How to Evict a Tenant in Kentucky
In Kentucky when a tenant hasn’t departed the residence after you’ve given them notice to leave for breaching the lease (usually for non-payment), the legal phrase for that is forcible detainer, and to lawfully have them tossed out you must file a forcible detainer lawsuit; most other states use different terms on their paperwork, but an eviction is an eviction by whichever term. There are some key points which you must observe in order to successfully evict a tenant in Kentucky: You have to post notice of their breach – and you can’t simply just put it in the mail or tell them orally. The procedure that is most favored by property owners and accepted by the courts in Kentucky is to post the notice to the front door (except Jefferson County/Louisville). Indeed, you literally tape a notice to the door. I know, that seems strange, as the wind could blow it off, or children take it off, or any number of things theoretically could happen and the tenant claim they never saw it (which quite a few of them do, even when they know good and well they saw it). But bear in mind, forcible detainer is technically a suit in rem (latin for “against the thing”) instead of a suit in personum (“against the person”). The rationale is the subject matter in a forcible detainer suit is possession of the property (it’s not a money suit; in Kentucky you have to file a separate action to get a judgment for the money a tenant owes you), which means that makes it in rem, and posting notice on the property proper to do. As an additional security, we take a date-stamped picture of the notice on the door, but our testimony that notice was posted usually will suffice.
It is necessary to have the appropriate amount of time on the notice. Kentucky law permits a forcible detainer notice to be as little as seven days, but only if this is actually in writing in your lease. If that written lease fails to state a notice period, then the general default in Kentucky is 30 days. Too many cases I’ve witnessed in which a poor landlord who is already out a month or two’s rent gets told by a judge that their notice period was too short and they have to wait another 30 days. There are other criteria which may come into effect if your payment period isn’t monthly, and your lease doesn’t state a notice period. The default notice period goes to the payment period if it is shorter than 30 days – stated another way if rent is paid bi-weekly, then the default notice period is more than likely also two weeks. If you have an oral lease, you are in a world of trouble to begin with, but the default notice period is normally going to be 30 days on an oral lease. One caveat: if you are in a Uniform Residential Landlord-Tenant Act area and the breach is something besides non-payment (illegal pet, etc.), the notice period is 14 days.
The notice must contain all the essential elements. It should state the date, the tenant’s name(s), the amount past due, a demand it be paid (“pay or quit” is often the phrase utilized) – or other type of breach cured -and notice of however many days is suitable to pay /cure or face eviction. Be careful accepting partial payments after the notice has been posted. It could be argued, and quite possibly successfully, that accepting a partial payment causes a need for a new notice period unless there are proper waiver terms in the lease. After the notice period is up, if the tenant has not paid/cured or vacated, then you must file a forcible detainer complaint. IMPORTANT: if the property is within an LLC, corporation or other arm’s-length entity, probably only an attorney can file the complaint. That is because your LLC is a separate “person” legally from you, and you can’t practice law for this other “person”. See Do You Need a Lawyer to Evict in Kentucky. However, you can generally serve as a “personal representative” for the arm’s-length entity at the forcible hearing.
The forcible detainer complaint is normally filed with the district court clerk in the county where the real estate is. See How to Fill Out the Kentucky Forcible Detainer Form. There will be court costs, and there will be a fee to serve (the sheriff or constable will post the court notice to the front door). The serving costs will vary by locale, though typically the cost of the two combined is somewhat over $100. Upon a guilty finding in the forcible detainer lawsuit, the tenant is typically liable for those costs (if you sue them for money they owe). Be aware of filing and court dates; within my county, for example, forcible detainers are heard on Wednesdays, but the complaint must be filed by noon the previous Thursday, or it will have to be carried over to the following Wednesday. The district clerk will have this information. Kentucky has a standard forcible detainer complaint form online at: https://docs.google.com/viewer?url=http%3A%2F%2Fcourts.ky.gov%2Fresources%2Flegalforms%2FLegalForms%2F216.pdf
Jefferson County (Louisville) has a different forcible detainer form at http://courts.ky.gov/resources/legalforms/LegalForms/0561.pdf
For the story behind the federal court decision which makes things different in Louisville, click here. The Jefferson county form is still pretty similar to the regular form as far was what you have to do to fill it out.
