New Court Filing Procedure Causing Problems for Kentucky Landlords

A recent change made by the Kentucky Administrative Office of the Courts is playing havoc with landlords having to evict tenants for forcible detainer, often giving tenants an extra week of free rent on top of what they haven’t paid already.

The AOC is moving towards electronic filing, which will make life easier on clerks, and as part of the changeover assignment of civil cases to judges (divisions in district court) is randomized. In the past there were ways to “shop” for a certain judge, as the assignment methods were often odd/even next case numbers so one could wait until the right number was up; this randomized assignment puts an end to such judge shopping.

However, the AOC included forcible detainer cases in this randomized assignment process. In larger Circuits like Louisville and Lexington the effect is negligible but in other Circuits district judges tend to rotate on/off weeks in a county. What used to happen is the next available judge would be assigned the forcible detainer case. Now it could be assigned to the judge who won’t be available next, typically meaning an unnecessary wait of a week. While it would be possible for a landlord to judge shop under the old system, forcible detainer judgments are normally easy to obtain. Even if a landlord thought one judge somewhat more likely to grant judgment than another, they penalize themselves a week to do such shopping. That seems reasonable disincentive when time is literally money for a landlord.

Forcibles are summary actions, designed to happen quickly (they can occur as quickly as three days after the filing of the complaint). By the time the forcible complaint is filed the landlord is typically out quite a bit of rent already; normally there is a grace period of some time (even the hardest landlords are hesitant to post notice when rent is only a few days late), and then notice is required, the shortest notice period allowed being seven days. Then the court will grant the tenant an additional seven days past the judgment to vacate.

Under the old method the tenant almost always got close to at least a month’s free rent before the landlord could show up with the sheriff and a warrant for possession. Now roughly half the time they are getting an additional week. While randomizing the assignment of other civil cases has no effect on time (emergency or ex parte motions can always be made, and civil cases – even small claims – don’t happen in a matter of days), its time effect on forcible detainers is significant.

Landlords can respond by foregoing a grace period, but posting 7-day notices on tenant’s doors on the day after rent is due isn’t going to help the relationship. Some inexperienced landlords tend to give delinquent tenants far too much time as it is; either they don’t write the notice period into the lease as being 7 days (so it defaults to 30) or they let the rent get a month or more behind before they take legal action. Finding out the next available court date could be as much as 19 days out will be tough news for them to hear (if you file just after the deadline and get the bad draw, it figures out to 19 days in a week on/week off Circuit).

In a forcible detainer case in Jessamine County the Administrative Office has been named as a party where a landlord got the bad draw on case assignment and is seeking injunctive relief from the AOC’s assignment system. While it’s probably a longshot to get a court to rule against the court system’s own administrative offices, the law should be on the landlord’s side. Recent state appeals court rulings have made clear that forcible detainer cases are summary proceedings designed to occur quickly. As the delay is completely unnecessary, the AOC should be hard pressed to justify it legally. Stay tuned.

Category: Property Management