New Case Law on Evicting Month-to-Month Tenants

We don't get much case law in the landlord-tenant arena. It's usually too expensive for either side to appeal their case up to the Kentucky Court of Appeals or Kentucky Supreme Court. So landlords, tenants, and their attorneys are left trying to guess how their local judges will interpret the statutes that we have. But we got some additional clarification last month in the case of Young v. House, which originated in Pulaski District Court. You can read the full opinion here.

The Case: Young v. House

The lease in this case had expired, and the tenants were renting the property month-to-month. Rent was due on the first, with a grace period of payment through the third day of the month. The landlords gave the tenants a 30-day notice to vacate on August 8, 2020. When the tenants failed to vacate within 30 days, the landlords file their forcible detainer complaint on September 8. 

The trial court granted the eviction. The tenant then appealed to the local Circuit Court, who affirmed the eviction. The tenant then asked the Kentucky Court of Appeals to review the case. The KCA agreed to do so. See my article on the appeals process for evictions here. In their ruling, issued on July 8, 2022 (yeah, that's how long the process takes), they overturned the eviction. Here's why:

KRS 383.695(2) states as follows: "The landlord or the tenant may terminate a month-to-month tenancy by a written notice given to the other at least thirty (30) days before the periodic rental date specified in the notice." (emphasis added)

The KCA ruled that this statute requires not merely a straight 30-day notice to vacate, but a notice that is also at least 30 days prior to next periodic rental date. In this case, the notice was given on August 8. The next periodic rental date was September 1, which was less than 30 days away. As a result, the notice should have given the tenants until September 30 to vacate. 

The tenants had brought this argument up at trial and in their appeal to the Circuit Court, but those courts ruled that the passage of time had cured the problem. In other words, since the forcible detainer case occurred after September 30, the tenants had been given the legally sufficient amount of time to vacate the property. However, the KCA pointed out the Kentucky Supreme Court had ruled in 2016 in Shinkle v. Turner, 496 SW3d 418 (Ky. 2016) that a landlord may not file a forcible detainer complaint until the proper notice has expired. You can read my article on Shinkle v. Turner here. In the current case, the proper notice would not have expired until after September 30, and the forcible detainer was filed on September 8. 

Lessons to Learn

1. Terminating a month-to-month tenancy may require more than a straight 30-day notice to vacate. It requires that you give the tenant notice to vacate at the end of the rental period that is at least 30 days away.
2. For example, if your tenant's lease ended on April 30 and went month to month, you could give notice at any point in August that the tenant must vacate by September 30. But you couldn't give notice on August 16 to vacate by September 15, as that date is not the last day of the rental period.
3. However, if your tenant's lease ended on April 18 and went month to month, you could give notice any time prior to August 19 that the tenant needed to vacate by September 18. 
4. The statute at issue here, KRS 383.695(2), only applies in areas that have adopted the Uniform Residential Landlord Tenant Act (URLTA). You can find a list of the 19 areas that have adopted the URLTA at this link. However, I think some judges in non-URLTA areas will be sympathetic to the KCA's reasoning in the Young case. So, my advice is to give your notices at least 30 days prior to the end of the next rental period.
5. As always, don't accept rent after the deadline to vacate or for any month after the deadline to vacate, as doing so could be construed as an agreement to extend the tenancy. 
6. For Fair Housing purposes, you always want to have a non-discriminatory purpose for terminating the tenancy, even when it's month-to-month. See my article on non-renewals here for further information.

That's all for today. As always, if you'd like to work together, reach out to me at smarshall@tripleslaw.com or (859) 685-0035. Have a great week.