienholder as provided by law.
(b) As to liens, mortgages, or incumbrances created prior to the commencement of the work, the lien for such work shall have priority only against the building or improvement, the product of such work which is an entirety, separable from the land, building, or improvement subject of the prior lien, mortgage, or incumbrance, and which can be removed therefrom without impairing the value or security of any prior lien, mortgage or incumbrance; and the person entitled to such lien may have it enforced, at any time prior to the foreclosure of such prior lien, mortgage, or incumbrance, by a sale of such buildings or improvement under the provisions of this division and the purchaser may, within a reasonable time thereafter, remove the same. If such mechanic or materialman lien for such work is not enforced prior to such foreclosure, the mechanic or materialman lien shall be terminated and extinguished and after such foreclosure, the mechanic, materialman, or other person who held such mechanic or materialman lien thereafter shall have the statutory right of redemption and such rights in excess proceeds to the extent provided in subsection (a) above.
(c) The provisions of this section clarify and confirm the intent of the Legislature regarding existing law governing the matters contained in this section. The provisions of this section shall apply to all mortgages and other liens and to all liens of a mechanic, materialman, or other person created by Section 35-11-210 existing on February 23, 1990, and those created or arising after February 23, 1990.
(Code 1876, §3442; Code 1886, §3019; Code 1896, §2724; Code 1907, §4755; Code 1923, §8833; Acts 1933, Ex. Sess., No. 64, p. 54; Code 1940, T. 33, §38; Acts 1990, No. 90-98, p. 107.)
(a) When the building or improvement is erected under or by virtue of any contract with a lessee in possession, and the erection thereof is not in violation of the terms or conditions of the lease, the lien shall attach to such building or improvement, and to the unexpired term of the lease, and the holder of the lien shall have the right to avoid a forfeiture of the lease by paying rent to the lessor, as it becomes due and payable, or by the performance of any other act or duty to which the lessee may be bound; and if the lien is enforced by a sale of the building or improvement, the purchaser may, at his election, become entitled to the possession of the demised premises, and to remain therein for the unexpired term, by paying rent to the lessor, or performing any other act or duty to which the lessee was bound, as if he were the assignee of the lease; or he may, within 60 days after the sale, remove such building or improvement from the premises; and if he elects to take possession and to remain therein until the expiration of the term of the lease, he may, within a reasonable time after the expiration of the term, remove such building or improvement from the premises. If, before a sale, the holder of the lien has made any payments of rent, or other pecuniary compensation to the lessor, which ought to have been paid by the lessee, he shall be reimbursed for such payments from the proceeds of the sale.
(b) When a lien attaches under subsection (a), the lessor, at any time before a sale of the property, shall have a right to discharge the same, by paying to the holder the amount secured thereby, including costs and all moneys he may have paid to the lessor to prevent a forfeiture of the lease, and, after a sale, he shall have the right to prevent the removal of the building or improvement from the premises by paying to the purchaser the value of such building or improvement; and upon such payment, either to the holder of the lien or to the purchaser, such building or improvement shall become the property of the lessor.
(Code 1876, §3443; Code 1886, §§3020, 3021; Code 1896, §§2725, 2726; Code 1907, §§4756, 4757; Code 1923, §§8834, 8835; Code 1940, T. 33, §§39, 40.)
It shall be the duty of every person entitled to such lien to file in the office of the judge of probate of the county in which the property upon which the lien is sought to be established is situated, a statement in writing, verified by the oath of the person claiming the lien, or of some other person having knowledge of the facts, containing the amount of the demand secured by the lien, after all just credits have been given, a description of the property on which the lien is claimed in such a manner that same may be located or identified, a description by house number, name of street, and name of city or town being a sufficient description where the property is located in a city or town, and the name of the owner or proprietor thereof; but no error in the amount of the demand or in the name of the owner or proprietor, shall affect the lien. Unless such statement is so filed the lien shall be lost. Said verified statement may be in the following form, which shall be deemed sufficient:
State of Alabama,
County of _____
_____ files this statement in writing, verified by the oath of _____, who has personal knowledge of the facts herein set forth:
That said _____ claims a lien upon the following property, situated in _____ county, Alabama, to wit:
This lien is claimed, separately and severally, as to both the buildings and improvements thereon, and the said land.
That said lien is claimed to secure an indebtedness of $____ with interest, from to wit _____ day of ___, 19, for ____________________
The name of the owner or proprietor of the said property is __________________________________________
_________________, Claimant.
Before me, _____, a notary public in and for the county of _____, State of _____, personally appeared _____, who being duly sworn, doth depose and say: That he has personal knowledge of the facts set forth in the foregoing statement of lien, and that the same are true and correct to the best of his knowledge and belief.
_________________, Affiant.
Subscribed and sworn to before me on this the _____ day of ___, 19, by said affiant.
_________________, Notary Public.
(Code 1876, §3444; Code 1886, §3022; Code 1896, §2727; Code 1907, §4758; Code 1923, §8836; Code 1940, T. 33, §41.)
If the oath to such statement is made beyond this state, it may be administered by any officer authorized to take acknowledgements and proof of conveyances beyond the state.
(Code 1886, §3023; Code 1896, §2728; Code 1907, §4759; Code 1923, §8837; Code 1940, T. 33, §43.)
The lien declared in this division shall be deemed lost unless the statement referred to in Section 35-11-213 shall be filed by every original contractor within six months and by every journeyman and day laborer within 30 days, and by every other person entitled to such lien within four months, after the last item of work or labor has been performed or the last item of any material, fixture, engine, boiler, or machinery has been furnished for any building or improvement on land or for repairing, altering, or beautifying the same under or by virtue of any contract with the owner or proprietor thereof, or his agent, architect, trustee, contractor, or subcontractor.
(Code 1876, §§3444, 3454; Code 1886, §§3022, 3041; Code 1896, §§2727, 2746; Code 1907, §§4758, 4777; Code 1923, §§8836, 8855; Code 1940, T. 33, §42.)
The judge of probate shall indorse on such statement the date of its filing, and shall record the same in a book kept for that purpose, which shall be properly labeled and indexed, and note thereon the date of filing; for all of which he shall receive $.15 per 100 words, which shall be secured to the party filing the statement by such lien.
(Code 1876, §3445; Code 1886, §3024; Code 1896, §2729; Code 1907, §4760; Code 1923, §8838; Code 1940, T. 33, §44.)
When the land on which the building or improvement is situated is not in a city or town and exceeds in area one acre, any person having a lien, or his personal representative, may at any time prior to his filing his statement in the office of the judge of probate, select one acre in addition to the land upon which the building or improvement is situated which shall also be subject to the lien; such selection to include the land surrounding the said building or improvement, and contiguous thereto, and with the land on which the building or improvement is situated to constitute but one lot or parcel. When the land on which the building or improvement is situated is in a city or town and the improvement consists of two or more buildings united together, situated on the same lot or contiguous or adjacent lots, or of separate buildings upon contiguous or adjacent lots, or where the machinery, material, fixture, engine, boiler, work, or labor has been furnished for improvements or structures which are located on separate tracts or parcels of land but operated as an entire plant or concern, and erected under one general contract, the lien for the labor, materials, fixtures, engines, boiler, or machinery, so furnished, shall attach to all such construction or improvements, together with land upon which they are situated, and it shall not be necessary to file a separate lien for each lot, building, or improvement, but the party claiming the lien may elect to file a separate lien for each lot, building, or improvement.
(Code 1886, §3025; Code 1896, §2730; Code 1907, §4761; Code 1923, §8839; Code 1940, T. 33, §45.)
Every person, except the original contractor, who may wish to avail himself of the provisions of this division, shall before filing his statement in the office of the judge of probate, give notice in writing to the owner or proprietor, or his agent, that he claims a lien on such building or improvement, setting forth the amount thereof, for what, and from whom it is owing; and after such notice, any unpaid balance in the hands of the owner or proprietor shall be held subject to such lien. But the provisions of this section shall not apply to the case of any material furnished for such building or improvement, of which the owner was notified in advance as provided in Section 35-11-210.
(Code 1876, §3457; Code 1886, §3026; Code 1896, §2731; Code 1907, §4762; Code 1923, §8840; Code 1940, T. 33, §46.)
The original contractor shall, when so required, furnish to the owner or proprietor a complete list of all materialmen, laborers, and employees who have furnished any material or have done any labor or performed any service or who may be under any contract or engagement to furnish any material, or to do or perform any service for such contractor for or on such building or improvement, with the terms and price thereof. If he fails or refuses to furnish such list or to give such information, or if he shall fail to pay any materialman, subcontractor, laborer, or employee in accordance with any special contract made with the owner or proprietor, he shall thereby forfeit his right to a lien under this division.
(Code 1876, §3458; Code 1886, §3027; Code 1896, §2732; Code 1907, §4763; Code 1923, §8841; Code 1940, T. 33, §47.)
When the amount involved exceeds $50.00, actions for the enforcement of liens under this division may be brought in the circuit court having jurisdiction in the county in which the property is situated. In all other cases actions to enforce such liens shall be brought before the district court in the county in which the property is situated.
(Code 1886, §§3028, 3048; Code 1896, §2733; Code 1907, §4764; Code 1923, §8842; Code 1940, T. 33, §48.)
Any action for the enforcement of the lien declared in this division must be commenced within six months after the maturity of the entire indebtedness secured thereby, except as otherwise provided in this division.
(Code 1876, §§3444, 3454; Code 1886, §§3022, 3041; Code 1896, §§2727, 2746; Code 1907, §§4758, 4777; Code 1923, §§8836, 8855; Code 1940, T. 33, §42.)
Such actions, when brought in the circuit court, shall be commenced by summons and complaint. The complaint shall contain a description of the property on which the lien is claimed, and shall allege the facts necessary to entitle the plaintiff to the lien and the enforcement thereof; in all other respects, the pleadings, practice, and proceedings shall be the same as in ordinary civil actions.
(Code 1876, §3446; Code 1886, §3029; Code 1896, §2734; Code 1907, §4765; Code 1923, §8843; Code 1940, T. 33, §49.)
(a) In such actions, all persons interested in the matter in controversy, or in the property charged with the lien, may be made parties; but such as are not made parties shall not be bound by the judgment or proceedings therein.
(b) On the death of any party to such action, his personal representative shall be made a party thereto, plaintiff or defendant, as the case may be, and it shall not be necessary to make his heirs or devisees parties; but if he has no personal representative, and it is not desired to have one appointed, his heirs or devisees may be made parties.
(Code 1876, §§3447, 3448; Code 1886, §§3030, 3031; Code 1896, §§2735, 2736; Code 1907, §§4766, 4767; Code 1923, §§8844, 8845; Code 1940, T. 33, §§50, 51.)
Any defendant, by appropriate plea, may put in issue the fact of indebtedness or the existence of the lien, or both, and may interpose any other defense applicable to the action; and if the court by its finding, or the jury by their verdict, as the case may be, ascertain that the plaintiff has a lien as claimed, judgment shall be entered for the amount secured thereby, interest and costs, against the party liable for the same, and establishing the lien, and condemning the property to sale for the satisfaction thereof; but if the finding or verdict is for the plaintiff only on the issue of indebtedness, a judgment shall be entered in his favor for the amount thereof as in other cases.
(Code 1886, §3034; Code 1896, §2739; Code 1907, §4770; Code 1923, §8848; Code 1940, T. 33, §52.)
Judgment by default may be entered against any defendant, except infants and persons non compos mentis, who, after service has been perfected on him, fails to appear within the time required by law in other cases.
(Code 1876, §3450; Code 1886, §3035; Code 1896, §2740; Code 1907, §4771; Code 1923, §8849; Code 1940, T. 33, §53.)
(a) Judgments establishing the lien, and ordering the property sold for the satisfaction thereof, may be enforced by writs of fieri facias or venditioni exponas; but if by fieri facias, the clerk shall indorse thereon the fact that the lien has been established, and a description of the property.
(b) Upon the entry of such judgment by the district court, all the papers and a certified transcript of the judgment shall be transmitted to the clerk of the circuit court; and thereupon such clerk shall enter the action on the execution docket, record the judgment, and issue a writ of fieri facias or venditioni exponas, as on judgments entered in that court.
(Code 1886, §§3036, 3037; Code 1896, §§2741, 2742; Code 1907, §§4772, 4773; Code 1923, §§8850, 8851; Code 1940, T. 33, §§54, 55.)
(a) If the action is by an employee of the contractor, or by any person who has furnished to him material for the building or improvement, the contractor shall be a necessary party defendant thereto; and in such action on motion of the plaintiff, the owner or proprietor may be cited to answer under oath how much was owing by him to the contractor on his contract with such contractor, at the time of the service on him of the notice required by Section 35-11-218; and such answer may be controverted, and proceedings had and judgment entered as in garnishment cases.
(b) When the lien is sought to be enforced by any person other than the contractor, it shall be the duty of the contractor to defend the action at his own expense; and after notice of an intention to file a statement of the lien, and pending the action, the owner or proprietor may withhold from the contractor money sufficient to cover the amount claimed, and the probable costs and expense of the action; and in case of recovery against the owner or proprietor, or his property, he shall be entitled to deduct from the amount owing by him to the contractor the amount of such judgment, costs, and expense; and if he shall have settled with the contractor, he shall be entitled to recover from the contractor the amount recovered of, and paid by him; and such recovery may be had in the same court, on motion, on three days’ notice.
(Code 1876, §3459; Code 1886, §§3038, 3039; Code 1896, §§2743, 2744; Code 1907, §§4774, 4775; Code 1923, §§8852, 8853; Code 1940, T. 33, §§56, 57.)
All liens arising under this division, except in favor of the original contractor, shall stand on an equal footing, and be first paid out of the proceeds of the sale of the property, or money collected from the owner or proprietor; and if such proceeds and money are insufficient to satisfy such liens in full, the same shall be distributed pro rata among the holders thereof; but no person shall be entitled to participate in such distribution until he has obtained judgment establishing his lien.
(Code 1876, §3461; Code 1886, §3040; Code 1896, §2745; Code 1907, §4776; Code 1923, §8854; Code 1940, T. 33, §58.)
If any person entitled to a lien under this division shall die before the time has elapsed for filing his statement in the office of the judge of probate without filing it, his personal representative may file the same within three months after the grant of letter; and if such person shall die before commencing an action for the enforcement of his lien, and the lien is not lost at the time of his death, his personal representative may bring an action for the enforcement thereof at any time within six months after the grant of letters.
(Code 1886, §3042; Code 1896, §2747; Code 1907, §4778; Code 1923, §8856; Code 1940, T. 33, §59.)
The provisions of this Code prohibiting the bringing of actions against personal representatives within six months after the grant of letters shall not apply to actions brought under the provisions of this division.
(Code 1886, §3043; Code 1896, §2748; Code 1907, §4779; Code 1923, §8857; Code 1940, T. 33, §60.)
(a) Whenever any such lien has been fully satisfied, the holder thereof must acknowledge satisfaction of the same on the margin of the record in the office of the judge of probate.
(b) Any holder of such lien, who, after having been fully paid fails for 30 days after demand in writing to so acknowledge satisfaction thereof, shall be liable to any person thereby injured to the amount of such injury, which shall not be less than $200.00.
(Code 1876, §§3455, 3456; Code 1886, §§3044, 3045; Code 1896, §§2749, 2750; Code 1907, §§4780, 4781; Code 1923, §§8858, 8859; Code 1940, T. 33, §§61, 62.)
Every person, including cestuis que trust, for whose use, benefit, or enjoyment any building or improvement shall be made, is embraced within the words “owner or proprietor, ” as used in this division.
(Code 1876, §3460; Code 1886, §3046; Code 1896, §2751; Code 1907, §4782; Code 1923, §8860; Code 1940, T. 33, §63.)
(a) Any claim for which a lien is provided in this division may be assigned; and the assignee shall thereby be invested with all the rights of the original holder of the lien, and be entitled to all his remedies to enforce them. The assignee shall have the right to consolidate all such claims in one statement to be filed as herein provided; and the length of time for the filing of said claim shall be measured by the greatest length of time for the filing of any class of claims held by the assignee.
(b) Any lien claimed on real property under this division may be transferred by any person having an interest in the real property upon which the lien is imposed or the contract under which the lien is claimed, from such real property to other security by first filing with the court in which the action is brought, a copy of the lien which has been duly filed and recorded as required by law, and by either:
(1) Depositing with the court in which the action is brought a sum of money; or
(2) Filing with the court a bond executed as surety by a surety insurer licensed to do business in this state, either of which shall be in an amount equal to the amount demanded in such claim of lien plus interest thereon at eight percent per year for three years plus $100.00 to apply on any court costs which may be taxed in any proceeding to enforce said lien.
Such deposit or bond shall be conditioned to pay any judgment or decree which may be rendered for the satisfaction of the lien for which such claim of lien was recorded and costs not to exceed $100.00. Upon making such deposit or filing such bond the court shall make and record a certificate showing the transfer of the lien from the real property to the security and mail a copy thereof by registered or certified mail to the lienor named in the claim of lien so transferred at the address stated therein. Within 10 days from the date of the receipt of the said certificate, the lienor may by motion, petition the court in which the action is pending for a hearing on the sufficiency of the amount in question or on the qualifications of the surety insurer. In such an event, the ruling of the court on the said motion, shall be a final determination. Upon the expiration of the said 10 days, or in the event a petition has been filed with the court, upon the determination of the court, and upon filing the certificate of transfer in the court where the lien was filed, the real property shall thereupon be released from the lien claimed and such lien shall be transferred to said security. The court shall be entitled to a fee for making and serving the certificate in the sum of $2.00. Any number of liens may be transferred to one such security.
(c) Any excess of the security over the aggregate amount of any judgments or decrees rendered plus costs actually taxed shall be repaid to the party filing the same or his successor in interest. Any deposit of money shall be considered as paid into court and shall be subject to the provisions of law relative to payments of money into court and the disposition of same.
(d) Any party having an interest in such security or the property from which the lien was transferred may at any time, and any number of times, file a complaint in the circuit court of the county where such security is deposited for an order to require additional security, reduction of security, change or substitution of sureties, payment or discharge thereof, or any other matter affecting said security.
(e) If no proceeding to enforce a transferred lien shall be commenced within the time specified, or if it appears that the transferred lien has been satisfied of record, the court shall return said security upon request of the person depositing or filing the same, or the insurer.
(Code 1886, §3047; Code 1896, §2752; Code 1907, §4783; Code 1923, §8861; Code 1940, T. 33, §64; Acts 1980, No. 80-757, p. 1581.)
The owner of any lien on land or improvements who shall pay to any materialman or mechanic the contract price for materials furnished or labor done shall be subrogated to the lien of said materialman or mechanic on said land or improvements and shall have the right to consolidate all such claims in one statement to be filed as provided in this division. The length of time for the filing of said claim shall be measured by the greatest length of time for the filing of any class of claims paid by the holder of such lien.
(Code 1940, T. 33, §65.)
Any person, firm, or corporation operating a public sawmill shall have a lien, paramount to all other liens, upon all lumber sawed by such mill under any contract with the owner of such lumber for the amount agreed upon for said sawing, or, in the event no price is agreed upon, then for the reasonable or customary price for such sawing, so long as such lumber remains at such sawmill or in possession of the owner of such sawmill, and if such lumber is removed from said sawmill without the knowledge and consent of such owner, the lien shall follow such lumber. The owner of such sawmill shall have the right to hold any lumber sawed by him until the full amount of the charges due thereon shall have been paid.
(Code 1923, §8919; Code 1940, T. 33, §66.)
(a) If the charges, when due, are not paid within 10 days after demand therefor, the owner of such sawmill is authorized, if he has retained possession of the lumber subject to the lien, on giving 10 days’ notice of the time and place of such sale by advertisement in some newspaper published in the county in which the sawmill is located, once a week for two successive weeks, or, if there be no such newspaper, by posting notice in two or more public places in the county, to sell the said lumber, or so much thereof as may be necessary, to the highest bidder, for the payment of the expense of such sale and the charges for such sawing, and the residue, if any there be, he shall pay over to the owner of such lumber.
(b) If the lumber subject to the lien declared in this division shall have been removed without the knowledge and consent of the owner or operator of such sawmill without paying the charges for such sawing, the owner or operator may have process of attachment from any court having jurisdiction of the amount claimed, leviable on the lumber sawed.
(Code 1923, §§8920, 8921; Code 1940, T. 33, §§67, 68.)
Every laborer or employee of any sawmill or planing mill and every laborer or employee of any person, firm, or corporation engaged in the getting, cutting, rafting, shipping, hauling, or manufacturing of any kind of timber, lumber, or crossties, or in preparing timber, lumber, or crossties for shipping, shall have a lien for his wages on any timber, lumber, or crossties for all debts or wages due him in the getting, cutting, rafting, shipping, hauling, or manufacturing of said timber, lumber, or crossties.
