New Legislation Alert: HB 41, Landlords, and Domestic Violence

As I noted in my last message to my e-mail list (you can subscribe at the bottom of the page), there is a lot happening legislatively that has implications for Kentucky landlords. In my last post, I discussed “the Dog-Bite Bill” (SB 68), which has passed the Senate and is sitting in the House. Click here to get the details on the bill and what you can do to support it. Today, I’m going to take a look at House Bill (HB) 41.

HB 41 is a revised version of a bill that was filed last year seeking protection for victims of domestic violence in rental housing. The original 2016 version can be found here, with the most recent amendment here. Basically, HB 41 creates two new sections to be added to KRS 383, both of which would apply statewide.

Section One

Section One of the bill has eight parts.

Part One makes clear that the bill would not be retroactive, applying only to leases created or renewed on or after the effective date of the bill.

Part Two creates two groups: Protected Tenants and Named Individuals. “Protected Tenant” means any tenant or applicant for residential rental housing, or a tenant with a minor household member, who is protected by a valid (1) Domestic Violence Order or (2) Interpersonal Protective Order. A “Named Individual” is a person identified in a protective order as being restrained from contact with a protected tenant.

Part Three sets forth a list of prohibited acts by landlords with regard to Protected Tenants. Landlords may not terminate, fail to renew, or refuse to enter into a lease, or otherwise retaliate against a Protected Tenant based on their status as a Protected Tenant. Parts Three and Four also apply to an expanded list of Protected Tenants, which includes any tenant or applicant for residential rental housing, or a tenant with a minor household member, who is protected by a valid (1) Emergency Protective Order, (2) Temporary Interpersonal Protective Order, or (3) Pretrial Release No-Contact Order. 

Part Four, which also applies to the expanded list of Protected Tenants, requires a landlord to change the lock or locking mechanism for rental units with Protected Tenants, with the tenant to reimburse the landlord within 45 days of invoicing by the landlord, with the cost being retained from the security deposit if not paid by the tenant.

Part Five allows the Protected Tenant to terminate his/her lease without further obligation or penalty upon 30 days’ written notice to the landlord. Protected Tenants who have yet to take occupancy may terminate a lease with no payments required up to 14 days prior to occupancy. It goes on to make the Named Individual liable, even if not on the lease, for any financial damages sustained by the landlord as a result of the lease termination, including lost rent, damages, advertising, and costs of re-renting the premises.

Part Six allows the landlord to refuse the Named Individual access to the premises, unless access is permitted by court order, even if the Named Individual is on the lease. The landlord may further terminate the tenancy of and evict the Named Individual and recover from the Named Individual any rent or other costs incurred by the landlord as a result of the Named Individual’s violation of the protective order.

Part Seven makes clear that, even if a Protected Tenant is released from lease, the tenancies of any non-protected remaining tenants will continue.

Part Eight provides immunity from liability for any landlord who acts in good faith under this section.

Section Two

Section Two of the bill has three parts.

Part One prohibits landlords from including any lease provision that penalizes a tenant for making requests for assistance from peace officers or in response to emergencies.

Part Two makes such provisions unenforceable and allows any tenant to recover his/her actual damages, costs, and attorney’s fees, plus punitive damages of two months’ rent from any landlord who enforces such a provision in a lease.

Part Three makes it clear that this section also only applies to leases created or renewed on or after the effective date of the bill.

Specific Protections for Victims

So, let’s step back and look at the proposed big picture. For tenants who have sought and been awarded a valid protective order against a perpetrator of violence, they would have the following protections:

1. The ability to break a lease without penalty on 30 days’ notice and move to a new unit to put distance and/or anonymity between them and their attacker;
2. The ability to be considered as an applicant without regard for the fact that someone made them a victim of violence;
3. The ability to remain in their rental home despite it being the location of an act of domestic violence, even if that violent act disturbed neighbors.
4. The right to have new locks and/or locking mechanisms for their rental units.

There’s not much question that these are good things. Domestic violence is a scourge. Victims who live in fear of an attacker carry a daily burden that non-victims likely don’t fully comprehend. In fact, when the facts are clear that a tenant is the victim of domestic violence and needs help in protecting himself/herself from a perpetrator, most landlords that I deal with voluntarily go above and beyond even the protections included in HB 41.

The federal Violence Against Women Act already provides significant protections for tenants in federally-assisted housing who are the victims of domestic violence. In my practice, I typically advise my clients to treat their tenants who are victims of domestic violence in accordance with the VAWA, even if they do not receive federal assistance. 

