My husband and I own a beautiful large house, but we live in another house we own in town. We have sadly decided to sell this large vacant house because we can no longer afford the mortgage. We have rented it out in order to help us make the monthly payment on it. Because of our plan to sell when the time is right, we kept the “lease” as a month to month so we can ease through the selling transaction when the time came.
Three months ago our daughter found out that her and her family were to be relocated to the area and she expressed interest in buying the house. We gave our renters a 30 day written notice on the 1st of the month to conincide with my daughter’s apartment lease of 6 months coming to an end at the end of that same month . My daughter moved out of her apartment at the end of that month because her lease had expired and we had told her that the house would be vacated by the 1st of the following month.
Come the end of the month out renters were not out and asked for an extra week as they needed more time to move. We kindly accepted, mind you, our daughter and her family have no place to live at this point. Then at the end of that week they asked for another, and we said yes, but kindly explained to them that they must be out at the end of the week for our daughter and her family are homeless.
At the end of that week they still refused to leave. The woman explained to us that she works for a lawyer and if we evicted them it would do us no good because they will be out before the court date.
We filed an Eviction, knowing well that they must have played this system before. They countered the eviction with an Affidavit as they told us they would and claimed that the trial date won't be until 4 weeks and they should be out a few days before then.
Obviously these people are just buying time and have no intention of appearing in court and in the meantime my daughter, her husband and their two very young children are homeless.
Our State Law Section 35-9-85 states that once the counter affidavit is served it “shall stand trial on the third day after the delivery to [said] sherrif….”
We must get our daughter in this home as soon as possible – can the county law differ in the amount of time it takes before it goes to court from the state law?
Also, we have done everything legally and buy the book, up on what grounds can the tenant file this counter Affidavit?
Is there anything to protect the homeowners when the tenants are playing the system? Time is crucial here.

Unfortunately the laws in most states tend to favor the tenant rather than the landlord. In NJ when a tenant knows the laws they can play the system for as much as 6 months after their lease has been terminated.

I'm sorry but all you can do is proceed with the trial and hope that they vacate before then. Tell me what state you're in and I'll see if I can find anything in the laws that might help.

Thank you for your response.

I live in the state of Alabama.

I have looked up our state law on evictions and Alabama State Eviction Law section 35-9-85 states:“If the counter affidavit provided in section 35-9-84 be made and delivered to the sheriff or deputy sheriff or constable, the tenant shall not be removed, but said officer shall immediately return the proceedings to the court which issued said writ or process, and the fact or facts in issue shall be there tried by said court , and shall stand for trial on the third day after the delivery to said sheriff or deputy sheriff...”

What I do not understand is why did the district court set our date of trial for over 2 weeks from the day the counter affidavit was filed. Most eviction processes that I have researched have taken no longer than 23 days for the entire process if you have all your ducks in a row, which we do.

We have had a very good tenant-landlord relationship up until we had to file the eviction, this is why we conceded to the extra two weeks for which we did not ask to be paid. We are very surprised that they have responded in this manner. Upon what grounds could they have possibly filed this counter affidavit?

Thank you.

Obviously they have lied in their affidavit. According to your state's law 35-9-84 (which, by the way, has been repealed effective 1/1/2007), "The tenant may arrest the proceedings and prevent the removal of himself and goods from the land by declaring on oath that his lease or term of rent has not expired, and that he is not holding possession of the premises over and beyond his term, or that his right of possession has not terminated or been forfeited, and that he still has a good and lawful right to the possession of said premises."

If I were in your position I would be prepared to file a lawsuit in small claims court immediately after they are out of the house. I would sue them for all of your damages, including interest you lost for not being able to close on the sale of the house to your daughter, court fees for both the eviction action and the small claims action, lost wages for time spent in court, etc. Your tenants have availed themselves of a delaying tactic and you should go after them for it.

And your court date was probably set late for 2 reasons: (1) there is probably a backlog in the court's schedule; and (2) the tenant probably used up a favor at the court house to get the trial listed as late as possible.