Update on Eviction Court Procedures and a Lawsuit Challenging the CDC Regulation

We have four agenda items today:

1. New eviction court procedures that took effect on Monday. 

2. How judges are handling signed CDC forms. 

3. Frequently Asked Questions 

4. Lawsuit Challenging the CDC regulation. 

New Eviction Court Procedures

On Monday, September 21, the recent Kentucky Supreme Court order on eviction procedures in nonpayment cases took effect. Remember, this only applies to cases where the only basis for the eviction is nonpayment of rent. Evictions for other reasons are being handled in the usual manner. But, for nonpayment cases, here’s how the process is actually playing out:

1. On the first court appearance, if the tenant fails to appear, you will be granted a judgment.

2. If the tenant appears, the judge will advise both parties of the state and local rental assistance options and of the CDC Declaration Form and will reschedule the matter for two weeks. 

3. If the tenant signs the CDC Declaration Form at any point, the matter is being rescheduled for January.

Falsified CDC Forms

If the tenant signs the CDC form, most judges are not willing to make a finding on whether the tenant qualifies for protection under the CDC regulation. In other words, they are not willing to hear testimony on whether the tenant has actually been doing using best efforts to obtain rental assistance, has lost household income, and has been using best efforts to make timely partial payments. Their position is that your remedy is to file a criminal complaint with the US Attorney’s Office alleging that the tenant has committed perjury.

I think it is highly unlikely that the US Attorney will prosecute any of these cases. I hope that I’m wrong and, if you have such a case, I hope that you’ll file a criminal complaint. That said, I suspect the US Attorney has bigger fish to fry than a perjury charge against a tenant.

So, is there any other option? If the Judge won’t even hold a hearing on the CDC form, what can I do? The only other option is to ask the local circuit court to make a determination on whether the eviction court should have a hearing on that issue. 

Frequently Asked Questions

1. If my tenant signs the CDC form, should I accept partial payments? If the form is signed, your eviction case will likely be continued until January. Accepting that money will likely cause your January case to be dismissed, so you’d need to give a new notice to pay or vacate after accepting the partial payment and then re-file the case. If you’re not familiar with partial payment issues, see these posts. Ultimately, you have to decide whether the money from the tenant is enough to give up your place in the January eviction line.

2. Am I required to participate in the Healthy at Home Eviction Relief Fund process? No, but you will not get any money from them otherwise. If you want to receive the assistance, you must participate in the process and sign an Eviction Diversion Settlement Agreement. But, you are not required to participate. If your tenant signs the CDC form, I think it was to seek rental assistance, but you are not required to. You may choose to keep your place in line and keep your January eviction court date. Click here to access the Eviction Relief Fund site. 

3. Can I still evict for lease violations and non-renewals of leases? Yes, those cases are still allowed to move forward as usual. In lease violation cases, you’ll want to make sure you gave the proper notice that specifies the behavior that violated the lease in as much detail as possible. Where I see people go wrong is just issuing a notice that has a general statement like “noise violations” or “harassment” instead of specifying who, what, when, where, and how. On non-renewals, make sure you have a legitimate business reason for the non-renewal and that you don’t hold your tenant to a higher standard than others who are similarly situated in order to avoid retaliation and discrimination claims. 

NAA lawsuit challenging CDC Regulation 

On September 18 the National Apartment Association joined a lawsuit challenging the CDC regulation. They’ve asked a federal court in Georgia to halt enforcement of the regulation and declare it in violation of the US Constitution. You can read more about the lawsuit here.

Educational Opportunities

I’ve had to cancel most of my in-person Landlord Education Conferences this year, but I’m thinking about offering them in webinar form. The topics will likely be related to Fair Housing and/or the Kentucky's Landlord Tenant Act. If that’s something you’d be interested in, let me know in the comments. I’m not asking for a commitment, just trying to gauge interest.

That’s it for today. If you need legal advice, shoot me an e-mail at smarshall@tripleslaw.com. Have a fantastic week.