A Supreme Letdown: the Latest Supreme Court Opinion on Evictions

Posted by Stephen Marshall on

One week ago, I got really excited while checking Twitter. Actually, that happens every day. For those of you who don’t use Twitter, I highly recommend it if you’re into breaking news. Twitter is where you read about it first. Sorry for the digression. Anyway, I was scrolling through my Twitter feed last Thursday and saw that the Kentucky Supreme Court had issued an opinion in a landlord-tenant case. And not just in a landlord-tenant case, but in a forcible detainer case. I had found a unicorn! Very rarely do the appellate courts publish opinions on residential landlord-tenant cases, and they almost never publish opinions on eviction cases.

The reason for the lack of published cases on evictions is fairly simple: appeals cost a lot of money, and there’s rarely enough money involved in an eviction to justify any appeal. I do around 2,500 evictions a year, and only a handful of them get appealed. Those that do get appealed never go beyond the initial stage, which is the appeal to Circuit Court. But last Thursday, I was given a gift: an eviction case had been appealed to Circuit Court, then to the Court of Appeals (who declined to hear it), then to the Kentucky Supreme Court, who had heard it and issued an opinion. Finally, I was going to get some additional guidance from our court system on one of the unsolved mysteries of the eviction process. I was pumped.


The case involved a landlord in Boone County, which has not adopted the Uniform Residential Landlord Tenant Act (URLTA). While the opinion is light on the facts of the case, it appears that the landlord had a tenant without a lease, either written or oral. In non-URLTA areas, such a tenant is considered to be a tenant-at-will. KRS 383.195, which is not a part of the URLTA and thus applies statewide, provides that a landlord may terminate a tenancy-at-will by “giving one (1) month’s notice”.

In this case, the landlord had given the tenant written notice to vacate the premises on February 10, 2014. The opinion did not specify whether a time frame for moving out was mentioned in the notice. In any event, the landlord filed a forcible detainer case (an eviction) against the tenant on February 18, eight days after giving the notice. The local District Court held an eviction hearing on February 27. The tenant asked the court to dismiss the case because the landlord had given insufficient notice. The Court did not dismiss the case, but rather postponed the hearing until March 13 so that more than one month would have passed from the date that the notice was given. On March 13, the Court entered a judgment of eviction against the tenant. The judgment was affirmed on appeal by the Circuit Court, then appealed to the Court of Appeals who declined to hear the case.  


The tenant then asked the Kentucky Supreme Court to review the case, which requests are almost always denied. However, the Court agreed and ultimately issued a ruling reversing the rulings of the lower courts and vacating the judgment of eviction. The basis of their ruling, which was a major letdown to me because it was already perfectly obvious, was that the tenant was not forcibly detaining the premises at the time the landlord filed the eviction complaint because one month had not passed since he was given notice to vacate. The statute is clear that one month’s notice is required to terminate such tenancies, and the eviction was filed well before one month had passed. The fact that the hearing had occurred more than a month after the notice was not relevant, as the statute requires that the tenant be given one month to move before he is considered to be forcibly detaining the premises from the landlord. Until the month has passed, the tenant is in lawful possession of the premises, and there are no grounds for an eviction to be filed.


While the opinion was a disappointment for those of us hoping for something notable, there are a couple of lessons for all landlords:

  1. If your property is in a non-URLTA jurisdiction, and your tenant does not have a lease, the tenant is a tenant-at-will. In such cases, KRS 383.195 requires that you give one-month’s notice to terminate the tenancy. Anything less is not legally sufficient.
  2. For all landlords, an eviction complaint may not be filed until the legally required notice period has expired and the tenant is still in possession of the rental unit. Different circumstances require different amounts of notice, but regardless of the amount of notice required, no eviction complaint may be filed until that time elapses.
  3. Appeals take a long time. This case was initially heard in February 2014. The Kentucky Supreme Court issued their opinion on August 25, 2016. By this point, the tenant had long since vacated the premises anyway.

Like I noted, there was nothing groundbreaking in the opinion. But, the opinion does reinforce that, when it comes to evictions, details matter. When landlords are not properly trained in the law, cases get dismissed. If you need more training on evictions or other issues related to landlord-tenant law in Kentucky, check out my video courses and education conferences. Keep your eyes open for a couple of exciting new announcements on these issues in the days ahead.

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