The ideal situation in a landlord-tenant relationship is the timely adherence to the provisions of the lease, producing mutual benefit for both parties to the contract. Unfortunately, sometimes this relationship deteriorates and a landlord must step in to reassert her or his right to receive cash flow from the leasing of real estate. While an eviction may seem like a harsh step, landlords should understand that it is a business decision made in the course of renting property, one that they should not hesitate to take when necessary. Luckily, the process is not overwhelmingly difficult, even if it must be done according to very specific steps.
The first step in eviction is understanding the laws surrounding the process, which generally set out the requirements for the process in detail. In Kentucky, the Uniform Residential Landlord and Tenant Act (“URLTA”) governs the eviction process for residential evictions in the local jurisdictions that have adopted it.
In those jurisdictions, the residential tenant must be provided a different type and period of notice of noncompliance with the lease depending on the type of breach. This notice can be mailed or physically posted on the tenant’s door. For nonpayment for rent, the notice must state the total amount past due, when it became due, and a demand that it be paid within seven days from the date of the notice. For other material noncompliance, the notice must state the nature of the breach, whether or not the same breach has occurred in the past six months, and a demand to remedy the breach within fourteen days. The notice for both must also contain the tenant’s name and address of the property, as well as a date on which the lease will be terminated otherwise – again, seven days for non-payment, and fourteen days for other material noncompliance. These periods allow for the tenant to remedy the breach. In the case of other material noncompliance, if the same breach occurred within the previous six months, the landlord still has to provide fourteen days’ notice, but the landlord does not have to allow the tenant to remedy the breach. Month-to-month leases may be terminated for any reason with a thirty day notice to the tenant.
Just because the waiting period elapses does not mean that the landlord can then unilaterally eject the tenant from the property. When the waiting period has passed without a remedy of the breach, the landlord must then file a “forcible detainer” action against the tenant to regain possession of the property. Forcible detainer is defined by KRS 383.200, and is the refusal of a tenant to give possession of a property back to the landlord after the lease has expired.
For those landlords in counties not following the URLTA, 30-day notice is required unless a shorter term is specified in the lease.
Commercial tenant evictions require a minimum of three days notice, per KRS 383.215, before an action for forcible detainer can commence. Commercial tenants do not have the same protections in tenancy that residential tenants do, so the process is more expedient. The terms of the lease, however, will likely specify the necessary amount of notice required before seeking the eviction remedy. It should be noted that a forcible detainer action in and of itself is merely an action to regain possession of the property. It is not an action to recover rent or damages by itself.
Finally, and maybe of crucial importance – if the landlord is incorporated or organized in some form of business entity, it MUST be represented by a licensed attorney in any legal proceedings. For instance, if Jane formed an LLC that is the official owner and landlord of the rental property, even if Jane is the sole owner of that LLC and acts as the de facto landlord, she cannot represent the business in a legal proceeding.
The eviction process can be nerve-wracking for landlords, but the attorneys at McBrayer can both assist landlords with the eviction process as well as prepare leases and other real estate agreements for both residential and commercial property that provide clear provisions for a breach of the agreement. Contact us today.
Brittany MacGregor Roethemeier is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a graduate of Transylvania University and the University of Kentucky College of Law. Ms. MacGregor’s practice focuses on real estate law, including title examination, title insurance, clearing title issues, deeds, settlement statements, preparation of loan documentation, contract negotiation and preparation, and lease negotiation and preparation. She may be reached at email@example.com or at (859) 231-8780.