Tenant Absence During the Lease Term: Protecting Your Property

Every landlord’s goal is to have his/her rental property under lease and occupied by tenants who will not only pay their rent on time, but who will properly use and maintain the property. After all, the property is an investment by the landlord of both time and money. While landlords typically relate property damage to tenants’ use of the property (i.e. throwing wild parties or vandalism), nonuse can also result in significant damage to the property, not only causing damage to the structure itself, but a diminution in value of the property overall. This is especially true during the winter months. For example, a tenant may take an extended vacation for the holidays or even abandon the property altogether. Any time a property is unoccupied for an extended period of time, maintenance issues may go undetected and/or other problems may arise unbeknownst to the tenant(s) or the landlord. These issues/problems may include the heat being turned off by the tenant, running water left on, a leaky faucet, a stove being left on, an electrical issue, or the shut off of one or more utilities by the respective utility company for nonpayment. Such issues can result in damage to the property, including, but not limited to, frozen/burst pipes, flooding, or fire. Moreover, the damage can extend to other units and/or affect the safety of neighboring tenants. Thus, it is important for a landlord to know when a tenant is going to be gone for an extended period of time.

Grey Mailbox full of mail isolated on a white background

In Kentucky, pursuant to the Uniform Residential Landlord and Tenant Act (“URLTA”)(KRS 383.505 to 383.705)[1], unless otherwise agreed to by the landlord, the tenant is required to occupy the property in a residential capacity throughout the entire lease term.[2] Furthermore, the landlord is permitted to include a provision in the lease agreement requiring the tenant(s) to provide the landlord with advance notice of any extended absence from the property in excess of seven (7) days.[3] This notice serves as a protective measure in that it allows the landlord to stay apprised of the condition of the property and any maintenance issues which may arise during the tenant’s absence. However, such a requirement must be included in the lease agreement to be enforceable.

In the event that a tenant is absent from the property for more than seven (7) days and has not provided the landlord with the notice required by the lease agreement, the landlord may recover from the tenant actual damages incurred as a result of the tenant’s absence.[4] Also, during such absence, the landlord may enter the property at times reasonably necessary to perform an inspection and/or address any maintenance issues.[5]   The landlord is also entitled to access the property at any time in the event of an emergency.[6] Should the landlord determine that the tenant has abandoned the property, the landlord may, in addition to accessing the property for inspection/maintenance issues, seek to recover possession of the property pursuant to the eviction process.

Requiring tenants to provide notice to the landlord of any extended absence from the property is a safeguard to both the property and neighboring tenants. It not only allows for proper maintenance of the property itself, but provides protection of the landlord’s investment.

BYates

Brendan Yates joined the Lexington office of the firm as an associate in 2002. Brendan is a member of the firm’s Litigation Department, where he focuses his practice on construction and real estate litigation, workers’ compensation defense litigation, insurance defense and commercial litigation. He has successfully defended his clients in state and federal courts, the Kentucky Court of Appeals, the Kentucky Supreme Court, and in administrative agency proceedings in Kentucky. He can be reached at byates@mmlk.com or (859) 231-8780, ext. 208.

This article is intended as a summary of state and federal law and does not constitute legal advice.

[1] Please note that the URLTA governs counties who have expressly adopted it. This article assumes adoption of the URLTA and is based on its provisions.

[2] KRS 383.620.

[3] KRS 383.620.

[4] KRS 383.670(1).

[5] KRS 383.670(2).

[6] KRS 383.615.

“I’m Keeping It”: Kentucky Law on Residential Security Deposits

When a tenant moves out of a residential dwelling and leaves it worse for the wear, what recourse does a landlord have? Many landlords assert their “right” to keep the security deposit when such an instance arises, but in order to do so, a landlord must strictly adhere to the established statutory requirements set forth in KRS §383.580.[1]

A landlord’s obligation regarding security deposits begins long before any damage is done. Prior to a prospective tenant tendering a security deposit, the tenant must be presented with a listing of any then-existing damage to the unit which would provide the basis for a charge against the security deposit and the estimated cost of repairing such damage. The tenant is then entitled to conduct an inspection of the premises to determine the accuracy of the listing.  Often, the landlord and tenant will conduct this pre-occupancy inspection together immediately prior to signing the lease.    If the tenant disagrees with all or part of the listing, the tenant can refuse to sign the listing and must state in writing the disputed items. If there is no disagreement, then the landlord and tenant must sign the listing which serves as conclusive evidence of the accuracy of the listing. It is crucial that a landlord retain the signed listing for the duration of the lease term.   After the pre-occupancy inspection(s) and the damage list has been provided, the tenant shall be required to tender the security deposit in full to the landlord.  The security deposit must be placed in an account used solely for that purpose and the tenant must be informed of the location of the account and the account number.

Upon termination of the tenant’s possession of the premises, a post-occupancy inspection must be performed and the landlord must provide the tenant with a final damage listing of any damage to the unit which is the basis for any charges against the deposit along with the estimated cost of said repair. Again, the tenant has the right to inspect the premises for accuracy of the listing and dispute any items in writing. If there is no disagreement as to the accuracy of the final damage listing, the landlord shall retain the portion of the security deposit necessary to cover the damages/repair work.

Unfortunately, landlord and tenant rarely see eye-to-eye as to the condition of the premises upon termination of possession. Thus, a tenant who disputes the accuracy of the final damage listing may bring an action in District Court. The tenant’s claim is limited to the items from which the tenant specifically dissented to, in writing, and signed in the final listing.

In the case of a fleeing tenant who leaves without paying the last month’s rent or requesting a return deposit, then a landlord may, after thirty (30) days, remove the deposit from the account and apply it to the debt owed.

When a tenant leaves and the unit has suffered from no damage (a rare occurrence, indeed), then the landlord must notify the tenant at his or her last known or reasonably determinable address of the amount of any refund due. If the landlord does not received a response from the tenant within sixty (60) days of notification, then the landlord is entitled to retain the security deposit without further obligation (an even rarer occurrence).

As a best practice, landlords should make detailed listings regarding the condition of the property, both pre- and post-occupancy, and strictly adhere to the aforementioned statutory requirements.   A security deposit can be the landlord’s to keep, but only if the landlord plays by the rules.


[1] KRS §383.580 only applies to cities, counties, and urban-county governments which have enacted the Uniform Residential Landlord and Tenant Act (“URLTA”).

BYates

Brendan Yates joined the Lexington office of the firm as an associate in 2002. Brendan is a member of the firm’s Litigation Department, where he focuses his practice on construction and real estate litigation, workers’ compensation defense litigation, insurance defense and commercial litigation. He has successfully defended his clients in state and federal courts, the Kentucky Court of Appeals, the Kentucky Supreme Court, and in administrative agency proceedings in Kentucky. He can be reached at byates@mmlk.com or (859) 231-8780, ext. 208.

This article is intended as a summary of  federal and state law and does not constitute legal advice.