Lawsuits against the Governor, CARES Act expiring, and a Court Ruling on Eviction Procedures

In a few short days, July 25, the CARES Act will expire. Once it expires, landlords at properties who were covered by it will be allowed to begin charging late fees for rent accruing after it expires.

What won’t happen, unless something changes, is the ability to file evictions based on the tenant’s failure to pay rent. Even though the CARES Act eviction moratorium will expire with it at the end of the day on July 25, we still have a statewide eviction moratorium based on orders of the Governor and the Kentucky Supreme Court.

Despite my best efforts (and yours), many people still do not understand this. As a result, there was a pretty strong rumor going around earlier this week that the Franklin County District Court was allowing eviction filings for non-payment of rent. And there have been a number of social media posts that evictions for nonpayment of rent are opening up on July 26. As you know, this is simply not true.

We called the Franklin County District Court clerk and were told explicitly that nonpayment evictions are not being allowed, which is exactly what I expected to hear.

However, those rumors are likely to continue over coming days. Here’s my promise to you. I pay close attention to this issue. As soon as evictions for nonpayment are allowed, I will update you. The front page of my site at the very top has a blue card titled ‘EVICTION UPDATE”. Whenever anything changes, I update that card.

And, hopefully, I’m going to have good news on that front in the near future.

Lawsuit against the Governor on Nonpayment Evictions

In my last update I told you about a lawsuit against the Governor in federal court in Northern Kentucky to open up evictions based on the failure to pay rent.

As a result, if the suit is successful, it would not lead to evictions being opened throughout the entire state – only in those three counties.

I think there’s a good chance that this suit is successful. The case is headed to mediation on July 30. I’m very hopeful that the parties will be able to agree on a resolution that allows non-payment cases to move forward in some manner. Let's hope that any agreement that is reached in mediation will apply statewide, not just in Northern Kentucky.

So, I hope to be able to report in a week or 10 days that we know when things will open up to some degree for non-payment of rent evictions.

Boone Circuit Judge Temporary Restraining Order against the Governor

In my last update, I told you about a Temporary Restraining Order against the Governor and other state government officials issued by the Scott Circuit Court.

Since then, the Boone Circuit Court issued a similar order. The cool part is that the Boone Circuit Court issued a 38-page opinion. You can read the entire opinion here. It’s worth the time, as it details the lack of reliability of the medical projections on which the Governor’s executive orders have been based. In addition, it gives a fantastic historical outline of our founding documents. Here’s some language near the end of the opinion that I think is relevant:

“The question presented here is not about politics. Rather, it is whether the constitution applies during a virus. Under our constitutions, government may not uproot liberty on a hope that it can hide society from pathogens. Individuals, not government, should decide if the risk of walking out their front door is worth the potential reward.”

Rent Numbers for July

According to the National Multi-family Housing Council, 91.3% of tenants paid rent for July by July 20. This is down from the 93.4% who paid by July 20, 2019, and the 92.2% that paid by June 20, 2020. You can find the rent numbers here. 

New Court of Appeals Decision on Evictions

The state’s higher courts rarely agree to hear eviction appeals, so it’s noteworthy when they decide to do so. One of those cases recently received a ruling. It was a case out of Jefferson County, where the property manager signed and filed an eviction complaint on behalf of a company against a tenant for non-payment of rent and an unclean unit. The landlord was represented by an attorney at trial. The landlord won at trial, though the tenant objected to the matter because the property manager had signed and filed the case, rather than an attorney.

On the initial appeal, the Circuit Court upheld the eviction, reasoning that because the remainder of the case was handled by an attorney, that cured the initial problem that the property manager had signed the complaint and filed the case.

However, the Kentucky Court of Appeals agreed to hear the case, and recently issued an opinion reversing the eviction. Their ruling is that the signing of eviction complaints may be done by two kinds of people: (1) those who individually own the property at issue and (2) attorneys. Any other person who signs an eviction complaint is representing another person or entity and is, therefore, engaged in the unauthorized practice of law.

The Court then ruled that a forcible detainer complaint must be properly filed before the trial court has jurisdiction over the case. Because a complaint signed by a property manager is not properly signed or filed, the trial court had no jurisdiction over the case, and it should be dismissed.

The moral of the story: always hire an attorney to sign and file your eviction cases UNLESS it involves property that you own individually. In those case, you may sign the complaint. In fact, I created a handy little flow chart to help you, which you can find here.

That’s all for today. I’ll update you as soon as I know something on the eviction lawsuit against the Governor. Have a fantastic weekend.