The Tenant's Bill of Rights
Posted by Stephen Marshall on
There's been a lot of talk in Lexington about adopting a set of proposals being called the "Tenant's Bill of Rights". That talk sounds good. We're all in favor of rights for everyone - so why not rights for tenants? No one in history worth remembering ever opposes a "bill of rights", right?
This crusade is an excellent example of framing an issue to gain sympathy and support from those who don't have the time or the interest to look further into the issues. But here's the truth of the matter: tenants in Lexington already have a "bill of rights". It was created back in 1984 when the Lexington-Fayette Urban County Government adopted Section 12-54 of the Code Ordinances, which made the Uniform Residential Landlord Tenant Act (URLTA) apply throughout Fayette County.
That Act, which can be found here, is known as KRS 383.500-383.715. It's an interesting set of statutes that only applies when adopted by a local government. So far, 19 local governments have adopted URLTA. You can read more about it here.
The Act provides many significant rights for tenants. Now, many tenants may not be aware of these rights. And many, to be perfectly honest, would not care about them if they did know about them. I say this from the experience of having conversations with tenants about these issues nearly every day for the last 15 years. So, it's not that tenants in Lexington don't have significant rights, but rather that those protesting for a Tenant's Bill of Rights want all of their problems solved at the expense of those who own the property. Let's look at the rights tenants in Lexington already have:
1. The right to a notice and opportunity to cure lease violations before an eviction (KRS 383.660). Landlords must give tenants at least seven days' notice and an opportunity to pay prior to filing an eviction against them. It requires that tenants get at least 14 days' notice and an opportunity to cure the violation before an eviction may be filed for all but the most serious or repeated lease violations. Month-to-month tenants have a right to at least 30 days' written notice before being required to vacate (KRS 383.695(2).
For those who believe that seven days' notice is not enough, consider this: Rent is typically due on the first day of the month. Most leases have a grace period for several days after that. This means that most rent is not past due until the fifth or sixth day of the month. The seven-day notice does not get issued until the rent is past due, which means that the tenants typically get until the middle of the month to get their payment in. Yes, late fees will likely apply to any past-due payment, but they still have the opportunity to pay their rent and avoid eviction.
Even if eviction is filed, the case may not see the court for several weeks. When that happens, landlords are certain to lose out on at least two months' rent, but typically more if it takes them longer to re-rent the property once they regain possession. So, while seven days' notice and a right to pay may not feel like much, it is a significant right, especially considering the fact that the tenant has breached the agreement by failing to pay by the first day of the month.
2. The right to form a tenant's union, file complaints with Code Enforcement and other government agencies, and file complaints with their landlord about maintenance issues without adverse action by their landlord (KRS 383.705). The landlord cannot increase the rent, decrease the services provided, or evict a tenant for asking that repairs be made or for notifying Code Enforcement of defects in the property.
3. The right to a rental unit that is habitable and compliant with all building and housing codes (KRS 383.595). If the landlord doesn't provide this at the beginning of the lease term, the tenant may terminate the lease upon five days' written notice and seek damages from the landlord for costs incurred (KRS 383.630). If the landlord doesn't respond to maintenance issues during the tenancy, the tenant may give notice and terminate the lease if the landlord fails to fix the problem (KRS 383.625). The tenant may also recover any costs incurred. If the issue can be repaired cheaply, the tenant may give the landlord notice, then make the repair himself or herself and deduct the cost from the rent (KRS 383.635).
4. The right to have heat, running water, hot water, electric, gas, or other essential services if required by the lease (KRS 383.640). If the lease requires the landlord to provide utilities, but the landlord intentionally fails to do so, the tenant may give notice and (a) pay for such services and deduct them from the rent, (b) move out and stop paying rent until the services are provided, or (c) sue the landlord for amounts paid while the service was out, and recover attorney's fees in the process.
5. The right to notice before the landlord enters the rental unit (KRS 383.615). Landlords must give tenants two days' notice prior to entering a unit, except in emergency situations. The landlord further may not try to enter at unreasonable times, for unreasonable purposes, or in an attempt to harass the tenant. The tenant may terminate the lease and recover actual damages and attorney's fees if the landlord violates this provision (KRS 383.700).
6. The right to know who owns and manages the property (KRS 383.585). The owner must tell the tenant the name and address of the person or company that manages the property, as well as the address of the owner in case the tenant wishes to sue them.
