The Governor's Newest Executive Order on Evictions

It’s been a wild week already. Non-payment eviction cases resumed in the courts, eviction protests broke out (kind of), at least one judge’s home was vandalized, and the Governor signed a new Executive Order on evictions. Let’s take a look at all of it.

Non-payment of Rent Cases in Court

Non-payment of rent cases resumed in the Courts on Monday. The Supreme Court’s order in late July allowed non-payment evictions to be filed beginning on August 1. The courts then started putting non-payment cases on the docket that had been filed back in March, but had not been heard prior to the shutdown

In response, several tenant advocates in Lexington showed up outside the courthouse and protested against evictions resuming. They had 10-15 people, a few signs, and a bullhorn. The Fayette County Sheriff’s Department was clearly ready for the occasion, as they had multiple officers outside and on each floor of the courthouse monitoring the event.

Fortunately, it didn’t amount to much. A few people spoke and chanted, and they were gone after about an hour.

What went on inside the courthouse wasn’t much more eventful. I had 16 cases, and 12 of them were dismissed. Today I had 25 cases, and 21 of them were dismissed. For the remainder of the week I have 54 cases, and 41 of them are going to be dismissed. More will be dismissed by the time the court hearing gets here. The balances of those who are being evicted is typically around $5,000.00.

Eviction Opposition Strategies

So, when you hear claims of thousands of people being evicted, it is simply not true. In fact, here’s the truth, the people behind these protests believe evictions are immoral. Period. Even during normal times. They’re simply promoting a fear of COVID in order to advance an agenda that they’ve been trying to push for years. And here’s how they’re going to do it.

1. They’re going to scream to anyone who will listen that tens of thousands of Kentuckian are going to lose their housing. That’s simply false. The numbers make it clear that they will not.
2. They’re going to abuse the court process. They’re telling tenants to request a jury trial in every eviction case. It doesn’t matter that there are no factual issues in dispute for a jury to decide. They’re going to tell the tenants to request a jury trial in order to delay the process until November and further increase the costs that the landlord must pay to evict the tenant. I’ve had to deal with a couple of those already.
3. Finally, and this is the worst of all, they’re going to try to intimidate those involved in the process. Protesters vandalized the home of a sitting Judge in Louisville by putting trash, old mattresses, and other items in the yard with messages about evictions. They want to scare you and back you down. And I know landlords who are afraid. Don’t let that happen.

Governor’s Executive Order on Evictions

So, after all this went down, the Governor issued a new Executive Order on evictions yesterday. You can read the Order here. Here are the key points:

1. Effective today, August 25, 2020, all prior Executive Orders on evictions are rescinded. So, that means all evictions are allowed to move forward and law enforcement officers are allowed to enforce eviction orders.
2. Effective today, August 25, 2020, all residential landlords must give at least 30 days’ notice to evict for non-payment of rent. This notice must give the tenant the landlord’s contact information and must request to meet with the tenant to “confer” about the matter.
3. No penalties, late fees, or interest related to non-payment of rent may be charged from March 6, 2020, through December 31, 2020.

Evictions Filed Before August 25

What does this mean for evictions that have already been filed? Let me start with the disclaimer that we cannot know for sure how any particular judge will respond to this order. I’m giving you my best guess here on how most judges will handle it. I expect that this order will not affect non-payment cases that have already been filed as it pertains to 30-day notices. That part of the order does not go into effect until today; it is not retroactive. So, if you have a non-payment case that has already been filed, I expect it will move forward as usual.

Late Fees

However, you may be prohibited from charging and collecting late fees on those cases. The late fee portion of the order IS retroactive; it applies from March 6, 2020, through the end of the year. This seems like an obvious overreach by the Governor. It seems highly audacious for him to attempt to interfere in private contracts between citizens. What’s more, he’s attempting an end run around the state legislature, as state law requires the unpaid rent accrues interest a six-percent (6%) per year. So, I expect this provision to be challenged and struck down. But, it stands for now.

Best Practices Starting August 25

On cases that have not yet been filed, courts may require you to give a 30-day notice to pay or vacate starting August 25. Again, I cannot guarantee how any particular judge is going to respond to this order. Some judges may ignore it, citing separation of powers, and allow you to proceed with a seven-day notice. Others may recognize the Order as having force of law and require you to give a 30-day notice starting today. So, the safest move is to start giving 30-day notices as of today, August 25.

“Meet and Confer”

Remember, your 30-day notice must give the tenant your contact information and must request a meeting to confer about the situation.

• The Order does not require you to settle the case.
• It does not require you to set up a payment plan.
• It does not require you to defer rent.
• It simply requires you to attempt to meet with the tenant to discuss the matter.
• You will need to use reasonable efforts to meet with the tenant.
• You will want to document your efforts at doing so.

Eviction Relief Fund

Finally, the Governor announced that $15 million in federal money would be used to establish an eviction relief fund. He also stated that this money may be used to create “statewide programs for eviction proceedings”. My guess is that he’s thinking about more programs like the Eviction Diversion Program that was created in Jefferson County. I don’t like the sound of any program that messes with the eviction process, but we’ll see what develops here.

So, the big news of the day is that the Governor wants you to give 30-day notices to pay or vacate and to meet with your tenants during that 30-day period to try to work things out. I know almost all of you have already been trying to work things out during this entire ordeal, so keep up the good work. I’ll update you as we learn how this order is being handled by the courts.

WLEX story

I did an interview with WLEX yesterday about the status of evictions and the landlord’s side of the story. Here’s the story if you’re interested. It’s one of the few times that I was given more than a sentence or two to explain things.

In the coming days I’ll be creating a 30-day notice that complies with the Governor’s order. If you’d like to buy one, just shoot me an e-mail at smarshall@tripleslaw.com. Hope you’re doing well. We’ll talk soon.