(Acts 1915, No. 417, p. 374; Code 1923, §8901; Code 1940, T. 33, §77.)
Such lien shall have priority over all other liens, mortgages, or incumbrances created subsequent to the beginning of the work or labor done in the getting, cutting, rafting, shipping, hauling, or manufacturing of said lumber, timber, or crossties.
(Acts 1915, No. 417, p. 374; Code 1923, §8902; Code 1940, T. 33, §78.)
The liens created by this division shall be held to have been waived or abandoned unless proceedings to enforce the same are commenced within 60 days after the work shall have been completed.
(Acts 1915, No. 417, p. 374; Code 1923, §8903; Code 1940, T. 33, §79.)
For the enforcement of such liens, the person entitled thereto may sue out attachment before any officer authorized to issue such writs, returnable before any court of competent jurisdiction. Actions under the provisions of this division may either be joint or several.
(Acts 1915, No. 417, p. 374; Code 1923, §8904; Code 1940, T. 33, §80.)
Every owner of a cotton gin, peanut machine, or picker, or hay baling machine or press, or plant for drying or processing planting seeds, shall have a lien on the commodity processed thereby for the toll or charge of such processing, under any contract with the owner of the commodity, whether the toll or charge for such processing be expressed or implied. Such liens shall have priority over all other liens, mortgages, or encumbrances, whether existing or not at the time of the commencement of such processing or work, except the lien of a landlord as provided for in Section 35-9-30. The processor shall have the right to hold the processed commodity until the full amount of the toll or charge has been paid; and should the commodity be removed without knowledge and consent of the processor, the lien herein declared shall follow the commodity.
(Code 1896, §2788; Code 1907, §4822; Acts 1923, No. 397, p. 554; Code 1923, §§8914, 8924, 8931; Code 1940, T. 33, §69; Acts 1953, No. 232, p. 298.)
(a) When the processor retains possession of the commodity subject to the lien, and the charges or tolls due are not paid within 10 days after demand therefor, he is authorized, on giving notice for 10 days of the time and place of the sale by advertisement in some newspaper published in the county in which the commodity was processed once a week for two successive weeks, or if there is no such paper, by posting the notice in three public places in the county, to sell the commodity to the highest bidder, for the payment of the expenses of such sale and the charges or tolls for processing; and the residue, if there be any, shall be paid to the owner.
(b) If the commodity subject to the lien declared in this division has been removed without the knowledge and consent of the processor and without the charge or toll for processing having been paid, the processor may obtain a writ of attachment leviable on the processed commodity.
(c) All property upon which a lien is created under the provisions of this division, or the proceeds thereof, in the hands of third parties shall be subject to garnishment for the enforcement and satisfaction of such lien; and such garnishment and the proceedings thereunder shall be governed by the laws in force in this state relating to other garnishments, so far as the same are applicable.
(Code 1896, §§2789, 2790; Code 1907, §§4823, 4824; Acts 1923, No. 397, p. 554; Code 1923, §§8915, 8916, 8925, 8929; Code 1940, T. 33, §§70-72.)
Any riparian proprietor who has lawfully erected or maintains in front of his property, in any water of this state, any boom, bulkhead, piles, or other structure, shall have right to charge any person who shall fasten thereto any vessel, boat, flatboat, raft, log or stick of timber or wood, $5.00 a day for every vessel or boat, other than a flatboat; $2.00 a day for each flatboat; $.05 a day for every pole, log, or stick of timber or wood, and shall have a lien for the collection of such charges upon such vessel, boat, flatboat, raft, log or stick of timber or wood.
(Code 1896, §2784; Code 1907, §4818; Code 1923, §8910; Code 1940, T. 33, §73.)
For the enforcement of such lien, the owner of such boom, bulkhead, piles or other structure, may have process of attachment from any court having jurisdiction of the amount claimed leviable upon the vessel, boat, flatboat, raft, log or stick of timber or wood upon which the lien exists:
(1) When such claim is due and the defendant, on demand, fails or refuses to pay the same.
(2) Whether such claim is due or not, when the defendant has removed, or there is good reason to believe he is about to remove any of the property on which the lien declared in Section 35-11-310 exists, without paying such charges.
(Code 1896, §2785; Code 1907, §4819; Code 1923, §8911; Code 1940, T. 33, §74.)
The owner of every stallion, jack, bull, ram, he-goat, or boar, who keeps it for profit and charges a price for the service thereof, shall have a lien, for the amount of the stipulated price thereof, on any mare, jenny, cow, ewe, she-goat, or sow, to which such stallion, jack, bull, ram, he-goat, or boar is put, and also on the colt, calf, lambs, kids, or pigs born next after such service or contract therefor, and such lien shall be paramount to, and have precedence over, all other liens on the colt, calf, lambs, kids, or pigs born next after such service, and within the proper period of gestation.
(Code 1876, §3496; Code 1886, §3091; Code 1896, §2776; Code 1907, §4810; Code 1923, §8897; Code 1940, T. 33, §75.)
For the enforcement of such lien the owner of any such animal may have process of attachment from any court having jurisdiction of the amount claimed, leviable on the animal or animals upon which the lien exists:
(1) When such claim is due, and the defendant, on demand fails or refuses to pay.
(2) Whether such sum is due or not, when the defendant has traded off or otherwise disposed of, or there is good reason to believe he is about to trade off or otherwise dispose of, or remove from the county, any of the animals on which the lien exists, without paying the stipulated price for such service.
(Code 1886, §3092; Code 1896, §2777; Code 1907, §4811; Code 1923, §8898; Code 1940, T. 33, §76.)
Persons farming on shares, or raising crops by joint contributions, in such manner as to make them tenants in common in such crops, or their assignees, shall each have a lien upon the interest of the other in such crops for any balance due for provisions, supplies, teams, materials, labor, services, and money, or either, furnished to aid in cultivating and gathering such crops, under contract, or furnished when the interest of such crops requires it, in case of a failure of either to contribute the amount and means as agreed upon by the parties.
(Code 1876, §3479; Code 1886, §3075; Code 1896, §2760; Code 1907, §4792; Code 1923, §8872; Code 1940, T. 33, §81.)
Such lien may be enforced by attachment upon the grounds and in the manner provided for the enforcement of the landlord’s lien on crops grown on rented lands; but this section shall not prevent the enforcement of such lien by any other remedy.
(Code 1876, §3480; Code 1886, §3076; Code 1896, §2761; Code 1907, §4793; Code 1923, §8873; Code 1940, T. 33, §82.)
Any person, firm, hospital authority, or corporation operating a hospital in this state shall have a lien for all reasonable charges for hospital care, treatment, and maintenance of an injured person who entered such hospital within one week after receiving such injuries, upon any and all actions, claims, counterclaims, and demands accruing to the person to whom such care, treatment, or maintenance was furnished, or accruing to the legal representatives of such person, and upon all judgments, settlements, and settlement agreements entered into by virtue thereof on account of injuries giving rise to such actions, claims, counterclaims, demands, judgments, settlements, or settlement agreements and which necessitated such hospital care, subject, however, to any attorney’s lien.
(Acts 1955, No. 488, p. 1098, §1.)
(a) For the purposes of this section, the following terms shall have the following meanings:
(1) HEALTH CARE PAYOR. A health care insurer, health maintenance organization, or health care service plan organized under Article 6, Chapter 20, Title 10A, authorized to provide health care coverage in the state.
(2) SATISFY THE CLAIM. Receipt by the hospital of either of the following:
a. Full payment for services as billed.
b. If the hospital has a contract with the injured person’s health care payor, payment together with all credits, discounts, and contractual adjustments that the patient’s bill would be entitled under the contract, including recoupments, between the hospital and the patient’s health care payor which extinguish the patient’s obligation for the services rendered.
(b) Unless contrary to any law or governmental rule or regulation of the United States or this state, no hospital shall perfect a lien as to any injured person who was covered by a health care payor’s policy, until the hospital submits to the health care payor an accurate and properly coded claim, or if a contract exists between the hospital and the health care payor, in the form required pursuant to the contract, and there is a failure to satisfy the claim. Perfection of a lien shall be as follows:
(1) A hospital may perfect its lien as to an injured person who was covered by a health care payor’s policy that provides primary coverage for the care, if the hospital takes the steps described in subsection (c), within 20 days after its receipt of notice of the health care payor’s denial of an accurate and properly coded claim. Failure to satisfy an accurate and properly coded claim within 45 days of submission or the subsequent recoupment by the health care payor of amounts previously paid, which results in a failure to satisfy the claim, shall be deemed a denial of the claim.
(2) A hospital may perfect its lien as to an injured person who was not known to the hospital to be covered by a health care payor, was covered by a governmental payor including Medicare or Medicaid, or was covered by a policy not described in subdivision (1), if it takes the steps described in subsection (c) within 20 days after discharge.
(3) Where the hospital does not receive evidence of the injured person’s health care payor until after the lien provided for by this section has been perfected, the hospital shall bill the health care payor forthwith but may retain its lien until satisfaction of the claim. If the claim is satisfied, the hospital shall release the lien within 10 days.
(c) In order to perfect a lien under this division, the operator of the hospital shall file with the probate court of the county in which the hospital is located a verified statement setting forth the name and address of the patient, as it appears on the records of the hospital, the name and location of the hospital and the name and address of the operator thereof, the dates of admission and discharge of the patient therefrom, the amount claimed to be due for the hospital care, which shall give full credit for any health care payor payments made, including agreed contractual adjustments, and to the best of the claimant’s knowledge, the names and addresses of all persons, firms, or corporations claimed by the injured person, or the legal representative of the person, to be liable for damages arising from the injuries. The claimant shall also within one day after the filing of the claim or lien, mail a copy thereof by registered or certified mail, postage prepaid, for each person, firm, or corporation so claimed to be liable on account of the injuries, at the addresses so given in the statement, and to the patient, his or her guardian, or his or her personal representative at the address given at the time of admission.
(d) The filing of a claim or lien shall be notice thereof to all persons, firms, or corporations liable for damages, whether or not they are named in the claim or lien. Nothing shall be deemed to preclude the hospital from perfecting its lien outside of the time limits stated in this section through providing actual notice to persons, firms, or corporations.
(e) The judge of probate shall endorse thereon the date and hour of filing, and at the expense of the county shall provide a hospital lien book with proper index in which he or she shall enter the date and hour of the filing, the names and addresses of the hospital, the operators thereof and of the patient, the amount claimed and the names and addresses of those claimed to be liable for damages. The information shall be recorded in the name of the patient. The judge of probate shall be paid one dollar ($1) as his or her fee for the filing.
(Acts 1955, No. 488, p. 1098, §§2, 3; Act 2019-273, §1; Act 2021-379, §1.)
(a) During the period of time allowed by Section 35-11-371 for perfecting the lien, including that period of time during which the hospital is awaiting payment or denial by the patient’s health care payor, and also after the lien provided for by this division has been perfected by any lienholder entitled thereto, no release or satisfaction of any action, claim, counterclaim, demand, judgment, settlement, or settlement agreement, or of any of them, shall be valid or effectual as against the lien unless the lienholder shall join therein or execute a release of the lien.
(b) Any acceptance of a release or satisfaction of any action, claim, counterclaim, demand, or judgment and any settlement of any of the foregoing in the absence of a release or satisfaction of the lien referred to in this division shall prima facie constitute an impairment of the lien, and the lienholder shall be entitled to a civil action for damages on account of the impairment, and in the action may recover from the one accepting the release or satisfaction or making the settlement the reasonable charges for the hospital care, treatment, and maintenance. Satisfaction of any judgment rendered in favor of the lienholder in any action shall operate as a satisfaction of the lien. Any action by the lienholder shall be brought in any court having jurisdiction thereof and may be brought and maintained in the county wherein the lienholder has his or her, its, or their residence or place of business. If the lienholder shall prevail in the action, the lienholder shall be entitled to recover from the defendant, costs and reasonable attorney’s fees. The action shall be commenced against the person liable for the damages within one year after the date the liability shall be finally determined by a settlement release covenant not to sue or by the judgment of a court of competent jurisdiction.
(Acts 1955, No. 488, p. 1098, §4; Act 2019-273, §1.)
In any case where the action, claim, counterclaim or demand accruing to the person to whom hospital care has been furnished has been reduced to judgment in a court having jurisdiction thereof, said court shall have full jurisdiction to determine the amount due on the lien on proper written petition by any party interested therein and shall have full power to adjudicate all matters in connection with said hospital lien and to provide by order of the court for the manner in which the proceeds of said judgment shall be distributed. A copy of said petition shall be served upon all other parties having any right to any part of the proceeds of said judgment and answer and proceedings thereon filed and conducted as provided by law. Any party to the proceedings on said petition shall have the right to appeal to the supreme court or court of civil appeals as in civil cases.
(Acts 1955, No. 488, p. 1098, §6.)
The provisions of this division shall not apply to any moneys becoming due under the Workmen’s Compensation Act.
(Acts 1955, No. 488, p. 1098, §5.)
This division shall not be construed as giving any hospital or agency referred to in this division an independent right of action to determine liability for injuries sustained by a person or firm.
(Acts 1955, No. 488, p. 1098, §7.)
Every veterinarian duly licensed to practice veterinary medicine and surgery in the state of Alabama who holds a certificate of qualification as provided by chapter 29 of Title 34 shall have a lien on every animal kept, fed, treated or surgically treated or operated on by him while in his custody and under contract with the owner of such animal, for payment of his charges for keeping, feeding, treating or surgically treating or operating on such animal, and he shall have the right to retain such animal until said charges are paid.
(Acts 1961, No. 718, p. 1026, §1.)
(a) If the charges due for the services named in Section 35-11-390 are not paid within 10 days after demand therefor on the owner of said animal, in person or by registered or certified mail, addressed to him at the address given when said animal is delivered to the veterinarian, the veterinarian is authorized to sell the animal either at public or private sale, and if he does not succeed in selling such animal within 15 days after the date of the demand for payment was made in person or by registered or certified mail, then the veterinarian may dispose of such animal in any other manner that he deems proper.
(b) When any animal is sold by a veterinarian as authorized in subsection (a) of this section to satisfy a lien for any of the services enumerated in Section 35-11-390, any surplus realized from the sale less said charges and any expenses incurred in making the demand for payment thereof or in connection with the sale shall be paid to the owner of the animal.
(c) Failure of the owner of any such animal to receive the demand by registered or certified mail provided for in subsection (a) of this section, if addressed as therein specified, shall not render the veterinarian liable to the owner of such animal for the disposal of said animal in any manner provided in this division.
(d) No legal proceeding for the enforcement of the lien created by Section 35-11-390 shall be necessary other than compliance with the requirements herein provided.
(Acts 1961, No. 718, p. 1026, §§2-5.)
Every person, firm or corporation who shall do or perform any work or labor upon, or furnish any material for, any paving, curb, gutter, storm sewer, sanitary sewer or other improvement in or on any public or dedicated street, avenue, alley, or other public way, under or by virtue of any contract with the owner or proprietor of any land abutting thereon, and the amount involved exceeds $100.00, upon complying with the provisions of this division, shall have a lien therefor on such abutting land and the improvements thereon.
(Acts 1969, No. 1068, p. 1989, §1.)
Such lien as to the land and buildings and improvements thereon shall have priority over all other liens, mortgages, or encumbrances created subsequent to the commencement of the work on any such street, avenue, alley, or any other public way.
(Acts 1969, No. 1068, p. 1989, §2.)
(a) It shall be the duty of every person entitled to such a lien to file in the office of the judge of probate of the county in which the property upon which the lien is sought to be established is situated, a statement in writing, verified by the oath of the person claiming the lien, or of some other person having knowledge of the facts, containing the amount of the demand secured by the lien, after all just credits have been given, a description of the property on which the lien is claimed in such a manner that same may be located or identified, and the name of the owner or proprietor thereof; but no error in the amount of the demand or in the name of the owner or proprietor shall affect the lien. Unless such statement is so filed the lien shall be lost. Said verified statement may be in the form set out in Section 35-11-150.
(b) The lien declared in this division shall be deemed lost unless the statement referred to in subsection (a) of this section shall be filed by the original contractor or his assigns within six months after the last item of work or labor has been performed or the last item of any material has been furnished for the improvement made under or by virtue of the contract with the owner or the proprietor of the land abutting the improvement, and any action for the enforcement thereof must be commenced within six months after the maturity of the entire indebtedness secured by said lien.
(Acts 1969, No. 1068, p. 1989, §§3, 4.)
Actions for the enforcement of liens under this division may be brought in the circuit court in the county in which the property is situated. Such action shall be commenced by summons and complaint. The plaintiff may by one complaint enforce his lien as to each and every parcel of land embraced in one contract with the owner or proprietor of the lands involved.
(Acts 1969, No. 1068, p. 1989, §5.)
If the court by its finding, or the jury by their verdict, as the case may be, ascertains that the plaintiff has a lien as claimed, judgment shall be entered for the amount secured thereby, interest and cost, against the party liable for the same, and establish the lien and condemn the property to sale for the satisfaction thereof; but if the finding or verdict is for the plaintiff only on the issue of indebtedness, a judgment shall be entered in his favor for the amount thereof as in other cases.
(Acts 1969, No. 1068, p. 1989, §6.)
The provisions of this Code prohibiting the bringing of actions against personal representatives within six months after the granting of letters shall not apply to actions brought under the provisions of this division.
(Acts 1969, No. 1068, p. 1989, §7.)
Whenever any such lien has been fully satisfied, the holder thereof must acknowledge satisfaction of the same on the margin of the record in the office of the judge of probate and any holders of such lien who, after having been fully paid, fails for 30 days after the demand in writing to so acknowledge satisfaction thereof, shall be liable to any person thereby injured to the amount of such injury, which shall be not less than $200.00.
(Acts 1969, No. 1068, p. 1989, §8.)
Any claim for which a lien is provided in this division may be assigned and the assignee shall thereby be invested with all of the rights of the original holder of the lien and be entitled to all of his remedies to enforce the same.
(Acts 1969, No. 1068, p. 1989, §9.)
Every person, firm, or corporation renting or leasing any appliance, machinery, or equipment to another for use in construction of a building or improvement on land or in repairing, altering, or beautifying the same or for use in clearing, draining, excavating, or landscaping of the ground upon which a building or improvement is being constructed, repaired, altered, or beautified shall have a lien upon the same for the reasonable rental value of the appliance, machinery, or equipment rented or leased for the period of actual use in such construction, repairing, altering, or beautifying; provided, however, that the lien hereby created shall not include the rental value of any hand tools.
(Acts 1973, No. 1222, p. 2069, §1.)
The lien hereby created shall arise, be perfected and enforced in the same manner as liens otherwise provided for in division 8 of this article, and shall be subject to all conditions and limitations therein provided, except to the extent as such provisions may be modified hereby.
(Acts 1973, No. 1222, p. 2069, §2.)
As used in this division the following terms have the following meanings:
(1) BROKER. A broker as defined in Section 34-27-2.
(2) CLIENT. A person or entity having an interest in commercial real estate that has entered into a written brokerage or agency agreement with a real estate broker relative to the commercial real estate.
(3) COMMERCIAL REAL ESTATE. Any real estate including real estate classified as agricultural for tax assessment purposes other than real estate containing one to four residential units. Commercial real estate does not include single-family residential units such as condominiums, townhomes, mobile homes, residential lots, or homes in a subdivision when sold, leased, or otherwise conveyed on a unit-by-unit basis even though these units may be part of a larger building or parcel or real estate containing more than four residential units. For all purposes of this division, commercial real estate does not include, and this division shall not apply to, and no lien shall arise under this division against, any property or any interest therein, which is sold, leased, or otherwise conveyed to a governmental entity or to a utility, or to any subsidiary or affiliate thereof.
(4) CONVEYANCE. A sale, lease, or other transfer of commercial real estate.
(5) REAL ESTATE. Real property as defined in subdivision (7) of Section 1-1-1.
(Act 98-160, p. 264, §1.)
(a) A real estate broker shall have a lien, in the amount of the compensation agreed upon by and between the broker and his or her client, upon commercial real estate or any interest therein which is subject to and described in the brokerage agreement and owned by a client or by a party whose commercial real estate may be liened if different from the client who has received written notice from the broker in conformity with subsection (f) prior to obtaining an interest in the commercial real estate through a purchase, lease, or conveyance. Commercial real estate, or an interest therein, acquired by a person other than a client prior to receipt of the notice from the broker required by this division is not subject to the lien provided by this division. The lien shall arise:
(1) Upon the satisfaction of each of:
a. Conveyance of the commercial real estate identified in and subject to the listing agreement, brokerage, or agency agreement for the sale or lease of commercial real estate as evidenced by a writing signed by the owner of the commercial real estate or the owner’s expressly authorized agent;
b. With written notice, by certified mail, return receipt requested to the party whose commercial real estate may be liened, if different from the parties to the agreement; and
c. The satisfaction of all conditions in the agreement for payment of compensation.
