TOP TEN MISTAKES MADE BY LANDLORDS IN KENTUCKY EVICTION CASES – JAY MATHENY
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Jackie M. “Jay” Matheny, Jr. Attorney at Law Denton Law Firm, PLLC 555 Jefferson Street Suite 301 Paducah, KY 42001 Phone: 270-450-8253 www.dentonfirm.com |
THE TOP TEN MISTAKES MADE BY LANDLORDS IN KENTUCKY EVICTION CASES
Well, it happened again. Your tenant’s rent payment was due on the first day of the month, and, for the third time in as many months, that elusive rent check is nowhere to be found. You have had enough, and you decide that it is finally time to “part ways” with your tenant. But, where do you even begin? Perhaps the best way to learn what to do in an eviction case is to learn what not to do in an eviction case.
So, from the home office in Paducah, Kentucky, here are the top ten (10) mistakes made by landlords in eviction cases in Kentucky1.
10. Utilizing “Self-Help” to Retake Possession of the Leased Premises from the Tenant
Although your lease may say you can do it, you, as the landlord, do not have the legal right to simply enter the leased premises, remove your tenant’s belongings, and change the locks. “Self-help” is not an available remedy to landlords in Kentucky eviction cases. If you wish to evict a tenant, you must follow Kentucky law to do so. That process begins with sending an eviction notice to a tenant.
9. Failing to Provide the Correct (or Legally Required) Amount of Notice to a Tenant
And, speaking of eviction notices, one of the “cardinal sins” committed by landlords in eviction cases is failing to provide the correct amount of notice to a tenant. In Kentucky, most-landlord tenant relationships are on a month-to-month basis, i.e. the tenant pays the landlord rent on a monthly basis (usually on the first of the month). Consequently, in most landlord-tenant situations, a landlord is required to give a tenant at least a thirty-day notice to properly and effectively terminate the tenant’s lease. In some jurisdictions, a shorter notice period is acceptable if a thirty-day notice is explicitly waived by the tenant in a written lease agreement. But, not all district courts in Kentucky allow for shortened notice periods. Thus, it is important to know how much notice you are required to give in your particular county.
8. Accepting Rent from a Tenant After Sending an Eviction Notice
A major temptation (and subsequent issue) for landlords is the situation where a tenant offers to make a partial rent payment after an eviction notice has been sent. After all, getting something certainly seems better than getting nothing, right? Well, the problem with accepting a partial rent payment after an eviction notice has been sent is that the acceptance of even a partial payment can result in a waiver of the right to evict. Kentucky law is pretty clear on this issue. You cannot “have your cake and eat it too.” If you want to evict a tenant, and you have already sent an eviction notice, the best rule of thumb is to not accept even a partial payment from a tenant, as this will most certainly be a defense raised by a tenant at the eviction hearing.
7. Filing an Eviction Complaint Prior to the Expiration of the Notice Period
So, you have sent your tenant a thirty-day notice, and the expiration date for your eviction notice is fast-approaching. But, your tenant has “hunkered down” in the leased premises and has advised you that he/she is not leaving within the thirty-day notice period. Can you file your eviction complaint before the thirty-day notice period is up in an effort to put additional pressure on your tenant to get out? The Kentucky Supreme Court answered this question unequivocally in 2016 when it ruled that filing an eviction complaint before the expiration of an eviction notice period is not permissible, as the tenant is not “forcibly detaining” the leased premises until after the eviction notice expires, i.e. on day 31. If an eviction complaint is filed before the eviction notice expires, your eviction complaint is likely to be dismissed as being premature.
6. Attempting to Include a Claim for Damages in an Eviction Complaint
Kentucky law is a bit hazy regarding some aspects of eviction proceedings, but one thing is absolutely clear: claims for damages are not permitted in eviction proceedings. Eviction proceedings are for one thing: recovering your property from a tenant. In the event that a landlord wants to recover back rent, damages, or attorney’s fees from a tenant, those claims must be brought in a separate action.
5. Listing Incorrect Parties in an Eviction Complaint
One mistake that seems to plague landlords in this area of the law is listing incorrect parties in an eviction complaint. This occurs on several levels. The owner of the leased property may be a limited liability company, but an individual is listed as a plaintiff. Likewise, there may be two (2) tenants on a lease agreement, but the plaintiff lists only one of the tenants as a defendant in the eviction complaint. Simply put, a failure to list the correct parties in an eviction complaint may result in a dismissal of the eviction complaint.