7. The right to a lease agreement that does not require them to waive certain rights (KRS 383.570). The lease cannot require a tenant to waive any rights granted by the URLTA, to allow the landlord to confess judgment on behalf of the tenant, to pay the landlord's attorney's fees, or to limit the landlord's liability for matters that have been established by the law. Any such provisions found in leases are not enforceable. The tenant may have to pay a landlord's attorney's fees (or vice versa) in certain situations, but only in those situations established by the URLTA, not as a blanket matter because it's in the lease.
8. The right to know where their security deposit will be held (KRS 383.580(1). The landlord must disclose the location and account number of the account that holds the deposit.
9. The right to a specific accounting of the security deposit and any claim against the deposit by the landlord (KRS 383.580(2-4). The landlord must give the tenant a comprehensive listing of all alleged damages at the beginning and end of the tenancy and estimated cost of repair if the landlord wishes to retain any portion of the security deposit.
10. The right to inspect and verify the landlord's assessment of the condition of property (KRS 383.580(2-3). After the landlord inspects the unit at the beginning and the end of the tenancy to determine whether the unit has any damage, the tenant has the right to conduct a follow-up inspection to see if he or she agrees with the landlord's assessment.
11. The right to terminate the lease with no further obligation if the rental unit is significantly damaged by fire, flood, or other casualty (KRS 383.650). Assuming they didn't cause the damage, the tenant can give 14 days' notice and walk away with no further obligation to the landlord. Any prepaid rent must be refunded to them, along with the security deposit.
12. The right to a court hearing before the landlord may change the locks, disconnect utilities, or take other self-help steps to remove the tenant from the premises (KRS 383.655). If the landlord does this, the tenant can recover up to three months' rent and attorney's fees.
13. The right to terminate the lease if they have a valid protective order (KRS 383.300). Tenants with a DVO or IPO can give 30 days' notice and walk away from the lease with no further obligation. Landlords may not give negative credit or character references for tenants who exercise this right.
14. The right to be free from discrimination based on race, color, religion, national origin, sex, disability, familial status, gender identity, sexual orientation, or their status as having a valid protective order (KRS 344.360).
15. The right to terminate the lease if they enter the military or get transfer orders (Servicemembers Civil Relief Act, 50 USC 3955).
So, in reality, tenants have significant rights. But so do landlords. Landlords are the property OWNERS. They're the ones who used their money to buy the property, the ones who took on the risk of ownership, the ones who pay for the insurance and property taxes, and the ones who will also lose the property if they don't make regular payments on time. As the owners, landlords also have rights.
They have the right to set the rental rate. They have the right to evict tenants who don't follow their agreement. They have the right to walk away from the contract when it expires. Importantly, they have the right NOT to participate in the Section 8 program. This program adds significant administrative effort to the landlord and puts the landlord at the mercy of program officers who must inspect and approve the landlord's property before allowing a tenant to move in. This process often involves delays that leave units sitting without tenants, and landlords without income. Landlords should get a choice on whether to participate. Section 8 has always been voluntary and should stay that way if we want investors to put their money into establishing rental housing.
Certain market seasons favor landlords, like most of 2022. Certain market seasons favor tenants, like the first 18 months of the pandemic when tenants couldn't be evicted and landlords were cutting rental rates like crazy in hopes of getting some money, all the while facing potential foreclosures on their properties.
During market seasons that favor landlords, tenants scream for "more rights" when they already have every right they need in order to live successfully. Will tenants be willing to give up rights that they currently have when the market shifts in their favor, as it is already starting to do? Of course not. Likewise, landlords are not willing to cede additional rights to tenants during times that the market favors landlords.
Tenants in Lexington have a good deal. Unit in need of repairs? Don't just stop paying rent. Invoke your rights under KRS 383.625, 383.630, 383.635, or 383.640 and follow the processes outlined there.
Landlord raising your rent at the end of the lease? Remember that every single aspect of owning that property has increased for the landlord. Every repair, every piece of lumber, every bolt, every service call from a contractor, every property tax bill, and every insurance premium. When a landlord's costs go up, you can be sure that a tenant's cost are going to go up. That's the only way to stay in business.
Many things in our economy are hard right now. But the answer is not to change the game between landlords and tenants. It's plenty fair as it is.
A Tenant's Bill of Rights? Yeah, we already have one of those.
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- Tags: evictions, KRS 383.300, lease termination, lease violations, material noncompliance, notices, retaliatory eviction, Tenant's Bill of Rights, URLTA