The Eviction Appeal

Posted by Stephen Marshall on

Most landlords and property managers who have been to eviction court know that, when the judge enters a judgment of eviction, the tenant has seven days to vacate the rental unit. However, the lesser-known fact is that the tenant has another option within that seven-day window: to file an appeal to the local Circuit Court.

Step One: Notice of Appeal

In order to file an appeal, a tenant needs only to file a written document with the court notifying the court that he wishes to appeal the eviction and pay an appeal fee. This appeal fee can be waived by the court if the tenant shows that he doesn’t have sufficient income to pay the fee (the legal term is acting In Forma Pauperis). The document that the tenant files with the court is technically called a Notice of Appeal, and its only purpose is to inform the court and the landlord that the tenant wishes to appeal the case. It does not need to state any reasons for the appeal. A copy of the Notice of Appeal is supposed to served on the landlord, although that rarely occurs. The landlord’s first knowledge that an appeal has been filed is often when they attempt to get a Writ of Possession and put the tenant out of the unit.

Step Two: Appeal Bond

If a tenant wishes to remain in possession of the rental unit during the appeal, he must pay an appeal bond. The amount of the bond is typically the amount of unpaid rent at the time of the eviction, as well as each month’s rent as it comes due throughout the duration of the appeal. Unfortunately for the landlord, the appeal bond is paid directly to the clerk of the court, and state law provides that the clerk is to hold the bond money until the appeal is over. As you might imagine, this can create significant cash flow issues for the landlord, who has a tenant living in the unit (so it cannot be re-rented), but is not receiving any income on the unit. However, if the tenant fails to pay the original bond amount or any subsequent installment, the landlord may obtain a Writ of Possession and remove the tenant from the rental unit in cooperation with the local constable or sheriff.

Step Three: Statement of Appeal

After the Notice of Appeal is filed, the tenant then has 30 days to file a Statement of Appeal. This document is supposed to provide the Circuit Court Judge with certain basic facts about the case and to lay out the tenant’s argument as to why the eviction judgment should be overturned. The tenant often fails to file the Statement of Appeal, so the Circuit Court often just uses the Notice of Appeal as the Statement of Appeal if the Notice contains any arguments for overturning the eviction.

Step Four: Counterstatement of Appeal

Once the tenant’s Statement of Appeal is filed or the 30-day window for doing so has closed (whichever happens first), the landlord then has 30 days to file a Counterstatement of Appeal in which it argues the reasons that the eviction judgment should be upheld.

After both documents are filed, the case usually gets submitted to the Circuit Court Judge (the appeals judge) for consideration. Either side may ask for a chance to present an oral argument of their case to the Circuit Court Judge, but this almost never happens. Most cases are decided based on the record from the trial court and the written arguments of the parties. The judge will not consider any new evidence; it only looks at the evidence that was introduced during the eviction hearing.

Step Five: Decision by Appeals Judge

Ultimately, the appeals judge will issue a written opinion either affirming or reversing the eviction. The amount of time it takes for this opinion to be issued varies greatly, depending on the particular judge and the judge’s workload at the time. In my experience, about two months is the average time it takes to get an opinion.  Assuming the eviction is upheld, the matter still isn’t over.

Step Six: Review by Kentucky Court of Appeals?

Once an order is entered upholding the eviction, the tenant has 30 days to ask the Kentucky Court of Appeals (KCA) to review the case. They do this by filing, within the 30 days, a Motion for Discretionary Review. The Kentucky Court of Appeals is not required to review the case, which is why it’s called “discretionary review”. The good news is that the KCA almost never agrees to review eviction cases. The bad news is that it often takes around six months for them to officially decline to review the case – all the while the tenant continues to live in the rental unit, assuming that rent is being paid to the court. The best news is that very few tenants ever exercise this option of asking the KCA to review the case.

Step Seven: Writ of Possession and Release of Appeal Bond

Once the 30-day period for filing a Motion for Discretionary Review has passed or the KCA declines to hear the case, the case goes back to the trial court. At that time, the landlord may file a motion to get a Writ of Possession to remove the tenant from the unit and may also ask the court to have the appeal bond funds paid to the landlord.

So, as you can see, while the eviction process is often routine, it can be dragged out for quite a long period of time, thus creating significant cash flow issues for landlords. When tenants file an appeal, it’s usually done to buy themselves time to find a new place to live. Landlords would often be wise to negotiate the tenant’s early removal from the unit by offering to give the tenant additional time to vacate the unit in exchange for the tenant withdrawing the appeal.

Fortunately, appeals only occur in less than five percent (5%) of all evictions. However, they are a reality and, if you’re in the rental game long enough, you’ll likely experience one. If you need help with a particular appeal, reach out to your friendly neighborhood attorney.

p.s.

I'm having a Landlord Education Conference on June 12, 2019, on the topic of Kentucky's Uniform Residential Landlord Tenant Act. Registration is open and seating is limited, so click here for more information and to register today!


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