4. Attempting to Represent the Interests of an LLC or a Corporation Pro Se
A corollary to listing incorrect parties in an eviction complaint is an attempt by a non-attorney to represent a limited liability company or a corporation in an eviction proceeding. It is exceedingly common for landlords to hold rental properties in the name of a limited liability company or a corporation. However, when it comes time to file an eviction complaint, the sole member/owner of the limited liability company or corporation may try to represent the corporate entity in the eviction proceeding. The problem with this is that both the Kentucky Bar Association and Kentucky appellate courts have held that this constitutes the unauthorized practice of law, as there is a long-standing rule that companies and other corporate entities cannot be represented by lay people in court. Thus, in eviction proceedings (and other types of legal proceedings), limited liability companies and other types of corporate entities must be represented by licensed attorneys. The failure of a corporate entity to obtain counsel for an eviction proceeding may result in a delay of the eviction proceeding until counsel for the corporate entity is obtained.
3. Sending a Property Manager to a Forcible Detainer Trial without an Attorney
Another problem that seems to plague landlords in Kentucky eviction cases is that they will often try to send their property managers to testify on their behalf (or on behalf of their company) without an attorney. Again, this is impermissible in Kentucky eviction proceedings. This was further demonstrated in a 2018 Kentucky Court of Appeals opinion which reversed an eviction judgment because a property manager was permitted to testify on behalf of a housing organization without the housing organization’s attorney being present.
2. Failing to Provide Adequate Proof at an Eviction Trial
Often, landlords appear at eviction proceedings expecting to simply have a judge read their eviction complaints and issue rulings based solely on the contents of their eviction complaints. However, when an eviction case is placed on the docket, it is actually being set for a mini-trial. Sure, there are not going to be a multitude of witnesses or the usual fanfare that comes with trials. But, as with any trial, a landlord (as a plaintiff) in an eviction trial is required to present proof to the court demonstrating his/her case to the court. The landlord must either testify himself/herself (or call other witnesses), under oath, demonstrating the existence of a landlord-tenant relationship, that there was a breach of the agreement between the landlord and the tenant, that the landlord sent an eviction notice to the tenant, and that the tenant did not follow the directive(s) of the eviction notice. Landlords may also need additional evidence to prove their cases, especially when a breach of the lease agreement was for something other than to pay rent. For example, if a breach of the lease agreement came as a result of a violation of a pet policy, the landlord may want to bring pictures to the eviction hearing of a dog going in and out of the leased premises. In any event, an eviction proceeding requires a landlord to prove, by a preponderance of the evidence, his/her tenant is in breach of the terms of the lease agreement, that an eviction notice was sent, and that the tenant is forcibly detaining the leased premises. Without such proof, the tenant is in violation of the lease agreement.
1. Attempting to Retake Possession of the Leased Premises without First Obtaining a Warrant for Possession
If a landlord goes through an eviction proceeding and obtains a forcible detainer judgment against a tenant, the tenant will usually be provided seven (7) additional days within which to vacate the leased premises. Upon the expiration of that seven-day period, the landlord’s remedy to finally retake possession of the leased premises from the tenant is to obtain a warrant for possession. A warrant for possession is a document that is signed by the judge directing a sheriff or a constable to return possession of the leased premises back to the landlord. This process is the only legal way to regain possession of the leased premises from the tenant and is not that difficult. Be that as it may, it is always surprising that a number of landlords just ignore this final step of the process and simply try to forcibly remove the tenant(s) themselves. However, as referenced in numerical paragraph 1 above, self-help is not an available remedy in forcible detainer proceedings. With that said, if a tenant does not vacate within the seven-day window provided by the court, the landlord’s remedy is simply to obtain a warrant of possession from the court and wait until that warrant for possession is served by the sheriff or constable. Once this occurs, possession of the leased premises will be legally restored to the landlord.
CONCLUSION
Although eviction law in Kentucky can be difficult to navigate, avoiding the pitfalls referenced above will go a long way in trying to regain possession of your property. If you have any questions regarding the content of this article (or your need for an eviction attorney), I strongly encourage you to contact me. Best wishes.
1 There are two (2) caveats that should be noted moving forward. First, this article primarily addresses residential landlord/tenant relationships. However, some of the information contained herein may be applicable to commercial landlord/tenant relationships. If you have a question regarding the applicability of the information contained herein to your particular case, please consult with a licensed attorney. Second, the information contained within this article is primarily applicable to evictions in non-Uniform Residential Landlord Tenant Act (“URLTA”) jurisdictions. The Uniform Residential Landlord Tenant Act is an act that was promulgated by the Kentucky legislature and establishes certain rules and procedures which govern residential landlord/tenant relationships. But, by statute, it is up to each individual jurisdiction (cities or counties) as to whether to adopt the URLTA. In Kentucky, a limited number of jurisdictions have adopted the URLTA, so, in most instances, KRS Chapter 383 will be applicable to an eviction proceeding. Nevertheless, if you have some question as to whether the URLTA applies to your case, contact a licensed attorney.