A Refresher and Update on Evictions

Posted by Stephen Marshall on

A NEW YEAR’S PRIMER ON EVICTIONS 

Happy New Year, everyone. It’s always good to see a new year because it means you’re still in the game. 

At the beginning of each year, I like to do a refresher course on evictions, but rising Covid numbers has put a damper on that. I may do it later in the year. But I wanted to put a few reminders out that will help make your eviction cases more successful. 

  1. PAY ATTENTION TO YOUR NOTICES 

Evictions are all about getting the details right, and that starts with your notices. 

  • Get the names and address right.
  • Put the date on the notice.
  • For non-payment notices, specify the amount due and the amount of time that the tenant has to pay or vacate (seven days, 30 days, etc.).
  • For material noncompliance notices, specify the incident that breached the lease in detail. Don’t just give a general statement.
    • “Noise violation” = bad
    • “On January 3 at 10:30 p.m., you were screaming at your neighbor.” = good
    • “Code violation” = bad
    • “On January 3, you violated the local building code by having indoor property on the outside of the premises.” = good
    • “Criminal activity” = bad
    • “On January 3, you assaulted another resident in the parking lot.” = good
    • “Property damage” = bad
    • “On January 3, management found a multiple holes in the living room wall.” = good
  • Specify whether the tenant may correct the violations and remain as a tenant or must move out within the specified time frame.
  • Bring a copy of your notice to court.
  • Be clear about when the notice was served and how it was served. 

Having an improper notice could result in your case getting dismissed.

  1. DECIDE EARLY ON RENTAL ASSISTANCE

Millions of dollars in rental assistance are still available. If you decide to pursue the assistance, the court may not allow you to change your mind later. Tenant attorneys make the argument that landlords who represent that they’re going to accept assistance but then seek eviction should be required to accept the assistance because the tenant relied on that representation. Whether this is a winning argument will depend on the facts of the case, but it’s an argument that is being made. 

If you want to take that argument off the table, make your communications to your tenant clear from the beginning about whether you will accept rental assistance and participate in that program. 

  1. PAY ATTENTION TO THE RENTAL ASSISTANCE AGREEMENTS 

If you accept rental assistance, you must do the following:

  • Waive all late fees and penalties
  • Waive all legal fees and court costs
  • Wait 45 days after the last month that the funds cover before taking action against the tenant
  • Send a 30-day notice to pay or vacate after the 45-day waiting period 

If you file an eviction too soon or without sending the proper notice, it will likely get dismissed. 

  1. THE KY SUPREME COURT RULE REQUIRING A 14-DAY CONTINUANCE REMAINS IN EFFECT FOR NON-PAYMENT CASES. 

The Kentucky Supreme Court rule requiring a two-week continuance in non-payment of rent evictions is still in place. So, on your first court appearance in cases that only involve non-payment of rent, the case must be continued for at least two weeks if the tenant shows up to court. This does not apply to other types of evictions, only when non-payment is the sole basis. 

  1. EVICTION DOCKETS IN FAYETTE COUNTY ARE STILL BLOATED

It’s taking five to six weeks to get a court date. This, along with the potential two-week continuance, makes it so important to get your details right. If you give a bad notice (or file too soon after getting rental assistance), wait six weeks for a court date, then have two-week continuance, then get your case dismissed, you won’t be back in court for almost two months – on top of the time you’ve already lost. That’s a long time to go without getting any rent.

You’d be better off to have your friendly neighborhood attorney review your notice before you send it.

That’s it for today. I hope 2022 has started off wonderfully for you. I’m at smarshall@tripleslaw.com if you need me.


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