Many of our clients own rental properties, and while they can be a good investment, a tenant who can’t or won’t pay rent for months at a time will quickly destroy the value of the investment. This is especially true if the property is not owned free and clear, and the owner is making mortgage payments but not collecting any rent. If you are in this situation and don’t follow a precise legal process, you could wait months before your valuable investment starts making you money instead of costing it.
In Kentucky, to evict a tenant who refuses to leave, you must have a court find the tenant guilty of "forcible detainer" -- a legal action that answers the question of who has the present right to occupy and possess the property. While forcible detainer actions are meant to be a speedy and efficient way to answer this simple question, one misstep can have costly consequences. Here's what you should know.
What Landlords Must Show
Getting your property back when a tenant won't pay can be challenging. For the court to find a tenant guilty of forcible detainer, a landlord must show the following:
- They had a written or oral lease with the tenant
- The tenant is in breach of that lease (usually for nonpayment of rent)
- They gave the tenant notice to vacate
Once a tenant is found guilty of forcible detainer, they are given anywhere from 7 to 14 days to surrender possession. If they aren’t out within the time given by the court, the landlord can apply for and receive what amounts to a warrant for the sheriff to oversee their forcible removal from the property.
The Kentucky Forcible Detainer and Eviction Processes Take Time
Though forcible detainer actions can help landlords regain property from nonpaying tenants, they don't yield immediate results. The court process takes time and requires significant patience. Here's how long a landlord must wait at each step in a typical case after serving a tenant with a notice to vacate.
- 30 days (or the amount of time specified in the lease) before filing a forcible detainer complaint
- 1-2 weeks for a hearing after filing the forcible detainer
- 1-2 weeks for a tenant to vacate after being found guilty
- Several days for the local sheriff to schedule and execute the removal of a tenant and their possessions
That can be more than two months of collecting no rent, on top of however long the tenant wasn’t paying rent before receiving notice to vacate, and that assumes everything goes smoothly. Sometimes it doesn’t.
Mistakes and Missteps Can Prolong Already Lengthy Legal Processes
As you can see, the forcible detainer process can be anything but simple and efficient. Landlords sometimes find themselves waiting longer than necessary to reclaim their property, often due to misunderstanding their rights or the relevant legal processes. Tripping over legal hurdles can cost desperate property owners valuable time and rental income. Here are a few examples.
Rental Property Is in the Name of an LLC
If a rental property is in the name of an LLC and the landlord shows up to court without an attorney, they will be told they can’t proceed. Why? As an unlicensed attorney, they can’t represent their own LLC in a legal action. In this case, the landlord must retain an attorney, refile the forcible detainer complaint, and perhaps wait another two weeks to get a court date.
Forcible Detainer Action Filed Too Soon
When a landlord gives a tenant notice to vacate but files a forcible detainer action without waiting the requisite time, the court will likely dismiss the complaint. This puts landlords back at square one, where they must provide notice to vacate again, wait the requisite time, and then have the hearing. All the while, valuable time has been lost, and rent is not being collected.
Accepting Rent Before the Tenant's Been Found Guilty
Another common mistake is when a landlord gives a tenant notice to vacate but accepts back rent (or a portion of it) before the court has found them guilty of the forcible detainer. In these cases, the law assumes that the landlord and tenant have reached an agreement on past-due rent or an agreement that brings the tenant up to date. While this might be good news for the tenant, it means starting the whole process again for the landlord.