Do I Need to Hire a Lawyer for Eviction of Tenant?

For landlords and property managers there is a certain amount of dread of learning about and going through the process of evicting a tenant. You’re already stressed from the fact the tenant isn’t paying (or is breaking the

Do you need a lawyer?

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lease somehow) the sob stories, arguments and even accusations (a typical distraction ploy is to claim the landlord/property manager isn’t doing something right). A tenant who is in breach is like a loose tooth; terribly aggravating and the best solution is to get yanking it out over with. If you’re tempted to give the tenant extra time, you don’t really need to, even if you felt there was good reason, as there is time aplenty built into the eviction process. You can stop the process at any point up to the warrant for possession (Sheriff going with you to take possession), and at that point you are usually at a minimum about a month past when the rent was due; if the tenant hasn’t paid by then, it’s not going to happen.

So do you need an attorney in order to remove a tenant in breach? If you own the properties in your own name, then legally you have the right to be an attorney pro se (sometimes called attorney pro per) which just means you acting as your own attorney. However, if the property is titled in the name of an Arm’s-length entity (we’ll call them ALEs) such as an LLC, corporation, or trust, then you don’t have the right to be an attorney (without a license) for a separate entity. For legal purposes, ALEs are considered persons, so just like you can’t be an attorney for some other actual person without a license, you can’t be an attorney for some other legal person like an LLC, corporation or other ALE. A forcible detainer complaint (what an eviction lawsuit is called in Kentucky) must be filed by either the property owner acting pro se, or an attorney representing the property owner. If the property is titled in an ALE, even if you are the sole member, stockholder, beneficiary, etc., then the ALE, not you, is the owner. ALEs are unable to do some things a physical person can do – like sign a complaint or be their own attorney, but there’s more to consider.

First, it’s not unheard of for some district courts (the court where forcible detainers are filed – see How to Evict a Tenant in Kentucky) to look the other way on this legal theory, since forcible detainers are one of the smallest types of lawsuits (they only determine who has the right of possession, and can’t be used to get a judgment for money). My guess is if there are any district courts still allowing property owners to file forcible detainer complaints for properties in ALEs, there aren’t many of them. The simple way to find out is to ask the district clerk. They can’t give you legal advice, but they can probably tell you if the judge requires ALEs to have an attorney file the complaint.

Second, Living Trusts (also called Inter Vivos Trusts) would probably not be considered an ALE. If you have done some estate planning and have titled properties in a living trust, it will probably still work for you to file the complaint on your own. If in doubt, ask an attorney (offer to take them to lunch or something).

Third, a legal person can appoint a “personal representative”. An ALE can appoint you to be its personal representative, so you can appear on its behalf. Even if an attorney has to file the complaint because your properties are titled in an ALE, you can still be the personal representative on the day of the court hearing (be sure to prepare a letter from the ALE designating you as such, even if you are the only officer/member and sign it as such). You might be able to find an attorney who will sign the complaint for very little, yet let you do the time-consuming court appearance, so you do have the option of appearing for your ALE and having the same basic effect of representing yourself there.

The question remains, though, as to whether you need the expertise of an attorney to either represent yourself, or be a personal representative for your ALE. From my experience, if you are competent enough to be managing property, you are probably competent enough to represent yourself/be a personal representative in the court hearing. About half the time the tenant doesn’t even show up and you’ll get the judgment by default – doing nothing more than going forward when your case is called and answering any questions the judge has. Even when the tenant does show up, if they haven’t paid there’s not much they can say which will stop the judgment, as long as you have given proper notice (again see How to Evict a Tenant in Kentucky). If you’re nervous, just find out when forcible detainer cases are heard in your court and sit in on a session for a few minutes. 30 minutes in a forcible session and you’ll get the idea. About the worst that happens in a forcible detainer case is that it’s continued or has to be re-filed for some reason (lack of proper notice is almost always the question here), so it’s not like losing a million-dollar lawsuit. You can do it, and you can survive any small bumps like a continuance which might come up. The only caveat would be if the tenant hires an attorney; there are tricks and stalls the attorney can take advantage of which change the level of the game and require more sophisticated responses, even though the outcome is still inevitable. If you show up for court, and find yourself facing a lawyer, asking the judge to pass the matter until the next week so you can obtain counsel is probably wise. In a situation where you are facing an attorney, unless you are experienced in the finer points of evictions like pre-judgment attachments for rent and voir dire you probably do need a lawyer of your own. While I have experience in those finer points, in many dozens of forcible cases over the years, I have only had one tenant hire an attorney before eviction (if they can’t or won’t pay the rent, a retainer is probably out of the question), so your chances of that happening are small indeed.

Category: Eviction, Property Management

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