(2) Upon conveyance of the commercial real estate identified in and subject to the agreement, when a broker having a written agreement with a prospective buyer or tenant to represent the buyer or tenant as to the purchase, lease, or other conveyance of commercial real estate becomes entitled to compensation; provided that the broker shall have given written notice, by certified mail, return receipt requested, to the party whose property may be liened, if different from the parties to the agreement.
(b) A lien provided herein shall attach to the commercial real estate, or any interest in commercial real estate as described in subsection (a), upon the broker’s recording a notice of lien in the office of the judge of probate in the county in which the commercial real estate or interest in the commercial real estate is located.
(c) When payment to a broker is due in one lump sum and not paid, the notice of lien shall be recorded within 90 days after the tenant takes possession of the leased premises or the property or interest therein is conveyed.
(d) When payment to a broker is due in installments, all or a portion of which is due only after a conveyance of the commercial real estate, any notice of lien for those payments due after conveyance may be recorded at any time subsequent to the conveyance so long as the claim for lien is recorded within 90 days of the date the payment was due and not paid.
(e) If a broker has a written agreement with a client as provided for in subdivision (2) of subsection (a), the lien shall attach to the client’s interest upon the client’s purchasing, leasing, or otherwise accepting a conveyance of the commercial real estate and the recording of a notice of lien by the broker in the office of the judge of probate in the county in which the commercial real estate or interest in the commercial real estate is located, within 90 days after the later of purchase, lease, or other conveyance to the buyer or tenant or the failure of the buyer or tenant to compensate the broker or cause the broker to be compensated pursuant to its agreement.
(f) The lien notice shall state the name and address of the lien claimant, the name of the owner, a legally sufficient description of the commercial real estate upon which the lien is being claimed, and the amount for which the lien is claimed. The notice of lien shall contain a sworn statement that the information contained in the notice is true and accurate to the knowledge of the signatory. The lien notice shall recite that the broker has disclosed to all parties that a lien might be claimed under this division. The notice of lien shall be signed by the broker or by a person expressly authorized to sign on behalf of the broker and shall be verified before a notary public or other authorized officer.
(g) The broker shall mail a copy of the notice of lien to the owner of the commercial real estate by certified mail, return receipt requested. The broker’s lien shall be void and unenforceable if notice is not given or if recording does not occur within the time and manner required by this division.
(h)(1) A broker may bring suit to enforce a lien in the circuit court in the county where the commercial real estate is located by filing a verified complaint and sworn affidavit that the notice of lien has been recorded in compliance with this division. Within 180 days after recording the notice of lien, the broker claiming a lien shall commence proceedings by filing a complaint. Failure to commence proceedings within 180 days after recording the notice of lien shall extinguish the lien.
(2) No subsequent notice of lien may be given for the same claim nor may that notice be asserted in any proceedings under this section.
(3) A complaint under this subsection shall contain a brief statement of the contract or agreement on which the lien is founded, the date when the contract or agreement was made, a description of the services performed, the amount due and unpaid, a legally sufficient description of the commercial real estate that is subject to the lien, and other facts necessary to state a claim for the payment of a commission, fee, or other compensation due the broker. The plaintiff shall make all interested parties, whose interest in the commercial real estate is affected by the action, defendants to the action, and shall issue summons and provide service as in other civil actions. The summons and complaint, and all other particulars of suit, shall be made in accordance with the Alabama Rules of Civil Procedure. All liens claimed under this section shall be foreclosed as provided for by law.
(Act 98-160, p. 264, §2.)
All mortgages, other liens recorded prior to the recording of the broker’s lien provided by this division, all purchase money mortgages, and all liens for ad valorem taxes shall have priority over the broker’s lien provided by this division. Knowledge by mortgagee or other lienholder of the existence or possible existence of an unrecorded broker’s lien shall not affect the priority of the mortgage or other lien.
(Act 98-160, p. 264, §3.)
Except as otherwise provided in this section, whenever a notice of lien has been given or recorded, an escrow account may be, but is not required to be, established in an amount sufficient to release the claim for lien. These moneys shall be held in escrow by the closing agent or an independent escrow agent until the parties’ rights to the escrowed moneys have been determined by written agreement of the parties, by a final court order, or by any other process which may be agreed to by the parties for resolution of their dispute. Upon the escrow of funds in the amount of the claimed lien, the lien or claim of lien shall be automatically dissolved, and the broker shall be deemed to have an equitable lien on the escrow funds pending a resolution of the broker’s claim. The escrow shall not be released until a resolution is reached and agreed to by all necessary parties or ordered by a court. The parties may agree to any alternative procedures which would allow the transaction to close which are available and are acceptable to the parties and to the broker claiming the lien in the transaction.
(Act 98-160, p. 264, §4.)
(a) Whenever a notice of lien has been filed with the office of the judge of probate and a condition occurs that would preclude the broker from receiving compensation under the terms of the broker’s written agreement, the broker shall record a written release or satisfaction of the lien, in the appropriate records of the office of the judge of probate and shall furnish a copy of the recorded release or satisfaction to the owner.
(b) Upon written demand of the owner, lienee, or authorized agent served on the broker claiming the lien requiring that suit be commenced to enforce the lien or answer be filed in a pending suit, a suit shall be commenced or answer filed in a pending suit, within 60 days thereafter, or the lien shall be extinguished. Service of such demand shall be in the manner provided by the Alabama Rules of Civil Procedure for the service of a summons and complaint.
(c) Whenever a notice of lien has been timely filed in the office of the judge of probate and is paid, or where there is failure to institute a suit to enforce the lien within the time provided by this division, the lien shall be invalid and the broker shall, within 30 days after payment or expiration of the time in which to perfect the lien, record a written release or satisfaction of the lien in the proper office of the judge of probate and shall furnish a copy of the recorded release or satisfaction to the owner or other lienee. This release or satisfaction filed by the broker shall not be required to invalidate the lien.
(d) The lien provided herein and the broker’s right to file and record a lien provided for in this division shall be terminated and dissolved if the owner, landlord, tenant, purchaser from owner, lender providing a loan secured by commercial real estate, or other holder of an interest in the commercial real estate shows either of the following:
(1) The lien has been waived in writing by the lien claimant or its expressly authorized agent.
(2) The client at whose instance the brokerage services were provided has given a sworn written statement that all compensation due or to become due under the listing, agency, or other brokerage agreement has been paid or has been waived in writing by the potential lien claimant, or that no compensation is owed to such broker related to the commercial real estate.
(Act 98-160, p. 264, §5.)
One who finds a thing lost is not bound to take charge of it; but if he does so he is thenceforward a depositary for the owner, with the rights and obligations of a depositary for hire.
(Code 1923, §7992; Code 1940, T. 47, §155.)
The finder of a thing may in good faith, before giving it up, require reasonable proof of ownership from any person claiming it.
(Code 1923, §7993; Code 1940, T. 47, §156.)
The finder of a thing is entitled to compensation for all expenses necessarily incurred by him in its preservation, and for any other service necessarily performed by him about it, and to a reasonable reward for keeping it.
(Code 1923, §7994; Code 1940, T. 47, §157.)
The finder of a thing may exonerate himself from liability at any time by placing it on storage with any responsible person of good character at a reasonable expense.
(Code 1923, §7995; Code 1940, T. 47, §158.)
(a) The finder of a thing may sell it, if it is a thing which is commonly the subject of sale, when the owner cannot, with reasonable diligence, be found, or, being found, refuses upon demand to pay the lawful charges of the finder in the following cases:
(1) When the thing is in danger of perishing, or losing the greater part of its value; or,
(2) When the lawful charges of the finder amount to two thirds of its value.
(b) A sale under the provisions of subsection (a) of this section must be made in the same manner as the sale of a thing pledged.
(Code 1923, §§7996, 7997; Code 1940, T. 47, §§159, 160.)
Any person who is regularly engaged in the business of performing services upon articles left in his or her custody for that purpose may, subject to the provisions of this section, make disposition of such articles in any manner he or she sees fit after notice to the owner 10 days prior to the disposition. The notice may be made by letter mailed to the owner’s last known address, by advertisement in a local newspaper of general circulation, or by posting at the courthouse. The person shall not incur any liability to owners thereof, if the articles have been unclaimed after certain periods of time as herein defined.
(1) Any automobile, truck, tractor, motorcycle, bicycle, agricultural or construction machinery, lawn mower, bush hog, or any other type of vehicular equipment must be retained for at least one year.
(2) All laundry, dry cleaning, or clothing of any type must be retained for at least one year.
(3) All televisions, radios, irons, kitchen appliances, and all other appliances of any type must be retained for at least three months.
(4) All articles not included above must be retained for at least six months.
(Acts 1971, No. 1724, p. 2886; Act 99-384, p. 611, §1.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §30.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §1; Acts 1996, No. 96-724, p. 1197, §1.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §2; Acts 1973, No. 1084, p. 1844, §1; Acts 1991, 1st Ex. Sess., No. 91-788, §1; Acts 1996, No. 96-724, p. 1197, §1.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §3; Acts 1991, 1st Ex. Sess., No. 91-788, §2.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §4.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1984, 1st Ex. Sess., No. 84-814; p. 247; Act 99-588, p. 1343, §1.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §5; Acts 1991, 1st Ex. Sess., No. 91-788, §3.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §6.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §7; Acts 1991, 1st Ex. Sess., No. 91-788, §4.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §8.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §9; Acts 1991, 1st Ex. Sess., No. 91-788, §5.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §10.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §11; Acts 1973, No. 1084, p. 1844, §2; Acts 1996, No. 96-724, p. 1197, §1.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §12; Acts 1973, No. 1084, p. 1844, §3; Acts 1996, No. 96-724, p. 1197, §1.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §13; Acts 1973, No. 1084, p. 1844, §4; Acts 1996, No. 96-724, p. 1197, §1.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §14; Acts 1996, No. 96-724, p. 1197, §1.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §15; Acts 1996, No. 96-724, p. 1197, §1.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §22; Acts 1996, No. 96-724, p. 1197, §1.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §16; Acts 1996, No. 96-724, p. 1197, §1.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §17; Acts 1988, 1st Ex. Sess., No. 88-724, p. 120; Acts 1996, No. 96-724, p. 1197, §1.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §18; Acts 1991, 1st Ex. Sess., No. 91-788, §7; Acts 1996, No. 96-724, p. 1197, §1.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §19; Acts 1996, No. 96-724, p. 1197, §1.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §20; Acts 1996, No. 96-724, p. 1197, §1.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §21; Acts 1992, No. 92-186, p. 349, §15; Acts 1996, No. 96-724, p. 1197, §1.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §23; Acts 1996, No. 96-724, p. 1197, §1.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §24; Acts 1996, No. 96-724, p. 1197, §1.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §25; Acts 1996, No. 96-724, p. 1197, §1.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §26; Acts 1996, No. 96-724, p. 1197, §1.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §27.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1971, No. 63, p. 101, §29.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Acts 1991, No. 91-577, §1.)
[Repealed]
Repealed by Act 2004-440, p. 755, §2, effective May 12, 2004.
(Act 99-381, §§2, 3.)
This article may be cited as the Uniform Disposition of Unclaimed Property Act of 2004.
(Act 2004-440, p. 755, §1.)
As used in this article, unless the context otherwise requires, the following terms have the meanings respectively ascribed to them by this section:
(1) APPARENT OWNER. A person whose name appears on the records of a holder as the person entitled to property held, issued, or owing by the holder.
(2) BUSINESS ASSOCIATION. A corporation, joint stock company, investment company, partnership, unincorporated association, joint venture, limited liability company, business trust, trust company, safe deposit company, financial organization, insurance company, mutual fund, utility, or other business entity consisting of one or more persons, whether or not for profit.
(3) DIGITAL ASSET. Any digital representation used as a medium of exchange or storage of value which is not fiat currency and is recorded in a cryptographically secured, distributed ledger, or any similar technology, regardless of whether each individual transaction is recorded in that ledger. The term does not include any software or protocols governing the transfer of digital representation of value, video game-related digital content, or loyalty or gift cards.
(4) DOMICILE. The state of incorporation of a corporation and the state of the principal place of business of a holder other than a corporation.
(5) ESTABLISHED EXCHANGE. An exchange licensed pursuant to Chapter 7A of Title 8.
(6) FINANCIAL ORGANIZATION. A savings and loan association, building and loan association, industrial loan organization, credit union, cooperative bank, bank, or banking organization.
(7) FINDER. Any person engaged or assisting in the location, recovery, purchase, or assignment of property held by the State Treasurer for a fee, compensation, commission, or other remuneration paid by the owner or apparent owner of the property.
(8) HOLDER. A person in possession of property belonging to another, or who is a trustee in case of a trust, obligated to hold for the account of, or deliver to, or pay to, the owner or apparent owner as applicable, property that is subject to this article.
(9) INSURANCE COMPANY. An association, corporation, or fraternal or mutual benefit organization, whether or not for profit, engaged in the business of providing life endowments, annuities, or insurance, including, but not limited to, accidental, burial, casualty, credit life, contract performance, dental, disability, fidelity, fire, health, hospitalization, illness, life, malpractice, marine, mortgage, surety, wage protection, and workers’ compensation insurance.
(10) LAST KNOWN ADDRESS. Any address, description, or other indication of the location of the apparent owner. The address, description, or other indication, at a minimum, shall identify the state that the apparent owner was located in, and does not need to be sufficient to direct the delivery of first class U.S. mail to the apparent owner.
(11) MINERAL. Gas; oil; coal; other gaseous, liquid, and solid hydrocarbons; oil shale; cement material; sand and gravel; road material; building stone; chemical raw material; gemstone; fissionable and nonfissionable ores; colloidal and other clay; steam and other geothermal resource; or any other substance defined as a mineral by the law of this state.
(12) MINERAL PROCEEDS. Amounts payable for the extraction, production, or sale of minerals, or, upon the abandonment of those payments, all payments that become payable thereafter. The term includes the following amounts payable:
a. For the acquisition and retention of a mineral lease, including bonuses, royalties, compensatory royalties, shut-in royalties, minimum royalties, and delay rentals.
b. For the extraction, production, or sale of minerals, including net revenue interests, royalties, overriding royalties, extraction payments, and production payments.
c. Under an agreement or option, including a joint operating agreement, unit agreement, pooling agreement, and farm-out agreement.
(13) OWNER. A person who has a legal or equitable interest in property subject to this article or the person’s legal representative. The term includes a depositor in the case of a deposit, a beneficiary in the case of a trust other than a deposit in trust, and a creditor, claimant, or payee in the case of other property.
(14) PERSON. An individual, business association, financial organization, estate, trust, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(15) PRIVATE KEY. The secret part of an asymmetric key pair which is used to digitally sign or decrypt data.
(16) PROPERTY. Tangible property held in a safe deposit box or other safekeeping depository in this state, and fixed and certain interest in intangible property that is held, issued, or owed in the course of a holder’s business, or by a government, governmental subdivision, agency, or instrumentality, and all income or increments therefrom. The term includes, but is not limited to, property that is referred to as or evidenced by any of the following:
a. Money, a check, draft, deposit, interest, or dividend.
b. Credit balance, customer’s overpayment, gift certificate, security deposit, refund, credit memorandum, unpaid wage, unused ticket, mineral proceeds, or unidentified remittance.
c. Stock or other evidence of ownership of an interest in a business association or financial organization.
d. A bond, debenture, note, or other evidence of indebtedness.
e. Money deposited to redeem stocks, bonds, coupons, or other securities or to make distributions.
f. An amount due and payable under the terms of an annuity or insurance policy, including, but not limited to, policies providing life insurance, property and casualty insurance, workers’ compensation insurance, or health and disability insurance.
g. An amount distributable from a trust or custodial fund established under a plan to provide health, welfare, pension, vacation, severance, retirement, death, stock purchase, profit sharing, employee savings, supplemental unemployment insurance, or similar benefits.
(17) RECORD. Information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(18) RULES. Rules necessary to carry out this article adopted pursuant to the Administrative Procedure Act.
(19) STATE. A state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
(20) STATE TREASURER. The Treasurer of the State of Alabama, or the designee of the State Treasurer.
(21) UTILITY. Any person who owns or operates, for public use, any plant, equipment, real property, franchise, or license for the transmission of communications or the production, storage, transmission, sale, delivery, or furnishing of electricity, water, steam, or gas.
(Act 2004-440, p. 755, §1; Act 2026-285, §1.)
(a) Property is presumed abandoned if it is unclaimed by the apparent owner during the time set forth below for the following types of particular property:
(1) Traveler’s checks, 15 years after issuance.
(2) Money order, five years after issuance.
(3) A demand, savings, or time deposit including a deposit that is automatically renewable, three years after the earlier of maturity, as extended from time to time, or the date of the last indication by the apparent owner of interest in the property.
(4) Tangible and intangible property held in a safe deposit box or other safekeeping depository in this state in the ordinary course of the holder’s business and proceeds resulting from the sale of the property permitted by other law, three years after expiration of the lease or rental period on the box or other depository.
(5) Money or credits owed to a customer as a result of a retail business transaction, one year after the obligation accrued.
(6) Property in an individual retirement account, defined benefit plan, or other account or plan that is qualified for tax deferral under the income tax laws of the United States, three years after the earlier of: (i) the date of the distribution or attempted distribution of the property; (ii) the date of the required distribution as stated in the plan or trust agreement governing the plan; or (iii) the date, if determinable by the holder, specified in the income tax laws of the United States by which distribution of the property must begin in order to avoid a tax penalty.
(7) Stock or other equity interest in a business association or financial organization, including a security entitlement under Article 8 of Title 7, the Uniform Commercial Code, three years after the earlier of: (i) the date of the most recent dividend, stock split, or other distribution unclaimed by the apparent owner; or (ii) the date of the second mailing of a statement of account or other notification or communication that was returned as undeliverable or after the holder discontinued mailings, notifications, or communications to the apparent owner.
(8) Debt of a business association or financial organization, other than a bearer bond or an original issue discount bond covered under subdivision (19), three years after the date of the most recent interest payment unclaimed by the apparent owner.
(9) Property distributable by a business association or financial organization in a course of dissolution, one year after the property becomes distributable.
(10) Amount owed by an insurer on a life or endowment insurance policy or an annuity that has matured or terminated, three years after the obligation to pay arose or, in the case of a policy or annuity payable upon proof of death, three years after the insured has attained, or would have attained if living, the limiting age under the mortality table on which the reserve is based.
(11) Property distributable in the course of a demutualization or related reorganization of an insurance company shall be deemed abandoned as follows:
a. Any funds, two years after the date of the demutualization or reorganization, if the funds remain unclaimed, and the owner has not otherwise communicated with the holder or its agent regarding the property as evidenced by a memorandum or other record on file with the holder or its agent.
b. Any stock or other equity interest, two years after the date of the demutualization or reorganization if instruments or statements reflecting the distribution are either mailed to the owner and returned by the post office as undeliverable, or not mailed to the owner because of an address on the books and records of the holder which is known to be incorrect and the owner has not otherwise communicated with the holder or its agent regarding the property as evidenced by a memorandum or other record on file with the holder or its agent.
c. Property not subject to paragraphs a. or b. within two years of the distribution shall remain reportable under other sections of this article.
(12) Property received by a court as proceeds of a class action, and not distributed pursuant to the judgment, one year after the distribution date.
(13) Property held by a court, government, governmental subdivision, agency, or instrumentality, one year after the property becomes distributable.
(14) Wages or other compensation for personal services, one year after the compensation becomes payable.
(15) Deposit or refund owed to a subscriber by a utility, one year after the deposit or refund becomes payable.
(16) Any check, warrant, debit card, or other payment instrument drawn on or issued by the State of Alabama, outstanding and unpaid within the time frame allowed under Section 41-4-60.
(17) Gift certificate, other than those exempt under Section 35-12-73, three years after June 30 of the year in which the certificate was sold, but if redeemable in merchandise only, the amount abandoned is deemed to be 60 percent of the certificate’s face value.
(18) Property held within a digital asset account where the last known address of the apparent owner is located in this state, three years after the last activity by the apparent owner.
a. For purposes of this subdivision, “activity” includes, but is not limited to, the following actions:
Accessing a password-protected account.
Responding to outreach by the holder regarding the property.
Conducting a transaction regarding the property or account in which the property is held, including deposits into or withdrawals from the account.
Any other action that reasonably demonstrates to the holder that the apparent owner is aware the property exists.
b. For purposes of this subdivision, “activity” does not include any automated, recurring, or prescheduled debit or credit transaction.