Show up for court with the written lease in hand if you are representing yourself or acting as personal representative. If you have a statement showing the payment history, that’s good too. If the breach is something besides payment (too much noise, pets they aren’t allowed to have, unauthorized occupant, etc.), bring any kind of proofs you might have such as photographs, notes you’ve taken, phone call histories, etc. A judge will take care of most all forcible cases quickly, and while the judge will usually give the tenants a short time to provide their side of things, there can be few defenses (other than proof they’ve actually paid/cured) that a tenant can bring up which will stop the complaint. Lack of notice is the prime defense, and that is mostly an issue of whether you have stated a notice period less than the default 30 days in the lease and did you provide the right notice period. Occasionally it becomes apparent that the agreement is a contract for deed (land contract), which will defeat a forcible detainer since that involves title to the property and requires foreclosure first instead of eviction (I’ve seen this occur; it is devastating, since foreclosure and eviction can take a year. I personally would never sell a property under a contract for deed). The tenant can claim that they have paid you, but they’ll need some proof of payment for that to stick. About half the time the tenant won’t even show up and then you’ll get the judgment by default. When the tenant does show up, often they will agree they currently owe money but then begin in on what difficult circumstances have caused them to get behind. The judge will usually be sympathetic, yet you’ll nonetheless get the judgement. Then you’ll occasionally get the types who claim as a defense that the landlord wouldn’t repair this or that. This will fail, because there are other legal processes they should have employed to make this assertion, and a rent strike is not suitable. I’m working on another article on what it’s like when you are in court to post soon. It doesn’t need to be all that scary. When the judge finds the tenant guilty of forcible detainer, they will be given seven days to vacate (the day of the court hearing is not one of the seven days – that count starts on the next day). This will be the same in every case, no matter how much the tenant pleads with the judge, or how dire they claim their circumstances are, unless for some reason you are willing to go into an agreed order allowing more time. After the seven days are up, in case the tenant still has not vacated, then you get a warrant for possession. You take the documents showing you have a forcible detainer judgment back to the district clerk, pay the fee (yes, another fee) and the judge will issue a warrant for possession; in most cases the clerks are authorized to sign the warrant for possession for the judge when you are there, but it is possible the judge may require signing the warrant personally and you might have to return to pick it up. You then take the warrant to the sheriff, and pay the fee (yes, yet another fee), and the sheriff will send a deputy to supervise the eviction. The sheriff’s deputy is there to enforce the court’s order (they will post the warrant for possession), and if necessary to make sure that the tenant(s) are vacated from the property, and will stay to ensure the peace if needed while you have the locks changed, property removed, etc. There are laws dealing with a tenant’s property you want to get familiar with. You might be able to put a clause in your lease which basically says the property is abandoned when there is an eviction. Usually, the tenant’s stuff is simply put on the street, and that’s the end of it (if they won’t haul it off themselves). Be aware, though, that there are procedures governing property disposal which could affect you. Kentucky has a standard warrant for possession form online at: https://docs.google.com/viewer?url=http%3A%2F%2Fcourts.ky.gov%2Fresources%2Flegalforms%2FLegalForms%2F220.pdf In our experience, nearly all (95% or more) of the tenants vacate close to the end of the seven days after the court order and it will be very rare you have to physically toss them with a warrant for possession. When you look at the whole process, a need never to delay becomes clear. Don’t delay until the tenant is already a month past when the rent was due to give notice, as this process will take the better part of another month at least. You need to give at least seven days’ notice, then it will be another 7-13 days after you file the complaint before the court hearing, and then the tenant receives another seven days before you can toss them. That’s a minimum of 21 days. Our policy is to post seven-day notice when the rent is six days past due.