Image
At Legal Aid of the Bluegrass we work every day to help families maintain their housing through eviction defense, foreclosure, bankruptcy, and representation for lock outs and utility shut-offs. The importance of affordable and safe housing cannot be overstated. Without it, families have trouble in their everyday lives. They may not have the ability to afford other basic needs if the cost is too high. Families suffer without access to clean running water or appliances to prepare a meal. When evicted, children are often up-rooted from their schools and experience a lapse in their education. Moving schools can be traumatic for children as they have to find new friends and adapt to a new pedagogical atmosphere. Maintaining a job becomes a challenge when you do not have stable housing and are unsure where to store your belongings, if you will have a safe place to sleep, or how you will get ready in the morning.
While the possibility of owning property exists for some, renting is the reality for many low-income families and preserving affordable rental properties is paramount to their wellbeing. Unfortunately, for some families, a loss of income due to lack of work, medical issues, other urgent needs such as fixing a car, etc. can lead to a family being unable to pay their rent. When non-payment of rent occurs, the process of removing a family from a rental property begins. Ensuring that families are given proper notice to prepare for an eviction can make all the difference. In August, Legal Aid of the Bluegrass (LABG) achieved a major victory for families who rent their homes. Supreme Court of Kentucky case, Shinkle v. Turner, 496 S.W.3d 418 (Ky. 2016), clarifies that the time specified in the notice to vacate given to the tenant must pass before a landlord is entitled to possession of the rental property. Until the landlord is entitled to possession, the tenant cannot be “forcibly detaining” the property and no eviction should be filed by the landlord until that time has passed. The time period specified in notice to vacate must be in compliance with Kentucky law. The success of this case allows families to maintain housing stability, safeguards their due process rights in the eviction process and, in certain cases, will allow tenants more time to find new housing.
Depending on the rental contract, landlords are required to give a specific number of days, usually 7, 14 or 30, to a family to vacate the rental property. If the family is still living on the property after the notice period has passed and the landlord has a legitimate claim that the family is forcibly detaining the property, the landlord may file a forcible detainer complaint with the courts and legally remove a family from the property. In Shinkle v. Turner, a forcible detainer action was brought against the tenant only 8 days after the notice to vacate was provided. Attorney of record, Peter Nienaber filed a motion to dismiss on behalf of the tenant in District Court. The District Court overruled the tenant’s motion stating, “I’m not so sure that once the action is filed, the Court can’t take judicial notice of the fact that notice has now been given and he has in fact been notified and has 30 days’ notice. I understand that in your motion you argue that that can’t be cured after the fact. On that point, the Court disagrees.”
The premature filing of forcible detainers is all too commonplace with many landlords filing their forcible detainer complaint far in advance of the notice period passing. “Roughly ½ of the landlords at the forcible detainer (eviction) docket represent themselves,” says Attorney Nienaber, “So early filing can sometimes just be a lack of understanding notice requirements or other times, a hope to hurry the process along.” After the ruling from the District Court, a notice and statement of appeal were filed with the Boone Circuit Court. When the Circuit Court entered an opinion affirming the District Court’s decision, Attorney Nienaber filed a motion for Discretionary Review with the Kentucky Court of Appeals. That motion was denied, so with assistance from Advocacy Director Attorney Harrison, a Motion for Discretionary Review was filed in the Supreme Court of Kentucky. The Court granted discretionary review on September 16, 2015. As the tenant had already moved out of the residence while the appeal was pending, the Court was asked to consider the case under the public interest exception to the mootness doctrine. “The public interest exception allows a court to consider an otherwise moot case when 1.) the question presented is of a public nature; 2.) there is a need for an authoritative determination for the future guidance of public officers; and 3.) there is a likelihood of future recurrence of the question. Morgan v. Getter, 441 S. W. 3d 94, 102-103 (Ky.2014)."
The Supreme Court of Kentucky rendered its decision on August 25, 2016. The decision was made final on September 15, 2016, and the Court decided that the decision was to be published meaning the holding in the case is binding precedent in all courts of the Commonwealth. The Court held that “[1] review was warranted under public interest exception to mootness doctrine, and [2] landlord had no cause of action for forcible detainer until one month after it gave tenant notice to vacate, and thus dismissal was required.” The opinion breathed new life into several prior cases that had defined landlord/tenant law in Kentucky including, Pack v. Feuchtenberger, 232 Ky. 267,22 S. W. 2d 914,917 (1929), Bledsoe v. Leonhart, 305 Ky. 707,205 S. W. 2d 483,484 (1947) and Clay v. Terrill, 670 S. W. 2d 492 (Ky. App. 1984). The reaffirmation of these cases as good law has sparked a broader conversation about landlord/tenant law in Kentucky. Writing for the Court in Shinkle, Justice Venters said, “We cannot fail to note that the current statutory scheme for forcible entry and detainer as described above originated many, many decades ago and has arguably become ill-suited and impractical for application to modern property practice. The statutory procedure for the adjudication of forcible entry and detainer issues is ill-suited to the modern court system.”
The practicality of this decision is already being realized. “While this may not be the type of case that ends up on the front page of newspapers” says Attorney Nienaber, “it is a decision that will affect thousands of Kentucky families who face eviction from their homes in the future.” Helping families to maintain housing is an integral part of Legal Aid’s mission to ensure fairness, protect families and change lives. The holding of this case clarifies notice requirement in landlord –tenant law throughout Kentucky and provides guidance for landlords and protection for tenants. As important, it has ignited a timely conversation on why landlord-tenant law should evolve to meet the needs of individuals who rent property and individuals who rent their homes.