(19) All other property, three years after the owner’s right to demand the property or after the obligation to pay or distribute the property arises, whichever first occurs.
(b) At the time that an interest is presumed abandoned under subsection (a), any other property right accrued or accruing to the owner as a result of the interest, and not previously presumed abandoned, is also presumed abandoned.
(c) Property is unclaimed if, for the applicable period set forth in subsection (a), the apparent owner has not communicated in writing, or by other means reflected in a contemporaneous record prepared by or on behalf of the holder, with the holder concerning the property or the account in which the property is held, and has not otherwise indicated an interest in the property. A communication with an owner by a person other than the holder or its representative who has not in writing identified the property to the owner is not an indication of interest in the property by the owner.
(d) An indication of an owner’s or apparent owner’s interest in property includes any of the following:
(1) The presentment of a check or other instrument of payment of a dividend or other distribution made with respect to an account or underlying stock or other interest in a business association or financial organization or, in the case of a distribution made by electronic or similar means, evidence that the distribution has been received.
(2) Owner-directed activity in the account in which the property is held, including a direction by the owner to increase, decrease, or change the amount or type of property held in the account.
(3) The making of a deposit to or withdrawal from a bank account. Any correspondence in writing from the holder to the apparent owner, such as the mailing of a statement, report of interest paid or credited, renewal of a deposit or other written information relating to the deposit shall be construed to mean that the apparent owner has indicated an interest in the deposit if the correspondence in writing is not returned to the holder for nondelivery thereof. Any activity or indication of interest by an apparent owner in the deposit or in any other deposits in a holder shall be construed to be activity and indication of interest in all other deposits of the apparent owner in the holder.
(4) The payment of a premium with respect to a property interest in an insurance policy; but the application of an automatic premium loan provision or other nonforfeiture provision contained in an insurance policy does not prevent a policy from maturing or terminating if the insured has died or the insured or the beneficiary of the policy has otherwise become entitled to the proceeds before the depletion of the cash surrender value of a policy by the application of those provisions.
(e) Property is payable or distributable for purposes of this article notwithstanding the failure of the owner or apparent owner to make demand or present an instrument or document otherwise required to obtain payment.
(Act 2004-440, p. 755, §1; Act 2013-91, p. 192, §1; Act 2026-285, §1.)
(a) The following entities are exempt from reporting property under this article:
(1) Electric cooperatives organized under Chapters 6 and 7 of Title 37.
(2) Incorporated municipalities and incorporated municipal boards and county and county boards of this state.
(b) The following property is exempt from reporting under this article:
(1) A gift certificate, gift card, or in-store merchandise credit issued or maintained by any person engaged primarily in the business of selling tangible personal property at retail.
(2) Property held, due, and owing in a foreign country and arising out of a foreign transaction.
(3) Unclaimed funds held pursuant to Section 19-3-87.
(Act 2004-440, p. 755, §1; Act 2023-102, §1.)
Except as otherwise provided in this article, or by other statute of this state, property that is presumed abandoned, whether located in this or another state, is subject to the custody of this state if any of the following occur:
(1) The last known address of the apparent owner, as shown on the records of the holder, is in this state.
(2) The records of the holder do not reflect the identity of the person entitled to the property and it is established that the last known address of the person entitled to the property is in this state.
(3) The records of the holder do not reflect the last known address of the apparent owner and it is established that:
a. The last known address of the person entitled to the property is in this state; or
b. The holder is domiciled in this state or is a government or governmental subdivision, agency, or instrumentality of this state and has not previously paid or delivered the property to the state of the last known address of the apparent owner or other person entitled to the property.
(4) The last known address of the apparent owner, as shown on the records of the holder, is in a state that does not provide for the escheat or custodial taking of the property and the holder is domiciled in this state or is a government or governmental subdivision, agency, or instrumentality of this state.
(5) The last known address of the apparent owner, as shown on the records of the holder, is in a foreign country and the holder is domiciled in this state or is a government or governmental subdivision, agency, or instrumentality of this state.
(6) The transaction out of which the property arose occurred in this state, the holder is domiciled in a state that does not provide for the escheat or custodial taking of the property, and the last known address of the apparent owner or other person entitled to the property is unknown or is in a state that does not provide for the escheat or custodial taking of the property.
(7) The property is a traveler’s check or money order purchased in this state, or the issuer of the traveler’s check or money order has its principal place of business in this state and the issuer’s records show that the instrument was purchased in a state that does not provide for the escheat or custodial taking of the property, or do not show the state in which the instrument was purchased.
(Act 2004-440, p. 755, §1.)
(a) Any person engaged primarily in the business of selling tangible personal property at retail, by contract with the customer may, charge, and deduct from the property otherwise subject to this article, a reasonable administrative and restocking fee of not more than twenty-five dollars ($25) with respect to items purchased under a layaway or similar agreement the terms of which are not fulfilled by the customer and the items are returned to inventory.
(b) A holder may deduct from property presumed abandoned a charge imposed by reason of the apparent owner’s failure to claim the property within a specified time only if there is a valid and enforceable written contract between the holder and the apparent owner under which the holder may impose the charge and the holder regularly imposes the charge. The amount of the deduction is limited to an amount that is not unconscionable.
(Act 2004-440, p. 755, §1.)
(a) A holder of property presumed abandoned shall make a report to the State Treasurer concerning the property. The report shall be filed electronically and the monies remitted electronically. The State Treasurer may grant an exception upon written request as established by rule. A report should contain only tangible property or intangible property. If a holder possesses both property types, two reports shall be filed.
(b) The report must be verified, balanced, and must contain, at a minimum, all of the following:
(1) A description of the property.
(2) The date, if any, on which the property became payable, demandable, or returnable, and the date of the last transaction with the apparent owner with respect to the property.
(3) Other information that the State Treasurer by rule prescribes as necessary for the administration of this article.
(4) Except with respect to a traveler’s check, money order, or State of Alabama issued payment instruments, the name, if known, the last known address, if any, and the Social Security number or taxpayer identification number, if readily ascertainable, of the apparent owner of property in an amount greater than the aggregate amount established by rule.
(5) In the case of property held or owing under an annuity or a life or endowment insurance policy, the policy number, the full name, Social Security number, if known, date of birth, if known, and last known address, of the annuitant or insured and of the beneficiary.
(6) In the case of expired State of Alabama issued warrants or other payment instruments, the full name of the owner/payee, warrant or account number, date of issuance, owner address, and Social Security number, if known.
(7) In the case of property held in a safe deposit box or other safekeeping depository, an indication of the place where it was held, the full name and last known address of the apparent owner, and any amounts owing to the holder.
(8) In the case of individual items valued under fifty dollars ($50), or a greater amount if established by rule, an aggregated amount.
(c) The report shall be filed before November 1 of each year and cover the 12 months next preceding July 1 of that year.
(d) The holder shall send written notice to the apparent owner, not less than 60 days before filing the report, stating that the holder is in possession of property subject to this article, if all of the following requirements are met:
(1) The holder has in its records an address for the apparent owner which the holder’s records do not disclose to be inaccurate.
(2) The claim of the apparent owner is not barred by a statute of limitations.
(3) The value of the property is fifty dollars ($50) or a greater amount as established by rule.
(e) If the property presumed to be abandoned is a security, a digital asset, or the contents of a safe deposit box, the notice shall advise the apparent owner that the property may be liquidated if the apparent owner does not provide a timely response to the holder.
(f) State of Alabama issued warrants or other payment instruments outstanding and unpaid are void and transferred to the Unclaimed Property Reserve Fund pursuant to Section 41-4-60. Therefore, subsection (d) does not apply.
(g) Before the date for filing the report, the holder may request the State Treasurer to extend the time for filing the report. The State Treasurer may grant the extension for good cause. The holder, upon receipt of the extension, may make an interim payment on the amount the holder estimates will ultimately be due, which terminates the accrual of penalties, if any, on the amount paid.
(Act 2004-440, p. 755, §1; Act 2013-91, p. 192, §1; Act 2026-285, §1.)
(a) Except for property held in a safe deposit box or other safekeeping depository, upon filing the report required in Section 35-12-76, the holder of property presumed abandoned shall pay, deliver, or cause to be paid or delivered to the Treasurer the property described in the report as unclaimed, but if the property is an automatically renewable deposit, and a penalty or forfeiture in the payment of interest would result, the time for compliance is extended until a penalty or forfeiture would no longer result.
(b) Tangible property held in a safe deposit box or other safekeeping depository shall be delivered to the Treasurer within 120 days after filing the report required in Section 35-12-76.
(c) If the property reported to the Treasurer is a security or security entitlement under Article 8 of Title 7, the Uniform Commercial Code, the Treasurer is an appropriate person to make an indorsement, instruction, or entitlement order on behalf of the apparent owner to invoke the duty of the issuer or its transfer agent or the securities intermediary to transfer or dispose of the security or the security entitlement in accordance with Article 8 of Title 7, the Uniform Commercial Code.
(d) If the holder of property reported to the Treasurer is the issuer of a certificated security, the Treasurer has the right to obtain a replacement certificate pursuant to Section 7-8-405 of the Uniform Commercial Code, but an indemnity bond is not required.
(e) Remittance to the state shall occur annually on or before November 1 of each year and shall accompany the report provided for in subsection (c) of Section 35-12-76 and shall cover the same time period as the report.
(Act 2004-440, p. 755, §1; Act 2013-91, p. 192, §1.)
(a) It is specifically recognized that the state has an obligation to make an effort to notify apparent owners of abandoned property in a cost-effective manner.
(b) The Treasurer shall make at least one active attempt to notify apparent owners of the existence of abandoned property held by the office of the Treasurer. Within 12 months of the receipt of the property, the Treasurer shall mail a postcard notification to the apparent owner containing all of the following information set forth in the report filed by the holder:
(1) The name of each person appearing to be the owner of the property.
(2) The last known address or location of each person appearing to be the owner of the property.
(3) A statement explaining that the property of the apparent owner is presumed to be abandoned and has been delivered into the protective custody of the Treasurer.
(4) A statement that information about the property and its return to the owner is available to a person having a legal or beneficial interest in the property, upon written request to the Treasurer.
(c) The Treasurer is not required to attempt to notify apparent owners of property having a total value less than fifty dollars ($50), or concerning a traveler’s check, money order, or similar instrument that has no reported name or address.
(Act 2004-440, p. 755, §1.)
(a) In this article, good faith means honesty in fact in the conduct or transaction concerned.
(b) Upon payment or delivery of property to the Treasurer, the state assumes custody and responsibility for the safekeeping of the property. A holder who pays or delivers property to the Treasurer in good faith is relieved of all liability arising thereafter with respect to the property. The payment or delivery of property to the Treasurer shall operate as a full, absolute and unconditional release and discharge of the holder from any and all claims or demands of or liability to any person entitled thereto, or to any other claimant or state, and the payment or delivery may be pleaded as an absolute bar to any action brought against the holder by any other person entitled thereto, or by any other claimant or state. Once properly pleaded, the holder shall immediately and thereafter be relieved of and held harmless from any and all liabilities for any claim or claims which exist at the time with reference to the property or which may thereafter be made or may come into existence on account of or in respect to any such property. This section does not relieve the holder from any fine or civil penalty imposed pursuant to Section 35-12-92.
(c) A holder who has paid money to the Treasurer pursuant to this article may subsequently reestablish an account or make payment to a person reasonably appearing to the holder to be entitled to payment. Upon a filing by the holder that the property was remitted in error or upon proof of payment and proof that the payee was entitled to the payment, the Treasurer shall promptly reimburse the holder, unless the Treasurer already has paid a claim for the property, for the payment without imposing a fee or other charge. If reimbursement is sought for a payment made on a negotiable instrument, including a traveler’s check or money order, the holder shall be reimbursed upon filing proof that the instrument was duly presented and that payment was made to a person who reasonably appeared to be entitled to payment. The holder must be reimbursed for payment made even if the payment was made to a person whose claim was barred under Section 35-12-88.
(d) A holder who has delivered property other than money to the Treasurer pursuant to this article may reclaim the property if it is still in the possession of the Treasurer, without paying any fee or other charge, upon filing proof that the apparent owner has claimed the property from the holder.
(e) The Treasurer may accept a holder’s affidavit as sufficient proof of the holder’s right to recover money and property under this section.
(f) If a holder pays or delivers property to the Treasurer in good faith and thereafter another person claims the property from the holder or another state claims the property under its laws relating to escheat or abandoned or unclaimed property, the payment or delivery may be pleaded as an absolute bar to any action brought against the holder by any other person entitled thereto or by any other claimant or state. Once properly pleaded, the holder is relieved of and held harmless against any and all liabilities on the claim resulting from payment or delivery of the property to the Treasurer.
(g) Property removed from a safe deposit box or other safekeeping depository is received by the Treasurer subject to the holder’s right to be reimbursed for the cost of the opening if the holder includes the amount in its report of abandoned property. The Treasurer shall reimburse the holder out of the proceeds remaining after deducting the expense incurred by the Treasurer in selling the property.
(h) A record of the issuance of a check, draft, or similar negotiable instrument is prima facie evidence of an obligation. In claiming property from a holder who is also the issuer, the Treasurer’s burden of proof as to the existence and amount of the property and its abandonment is satisfied by showing issuance of the instrument and passage of the requisite period of abandonment. Defenses of payment, satisfaction, discharge, want of consideration, statute of limitations, and other similar defenses are affirmative defenses that must be established by the holder.
(i) When property or funds are delivered to the Treasurer pursuant to this article, the Treasurer shall not be civilly or criminally liable for the receiving, holding, or returning of the property.
(Act 2004-440, p. 755, §1; Act 2013-91, p. 192, §1.)
(a) Except as otherwise provided in this section, the State Treasurer, within three years after the receipt of abandoned property, shall sell it to the highest bidder at public sale. The State Treasurer may decline the highest bid and reoffer the property for sale if the State Treasurer considers the bid to be insufficient. The State Treasurer need not offer the property for sale if the State Treasurer considers that the probable cost of sale will exceed the proceeds of the sale. A sale held under this section shall be preceded by a minimum of a single publication of notice at least three weeks before sale.
(b) Securities listed on an established stock exchange must be sold at prices prevailing on the exchange at the time of sale. Other securities may be sold over the counter at prices prevailing at the time of sale or by any reasonable method selected by the State Treasurer. All securities delivered to the State Treasurer may be sold upon receipt.
(c)(1) Digital assets listed on an established exchange must be sold at prices prevailing on the exchange at the time of sale. Other digital assets may be sold over the counter at prices prevailing at the time of sale or by any reasonable method selected by the State Treasurer. All digital assets delivered to the State Treasurer may be sold upon receipt.
(2) If the holder has a private key, credential, or other information necessary to effectuate the transfer of digital assets presumed abandoned, the holder shall report the digital asset and, within 30 days after filing the report, deliver the digital asset, in native form, into the custody of the State Treasurer. The holder shall comply with any delivery instructions given by the State Treasurer. Within 30 days after delivery of the digital asset, the holder shall provide the State Treasurer with reconciliation of the delivered asset with respect to the report filed.
(3) If the holder does not have sufficient information to effectuate a transfer of a digital asset, the holder shall maintain possession of the digital asset until the holder acquires the information necessary to effectuate the transfer.
(4) The State Treasurer may decline to accept a digital asset presumed abandoned if the State Treasurer determines that the digital asset is not freely transferable, is of nominal value, or has value of less than the estimated expenses of maintenance, notice, and sale of the digital asset. The State Treasurer may also identify classes or types of digital assets that are exempt from reporting or liquidation.
(5) The State Treasurer may direct a holder of a digital asset presumed abandoned to liquidate the digital asset. The order to liquidate may be provided in the reporting instructions for the year that a report is due. The holder shall liquidate the digital asset within 30 days after the filing of a report.
(6)a. Beginning not later than January 1, 2028, the State Treasurer shall annually issue a report to the Legislature which summarizes all digital asset activity pursuant to this chapter for the previous year.
b. The initial annual report shall address the feasibility of contracting with a qualified custodian for the purpose of holding digital assets in the assets’ native form and any costs that may be associated with contracting with a custodian for this purpose.
c. Paragraph b. shall not be construed to require the State Treasurer to contract with a qualified custodian for the purpose of the state holding unclaimed digital assets in the assets’ native form.
(d) Any person making a claim pursuant to this section is entitled to receive either the property delivered by the holder, if it still remains in custody of the State Treasurer, or the proceeds received from sale, less any fees and expenses incurred from the sale if deducted. No person has any claim under this article against the state, the State Treasurer, the holder, any transfer agent, any auctioneer, or any person acting for or on behalf of the holder or State Treasurer for any appreciation or depreciation in the value of property occurring after its liquidation.
(e) A purchaser of property at a sale conducted by the State Treasurer pursuant to this article takes the property free of all claims of the owner or previous holder and of all persons claiming through or under them. The State Treasurer shall execute all documents necessary to complete the transfer of ownership.
(Act 2004-440, p. 755, §1; Act 2026-285, §1.)
(a) The Treasurer shall promptly deposit in the Unclaimed Property Reserve Fund, created within the Treasury, all funds received under this article, including but not limited to, the proceeds from the sale of abandoned property under Section 35-12-80, from which the Treasurer shall pay claims duly allowed and shall transfer funds to the State Treasury Operations Fund. The Treasurer shall record the name and last known address of each person appearing from the holder’s reports to be entitled to the property, and the name and last known address of each insured person or annuitant and beneficiary and with respect to each policy or annuity listed in the report of an insurance company, its number, the name of the company, and the amount due.
(b) All costs and expenses of administering the program under this article and all costs and expenses of administering the Office of State Treasurer shall be paid from the State Treasury Operations Fund.
(c) On a quarterly basis, the Treasurer shall deposit in the State General Fund any surplus monies remaining in the Unclaimed Property Reserve Fund, after the requirements of this section have been met.
(d) Any unobligated amounts remaining in the Unclaimed Property Administrative Fund after September 30, 2013, shall be transferred to the State Treasury Operations Fund.
(Act 2004-440, p. 755, §1; Act 2013-92, p. 192, §2.)
(a) After property has been paid or delivered to the Treasurer under this article, another state may recover the property if any of the following apply:
(1) The property was paid or delivered to the custody of this state because the records of the holder did not reflect a last known location of the apparent owner within the borders of the other state and the other state establishes that the apparent owner or other person entitled to the property was last known to be located within the borders of that state and under the laws of that state the property has escheated or become subject to a claim of abandonment by that state.
(2) The property was paid or delivered to the custody of this state because the laws of the other state did not provide for the escheat or custodial taking of the property, and under the laws of that state subsequently enacted the property has escheated or become subject to a claim of abandonment by that state.
(3) The records of the holder were erroneous in that they did not accurately identify the owner of the property and the last known location of the owner within the borders of another state and under the laws of that state the property has escheated or become subject to a claim of abandonment by that state.
(4) The property was subjected to custody by this state under subdivision (6) of Section 35-12-74, and under the laws of the state of domicile of the holder the property has escheated or become subject to a claim of abandonment by that state.
(5) The property is a sum payable on a traveler’s check, money order, or similar instrument that was purchased in the other state and delivered into the custody of this state under subdivision (7) of Section 35-12-74, and under the laws of the other state the property has escheated or become subject to a claim of abandonment by that state.
(b) A claim of another state to recover escheated or abandoned property must be presented in a form prescribed by the Treasurer, who shall decide the claim within 120 days after it is presented. The Treasurer shall allow the claim upon determining that the other state is entitled to the abandoned property under subsection (a).
(c) The Treasurer shall require another state, before recovering property under this section, to agree to indemnify this state and its officers and employees against any liability on a claim to the property.
(Act 2004-440, p. 755, §1.)
(a) A person, excluding another state, claiming property paid or delivered to the Treasurer may file a claim on a form prescribed by the Treasurer and verified by the claimant.
(b) Within 120 days after a claim is filed, the Treasurer shall allow or deny the claim and give written notice of the decision to the claimant. If the claim is denied, the Treasurer shall inform the claimant of the reasons for the denial and specify what additional evidence is required before the claim will be allowed. The claimant may then file a new claim with the Treasurer or maintain an action under Section 35-12-85.
(c) Within 30 days after a claim is allowed, the property or the net proceeds of a sale of the property must be delivered or paid by the Treasurer to the claimant. When property is paid or delivered to the Treasurer under this article, the owner is not entitled to receive interest, thereafter; however, the owner is entitled to receive dividends and other increments accruing thereafter.
(d) The Treasurer is not civilly or criminally liable for any property or funds distributed pursuant to this article, provided such distribution is made in good faith.
(Act 2004-440, p. 755, §1.)
(a) The surviving spouse or, if none, the surviving child or children or, if none, the surviving parent or parents of an abandoned property owner who has died intestate may claim the abandoned property under this section, and will have a defeasible right to the property, if all of the following conditions exist:
(1) The aggregate value of the abandoned property held on behalf of the owner, as established by rule, must not exceed the amount allowed in Section 43-2-692.
