Why Louisville Has a Different Forcible Detainer Form

Kentucky law allows posting of the forcible detainer complaint by the sheriff on the door of the property if no adult or family member at least 16 is present to be served. Because a lawsuit to regain possession of the property by the landlord (a forcible detainer action is the name in Kentucky) is technically against the property (called “in rem”) in order to regain possession of it, posting notice on the door is acceptable. 11 states have the same standard for notice in eviction cases. However, in Jefferson County (Louisville) the federal courts have turned that on its head, requiring notice of the eviction hearings to be mailed rather than posted. For a while mailing was not acceptable in the rest of the state, it was required in Jefferson County, and likewise while posting on the door was not acceptable in Louisville, it was required (if no adult or at least 16-year-old family member is available to serve personally) in the rest of the Commonwealth. If you are outside of Jefferson County, the main issues the courts have with mailing notices is proof of service and allowing time in the mails plus the time called for to receive before the forcible hearing.

While this is a problem mostly for the sheriff’s deputies and constables – they are the ones doing the serving – as a consequence of this particular court case (Greene v. Lindsey) Jefferson County has a different required form for filing the forcible detainer complaint, which can be found by clicking here . So if you are a Jefferson County landlord or property manager, be sure to use the right form. It’s very similar to the regular state form, but has slight differences.

The question the federal courts didn’t answer in this case is whether posting the 7-day (or 30-day or whatever) notice to the door is sufficient (that’s the notice you, the landlord or property manager post). Kentucky common law requires reasonable notice before you can file the forcible detainer complaint successfully, and I’ve seen nothing in the courts showing that this has been tested in Jefferson County so posting of the landlord’s breach notice on the door hasn’t been forbidden yet. For the rest of the state, posting 7-day notice on the door is definitely acceptable (while mailing the notice isn’t in my experience). My guess, and it’s just a guess until a court does rule, is that posting the 7-day notice to the door is sufficient in Jefferson County because the federal courts didn’t address it and it was acceptable before, but a safe alternative is to both post and mail the 7-day notice (remember that under Kentucky law, 7-day notice can only be done if it is specified in the lease, otherwise the defaults – typically 30 days – apply), or ask a Jefferson county attorney to advise you.

So how did we get to this convoluted system where what is required in Jefferson County was insufficient in the rest of the state and vice-versa? It goes to a 1975 case where renters in a government housing project were evicted through Kentucky’s forcible detainer process.  They filed a class action suit in federal court claiming that they didn’t receive proper notice – that they never saw the sheriff’s notice posted on their door. The federal district court denied them, saying that Kentucky’s three step law (try to serve an adult family member first, then try to serve a family member at least 16 years old, and only then post it prominently – typically the front door) was sufficient due process. However, the plaintiffs appealed and the federal appeals court ruled in their favor. In 1982 the U.S. Supreme Court took the case and likewise ruled in their favor – that posting to the door wasn’t sufficient notice, and the case Greene v. Lindsey became law. However, it only became law in Jefferson County. The courts did not rule on the entire state of Kentucky, only that such methods denied due process in Jefferson County.

The case itself was so typical of things I’ve heard in court over and over, “I didn’t see the notice on my door”. However, I’m not in Jefferson county, and I’m posting the 7-day notice, not the court notice, so my judges ignore that as long as I provide proof (testimony, and we provide pictures if necessary of the notice posted to the door) that 7-day  notice was posted. The testimony in the Greene case was all about whether or not kids in the housing project were taking notices off the doors. There was no proof that such a thing was happening, or that it specifically happened in that case. Three process servers (deputies) testified. Two of them testified they had never witnessed notices being taken down, and that they always posted them high on the door so small children couldn’t get to them. The third only testified that he suspected it might have happened a couple of times that kids had taken the notices, but he also had never witnessed it. Despite these rather flimsy grounds, and that doing so overturned long-standing court decisions, the Supreme court decided to apply the standard of  “where an inexpensive and efficient mechanism such as mail service is available to enhance the reliability of an otherwise unreliable notice procedure, the State’s continued exclusive reliance on an ineffective means of service is not notice ‘reasonably calculated to reach those who could easily be informed by other means at hand.'” quoting an earlier decision known as Mullane. In other words, they considered the U.S. mail a more reliable way to give notice, and considered Kentucky’s personal-service-then-posting method “ineffective” in Jefferson county where the housing project was.

The three dissenting judges on the Supreme Court quickly pointed out how unreliable U.S. mail can be, and went further:  “The Court itself acknowledges that ‘posting notice on the door of a person’s home would, in many or perhaps most instances, constitute . . . a singularly appropriate and effective way of ensuring that a person who cannot conveniently be served personally is actually apprised of proceedings against him.’ Ante, at 452-453 26. The Court nonetheless rejects these established procedures as unconstitutional, though it does not cite a single case … supporting its position that notice by posting is constitutionally inadequate in summary eviction proceedings. Instead, the Court relies solely on the deposition testimony of a few Kentucky process servers.”

The minority also pointed out in detail the special case that summary ejectment (eviction) is; a tenant is forcibly holding property and not paying the rent, even though the landlord’s expenses – property taxes, mortgage interest, utilities and the like – are ongoing, so the need for swift and certain proceedings is paramount.

I have to agree with the minority report. Just how much notice does someone who hasn’t paid their rent really need? Their first notice is in the lease – it says what day the rent is due. The second notice is typically a call, email (I know they didn’t have email in 1975), posted note, mailed notice or personal collection visit from the landlord reminding them the rent is due. Then comes the 7-day notice. Finally comes the court notice, and it only gets posted to the door as a last resort if no one acceptable is home to be personally served. All of this when the tenant knows good and well they didn’t pay their rent when it was due. The only exception to be concerned about is that rare case where the rent check really was lost in the mail, or the landlord failed to record receiving it properly. So, this has to be case where 1) The check really was lost in the mail 2) the landlord made no other collection contacts 3) the 7-day notice was removed from the door before the tenants were aware of it 4) no adult family members were home when the court papers were served 5) no family members at least 16 were home when the court papers were served and finally 6) the court notice was removed from the door by someone before the tenants were aware of it. Whatever the odds of all those things falling into place perfectly actually are, they would have to be pretty astronomical. On the flip side, not only can a notice be lost in the mail, just because it’s delivered doesn’t mean it gets read by the right person. Kids in the family could do something with it before it’s opened, maybe the tenant it’s addressed to is on vacation but other tenants are home who would have seen the notice on the door (but don’t open someone else’s mail), etc. etc. In other words, the court began arguing with itself about the odds of very unlikely things happening and tried to choose which was hypothetically more or less likely to occur. I’ve found that courts do better when they deal with facts and law rather than hypotheticals, and this somewhat tortured decision would seem to support that.

Two years later, however, the Kentucky legislature cleared the air on the matter by passing KRS 454.030 (a thank you to Tom Fox for the heads up on this), which requires both mailing and posting in a conspicuous place. So while this makes the service requirements uniform across the state for serving notice of the forcible detainer action, the different form for filing the forcible complaint which derived from Greene v. Lindsay, still remains. It seems an orphaned legal oddity; all the issues which led to the case are resolved and uniform statewide, however the separate but equal forms remain.

By Don Shelton

 

Category: Eviction, Property Management

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