Do You Need an Attorney to File Your Eviction?

Posted by Stephen Marshall on

The Background

For years, Kentucky law was arguably unsettled on whether a non-attorney, such as a property manager, could file evictions in court on behalf of the owner of the property. As a result, the standard practice of many property owners was to have their property managers handle evictions. By "handle", I mean completely handle. The manager would sign the Forcible Detainer Complaint, file it with the local court, then appear at the hearing to present the case against the tenant in an effort to obtain a judgment of eviction. If successful, that same manager would then obtain a writ of possession and, with help of a sheriff or constable, remove the tenant from the property. In order to deal with objections regarding the manager's authority to act, the property owner would often grant (and some courts required them to grant) the manager limited power of attorney to evict tenants. In fact, many courts had a standard form that owners could sign designating the manager as their attorney-in-fact.

The Rule

However, despite the popularity of this practice throughout the state, it was seemingly at odds with the language of the law. Kentucky Supreme Court Rule 3.020 and the court cases that interpreting the rule clearly indicate that only individuals who have been admitted to the Kentucky Bar Association may practice law, which is defined as any service rendered that involves legal knowledge or advice. The only exception to this rule is for an individual acting on his own behalf. Thus, any non-attorney who renders legal services to other individuals or entities is technically engaging in the unauthorized practice of law, which is a misdemeanor criminal offense in Kentucky. So, the law basically says you can represent yourself, but nobody else, unless you are a licensed attorney.

The Tension

So there's the tension: courts throughout the state allowed property managers to sign and file court documents and prosecute cases on behalf of other individuals and entities (the property owners), but the language of the law seemed to reserve this practice for attorneys only.  

The Challenge

The winds of change began to blow in the early 2000's when tenant attorneys, led primarily by Legal Aid attorneys, began to challenge eviction filings by property managers. In response, several counties issued standing orders that only property owners and attorneys could file evictions, but most still allowed the practice as long as the tenant did not object. Sensing a chink in the landlord's armor, tenants began objecting the practice regularly, and sometimes appealing cases when their objections were overruled. In 2007, the Fayette Circuit Court issued an order on appeal that overturned a judgment of eviction on behalf of an LLC because the case had been filed by a member of the company who was not an attorney.

The Ruling

Despite this order and others like it, the position of the district courts on eviction filings by non-attorneys remained inconsistent, and eviction cases still typically only got dismissed when the tenant objected to the practice. But the momentum on the issue was now unstoppable, and in September 2008, the Kentucky Court of Appeals issued an opinion holding that filing eviction lawsuits by non-attorneys constitutes the unauthorized practice of law, and such lawsuits shall be dismissed. This ruling is now the law of the state of Kentucky. The good news is that this ruling is does NOT apply to Small Claims cases, so property managers may still file such lawsuits on behalf of their property owners. 

The Trend

Perhaps because the Kentucky Court of Appeals opinion was not published, many District Court judges have not been unified in their enforcement, but the trend of requiring attorneys for evictions is clear. In fact, in September 15, 2011, the Fayette District Court issued a standing order that requires that all forcible detainer lawsuits be filed by either the legal owner of the property or an attorney. If the legal owner is an entity (corporation, partnership, or LLC), the lawsuit may only be filed by an attorney. While I have yet to see anyone prosecuted for the unauthorized practice of law in these situations, and never expect to, the fact that such eviction cases will get dismissed is a sufficient penalty. As we've noted repeatedly, a dismissed eviction is costly for landlords in terms of lost rent. 

The Summary

So, here's a breakdown of the scenarios:

  1. If the deed to your property lists you as an individual owner (solely or jointly), you may file forcible detainer lawsuits yourself, as the law always allows you to represent yourself. You may not have your property manager or any other non-attorney do so on your behalf. Granting power of attorney to the non-attorney will not suffice. 
  2. If the deed to your property lists a partnership, an LLC, or a corporation as the owner, you must hire an attorney to file your forcible detainer lawsuits.
  3. If you are a property manager, do not file any forcible detainer lawsuits unless you also own the property personally.

To be clear, by "file" I mean the signing of the Forcible Detainer Complaint. I'm not referring to the person who takes the documents to the courthouse and pays the fees. When evaluating who "filed" the case, the court will look at who signed the complaint. 

A final word of advice: always make sure that your eviction lawsuit is filed in the name of the owner of your property as listed on the deed. Do not file it in the “business name” of the property unless that name is the name actually listed on the deed. Follow these steps, and you can be comfortable that you've done things the right way, and your case won't be dismissed on a technicality.

 

 


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