(2) The claim need not be accompanied by an order of a probate court if the claimant files documentation established in the rules, including, but not limited to, a. a written confirmation by the probate court that no estate has been opened or filed; b. an affidavit, signed by all beneficiaries, as applicable, stating that all beneficiaries have amicably agreed among themselves upon a division of the property; c. supporting documentation showing heir rights; and d. authorization to release the name and address of the claimant to subsequent claimants.
(b) Nothing in this section shall be construed to remove the jurisdiction of the probate court in matters of estates.
(c) A person may claim abandoned property in his or her name under this section and will have a defeasible right to the property, if all of the following conditions exist:
(1) The aggregate amount value of the abandoned property held on behalf of the owner is equal to or less than two hundred dollars ($200), or a greater amount if established by rule.
(2) The claim is accompanied by an affidavit swearing to the authenticity of a claim and lack of matching documentation, an authorization to release the name and address of the claimant to subsequent claimants, and any other required documentation if established by rule.
(d) Any person to whom payment, delivery, transfer, or issuance is made under this section shall be answerable and accountable therefor to any heir of the decedent, to any person having a superior right to the decedent’s property, or to the surviving spouse, children, or parents of the decedent who shall proceed against such person. This liability shall only be to the extent of the value of the property received by each person under this section.
(e) Any person who was lawfully entitled to share in the property but did not receive his or her share of the property may enforce his or her rights in appropriate legal proceedings against those who received the property.
(Act 2004-440, p. 755, §1; Act 2013-91, p. 192, §1.)
A person aggrieved by a decision of the Treasurer or whose claim has not been acted upon within 120 days after its filing may maintain an original action to establish the claim in the Circuit Court of Montgomery County, Alabama, naming the Treasurer as a defendant. In any proceeding for determination of a claim to property under this article, the burden shall be upon the claimant to establish entitlement to the property by a preponderance of evidence. The proceeding shall be brought by the claimant within 90 days after the decision of the Treasurer.
(Act 2004-440, p. 755, §1.)
(a) The Treasurer may decline to receive property reported under this article which the Treasurer considers to have a value less than the expenses of notice and sale.
(b) A holder, with the written consent of the Treasurer and upon conditions and terms prescribed by the Treasurer, may report and deliver property before the property is presumed abandoned. A holder exempt from reporting, upon conditions and terms prescribed by the Treasurer, may voluntarily report. Property delivered under this section is deemed abandoned upon receipt by the Treasurer and shall be handled in the same manner as other abandoned property under this article.
(Act 2004-440, p. 755, §1; Act 2013-91, p. 192, §1.)
If the Treasurer determines after investigation that property delivered under this article has no substantial commercial value, the Treasurer may destroy or otherwise dispose of the property at any time. An action or proceeding may not be maintained against the state, the Treasurer, or the holder for or on account of an act of the Treasurer under this section, except for intentional misconduct of malfeasance.
(Act 2004-440, p. 755, §1.)
(a) The expiration, before or after May 12, 2004, of a period of limitation on the owner’s right to receive or recover property, whether specified by contract, statute, or court order, does not preclude the property from being presumed abandoned or affect a duty to file a report or to pay or deliver or transfer property to the Treasurer as required by this article.
(b) An action or proceeding may not be maintained by the Treasurer to enforce this article in regard to the reporting, delivery, or payment of property more than 10 years after the holder specifically identified the property in a report filed with the Treasurer or gave express notice to the Treasurer of a dispute regarding the property. In the absence of such a report or other express notice, the period of limitation is tolled. The period of limitation is also tolled by the filing of a report that is fraudulent.
(Act 2004-440, p. 755, §1.)
(a) The Treasurer may require a person who has not filed a report, or a person who the Treasurer believes has filed an inaccurate, incomplete, or false report, to file a verified report in a form specified by the Treasurer. The report must state whether the person is holding property reportable under this article, describe property not previously reported or as to which the Treasurer has made inquiry, and specifically identify and state the amounts of property that may be in issue.
(b) The Treasurer, at reasonable times and upon reasonable notice, may examine the records of any person to determine whether the person has complied with this article. The Treasurer may conduct the examination even if the person believes it is not in possession of any property that shall be reported, paid, or delivered under this article. The Treasurer may contract with any other person to conduct the examination on behalf of the Treasurer.
(c) The Treasurer, at reasonable times, may examine the records of an agent, including a dividend disbursing agent or transfer agent, of a business association or financial association that is the holder of property presumed abandoned if the Treasurer has given the notice required by subsection (b) to both the association or organization and the agent at least 90 days before the examination.
(d) Documents and working papers obtained or compiled by the Treasurer, or the agents, employees, or designated representatives of the Treasurer, in the course of conducting an examination are confidential and are not public records, but the documents and papers may be:
(1) Used by the Treasurer in the course of an action to collect unclaimed property or otherwise enforce this article.
(2) Used in joint examinations conducted with or pursuant to an agreement with another state, the federal government, or any other governmental subdivision, agency, or instrumentality.
(3) Produced pursuant to subpoena or court order.
(4) Disclosed to the abandoned property office of another state for that state’s use in circumstances equivalent to those described in this subsection, if the other state is bound to keep the documents and papers confidential.
(e) If an examination of the records of a person results in the disclosure of property reportable under this article, the Treasurer may assess the cost of the examination against the holder in the amount of expenses incurred, but the assessment may not exceed the value of the property found to be reportable. The cost of an examination made pursuant to subsection (c) may be assessed only against the business association or financial organization.
(f) If, after May 12, 2004, a holder does not maintain records required by Section 35-12-90, and the records of the holder available for periods subject to this article are insufficient to permit the preparation of a report, the Treasurer may require the holder to report and pay to the Treasurer the amount the holder and Treasurer reasonably estimates, on the basis of any available records of the holder or by any other reasonable method of estimation, should have been but was not reported.
(Act 2004-440, p. 755, §1.)
(a) Except as otherwise provided in subsection (b), a holder required to file a report under Section 35-12-76 shall maintain the records containing the information required to be included in the report for 10 years after the holder files the report, unless a shorter period is provided by rule of the Treasurer.
(b) A business association or financial organization that sells, issues, or provides to others for sale or issue in this state, traveler’s checks, money orders, or similar instruments other than third-party bank checks, on which the business association or financial organization is directly liable, shall maintain a record of the instruments while they remain outstanding, indicating the state and date of issue, for three years after the holder files the report.
(Act 2004-440, p. 755, §1.)
(a) The Treasurer may enter into an agreement with another state to exchange information relating to abandoned property or its possible existence. The agreement may permit the other state, or another person acting on behalf of a state, to examine records as authorized in Section 35-12-89. The Treasurer, by rule, may require the reporting of information needed to enable compliance with an agreement made under this section and prescribe the form.
(b) The Treasurer may join with another state to seek enforcement of this article against any person who is or may be holding property reportable under this article.
(c) At the request of another state, the Attorney General of this state may maintain an action on behalf of the other state to enforce, in this state, the unclaimed property laws of the other state against a holder of property subject to escheat or a claim of abandonment by the other state, if the other state has agreed to pay expenses incurred by the Attorney General in maintaining the action.
(d) The Attorney General of this state may request the attorney general of another state or another attorney commence an action in the other state on behalf of the Treasurer. With the approval of the Attorney General of this state, the Treasurer may retain any other attorney to commence an action in this state on behalf of the Treasurer. This state shall pay all expenses, including attorney’s fees, in maintaining an action under this subsection. With the Treasurer’s approval, the expenses and attorney’s fees may be paid from money received under this article. Any expenses or attorney’s fees paid under this subsection may not be deducted from the amount that is subject to the claim by the owner under this article.
(Act 2004-440, p. 755, §1.)
(a) A holder who fails to report, pay, or deliver property within the time prescribed by this article, or fails to perform other duties imposed by this article, shall pay to the Treasurer for credit to the General Fund a civil penalty of one hundred dollars ($100) for each business day the report, payment, or delivery is withheld, or the duty is not performed, up to a maximum of five thousand dollars ($5,000).
(b) A holder who willfully fails to report, pay, or deliver property within the time prescribed by this article, or willfully fails to perform other duties imposed by this article, shall pay to the Treasurer for credit to the General Fund a civil penalty of five hundred dollars ($500) for each business day the report, payment, or delivery is withheld, or the duty is not performed, up to a maximum of twenty-five thousand dollars ($25,000).
(c) A holder who makes an intentional fraudulent report shall pay to the Treasurer for credit to the General Fund a civil penalty of one thousand dollars ($1,000) for each business day from the date a report under this article was due, up to a maximum of twenty-five thousand dollars ($25,000).
(d) The Treasurer for good cause may waive, in whole or part, penalties under subsections (a) and (b); and shall waive penalties if the holder acted in good faith.
(e) The Attorney General may maintain an action in this or another state to enforce this article.
(Act 2004-440, p. 755, §1.)
(a) An agreement by an owner, the primary purpose of which is to locate, recover, or assist in the recovery of property that is presumed abandoned, is void and unenforceable if it was entered into during the period commencing on the date the property was presumed abandoned and extending to a time that is 24 months after the date the property is paid or delivered to the State Treasurer. This subsection does not apply to an owner’s agreement with an attorney to file a claim as to identified property or contest the State Treasurer’s denial of a claim.
(b) An agreement by an owner or an apparent owner and a finder, the primary purpose of which is to locate, recover, or assist in the location or recovery of property held by the State Treasurer, is enforceable only if the agreement:
(1) Is in writing;
(2) Clearly sets forth the nature of the property and the services to be rendered;
(3) States that the property is in the custody of the State of Alabama Treasurer’s Office and provides contact information for recovering the property;
(4) States that the property may be recovered from the State Treasurer without the payment of a fee;
(5) Is signed by the apparent owner and states the compensation fee percentage, compensation, commission, or other remuneration based on the value of the amount to be claimed; and
(6) States any other compensation to be deducted.
(c) In conjunction with the filing of any claim involving an agreement by an owner or apparent owner and a finder, the State Treasurer shall receive from the claimant a full and unredacted copy of the agreement signed by the owner or apparent owner and the finder.
(d) If an agreement covered by this section applies to mineral proceeds and the agreement contains a provision to pay compensation that includes a portion of the underlying minerals or any mineral proceeds not then presumed abandoned, the provision is void and unenforceable.
(e) Total compensation in an agreement covered by this section may not exceed 10 percent of the value of the amount claimed. The purchase, assignment, or other conveyance of unclaimed property to a finder, resulting in a net fee, compensation, commission, remuneration, or other profit to the finder in excess of 10 percent of the amount collected is prohibited.
(f) This section shall not apply to asset purchase agreements involving assets of a business arising out of a bankruptcy proceeding under Title 11 of the U.S. Code or a corporate dissolution or similar proceeding under applicable state law, including receiverships for the benefit of creditors.
(g) This section shall not limit the ability of the State Treasurer to request or receive additional documentation for the determination of whether the claimant is the owner of the property.
(h) This section does not preclude an apparent owner or the State Treasurer from asserting that an agreement covered by this section is invalid on grounds other than the agreement provides for payment of compensation in excess of the amount authorized in subsection (e).
(Act 2004-440, p. 755, §1; Act 2013-91, p. 192, §1; Act 2026-285, §1.)
(a) Certain information contained in a holder’s report to the Treasurer under this article, such as Social Security numbers, policy numbers, tangible property descriptions, and property dollar amounts, is not considered a public writing, but is confidential and exempt from the provisions of Section 36-12-40, and not subject to dissemination to anyone other than the Treasurer and the property owner. Except as expressly authorized by the Treasurer, it shall be unlawful for any person to print, publish, or divulge any information regarding property subject to this article.
(b) The Treasurer, pursuant to the Alabama Administrative Procedure Act, may adopt rules necessary to carry out this article.
(c) The Treasurer may employ the staff necessary to carry out the duties conferred upon the Treasurer pursuant to this article. The salaries for these persons shall be fixed according to the Merit System. The Treasurer may employ one individual outside the classified Merit System service. Salaries shall be paid from the Unclaimed Property Administrative Fund.
(Act 2004-440, p. 755, §1.)
(a) An initial report filed under this article for property that was not required to be reported before May 12, 2004, but which is subject to this article must include all items of property that would have been presumed abandoned during the 10-year period next preceding May 12, 2004, as if this article had been in effect during that period.
(b) This article does not relieve a holder of a duty that arose before May 12, 2004, to report, pay, or deliver property. Except as otherwise provided in subsection (b) of Section 35-12-88, a holder who did not comply with the law in effect before May 12, 2004, is subject to the applicable provisions for enforcement and penalties which then existed, which are continued in effect for the purpose of this section.
(Act 2004-440, p. 755, §1.)
This article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this article among states enacting it.
(Act 2004-440, p. 755, §1.)
(1) ABANDONED MANUFACTURED DWELLING. A manufactured dwelling that satisfies either of the following circumstances:
a. A tenant is absent from the premises of the manufactured dwelling following expiration of 30 days after default, termination, or expiration of the lease agreement.
b. A tenant is absent from the premises of the manufactured dwelling continuously for 30 days after service of a court order requiring the tenant to vacate the premises due to failure of the tenant to perform obligations of the lease.
(2) MANUFACTURED DWELLING COMMUNITY OWNER. Any individual or business entity that, for consideration, allows another individual to place a residential trailer, mobile home, or manufactured dwelling on land owned or leased by that individual or business entity.
(3) MANUFACTURED DWELLING. A residential trailer, mobile home, or manufactured home.
(4) RENTAL FEE. The actual rent charged to the tenant including utilities, maintenance charges, and any other fee charged incidental to the rent as provided for by the agreement between the manufactured dwelling community owner and tenant.
(5) TENANT. An individual or business entity that enters into a rental agreement with a manufactured dwelling community owner for placement of a manufactured home on the property of the manufactured dwelling community owner and that leases or owns the manufactured home.
(Act 2003-516, 2nd Sp. Sess., p. 1537, §1; Act 2014-167, p. 475, §1.)
A manufactured dwelling community owner may sell a manufactured dwelling on property owned or leased by the manufactured dwelling community owner only in the manner provided by this chapter.
(Act 2003-516, 2nd Sp. Sess., p. 1537, §2; Act 2014-167, p. 475, §1.)
Prior to selling the tenant’s manufactured dwelling pursuant to this chapter, the manufactured dwelling community owner shall provide a written notice to the tenant by one of the following methods:
(1) Personal delivery to the tenant of the manufactured dwelling.
(2) Certified mail addressed and mailed to the tenant at the last known mailing address known to the manufactured dwelling community owner.
(3) Affixing a notice on the doors of the dwelling.
(Act 2003-516, 2nd Sp. Sess., p. 1537, §1; Act 2014-167, p. 475, §1.)
A manufactured dwelling community owner shall also give a copy of the notice described in Section 35-12A-5 by certified or registered mail verified by return receipt to any lienholder of the manufactured dwelling as shown on the records of the office of the judge of probate in the county in which the manufactured dwelling is located, the Alabama Department of Revenue, or the Secretary of State. For purposes of this chapter, “lienholder” includes the holder of a security interest, mortgage, or other lien on the manufactured dwelling and “lien” includes a security interest, mortgage, or other lien.
(Act 2003-516, 2nd Sp. Sess., p. 1537, §1; Act 2014-167, p. 475, §1.)
The notice required by Sections 35-12A-3 and 35-12A-4 shall state all of the following:
(1) The manufactured dwelling, with a reasonably certain description of the dwelling, is left upon the premises and is considered abandoned and the tenant is indebted to the manufactured dwelling community owner for rental fees.
(2) The tenant or lienholder shall contact the manufactured dwelling community owner within 30 days of receipt of the notice, as provided in Section 35-12A-6, to arrange for the removal of the abandoned manufactured dwelling.
(3) The manufactured dwelling is stored on the rented space and applicable storage fees are being assessed.
(4) The tenant or any lienholder may arrange for removal of the manufactured dwelling by contacting the manufactured dwelling community owner at a described telephone number or address on or before the specified date provided in the notice.
(5) The manufactured dwelling community owner shall make the manufactured dwelling available for removal by the tenant or any lienholder by appointment at reasonable times.
(6) If the tenant or owner fails to contact the manufactured dwelling community owner in writing by the date specified in the notice to remove the manufactured dwelling and the dwelling is not subject to a lien that has priority over any lien of the manufactured dwelling community owner, then the manufactured dwelling community owner may sell the manufactured dwelling as provided for in Section 35-12A-8. If the manufactured dwelling is subject to a lien that has priority over any lien of the manufactured dwelling community owner, then the provisions contained in Section 35-12A-13 are the manufactured dwelling community owner’s sole remedy as to the lienholder.
(Act 2003-516, 2nd Sp. Sess., p. 1537, §1; Act 2014-167, p. 475, §1.)
(a) After notifying the tenant and lienholder as required by Sections 35-12A-3 and 35-12A-4, the manufactured dwelling community owner shall do all of the following:
(1) Store any abandoned manufactured dwelling on the rented space.
(2) Store all other abandoned personal property of the tenant, including goods left inside a manufactured dwelling or left upon the rented space outside a manufactured dwelling, in a place of safekeeping and exercise reasonable care for the personal property. For purposes of this chapter, “personal property” does not include a manufactured dwelling.
(b) The manufactured dwelling community owner shall be entitled to reasonable or actual storage charges and costs incidental to storage or disposal, including any cost of removal to a place of storage occurring after the expiration of the date by which a tenant, lienholder, or owner is to contact the manufactured dwelling community owner as set forth in Section 35-12A-5.
(Act 2003-516, 2nd Sp. Sess., p. 1537, §1; Act 2014-167, p. 475, §1.)
If a tenant, responds by written notice to the manufactured dwelling community owner on or before the specified date in the manufactured dwelling community owner’s notice that the tenant intends to remove the manufactured dwelling from the premises, the manufactured dwelling community owner must make the manufactured dwelling available for removal by appointment at reasonable times during the next 45 days, provided that the tenant has paid all applicable charges and costs as provided herein. If the manufactured dwelling is not removed, the manufactured community dwelling owner may proceed with the sale of the manufactured dwelling pursuant to Section 35-12A-8.
(Act 2003-516, 2nd Sp. Sess., p. 1537, §1; Act 2014-167, p. 475, §1.)
(a) If the tenant does not respond within the time provided by the manufactured dwelling community owner’s notice, or the tenant does not remove the manufactured dwelling or personal property within 45 days after responding to the manufactured dwelling community owner or by any other date agreed to with the manufactured dwelling community owner, whichever is later, the manufactured dwelling community owner may sell the abandoned manufactured dwelling and personal property as provided in this section.
(b) With regard to the manufactured dwelling, prior to sale, the manufactured dwelling community owner shall do all of the following:
(1) Place a notice to be run once per week for two consecutive weeks in a newspaper of general circulation in the county in which the manufactured dwelling is located. The notice shall state all of the following:
a. That the manufactured dwelling is abandoned and will be sold in the manner provided in the notice. The manufactured dwelling shall be described with reasonable certainty.
b. The tenant’s and owner’s name if of record or actually known to the manufactured dwelling community owner.
c. The address and any space number where the manufactured dwelling is located, and if actually known to the manufactured dwelling community owner, the plate, registration, or other identification number as noted on the certificate of title.
d. Whether the sale is by private bidding or public auction and that the manufactured dwelling community owner is authorized to purchase the manufactured dwelling pursuant to the method of sale described in the notice. In the case of a public auction, the date, place, and time of the auction shall be included in the notice.
e. Whether the manufactured dwelling community owner is accepting sealed bids and, if so, the last date on which bids will be accepted. The date, time, and place where the winning bid will be awarded shall also be included in the notice.
f. The name and telephone number of the person to contact to inspect the manufactured dwelling.
(2) No later than 30 days prior to the sale date, provide a copy of the notice required by subdivision (1) to any lienholder by certified or registered mail, verified by return receipt.
(c) With regard to personal property, including the contents of the manufactured dwelling and any personal property left on the rented space outside a manufactured dwelling, the manufactured dwelling community owner shall store the abandoned personal property as provided for in Section 35-12A-6. Prior to selling the personal property, the manufactured dwelling community owner must hold the personal property for 45 days after mailing notice to the tenant or the tenant’s designated agent at the last known address of the tenant or the tenant’s agent or by delivering a copy of the notice to the last known address of the tenant or the tenant’s agent. The manufactured dwelling community owner is entitled to reasonable storage charges as provided in Section 35-12A-6 prior to surrendering the property to the tenant or the tenant’s agent.
(Act 2003-516, 2nd Sp. Sess., p. 1537, §1; Act 2014-167, p. 475, §1.)
