Update on Court Openings and Eviction Filings on June 1

We’re steaming towards June 1, the day that the Supreme Court has said that the Courts may open back up. And the question on everyone’s mind is “When can we file evictions?” So, here’s a video on where things stand right now and what we can expect in the days ahead.

On May 8, the Governor issued an Executive Order allowing all evictions to move forward except those based on non-payment of rent at residential properties. So, according to the Governor, any eviction at a commercial property may move forward and evictions at residential properties may move forward if they’re not based on a failure to pay rent.

However, the courts throughout the state have not been accepting eviction filings of any kind. That is about to change.

I’m on the Supreme Court’s Eviction Subcommittee, and we’ve spent about four hours over the last couple of weeks discussing how to appropriately open the courts up across the state in compliance with the Governor’s order and the CARES Act. Here’s what I expect.

I expect that we’ll see a new order from the Kentucky Supreme Court by the end of the week allowing all evictions to move forward in accordance with the Governor’s order, effective June 1. That will allow local courts to accept eviction filings that are for commercial properties or that are based on something other than non-payment of rent.

However, landlords will be required to use a new form that verifies that the eviction they are filing is in compliance with the Governor’s order. Click here to check out the Compliance Form. If you file an eviction that is not allowed by the Governor’s order, the Court will have the option of dismissing your complaint and issuing sanctions against you for violating the Order.

That means that before you file an eviction, you need to make sure that your filing is NOT based, in any way, on the tenant’s failure to pay rent. So, if your tenant had a lease that expired recently or was a month-to-month tenant, and you refused to renew the lease or tenancy because they had not paid rent, that eviction is still prohibited.

If your tenant had been violating the lease before COVID-19 and you had been turning a blind eye to their violation, but then started to enforce your rule once they failed to pay their rent, that eviction is still prohibited.

In other words, you may not use other violations or loopholes as a pretext to evict a tenant who is not paying their rent. When you file your complaint, you must certify to the court that the reason for your eviction is not related to non-payment of rent. If the judge finds that you’ve violated that certification, in essence that you lied when you made that verification, you can be sanctioned by the court.

So, starting in early June, you will be able to file evictions that are based on something other than non-payment of rent. The exact date will be determined by each particular county, but it should be happening everywhere in early June.

Now, the question that everyone wants answered is WHEN CAN WE FILE NON-PAYMENT OF RENT EVICTIONS???

Unfortunately, there’s no clear answer. For CARES Act properties, you know that you have to wait until July 26, then send a 30-day notice to pay or vacate. For non-CARES Act properties, you’re waiting on the Governor to do one of two things:

1. To lift the State of Emergency, or
2. To issue a new Executive Order allowing all evictions to move forward.

It is my expectation that Number Two will happen before Number One. Since our state’s ability to receive certain federal funding is tied to the State of Emergency remaining in place, I do not expect it to be lifted until the last possible moment. That means we need to hope the Governor issues a new order that allows all evictions to move forward. In all honesty, I do not expect that to happen prior to the CARES Act expiring, which happens on July 25.

So, we can hope for the best and prepare for the best. You can go ahead and give notices to pay or vacate when June rent becomes past due. But I don’t expect that we will be able to file non-payment of rent evictions on July 1.

What does all this mean for evictions that were filed prior to the shutdowns? If your case was based on non-payment of rent, you’re still on hold until the Governor issues a new order. If your case was based on something else, you should be able to file the new Verification Form and get a court date for your case. 

If I have a few Section 8 tenants, does that mean all of my properties or units are covered by the CARES Act? No, only those units that house Section 8 tenant are covered. You may deal with your other units and tenants in the usual manner. 

One other thing on the CARES Act. You’re going to need documentation that shows your property is not covered by the CARES Act. My suggestion is to get a letter from your lender that addresses the three questions from my last post. Click here for more details. 

Will we be allowed to open our pools? I think so. The Governor has requested recommendations on opening pools at apartment communities and has received it. He has not acted on the issue yet, partly because he did not want to open them before Memorial Day weekend. But I hope that we see an update from him on that soon.

May Rent Numbers. I forgot to mention it in the video, but May rent numbers were solid. 90.8% of tenants paid their rent between May 1-20, which is better than the 89.2% that paid during that period last month and only slightly below the 93% that paid in May 2019. 

I think that’s it for today. Hope you all had a fantastic Memorial Day weekend and a great rest of your week. Give me a call (859.685.0035) or shoot me an e-mail (smarshall@tripleslaw.com) if I can help.