I recently encountered an interesting situation in eviction court that provided an opportunity for clarification on the best practices for evictions. The tenant being evicted lived in a building containing multiple units. The building had access doors in the front and rear. Each access door was locked, but had a coded entry pad. When the tenant failed to pay the monthly rent, the landlord taped a notice on the door of the tenant’s rental unit indicating that the tenant would be evicted if the rent was not paid in full. When the tenant failed to pay within the proper time period, the landlord filed an eviction complaint with the local court and hired a local constable to serve the complaint on the tenant.
How the Complaint was Served
When the constable arrived at the property to serve the complaint, he could not get into the building, and no one was present to let him in. As a result, the constable taped a copy of the complaint and a summons to appear in court on the front door of the building that contained the tenant’s unit and then mailed a copy of both documents to the tenant. The tenant did not appear in court at the eviction hearing, and a judgment of eviction was entered by the court, giving the tenant seven days to vacate and surrender the unit.
After learning that a judgment had been entered, the tenant claimed that he had never been served with the notice that he had not paid rent or the notice of the eviction hearing. As a result, the tenant filed a motion asking the court to grant a new eviction hearing.
The Second Court Hearing
At the hearing, the landlord testified that the notice of non-payment had been posted to the door of the tenant’s rental unit and produced a copy of the notice. The landlord then called the constable as a witness, and the constable testified that the eviction complaint and summons indicating the date, time, and location of the eviction hearing had been taped to the front door of the building, then mailed to the tenant. The landlord produced a photograph showing these documents taped to the front outer door of the tenant's building. The tenant testified that he never used the front outer door, and thus never saw the documents from the constable. He further testified that he’d never received the non-payment notice.
The court was persuaded by the landlord’s testimony that the non-payment notice was delivered, as the landlord had produced a copy of the notice and testified that it was properly served. However, the court was concerned about the fact that the constable did not post his documents on the door of the tenant’s rental unit, but rather on an outer door of the building that was not the only entrance. The court reasoned that, if the tenant only used the rear entrance to the building, the documents would never have been seen.
The Court's Ruling
In order to resolve the case, the landlord’s attorney pointed the court to KRS 454.030, which allows the constable to serve eviction complaints by posting them in a conspicuous place on the premises AND then mailing them. Service is complete if both of these actions are taken, even if the tenant does not actually receive the documents. Because both acts were taken by the constable, the tenant was deemed to have been served and the eviction was upheld.
What We Can Learn
However, the court made clear that the practice of posting the complaint and summons on the outer door of a building, rather than on the tenant’s rental unit, was disfavored. So here’s our main lesson: landlords who have rental units inside buildings with locked exterior doors need to work closely with the officers that serve their eviction complaints to ensure that the officer is able to access the interior of the unit. This can be done multiple ways, such as by simply giving the officer the access code or key or by scheduling a time for the documents to be served so that the landlord can grant access to the officer.
This case also reinforces a couple of basic lessons from prior posts:
- landlords should always keep a copy of every termination notice; and
- the person who served the termination should appear in court, as other parties don’t have personal knowledge that the notice was served, and thus cannot testify about it, unless he/she personally witnessed it.
For a comprehensive look at eviction laws and practices in Kentucky, download my video training course, Kentucky Evictions from A-Z, found here.