[Repealed]
Repealed by Act 2014-167, §2, effective June 1, 2014.
(Act 2003-516, 2nd Sp. Sess., p. 1537, §9.)
A public or private sale authorized by this chapter shall be conducted consistent with the terms listed in Section 35-12A-8 and every aspect of the sale including the method, manner, time, place, and terms must be commercially reasonable.
(Act 2003-516, 2nd Sp. Sess., p. 1537, §1; Act 2014-167, p. 475, §1.)
(a) The manufactured dwelling community owner may deduct from the proceeds of the sale any of the following:
(1) The reasonable or actual cost of notice, storage, and sale as provided in this chapter.
(2) Unpaid rental fees, but only to the extent that the manufactured dwelling community owner’s lien has priority over the lien of any applicable lienholder.
(3) Reasonable attorneys’ fees and costs.
(b) After deducting the amounts listed in subsection (a), the manufactured dwelling community owner shall remit to the county tax collecting official any property taxes and/or other fees due and shall then remit the remaining proceeds, if any, to the lienholders, if any, to the extent of any unpaid balance owed on any liens on the manufactured dwelling.
(c) After deducting the amounts listed in subsections (a) and (b), as applicable, the manufactured dwelling community owner shall remit to the tenant or owner the remaining proceeds, if any, together with an itemized accounting. If the tenant or owner cannot be found, after due diligence, the remaining proceeds may be interpleaded in any court with jurisdiction or be held and deposited in accordance with Article 2A of Chapter 12.
(Act 2003-516, 2nd Sp. Sess., p. 1537, §1; Act 2014-167, p. 475, §1.)
Compliance in good faith with this chapter by the manufactured dwelling community owner shall constitute a complete defense in any action brought by a tenant or lienholder against a manufactured dwelling community owner for loss or damage to such manufactured dwelling or personal property, as applicable, sold pursuant to this chapter.
(Act 2003-516, 2nd Sp. Sess., p. 1537, §1; Act 2014-167, p. 475, §1.)
If a lienholder makes a timely response to a notice of abandoned manufactured dwelling, as provided for in Section 35-12A-4, and so requests, a manufactured dwelling community owner shall not sell the manufactured dwelling for a period of 12 months. During this period, or until the manufactured dwelling is removed from the manufactured dwelling community owner’s premises, the lienholder must make timely periodic payments of all reasonable and actual storage or rental fees which accrue after the expiration of the 30-day notice period and which shall be no greater than the monthly space rent last payable by the tenant. The lienholder shall have the right to remove or sell the manufactured dwelling, pursuant to the provisions of any agreement with the owner of the dwelling or as otherwise allowed by law. The manufactured dwelling community owner may condition approval for occupancy of any purchaser of the manufactured dwelling upon payment of all storage charges and maintenance costs which accrued after the expiration of the 30-day notice period or verification that the new tenant qualifies for rental consistent with the rental criteria in existence at the time of execution of the manufactured dwelling community owner’s rental agreement. If the lienholder fails to respond to the notice of abandoned manufactured dwelling within 45 days of receipt, or after making a response, fails after 10 days’ written notice from the manufactured dwelling community owner, to make timely payments, the manufactured dwelling community owner may proceed to sell the manufactured dwelling pursuant to Section 35-12A-8. If the lienholder responds to the 30-day notice, and requests that the manufactured dwelling community owner not sell or dispose of the manufactured dwelling, the lienholder shall be obligated to pay the manufactured dwelling community owner the storage or rental fees which accrue beginning after the expiration of the 30-day notice period until the expiration of the 12-month period or the date the manufactured dwelling is removed from the premises or sold pursuant to Section 35-12A-8, whichever is earlier, plus the manufactured dwelling community owner’s reasonable attorneys’ fees and costs incurred in enforcing this obligation of the lienholder. The provisions of this section may be changed by agreement signed by the manufactured dwelling community owner and lienholder.
(Act 2003-516, 2nd Sp. Sess., p. 1537, §1; Act 2014-167, p. 475, §1.)
If the manufactured dwelling or personal property is considered abandoned as a result of the death of the only tenant, Sections 35-12A-1 to 35-12A-13, inclusive, and this section shall apply, except as follows:
(1) The provisions of this chapter regarding the rights and responsibilities of a tenant to the abandoned manufactured dwelling and personal property shall apply to any personal representative named in a will or appointed by a court to act for the deceased tenant or any person designated in writing by the tenant to be contacted by the manufactured dwelling community owner in the event of the tenant’s death.
(2) The notice required by Section 35-12A-3 shall be personally delivered or sent by first class mail to any personal representative named in a will or appointed by a court to act for the deceased tenant.
(3) The notice described in Section 35-12A-5 shall refer to any personal representative or designated person, instead of the deceased tenant, and shall incorporate the provisions of this section.
(4) If a personal representative, designated person, or other person entitled to possession of the property, such as an heir or devisee, responds by actual notice to a manufactured dwelling community owner within the 30-day period provided by Section 35-12A-5, and so requests, the manufactured dwelling community owner shall enter into a written agreement with the representative or person providing that the manufactured dwelling shall not be sold or disposed of by the manufactured dwelling community owner until conclusion of any probate proceedings, so long as the representative or person makes timely periodic payment of all storage charges and maintains the property and the rented space on which it is stored. During the agreement, the representative or person shall have the right to remove or sell the property, including a sale to a purchaser or a transfer to an heir or devisee where the purchaser, heir, or devisee wishes to leave the property on the rented space and become a tenant. The manufactured dwelling community owner also may condition approval for occupancy of any purchaser, heir, or devisee of the property upon payment of all storage charges and maintenance costs. If the representative or person violates the agreement, the manufactured dwelling community owner may terminate it upon 30 days’ written notice stating facts sufficient to notify the representative or person of the reason for the termination. Unless the representative or person corrects the violation within the notice period, the agreement shall terminate as provided and the manufactured dwelling community owner may sell the property as provided for in this chapter.
(Act 2003-516, 2nd Sp. Sess., p. 1537, §1; Act 2014-167, p. 475, §1.)
In the case of an abandoned manufactured dwelling that is owned by someone other than the tenant, the provisions of this chapter regarding the rights and responsibilities of a tenant to the abandoned manufactured dwelling shall also apply to that owner, with regard only to the manufactured dwelling and not to any goods left inside or outside the manufactured dwelling.
(Act 2003-516, 2nd Sp. Sess., p. 1537, §15.)
All property adrift may be taken up by any person and secured.
(Code 1852, §2075; Code 1867, §2467; Code 1876, §2863; Code 1886, §3282; Code 1896, §3525; Code 1907, §5844; Code 1923, §10158; Code 1940, T. 47, §257.)
(a) Such person must, within two days after the same is taken up, exhibit the property to the district court, and if, in his opinion, it is worth over $30.00, he must issue an order of appraisement to three disinterested freeholders or householders, who, after being duly sworn to estimate the value of such property fairly, must appraise and certify the same to the court, with a description of the property; if not exceeding the value of $30.00, the court must make the appraisement and description of the property.
(b) The court must give the taker a copy of the appraisement and description of the property, retaining the original.
(Code 1852, §§2076, 2077; Code 1867, §§2468, 2469; Code 1876, §§2864, 2865; Code 1886, §§3283, 3284; Code 1896, §§3526, 3527; Code 1907, §§5845, 5846; Code 1923, §§10159, 10160; Code 1940, T. 47, §§258, 259.)
(a) If the appraised value is over $30.00, the taker must, within 10 days thereafter, give notice thereof, once a week for three successive weeks, in a newspaper published nearest to the place where the property was taken up. Such advertisement must state the name of the taker, the time and place, a description of the property, with its marks, and the name of the owner, if known, its appraised value, and where the same is secured or deposited.
(b) If the property is not worth exceeding $30.00, the same must be advertised at the next steamboat landing, if the property was taken up on a navigable stream, otherwise, at the nearest public place, within five days after the taking up.
(Code 1852, §§2078-2080; Code 1867, §§2470-2472; Code 1876, §§2866-2868; Code 1886, §§3285-3287; Code 1896, §§3528-3530; Code 1907, §§5847-5849; Code 1923, §§10161-10163; Code 1940, T. 47, §§260-262.)
The owner may, on notifying the taker or the person in possession, and proving the property by his own oath, or the oath of another, satisfactorily to the district court, obtain from such court an order to restore such property on the payment of the legal costs and charges thereon.
(Code 1852, §2081; Code 1867, §2473; Code 1876, §2869; Code 1886, §3288; Code 1896, §3531; Code 1907, §5850; Code 1923, §10164; Code 1940, T. 47, §263.)
(a) The taker is entitled to 10 percent on the appraised value of each bale of cotton and on other property as follows: 25 percent on all under $30.00; between $30.00 and $100.00, 20 percent; between $100.00 and $500.00, 15 percent; between $500.00 and $1,000.00, 10 percent; and on all over $1,000.00, five percent.
(b) The taker is also entitled to the court fees paid by him, the expenses of the advertisement, if published in a newspaper, and reasonable compensation for the keeping, if necessary to preserve the property from loss or injury, to be ascertained as in the case of estrays.
(Code 1852, §§2082, 2083; Code 1867, §§2474, 2475; Code 1876, §§2870, 2871; Code 1886, §§3289, 3290; Code 1896, §§3532, 3533; Code 1907, §§5851, 5852; Code 1923, §§10165, 10166; Code 1940, T. 47, §§264, 265.)
The appraisers, other than the district court, are entitled to $2.00 each, to be paid by the taker.
(Code 1852, §2084; Code 1867, §2476; Code 1876, §2872; Code 1886, §3291; Code 1896, §3534; Code 1907, §5853; Code 1923, §10167; Code 1940, T. 47, §266.)
The owner may prove his property, if appraised at not more than $30.00, within three months; between $30.00 and $100.00, in six months; at more than $100.00, within one year after the appraisement; and, on failure to do so, the right to the same is vested in the taker, under the provisions of this chapter.
(Code 1852, §2085; Code 1867, §2477; Code 1876, §2873; Code 1886, §3292; Code 1896, §3535; Code 1907, §5854; Code 1923, §10168; Code 1940, T. 47, §267.)
If the taker or the person in possession of the property fails to deliver the same to the owner on the order of the district court and the payment of, or offering to pay, all legal costs, charges, and expenses for keeping, such owner may recover the same; and the person failing also forfeits, to any person bringing an action for the same, double the appraised value of the property.
(Code 1852, §2086; Code 1867, §2478; Code 1876, §2874; Code 1886, §3293; Code 1896, §3536; Code 1907, §5855; Code 1923, §10169; Code 1940, T. 47, §268.)
If any person conceals, destroys, injures, obliterates, or defaces any mark, or disposes of, or carries beyond the state any property taken up adrift, before the expiration of the time allowed by this chapter for the owner to prove his property, he is liable to such owner to the extent of the injury he may sustain thereby.
(Code 1852, §2087; Code 1867, §2479; Code 1876, §2875; Code 1886, §3294; Code 1896, §3537; Code 1907, §5856; Code 1923, §10170; Code 1940, T. 47, §269.)
If the taker dies before the expiration of the time allowed to the owner to prove his property, all the provisions of this chapter, in relation to the giving up of the property, apply to his personal representatives.
(Code 1852, §2088; Code 1867, §2480; Code 1876, §2876; Code 1886, §3295; Code 1896, §3538; Code 1907, §5857; Code 1923, §10171; Code 1940, T. 47, §270.)
(a) Any person who cuts down, deadens, girdles, boxes, destroys, or takes away, if already cut down or fallen, any cypress, pecan, oak, pine, cedar, poplar, walnut, hickory, or wild cherry tree, or sapling of that kind, on land not his own, wilfully and knowingly, without the consent of the owner of the land, must pay to the owner $20.00 for every such tree or sapling; and for every other tree or sapling, not hereinbefore described, so cut down, deadened, girdled, boxed, destroyed, or taken away by any person, he must pay to such owner the sum of $10.00.
(b) When one person owns the land and another person owns the trees standing thereon, the owner of the trees is the owner of the land within the meaning of subsection (a) of this section.
(c) Actions under this section may be joined with actions for trespass, for cutting, injuring, or removing timber.
(Code 1867, §3202a; Code 1876, §3551; Code 1886, §3296; Code 1896, §§4137, 4138; Code 1907, §§6035, 6036; Code 1923, §§10371, 10372; Code 1940, T. 47, §§272, 273; Acts 1953, No. 753, p. 1015.)
Any person who cuts down, digs up, girdles, destroys, or mutilates any fruit tree or ornamental tree, or shrub, bush, or plant which is inclosed on premises not his own, wilfully and knowingly, without the consent of the owner, must pay to such owner $15.00 for every such tree, shrub, or plant.
(Code 1867, §3202b; Code 1876, §3552; Code 1886, §3297; Code 1896, §4139; Code 1907, §6037; Code 1923, §10373; Code 1940, T. 47, §274.)
Any action for the specific penalties given by this chapter may be brought in any court of competent jurisdiction and must be brought within one year from the time the injury was committed and not after; and neither action brought, nor penalty incurred under any of the provisions of this chapter, is a bar to any action for further damages or to any criminal proceeding for any offense included in the acts for which such penalties are herein imposed or connected therewith.
(Code 1867, §3202d; Code 1876, §3554; Code 1886, §3299; Code 1896, §4140; Code 1907, §6038; Code 1923, §10374; Code 1940, T. 47, §275.)
An owner, lessee, or occupant of premises owes no duty of care to keep such premises safe for entry and use by others for hunting, fishing, trapping, camping, water sports, hiking, boating, sight-seeing, caving, climbing, rappelling, or other recreational purposes or to give any warning of hazardous conditions, use of structures or activities on such premises to persons entering for the above-stated purposes, except as provided in Section 35-15-3.
(Acts 1965, No. 463, p. 663, §1; Acts 1991, No. 91-666, §1.)
An owner, lessee, or occupant of premises who gives permission to another to hunt, fish, trap, camp, hike, sight-see, cave, climb, rappel, or engage in other sporting or recreational activities upon such premises does not thereby extend any assurance that the premises are safe for such purpose nor constitute the person to whom permission has been granted the legal status of an invitee to whom a duty of care is owed or assume responsibility for or incur liability for any injury to person or property caused by an act of such person to whom permission has been granted, except as provided in Section 35-15-4.
(Acts 1965, No. 463, p. 663, §2; Acts 1991, No. 91-666, §1.)
This article does not limit the liability which otherwise exists for wilful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity; or for injury suffered in any case where permission to hunt, fish, trap, camp, hike, cave, climb, rappel, or sight-see was granted for commercial enterprise for profit; or for injury caused by acts of persons to whom permission to hunt, fish, trap, camp, hike, or sight-see was granted to third persons as to whom the person granting permission, or the owner, lessee, or occupant of the premises owed a duty to keep the premises safe or to warn of danger.
(Acts 1965, No. 463, p. 663, §3; Acts 1991, No. 91-666, §1.)
Nothing in this article creates a duty of care or ground of liability for injury to person or property.
(Acts 1965, No. 463, p. 663, §4.)
Nothing in this article shall be construed as granting or creating a right for any person to go on the lands of another without permission of the landowner.
(Acts 1965, No. 463, p. 663, §5.)
It is hereby declared that there is a need for outdoor recreational areas in this state which are open for public use and enjoyment; that the use and maintenance of these areas will provide beauty and openness for the benefit of the public and also assist in preserving the health, safety, and welfare of the population; that it is in the public interest to encourage owners of land to make such areas available to the public for non-commercial recreational purposes by limiting such owners’ liability towards persons entering thereon for such purposes; that such limitation on liability would encourage owners of land to allow non-commercial public recreational use of land which would not otherwise be open to the public, thereby reducing state expenditures needed to provide such areas.
(Acts 1981, No. 81-825, p. 1468, §1.)
Unless the context thereof clearly indicates to the contrary, as used in this article the following terms shall have the following meanings:
(1) OWNER. Any public or private organization of any character, including a partnership, corporation, association, any individual, or any federal, state or local political subdivision or any agency of any of the foregoing having a legal right of possession of outdoor recreational land. For the purpose of this article, an employee or agent of the owner, but not an independent contractor while conducting activities upon the outdoor recreational land, is deemed to be an owner.
(2) OUTDOOR RECREATIONAL LAND. Land and water, as well as buildings, structures, machinery, and other such appurtenances used for or susceptible of recreational use.
(3) RECREATIONAL USE or RECREATIONAL PURPOSE. Participation in or viewing of activities including, but not limited to, hunting, fishing, water sports, aerial sports, hiking, camping, picnicking, winter sports, animal or vehicular riding, or visiting, viewing or enjoying historical, archeological, scenic, or scientific sites, and any related activity.
(4) PERSON. Any individual, regardless of age, maturity, or experience.
(5) COMMERCIAL RECREATIONAL USE. Any use of land for the purpose of receiving consideration for opening such land to recreational use where such use or activity is profit-motivated. Consideration does not include any benefits provided by law in accordance with this article, any other state or federal law, or in the form of good will for permitting recreational use as stated in this article; nor does consideration include a charge by the landowner for maintenance fees where the primary use of the land is for other than public recreational purposes.
(Acts 1981, No. 81-825, p. 1468, §2.)
Except as specifically recognized by or provided in this article, an owner of outdoor recreational land who permits non-commercial public recreational use of such land owes no duty of care to inspect or keep such land safe for entry or use by any person for any recreational purpose, or to give warning of a dangerous condition, use, structure, or activity on such land to persons entering for such purposes.
(Acts 1981, No. 81-825, p. 1468, §3.)
Except as expressly provided in this article, an owner of outdoor recreational land who either invites or permits non-commercial public recreational use of such land does not by invitation or permission thereby:
(1) Extend any assurance that the outdoor recreational land is safe for any purpose;
(2) Assume responsibility for or incur legal liability for any injury to the person or property owned or controlled by a person as a result of the entry on or use of such land by such person for any recreational purpose; or
(3) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.
(Acts 1981, No. 81-825, p. 1468, §4.)
(a) Nothing in this article limits in any way legal liability which otherwise might exist when such owner has actual knowledge:
(1) That the outdoor recreational land is being used for non-commercial recreational purposes;
(2) That a condition, use, structure, or activity exists which involves an unreasonable risk of death or serious bodily harm;
(3) That the condition, use, structure, or activity is not apparent to the person or persons using the outdoor recreational land; and
(4) That having this knowledge, the owner chooses not to guard or warn, in disregard of the possible consequences.
(b) The test set forth in subsection (a) of this section shall exclude constructive knowledge by the owner as a basis of liability and does not create a duty to inspect the outdoor recreational land.
(c) Nothing in this article shall be construed to create or expand any duty or ground of liability or cause of action for injury to persons on property.
(Acts 1981, No. 81-825, p. 1468, §5.)
Nothing in this article shall be construed to relieve any person using outdoor recreational land open for non-commercial public recreational use from any obligation which such person may have in the absence of this article to exercise care in the use of such land and in the activities thereon, or from legal consequences of failure to employ such care.
(Acts 1981, No. 81-825, p. 1468, §6.)
The liability limitation provisions of this article shall not apply in any cause of action arising from acts or omissions occurring on or connected with land upon which any commercial recreational enterprise is conducted.
(Acts 1981, No. 81-825, p. 1468, §7.)
Nothing in this article shall be so construed as to alter or repeal any immunity from law suit presently conferred by law upon the state or political subdivision thereof, or any agency or instrumentality thereof.
(Acts 1981, No. 81-825, p. 1468, §8.)
(a) The liability limitation protection of this article may be asserted only by an owner who can reasonably establish that the outdoor recreational land was open for non-commercial use to the general public at the time of the injury to a person using such land for any public recreational purpose. Any owner may create a rebuttable presumption of having opened land for non-commercial public recreational use by:
(1) Posting signs around the boundaries and at the entrance(s) of such land; or
(2) Publishing a notice in a newspaper of general circulation in the locality in which the outdoor recreational land is situated, and describing such land; or
(3) Recording a notice in the public records of any county in which any part of the outdoor recreational land is situated, and describing such land; or
(4) Any act similar to subdivisions (1), (2), or (3) of subsection (a), which is designed to put the public on notice that such outdoor recreational land is open to non-commercial public recreational use.
(b) The assertion of any of the provisions of the article by an owner shall not be construed to be (1) expressed or implied dedication; (2) granting of an easement; or (3) granting of an irrevocable license, to any person or the public to use such outdoor recreational land.
(c) Any person who enters non-commercial outdoor recreational land for any recreational purpose either with or without an invitation or permission from the owner, and either with or without knowledge that the land is held open for non-commercial public recreational use is subject to the provisions of this article.
(d) The availability of outdoor recreational land for non-commercial public use may be conditioned upon reasonable restrictions on the time, place, and manner of public use as the owner shall establish.
