Eviction Procedure in Northern Kentucky
In Kentucky when a tenant does not vacate the property after notice to leave for breaching the lease is given (non-payment of rent or property damage), the legal term for the legal process is called a forcible detainer. To legally have the tenant evicted is to file a forcible detainer complaint. There are several important points which one needs to observe in order to evict a tenant in Kentucky.
1. Evictions. You must post a physical written notice of the breach of the lease. Mailing or telling them orally may not suffice. Certified and registered mail can work, however, the tenant can simply refuse to sign for the certified mail, or the registered mail has problems. The best method is to post the notice to the door of the leased premises.
** Remember: A forcible detainer is technically a suit in rem (latin for “against the thing”) rather than a suit in personam (“against the person”). Meaning, a forcible detainer suit concerns who gets possession of the property. In Kentucky you have to file a separate civil action for the rent money the tenant owes.**
2. Notice of Default. You must have the proper length of time on the written notice to vacate. Kentucky law allows a forcible detainer notice to be as short as seven days (and on non-monetary breaches in areas which have adopted the Uniform Residential Landlord Tenant Act, 14 days), but only if this notice time frame is in writing in your lease. If the written lease does not state a notice period, then the general default time frame in Kentucky is thirty (30) days. If your payment period isn’t monthly, and your lease doesn’t state a notice period, the default notice period goes to the payment period if it is shorter than thirty (30) days. (If rent is paid bi-weekly, then the default notice is likely also two weeks.) If you have an oral lease, the default notice period is going to be the payment period.
3. What’s Required in the Notice of Default? The notice must contain all the required elements: (1) the tenants’ name(s), (2) the amount past due, (3) a demand it be paid (“pay or vacate” is the language) or a description of whatever the breach is, and (5) notice of to pay/cure the breach or be evicted.
** Be careful accepting partial payments after the notice has been posted. It could be argued that accepting a partial payment creates a need for a new notice period. This will be addressed by a non-waiver clause in the lease. If you do not have a non-waiver clause, or it is not specific enough, a tenant may successfully argue that by accepting a partial payment that cured the breach you had given notice of and you have to give notice again.**
4. Eviction Hearing. After the written notice to vacate period is up and the tenant has not paid or vacated, then you must file a forcible detainer complaint to regain possession. You cannot physically remove them yourself, lock them out, or cut off the utilities. IMPORTANT: if your property is owned by a LLC or corporation, possibly only an attorney can file the complaint. The forcible detainer complaint is normally filed with the district court clerk in the county where the property is located. There are court costs and a fee to serve (the sheriff will post the court notice to the door of the property). Upon a finding, the landlord is entitled to possession of the lease premises because of non-payment of rent or breach of the lease in the complaint, the tenant is typically liable for those costs (if you sue them for money they owe, you can include these court costs).
5. Hearing / Court Day. Show up for court with your written lease agreement. If you have a statement showing the payment rent history, bring that statement. A judge will handle most forcible cases quickly, and while the judge will give the tenants a brief, there are few issues that a tenant can bring up which will stop an eviction. Lack of notice, or of proper notice, is the primary defense and that is primarily a question of whether you have stated a notice period shorter than the default thirty (30) days in your lease, and did you post notice on the door. Sometimes the tenant won’t even show up and the judge will grant a judgment by default.
6. Judgment of Possession. When the judge finds the tenant guilty of forcible detainer, they will be given seven (7) days to vacate (the day of the court hearing is not one of the seven days - that count begins on the next day).
7. Warrant or Writ of Possession. After the required time to vacate has run and tenant has not vacated the property, you must get a warrant for possession. You need to take the paperwork showing you have a forcible detainer judgment back to the district clerk, pay fee and they will issue a warrant for possession. You then take that to the sheriff, and pay the fee, and the sheriff will dispatch a deputy to oversee the eviction. The sheriff’s deputy is there to enforce the court’s order, to make sure that the tenant(s) are removed from the property, and will stay to ensure peace is maintained while you have the locks changed, and the tenant’s property removed.
If you wish to talk with one of our attorneys call Sutton Law at 859-578-6600 or contact us online to discuss your legal matter and learn about your options.Free initial consultation with our attorneys.
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