The problem, as they say in law school, is that hard cases make bad law. With domestic violence, a vast number of cases are not easy. Oftentimes, sorting out who is the victim and who is the perpetrator is almost impossible. In some cases, a tenant will be both a victim and a perpetrator. In other cases, victims continue to invite their abusers to their rental units, thereby perpetuating further violence, disturbances, and damage. As a result, the questions with HB 41 and its amendments are not whether they are well-intentioned or would help certain victims, but rather whether they provide protection to victims without creating a new class of victims out of landlords.

Concerns and Potential Revisions

There are some legitimate concerns with HB 41 from the landlord's perspective, so I've proposed some potential revisions that might remove some unintended consequences that would either unjustly penalize landlords or reward perpetrators of violence.

1. Revise the bill to include only protective orders that prohibit all contact between the protected tenant and the named individual, not just violent contact. Not all protective orders are created equally. Some only prohibit further violent contact, but allow the parties to otherwise continue their relationship. The purpose of allowing protected tenants to terminate their leases is to allow them to move away from their attacker and/or to a place that is not known to the attacker. These rationales are not present when a protective order allows continued contact between the parties. Without this revision, the bill merely penalizes the landlord while creating no real protection for the tenant.
2. Don't allow tenants who enter a lease with a protective order to terminate the lease. The bill puts landlords between a rock and a hard place in that it requires a landlords to lease to protected tenants who otherwise qualify and prevents the landlord from terminating the lease for future acts of domestic violence, but allows the tenant to terminate the lease upon only 30 days’ notice. In other words, the landlord is at the complete mercy of the tenant. At the very least, the tenant should not be able to terminate a lease unless a protective order becomes necessary during the lease term, as tenants who already have a protective order at the beginning should not be allowed to terminate the lease. Without this revision, the landlord-tenant relationship is completely one sided, and the landlord has no assurance of entitlement to any rental income beyond 30 days. The contractual assurance of rental income is the very foundation of the landlord's business, and this bill should be revised to protect it.
3. The termination provision has potential for abuse. If a tenant wants to get out of a lease, he/she can collude with another person to obtain a protective order. The tenant can then terminate the lease, obtain new housing as a protected tenant, then have the protective order set aside or dismissed. This is probably not a significant factor, as most tenants would probably be more willing to merely risk breaking the lease than to go through the process of obtaining a protective order, but it’s worth pointing out when considering the bill.
4. Named Individuals should not qualify for Protected Tenant status. Many individuals protected by protective orders are often also perpetrators of domestic violence. Many domestic violence incidents involve two parties inflicting violence upon each other, with the result being that each files for and obtains a protective order against the other. As such, this proposal would allow domestic violence perpetrators to terminate their leases and have protected tenant status when applying for rentals. Needless to say, such individuals should not qualify for these protections.
5. Extend the notice period for terminating the lease. The simple truth of the termination provision is that it shifts all liability to the one party who is always innocent in these situations: the landlord. Landlords are stuck looking for a new tenant after 30 days’ notice. From experience, I can tell you that many of these landlords will not be able to re-rent their units. To its credit, the bill does allow landlords to seek recovery from the perpetrator of the violence. However, in most rental situations, that is not a viable option. While domestic violence occurs across all income levels, it is most highly reported among those with lower incomes. As a result, most Named Individuals have lower incomes and, thus, are not viable options for recovery of losses by landlords.

Therefore, I think the best option is to revise the termination provision to a 45 or 60-day notice. Most leases already contain early termination fees, and the industry standard for is two months’ rent. This arrangement is fairer to the landlord, giving him/her more time to find a replacement tenant, while still making the situation more manageable for victims. At the very least, the bill should be revised to require that the 30-day notice not begin until the beginning of the next rental period, which is the standard used for members of the military called to active duty.

I've had a number of discussions with some of the advocates of this bill, and can tell you that their goal is to keep victims safe, and to close loopholes that would promote abuse by unscrupulous individuals. As with most legislation, that is easier said than done and the devil is always in the details. As of today, this bill is still in the state House of Representatives. If you’re interested in how this bill develops and moves forward, please contact your state representative. If you’re not sure of the name of your representative, click here, select Who’s My Legislator, then click on the map. From that point, click the link to their bio page to get their contact information.

This is a sensitive and complicated topic, and worthy of our thorough consideration. I support the efforts of the bill's originators to find a way to protect true victims, but also want to make sure it's done in a way that accomplishes its goals without unintended consequences to landlords.

For more information on how to deal with domestic violence incidents and eviction, check out my video course on evictions, found here.