(Acts 1981, No. 81-825, p. 1468, §9.)
(a) As used in this section, the term recreational vehicle park means a place set aside and offered by a person, for direct or indirect remuneration of the owner, lessor, or operator of the place, for the parking, accommodation, or rental of five or more recreational vehicles or tents. The term includes buildings and sites set aside for group camping and similar recreational facilities.
(b) The operator of a recreational vehicle park may request a guest of the park who, while on the premises of the park, illegally possesses or deals in a controlled substance, as defined in Section 20-2-2; who disturbs the peace and comfort of other persons; or who causes damage to the park, to leave the park.
(c) The operator of a recreational vehicle park may notify a guest who commits any of the acts in subsection (b) that the park no longer desires to entertain the guest and may request the guest immediately depart from the park. The notice shall be given in writing. If the guest has paid in advance, the park operator, at the time the notice is given, shall tender to the guest the unused portion of the advance payment. Any guest who remains or attempts to remain in the park after being requested to leave pursuant to this subsection is guilty of a Class B misdemeanor.
(d) In the event any guest is unlawfully on or about the premises of a recreational vehicle park as provided in subsection (c), the operator may call to his or her assistance any policeman, constable, deputy sheriff, sheriff, or other law enforcement officer, and it shall be the duty of the law enforcement officer, upon request of the operator of the recreational vehicle park, to immediately remove or eject the guest, using force if necessary.
(e) The operator of the park shall employ all reasonable and proper means to care for any personal property left on the premises by a guest who has been removed as a result of this section and refund any unused portion of monies paid by the guest for the occupancy of the premises.
(Act 2019-463, §1; Act 2021-539, §1.)
(a) This section shall be known and may be cited as the Landowners Protection Act.
(b) A landowner who leases property for hunting or fishing purposes shall not be liable for any damages to any person based on the use of the leased property for hunting or fishing purposes.
(c) Subsection (b) does not prevent or limit the liability of a landowner who does either of the following:
(1) Has actual knowledge at the time of the lease of a dangerous condition existing on the land that is not open and obvious, and does not make the danger known to the lessee, and the danger proximately causes injury, damage, or death to a person rightfully using the land pursuant to the lease.
(2) Intentionally or willfully causes an injury to a person rightfully using the land pursuant to the lease.
(d) Subsection (b) does not enlarge or diminish the open and obvious doctrine.
(e) This section shall not affect the liability of a third party leasing the land.
(Act 2011-293, p. 539, §§1, 2.)
The superintendent of insurance and the superintendent of banks, jointly, shall, within 30 days after final adjournment of each regular session of the Legislature, cause to be prepared a table showing the current present cash value of an annuity of $100.00 per month, month by month from two to 480 months at two percent, two and one-half percent, three percent, three and one-half percent, four percent, four and one-half percent, five percent, five and one-half percent and six percent, which table shall be delivered to the Secretary of State, who shall cause the same to be printed in the bound volume of the acts of the Legislature.
(Acts 1953, No. 456, p. 561, §1.)
Annuity tables computed, compiled, printed, and published as provided in section 35-16-1 shall be received in all courts of this state as evidence of the facts therein stated, but nothing contained in this chapter shall affect the admissibility of other competent evidence when offered in a lawful and proper manner.
(Acts 1953, No. 456, p. 561, §2.)
The superintendent of insurance shall, within 10 days after final adjournment of each regular session of the Legislature, cause to be delivered to the Secretary of State the then current American experience and commissioners standard ordinary mortality tables, which the Secretary of State shall cause to be printed in the bound volume of the acts of the Legislature.
(Acts 1953, No. 459, p. 562, §1.)
(a) Mortality tables as printed in the bound acts of the legislature pursuant to section 35-16-3 shall be received in all courts of this state as evidence of the facts therein stated.
(b) The provisions of section 35-16-3 and subsection (a) of this section are cumulative and shall not prevent any court from taking judicial knowledge of mortality tables, as provided by law, nor affect the admissibility of such tables in evidence when offered in any other lawful and proper manner.
(Acts 1953, No. 459, p. 562, §§2, 3.)
As used in this chapter, the following words have the following meanings:
(1) CONSERVATION EASEMENT. A nonpossessory interest of a holder in real property imposing limitations or affirmative obligations the purposes of which include retaining or protecting natural, scenic, or open-space values of real property, assuring its availability for agricultural, silvicultural, forest, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, paleontological, or cultural aspects of real property.
(2) HOLDER. Either of the following to whom a conservation easement is conveyed:
a. A governmental body empowered to hold an interest in real property under the laws of this state or the United States.
b. A charitable corporation, charitable association, or charitable trust, the purposes or powers of which include retaining or protecting the natural, scenic, or open-space values of real property, assuring the availability of real property for agricultural, silvicultural, forest, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, paleontological, or cultural aspects of real property.
(3) THIRD-PARTY RIGHT OF ENFORCEMENT. A right expressly provided in a conservation easement to enforce any of its terms granted to a governmental body, charitable corporation, charitable association, or charitable trust, which, although eligible to be a holder, is not a holder.
(Acts 1997, No. 97-715, p. 1483, §1.)
(a) Except as otherwise provided in this chapter, a conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated, or otherwise altered or affected in the same manner as other easements. A conservation easement may not be created or expanded under this chapter by any state, county, or local governmental body through the exercise of the power of eminent domain.
(b) No right or duty in favor of or against a holder and no right in favor of a person having a third-party right of enforcement arises under a conservation easement before its acceptance by the holder and a recordation of the acceptance.
(c) Except as provided in subsection (b) of Section 35-18-3, the term of a conservation easement shall be the term stated in the instrument creating the easement or, if no term is stated, the lesser of 30 years or the life of the grantor, or upon the sale of the property by the grantor.
(d) An interest in real property in existence at the time a conservation easement is created, including, but not limited to, any subsurface property interests or leases and any related rights of owners or leaseholders to remove or extract minerals or any mortgages, deeds of trust, security interests, or other liens, shall not be impaired or diminished in any way by a conservation easement unless all owners of the interests are parties to the conservation easement or consent to it and the consent is properly recorded. A conservation easement shall not be construed to impair or diminish in any way interests in adjacent or surrounding properties.
(e) Nothing in this chapter shall be construed to impair or diminish in any way the rights of any person, entity, or governmental body authorized by the laws of this state or under federal law to acquire property interests through the exercise of eminent domain or condemnation. A conservation easement may be condemned or appropriated through eminent domain in the same manner as any other property interest.
(Acts 1997, No. 97-715, p. 1483, §2.)
(a) An action affecting a conservation easement may be brought by any of the following:
(1) An owner of an interest in the real property burdened by the easement.
(2) A holder of the easement.
(3) A person having a third-party right of enforcement only to the extent provided in the instrument creating the easement.
(b) This chapter does not affect the power of a court to modify or terminate a conservation easement in accordance with the principles of law and equity applicable to other easements and specifically including the doctrine of changed conditions.
(Acts 1997, No. 97-715, p. 1483, §3.)
A conservation easement is valid even though any of the following apply:
(1) It is not appurtenant to an interest in real property.
(2) It can be or has been assigned to another holder.
(3) It is not of a character that has been recognized traditionally at common law.
(4) It imposes a negative burden.
(5) It imposes affirmative obligations upon the owner of an interest in the burdened property or upon the holder.
(6) The benefit does not touch or concern real property.
(7) There is no privity of estate or of contract.
(Acts 1997, No. 97-715, p. 1483, §4.)
(a) Any instrument intended to create a conservation easement under this chapter shall contain an explicit reference to that effect.
(b) This chapter does not invalidate any interest, whether designated as a conservation or preservation easement or as a covenant, equitable servitude, restriction, easement, or otherwise, that is enforceable under any other law of this state.
(Acts 1997, No. 97-715, p. 1483, §5.)
The provisions of this chapter are intended to be cumulative and supplemental to the provisions of Amendment No. 543 of the Constitution of Alabama of 1901, commonly known as the “Forever Wild Amendment,” and any other provisions of law, and shall not be construed to repeal any law or part of law except for those in direct conflict herewith.
(Acts 1997, No. 97-715, p. 1483, §7.)
This act may be cited as the Alabama Uniform Environmental Covenants Act.
(Act 2007-464, p. 972, §1.)
The following terms shall have the following meanings:
(1) ACTIVITY AND USE LIMITATIONS. Restrictions or obligations created under this chapter with respect to real property.
(2) AGENCY or DEPARTMENT. The Alabama Department of Environmental Management.
(3) COMMON INTEREST COMMUNITY. A condominium, cooperative, or other real property with respect to which a person, by virtue of the person’s ownership of a parcel of real property, is obligated to pay property taxes or insurance premiums, or for maintenance, or improvement of other real property described in a recorded covenant that creates the common interest community.
(4) DIRECTOR. The Director of the Alabama Department of Environmental Management or his or her designated representative.
(5) ENVIRONMENTAL COVENANT. A servitude arising under an environmental response project that imposes activity and use limitations.
(6) ENVIRONMENTAL RESPONSE PROJECT. A plan or work performed for environmental remediation of real property and conducted under any of the following programs or situations:
a. Under a federal or state program governing environmental remediation of real property, including Chapter 30E of Title 22, but not including Chapter 36 of Title 22 or Chapter 35 of Title 22 regarding aboveground storage tanks registered for eligibility.
b. Incident to closure of a solid or hazardous waste management unit, if the closure is conducted with approval of an agency.
c. Under a state voluntary clean-up program authorized in Chapter 30E of Title 22.
(7) HOLDER. The grantee of an environmental covenant as specified in Section 35-19-3(a).
(8) PERSON. An individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(9) RECORD. Used as a noun, means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(10) STATE. The State of Alabama.
(Act 2007-464, p. 972, §2; Act 2012-317, p. 716, §1; Act 2023-485, §1.)
(a) Any person, including a person that owns an interest in the real property, an agency, or a municipality or other unit of local government, may be a holder. An environmental covenant may identify more than one holder. The interest of a holder is an interest in real property.
(b) A right of an agency under this chapter or under an environmental covenant, other than a right as a holder, is not an interest in real property.
(c) An agency is bound by any obligation it assumes in an environmental covenant, but an agency does not assume obligations merely by signing an environmental covenant. Any other person that signs an environmental covenant is bound by the obligations the person assumes in the covenant, but signing the covenant does not change obligations, rights, or protections granted or imposed under law other than this chapter except as provided in the covenant.
(d) The following rules apply to interests in real property in existence at the time an environmental covenant is created or amended:
(1) An interest that has priority under other law is not affected by an environmental covenant unless the person that owns the interest subordinates that interest to the covenant.
(2) This chapter does not require a person that owns a prior interest to subordinate that interest to an environmental covenant or to agree to be bound by the covenant.
(3) A subordination agreement may be contained in an environmental covenant covering real property or in a separate record. If the environmental covenant covers commonly owned property in a common interest community, the record may be signed by any person authorized by the governing board of the owners’ association.
(4) An agreement by a person to subordinate a prior interest to an environmental covenant affects the priority of that person’s interest but does not by itself impose any affirmative obligation on the person with respect to the environmental covenant.
(Act 2007-464, p. 972, §3.)
(a) An environmental covenant must meet all of the following requirements:
(1) State that the instrument is an environmental covenant executed pursuant to this chapter.
(2) Contain a legally sufficient description of the real property subject to the covenant.
(3) Describe the activity and use limitations on the real property.
(4) Identify every holder.
(5) Be signed by the director, every holder, and unless waived by the agency, every owner of the fee simple of the real property subject to the covenant.
(6) Identify the name and location of any administrative record for the environmental response project reflected in the environmental covenant.
(b) In addition to the information required by subsection (a), an environmental covenant may contain other information, restrictions, and requirements agreed to by the persons who signed it, including any of the following:
(1) Requirements for notice following transfer of a specified interest in, or concerning proposed changes in use of, applications for building permits for, or proposals for any site work affecting the contamination on, the property subject to the covenant.
(2) Requirements for periodic reporting describing compliance with the covenant.
(3) Rights of access to the property granted in connection with implementation or enforcement of the covenant.
(4) A brief narrative description of the contamination and remedy, including the contaminants of concern, the pathways of exposure, limits on exposure, and the location and extent of the contamination.
(5) An exculpatory provision that releases the grantor from future claims by the grantee or the grantee’s successor in title which is consistent and enforceable under the laws of this state.
(6) Limitation on amendment or termination of the covenant in addition to those contained in Sections 35-19-9 and 35-19-10.
(7) Rights of the holder in addition to its right to enforce the covenant pursuant to Section 35-19-11.
(c) In addition to other conditions for its approval of an environmental covenant, the agency may require those persons specified by the agency who have interests in the real property to sign the covenant.
(Act 2007-464, p. 972, §4; Act 2023-356, §1.)
(a) An environmental covenant that complies with this chapter runs with the land.
(b) An environmental covenant that is otherwise effective is valid and enforceable even if any one or more of the following conditions apply:
(1) It is not appurtenant to an interest in real property.
(2) It can be or has been assigned to a person other than the original holder.
(3) It is not of a character that has been recognized traditionally at common law.
(4) It imposes a negative burden.
(5) It imposes an affirmative obligation on a person having an interest in the real property or on the holder.
(6) The benefit or burden does not touch or concern real property.
(7) There is no privity of estate or contract.
(8) The holder dies, ceases to exist, resigns, or is replaced.
(9) The owner of an interest subject to the environmental covenant and the holder are the same person.
(c) An instrument that creates restrictions or obligations with respect to real property which would qualify as activity and use limitations except for the fact that the instrument was recorded before January 1, 2008, is not invalid or unenforceable because of any of the limitations on enforcement of interests described in subsection (b) or because it was identified as an easement, servitude, deed restriction, or other interest. This chapter does not apply in any other respect to such an instrument.
(d) This chapter does not invalidate or render unenforceable any interest, whether designated as an environmental covenant or other interest, that is otherwise enforceable under the law of this state.
(Act 2007-464, p. 972, §5.)
This chapter does not authorize a use of real property that is otherwise prohibited by zoning, by law other than this chapter regulating use of real property, or by a recorded instrument that has priority over the environmental covenant. An environmental covenant may prohibit or restrict uses of real property which are authorized by zoning or by law other than this chapter.
(Act 2007-464, p. 972, §6.)
(a) A copy of an environmental covenant shall be provided by the persons and in the manner required by the agency to each of the following persons or entities:
(1) Each person that signed the covenant.
(2) Each person holding a recorded interest in the real property subject to the covenant.
(3) Each person in possession of the real property subject to the covenant.
(4) Each municipality or other unit of local government in which real property subject to the covenant is located.
(5) Any other person the agency requires.
(b) The validity of a covenant is not affected by failure to provide a copy of the covenant as required under this section.
(Act 2007-464, p. 972, §7.)
(a) An environmental covenant and any amendment or termination of the covenant must be recorded in every county in which any portion of the real property subject to the covenant is located. For purposes of indexing, a holder shall be treated as a grantee.
(b) Except as otherwise provided in subsection (c) of Section 35-19-9, an environmental covenant is subject to the laws of the state governing recording and priority of interests in real property.
(Act 2007-464, p. 972, §8.)
(a) An environmental covenant is perpetual unless any of the following conditions apply:
(1) The covenant is limited to a specific duration or terminated by the occurrence of a specific event.
(2) The covenant is terminated or modified by consent pursuant to Section 35-19-10.
(3) The covenant is terminated or modified pursuant to subsection (b).
(4) The covenant is terminated by foreclosure of an interest that has priority over the environmental covenant.
(5) The covenant is terminated or modified in an eminent domain proceeding, but only if each of the following requirements are satisfied:
a. The department is a party to the proceeding.
b. All persons identified in subsections (a) and (b) of Section 35-19-10 are given notice of the pendency of the proceeding.
c. The court determines, after hearing, that the termination or modification will not adversely affect human health or the environment.
(b) If the department has determined that the intended benefits of the covenant can no longer be realized, or are no longer protective of human health and the environment, a court, under the doctrine of changed circumstances, in an action in which all persons identified in subsections (a) and (b) of Section 35-19-10 have been given notice, may terminate or modify the covenant or reduce its burden on the real property subject to the covenant. The departments’s determination or its failure to make a determination upon request is subject to review pursuant to the Alabama Administrative Procedure Act.
(c) Except as otherwise provided in subsections (a) and (b), an environmental covenant may not be extinguished, limited, or impaired through issuance of a tax deed, foreclosure of a tax lien, or application of the doctrine of adverse possession, prescription, abandonment, waiver, lack of enforcement, or acquiescence, or a similar doctrine.
(d) An environmental covenant may not be extinguished, limited, or impaired by application of any law relating to marketable title or dormant mineral interests.
(Act 2007-464, p. 972, §9.)
(a) Unless otherwise specified in the environmental covenant, an environmental covenant may be amended or terminated by consent only if the amendment or termination is signed by each of the following:
(1) The agency, unless waived by the agency, in which event the current owner of the fee simple of the real property subject to the covenant must sign.
(2) Each person that originally signed the covenant, unless a person waived in a signed record the right to consent or a court finds that the person no longer exists or cannot be located or identified with the exercise of reasonable diligence.
(3) Except as otherwise provided in subsection (d)(2), the holder.
(b) If an interest in real property is subject to an environmental covenant, the interest is not affected by an amendment of the covenant unless the current owner of the interest consents to the amendment or has waived in a signed record the right to consent to amendments.
(c) Except for an assignment undertaken pursuant to a governmental reorganization, assignment of an environmental covenant to a new holder is an amendment.
(d) Except as otherwise provided in an environmental covenant:
(1) A holder may not assign its interest without consent of the other parties.
(2) A holder may be removed and replaced by agreement of the other parties specified in subsection (a).
(3) A court of competent jurisdiction may fill a vacancy in the position of holder.
(Act 2007-464, p. 972, §10.)
(a) The department is designated as the administrating agency for this chapter and is empowered to administer and enforce this chapter using the authorities granted to it by the Environmental Management Act. However, such designation shall not imply that the department shall assume any administration or enforcement functions other than those directly related to the environmental covenant.
(b) A civil action for injunctive or other equitable relief for violation of an environmental covenant may be maintained by any of the following parties or entities:
(1) A party to the covenant.
(2) Alabama Department of Environmental Management.
(3) Any person to whom the covenant expressly grants power to enforce.
(4) A person whose interest in the real property or whose collateral or liability may be affected by the alleged violation of the covenant.
(5) A municipality or other unit of local government in which the real property subject to the covenant is located.
(c) This chapter does not limit the regulatory authority of the Alabama Department of Environmental Management under law other than this chapter with respect to an environmental response project.
(d) A person is not responsible for or subject to liability for environmental remediation solely because it has the right to enforce an environmental covenant.
(Act 2007-464, p. 972, §11.)
(a) The Alabama Department of Environmental Management shall establish and maintain a registry that contains all environmental covenants and any amendment or termination of those covenants. The registry may also contain any other information concerning environmental covenants and the real property subject to them which the department considers appropriate. The registry is a public record for purposes of Section 36-12-40.
(b) After an environmental covenant or an amendment or termination of a covenant is filed in the registry established pursuant to subsection (a), a notice of the covenant, amendment, or termination that complies with this section may be recorded in the land records in lieu of recording the entire covenant. Any such notice must contain all of the following:
(1) A legally sufficient description and any available street address of the real property subject to the covenant.
(2) The name and address of the owner of the fee simple interest in the real property, the agency, and the holder if other than the agency.
(3) A statement that the covenant, amendment, or termination is available in a registry at the Alabama Department of Environmental Management, which discloses the method of any electronic access.
(4) A statement that the notice is notification of an environmental covenant executed pursuant to this chapter.
(c) A statement in substantially the following form, executed with the same formalities as a deed in this state, satisfies the requirements of subsection (b):
“1. This notice is filed in the land records of the Probate Office of _______ County, Alabama, pursuant to Section 35-19-12 of the Alabama Uniform Environmental Covenants Act.
“2. This notice and the covenant, amendment, or termination to which it refers may impose significant obligations with respect to the property described below.
“3. A legal description of the property is attached as Exhibit A to this notice. The address of the property that is subject to the environmental covenant is [insert address of property] [not available].
“4. The name and address of the owner of the fee simple interest in the real property on the date of this notice is [insert name of current owner of the property and the owner’s current address as shown on the tax records of the jurisdiction in which the property is located].
“5. The environmental covenant, amendment, or termination was signed by the Director of the Alabama Department of Environmental Management.
“6. The environmental covenant, amendment, or termination was filed in the registry on [insert date of filing].
“7. The full text of the covenant, amendment, or termination and any other information required by the agency is on file and available for inspection and copying in the registry maintained for that purpose by the Alabama Department of Environmental Management.”
(Act 2007-464, p. 972, §12.)
The department is authorized to adopt regulations and assess fees to implement provisions of this chapter.
(Act 2007-464, p. 972, §13.)
This chapter modifies, limits, or supersedes the federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. Section 7001 et seq.) but does not modify, limit, or supersede Section 101 of that act (15 U.S.C. Section 7001(a)) or authorize electronic delivery of any of the notices described in Section 103 of that act (15 U.S.C. Section 7003(b)).
(Act 2007-464, p. 972, §14.)
This chapter shall be known and may be cited as the Alabama Homeowners’ Association Act.
(Act 2015-292, §1.)
For the purposes of this chapter, the following terms shall have the following meanings:
(1) ASSOCIATION. A homeowners’ association.
(2) BOARD OF DIRECTORS. The group of persons vested with the management of the association irrespective of the name by which the group is designated.
(3) COMMON AREA. Property within a development which is owned, leased, or required by the declaration to be maintained or operated by a homeowners’ association for the use of its members and designated as common area in the declaration or on a recorded subdivision map or plat.
(4) DECLARANT. The person or entity who submits property to a declaration.
(5) DECLARATION. Any instrument, however denominated, including any amendment, modification, restatement, or supplement, recorded in the office of the judge of probate in the county in which the development or any part thereof is located which satisfies the following:
a. Imposes on the association maintenance or operational responsibilities for the common areas.
b. Creates the authority in the association to levy an assessment on lots, the owners or occupants of the lots, or other entities to provide for maintenance or services for the benefit of some or all of the lots in the development, the owners or occupants of the lots, or the common area.
c. Is a covenant running with the land enforceable by and against successors and assigns.
(6) DEVELOPMENT. Real property subject to a declaration that contains lots for residential use and common areas in which any owner is a member of an association and the owner’s lot is subject to assessments pursuant to a declaration.
(7) DIRECTOR. A duly elected or appointed member of the board of directors of an association.
(8) HOMEOWNER’S ASSOCIATION. An entity incorporated as a nonprofit corporation pursuant to Chapter 3 of Title 10A, and provided for in a declaration.
(9) LOT. Any parcel of land within a development designated for separate ownership and shown on a recorded subdivision map or plat, other than a common area.
(10) MEMBER. An owner or occupant of a lot in a development subject to a declaration having membership rights as defined in the declaration or other governing documents of the association.
(11) POTENTIAL PURCHASER. A person having a contractual right or option to acquire a lot or a person or entity who intends to execute a mortgage to secure an indebtedness.
(Act 2015-292, §2.)
(a) This chapter applies to all developments subject to a declaration providing for a homeowners’ association recorded in the office of the judge of probate in the county in which the development, or any part thereof, is located on or after January 1, 2016, and any association formed prior to that time, provided the association, by a majority of its members, elects to be governed by this chapter.
(b) This chapter does not apply to any of the following:
(1) A development for commercial, industrial, or other nonresidential use.
(2) Any association that is subject to regulation under Chapters 8 or 8A of this title.
(3) A real estate cooperative, time-share development, or campground.
(Act 2015-292, §3.)
(a) The principles of law and equity, including, but not limited to, the law of nonprofit corporations in Chapter 3 of Title 10A, the law of real estate, and the law relative to the capacity to contract, principal and agent, eminent domain, estoppel, negligence, fraud, misrepresentation, duress, coercion, mistake, receivership, substantial performance, or other validating or invalidating cause supplement this chapter, except to the extent inconsistent with this chapter.
(b) Every duty governed by this chapter imposes an obligation of good faith in its performance or enforcement.
(c) The remedies provided in this chapter shall be liberally administered so that the aggrieved party is put in as good as a position as if the other party had fully performed.
(Act 2015-292, §4.)
(a) On or after January 1, 2016, a homeowners’ association created pursuant to a declaration shall be organized as a nonprofit corporation pursuant to Chapter 3 of Title 10A, and shall be governed in all respects as a nonprofit corporation.
(b)(1) A homeowners’ association, its members, and directors shall be subject to all of the obligations, duties, and responsibilities of and shall have all of the rights and benefits provided in Chapter 3 of Title 10A.
(2) In addition or supplemental to any other filing required in Chapter 3 of Title 10A, a homeowners’ association shall file the following documents with the Secretary of State:
a. Bylaws or other governing documents of the association.
b. The original covenants, conditions, or restrictions adopted by the association.
(3) The Secretary of State shall implement and maintain an electronic database, organized by association name, accessible by the public through the Secretary of State’s website which provides the capability to search and retrieve the documents listed in subdivision (2). Any documents filed with the Secretary of State shall be filed in accordance with Division 4 of Article 3 of Chapter 4, provided such documents filed with the Secretary of State pursuant to this chapter shall not be deemed to provide notice pursuant to Chapter 4.
(4) The Secretary of State may adopt rules necessary for the implementation of this section, including reasonable fees for the filing of documents.
(c) The organizational documents of a homeowners’ association shall provide for all of the following:
(1) Methods of efficient communications with the members of the association unless a different method is required by Chapter 3 of Title 10A.
(2) Rules and regulations for the conduct of any meetings of the association.
(3) The compilation, organization, and maintenance of full and complete financial records of the association available to any member at a reasonable time and place upon the payment of reasonable associated costs.
(4) Reasonable rules and regulations for the use, maintenance, repair, replacement, or modification of any common areas, if any, including penalties for violations.
(5) Power to grant easements, leases, licenses, and concessions through or over the common areas, if any.
(6) Statements regarding the payment of dues and assessments to be provided to any person having an interest, upon the payment of reasonable associated costs.
(7) Preparation and submission of the annual budgets of the association to the members.
(8) Any other act a nonprofit corporation is required to do under law.
(d) In addition to the requirements set forth in subsection (c), the organizational documents of a homeowners’ association may provide for the following:
(1) Indemnification and insurance for the association, its officers, and directors.
(2) Fidelity bonds for any person or entity having custody or control of any funds of the association.
(3) Periodic audits of the financial records of the association.
(4) Power to acquire real and personal property for the benefit of the association and its members.
(5) Power to hire and discharge managing agents and other employees, agents, and independent contractors.
(Act 2015-292, p. 904, §5; Act 2023-177, §1.)
A homeowners’ association provided for in a declaration and subject to this chapter shall be formed prior to the conveyance of any lot in the development by the declarant.
(Act 2015-292, §6.)
A declaration or the governing documents of a homeowners’ association may provide for a period in which the declarant will maintain control of the election of directors and officers of the association and a right to reasonably alter, amend, or modify the declaration.
(Act 2015-292, §7.)
If a conflict exists between the declaration and the governing documents of a homeowners’ association, the declaration prevails, except to the extent that the declaration is inconsistent with this chapter.
(Act 2015-292, §8.)
(a) Within 120 days of the date the members have the right to elect a board of directors pursuant to the declaration or other governing documents of the association to elect a board of directors, the declarant shall give written notice pursuant to Section 10A-3-2.03 of a special meeting of the membership for the purpose of electing a board of directors.
(b) In addition to the notice required under Section 10A-3-2.03, the notice under subsection (a) shall also satisfy the following:
(1) State that the purpose of the meeting is the election of a board of directors pursuant to the declaration and the governing documents of the association.
(2) Provide for nominations of candidates for election to the board of directors at the meeting on the written consent of at least 10 percent of the membership, unless otherwise provided in the governing documents.
(3) State the names of all existing directors and the names of the directors who may continue to serve as directors.
(Act 2015-292, §9.)
Within 90 days of the selection of the board of directors of the association as provided in Section 35-20-9, the declarant, or his or her designee, shall deliver to the board of directors all of the following:
(1) All books, records, and governing documents of the association in the possession of the declarant, or any person or entity under the declarant’s control.
(2) All records of any outstanding and unpaid assessments.
(3) Any contracts of the association with any third parties respecting the operation of the association or the maintenance and upkeep of any property of the association.
(4) Any insurance policies currently in force.
(5) A list of the names and addresses of the members of the association as shown on its records.
(6) Any written unexpired warranties of any contractor or subcontractors, suppliers, or manufacturers relative to the common area or any improvements to the common area.
(Act 2015-292, §10.)
(a) The board of directors, to the extent authorized by the declaration and governing documents, may do the following:
(1) Suspend a member’s right to use facilities or services provided directly through the association for nonpayment of assessments under subdivision (2), to the extent that access to the member’s lot is not denied.
(2) Assess reasonable penalties against a member for any violation of the declaration or rules adopted by the board of directors after the member is afforded the opportunity to be heard and represented by counsel before the board of directors.
(b) If a tenant of a member violates the declaration or rules adopted by the board of directors, in addition to exercising any of its powers and rights against the member, the board of directors may do any of the following:
(1) Exercise any of the actions authorized in subdivision (1) of subsection (a) directly against a tenant of a member.
(2) Assess a penalty authorized in subdivision (2) of subsection (a) directly against a tenant after giving notice to the tenant and member and an opportunity to be heard before the board of directors.
(3) Enforce any other rights against the tenant for the violation which the member as landlord could lawfully have exercised under the lease or which the board of directors could have exercised against the unit owner.
(c) The amount of any penalty assessed under this section shall be considered an assessment for purposes of Section 35-20-12.
(Act 2015-292, §11.)
(a) Except as may be otherwise provided in the declaration or the governing documents of an association, an association shall have, and there is declared, a lien on every lot for unpaid assessments levied against that lot arising on and from the date the assessment is due as fixed and determined by the board of directors at an annual meeting after giving notice as provided in Chapter 3 of Title 10A. The lien may be enforced or foreclosed as provided in the declaration or governing documents or as provided in this section. Written notice of the assessment and lien shall be given to the owner of any lot on which the assessment and lien is claimed by personal delivery or first class United States mail, postage prepaid.
(b) A lien declared by this section shall have priority, except as may be otherwise provided in Chapters 4 and 11, over all other subsequent liens and encumbrances except state and county ad valorem taxes, municipal improvement assessments, UCC fixture filings, mortgages, and deeds of trust securing an indebtedness.
(c) The association, within 12 months from the date any assessment becomes due, shall record a statement of lien verified by an officer or director of the association having personal knowledge of the facts in the office of the judge of probate of the county in which a lot subject to the assessment is located, which shall contain all of the following:
(1) A description of the lot on which the lien is claimed.
(2) The name of the association claiming the lien.
(3) The name of the owner or owners of the lot on which the lien is claimed.
(4) The amount of any unpaid assessments together with the date of the assessments.
(5) The amount of any other interests and costs claimed by the association.
(d) At least 30 days prior to recording a statement of lien, the association shall give written notice by certified mail to the owner of the lot or other person obligated for the lien, as shown on the books and records of the association, that the statement will be recorded in the office of the judge of probate.
(e) An association may bring an action in a court having jurisdiction to enforce a lien declared in this section in the county where the lot is located by filing a verified complaint, attaching a copy of the statement of the lien, alleging those facts showing it is entitled to a lien for the claimed unpaid assessment in accordance with the Alabama Rules of Civil Procedure.
(f) The court in which the action is pending may enforce the lien by a sale of the property after the giving of notice. Notice of a sale shall be given in the county where the lot is located. Notice of all sales under this subsection shall be given by publication once a week for three successive weeks in a newspaper published in the county or counties in which the lot is located. If the lot is located in more than one county, publication shall be made in all counties where the lot is located. The notice of sale must give the time, place, and terms of the sale, together with the description of the lot. If no newspaper is published in the county where the lot is located, the notice must be placed in a newspaper published in an adjoining county for three successive weeks.
(Act 2015-292, §12.)
(a) A homeowners’ association subject to this chapter shall maintain records and information to be made available to each member or potential purchaser, upon written request, within a reasonable time not to exceed 30 days from the date of the request, and upon the payment of reasonable associated costs. Any homeowners’ association may provide the records and information in paper or electronic form or direct the member or potential purchaser to the location of any public record containing the records or information.
(b) Upon written request by a member or potential purchaser and upon payment of reasonable costs, the homeowners’ association, as specified in subsection (a), shall provide or direct the member or potential purchaser to the location of the public record containing the following:
(1) Documents reflecting the most recent assessments, any pending homeowners’ association assessments approved by the board but not yet in effect, or any mandatory dues and charges with the amounts, including dates due and payable.
(2) Common areas owned by the association and those common areas not owned by the association but which HOA dues go to pay.
(3) A copy of the current operating budget and reserve funds, if any, and a statement of financial condition for the last fiscal year.
(4) Documents evidencing any insurance coverage provided for all lot owners by the association, including any fidelity bond.
(5) Documents evidencing any loans against the association and any collateral provided by the association for the loans.
(6) The official name of the association with current contact information of the current officers and agent, if any.
(7) A copy of the current covenants, conditions, and restrictions adopted by the association along with any amendments, modifications, restatement, or supplement and current architectural control regulations.
(8) Any association initiation or transfer fees which may be due at the time of the real estate closing.
(9) A list of all existing common areas.
(10) The case number or other identifying information of any pending lawsuits, judgments, liens, arbitration, or any other dispute resolution process to which the association is a party and contained in a public record.
(Act 2015-292, §14.)
Upon the termination of a declaration, or at such other time as required by law, the board of directors shall take those steps necessary for the immediate dissolution and liquidation of the association and any remaining assets.
(Act 2015-292, §15.)
(a) This chapter shall be known and may be cited as the Alabama Property Protection Act of 2026.
(b) The Legislature finds that protecting private property owners from seller impersonation fraud and other forms of title fraud and ensuring swift remedies when real property is fraudulently conveyed are essential to the public interest and to the integrity of Alabama’s property records and real estate market.
(Act 2026-536, §1.)
For the purposes of this chapter, the term “commission” means the Alabama Securities Commission.
(Act 2026-536, §1.)
(a) The commission shall have authority to investigate claims and administer, implement, and enforce this chapter with respect to all regulated conduct, individuals, and entities described in this chapter, regardless of licensure under any other provision of law. This authority shall not preclude other professional licensing authorities from pursuing professional licensing violations under Chapter 25 of Title 27, Chapter 3 of Title 34, Chapter 27 of Title 34, or Chapter 20 of Title 36.
(b) The commission may adopt rules necessary to carry out this chapter, including, but not limited to, rules governing:
(1) Consumer complaint intake and resolution procedures;
(2) Disclosure forms and content;
(3) Examination, reporting, and recordkeeping requirements;
(4) Fees, fines, penalty schedules, and remedial measures established by rule;
(5) A means of giving constructive notice of the commission’s administrative orders to third parties in a central location or searchable database; and
(6) Definitions and standards necessary to prevent circumvention of this chapter.
(c) The commission may:
(1) Conduct investigations and examinations and issue administrative orders detailing its findings;
(2) Require the production of documents and testimony;
(3) Issue subpoenas;
(4) Issue cease and desist orders;
(5) Impose administrative fines and penalties per violation;
(6) Order restitution, rescission, disgorgement, or other remedial relief;
(7) Prosecute criminal violations where authorized by law; and
(8) Coordinate with other agencies as authorized by law.
(d) The commission may bring an action in any court of appropriate jurisdiction to obtain an order imposing:
(1) Injunctive or other relief;
(2) Civil penalties;
(3) Restitution, rescission, or disgorgement;
(4) Enforcement of administrative orders;
(5) Recovery of investigative and enforcement costs; and
(6) Appointment of a receiver.
(e) Nothing in this chapter shall be construed to limit criminal prosecution under any law or to require exhaustion of administrative remedies prior to criminal enforcement.
(f) Nothing in this chapter shall apply to the acquisition of real property, easements, or rights-of-way for utility infrastructure.
(Act 2026-536, §1.)
(a) When the commission determines, after receiving a complaint and conducting an investigation, that a real property or real estate conveyance occurred as a result of a criminal act or fraud, any proceeds derived from the fraudulent conveyance may be forfeited and deposited into the Alabama Title Fraud Recovery Fund established under Section 8-6-61. No person or individual may profit by retaining proceeds from such a conveyance. Bank, credit union, title insurer, or state or local government fees, premiums, or principal and interest payments to a lender may not be included in forfeiture. Any forfeiture penalty under this section must be commenced not later than four years after the date the transfer is recorded in the public record.
(b) This chapter does not limit the right to bring civil or equitable actions that may lawfully arise under existing Alabama laws.
(c) The commission shall have the authority to administratively determine land fraud and fraudulent conveyance under this chapter. Nothing in this chapter shall limit the jurisdiction of the circuit court to hear de novo appeals or to grant equitable relief consistent with a final administrative order of the commission.
(Act 2026-536, §1.)
(a) A real estate agent or broker licensed under Chapter 27 of Title 34 may not enter into an agreement to sell or lease real property when the seller is unknown to the real estate agent or broker and is not physically present to meet with the real estate agent or broker, unless the seller provides government-issued identification and ownership records of the real property.
(b) Prior to closing any transfer of Class III properties, as defined in Section 40-8-1, a settlement agent shall conduct identity document validation and identity verification of the seller of real property that is vacant or not owner-occupied and unencumbered by a security instrument.
(c) Documentation demonstrating compliance with this section shall constitute an affirmative defense to a civil claim brought under this chapter. The existence of this affirmative defense shall be a question of law for the court and may be decided on a motion for summary judgment.
(d) The documentation demonstrating compliance required under this section shall be maintained for five years. Any civil action against a real estate agent, broker, or settlement agent arising from a transfer of real property must be commenced not later than four years after the date the transfer is recorded in the public records.
(Act 2026-536, §1.)
(a) The commission may fund a statewide real property notification alert system that notifies a real property owner by text or email when a recording is made on his or her real property.
(b) The commission may provide training and assistance to any municipal, county, or state entity, their staff, and real property owners on real estate fraud prevention and consumer education.
(Act 2026-536, §1.)
The expedited quiet title process established in Section 6-6-540 applies to transactions in this chapter.
(Act 2026-536, §1.)
(a) Upon receipt of a complaint alleging land fraud or a fraudulent conveyance, the commission may investigate the matter using all authority granted under this chapter.
(b) If the commission determines that a real property conveyance resulted from a criminal act or fraud involving the true ownership of the real property, the commission may issue a final administrative order declaring the conveyance void. The commission, in the same order, may impose civil penalties, order restitution or disgorgement, and assess any other remedies authorized by law.
(c) A final administrative order issued by the commission declaring a conveyance void shall be legally binding and enforceable. The administrative order shall not be stayed except by order of the circuit court in a timely filed de novo appeal.
(d) Upon issuance of a final administrative order, the commission shall serve a copy of the order by certified mail upon the complainant and all parties to the proceeding. The complainant may file a certified copy of the final administrative order in the circuit court of the county where the real property is located for purposes of enforcement and quiet title relief.
(Act 2026-536, §1.)
(a) Any party aggrieved by a final administrative order of the commission may seek judicial review by filing an appeal in the circuit court of the county where the real property is located not later than 30 days after the date of the final administrative order.
(b) An appeal to the circuit court shall be tried de novo.
(Act 2026-536, §1.)
(a) If no timely appeal is filed, the circuit court, upon a quiet title petition by the complainant with a copy of the administrative order attached, shall enter an order enforcing the final administrative order not later than 30 days from the filing date of the quiet title petition without further evidentiary hearing or procedural delay. The court may waive the filing fees and court costs for good cause shown. The enforcement order shall:
(1) Declare the fraudulent conveyance or attempted conveyance void;
(2) Direct the judge of probate to nullify any recorded instrument that clouds title or conflicts with the administrative order; and
(3) Quiet title in favor of the rightful real property owner.
(b) Upon receipt of a quiet title enforcement order issued to the circuit court pursuant to this section, the judges of probate shall promptly record the circuit court order and administrative order.
(c) The judge of probate may comply with an enforcement order under this section by recording the enforcement order in the official real property records and making a marginal notation on the voided instrument referencing the recorded order, or making a cross reference to the voided instrument when recording the enforcement order.
(Act 2026-536, §1.)
(a) When the commission determines, after receiving a complaint and conducting an investigation, that a real property or real estate conveyance occurred as a result of a criminal act or fraud, any proceeds derived from the fraudulent conveyance may be ordered to be forfeited and deposited into the Alabama Title Fraud Recovery Fund established under Section 8-6-61, unless otherwise ordered by the circuit court.
(b) This section does not limit the right to bring civil or equitable actions that may lawfully arise under existing Alabama laws.
(c) Any person who knowingly fails to remit proceeds from a fraudulent conveyance or files frivolous litigation to delay enforcement may be assessed an additional civil penalty of ten thousand dollars ($10,000), payable to the Alabama Title Fraud Recovery Fund.
(Act 2026-536, §1.)
The crimes of fraudulent sale or lease of residential real property or aggravated fraudulent conveyance of real property established in Article 1, Chapter 9 of Title 13A does not preclude the state from pursuing additional criminal prosecution as authorized by law.
(Act 2026-536, §1.)
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