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. Should you find yourself in this situation, and you don’t follow a very specific legal process, you could wait months before your valuable investment stops costing you money instead of making you money.
In Kentucky, to evict a tenant who refuses to leave, you must have a court find the tenant guilty of “Forcible Detainer.” A forcible detainer is a legal action that answers only one question, that is: 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 in the process can have costly consequences.
To have a Court find a tenant guilty of forcible detainer, a Landlord must show: (1) they had a written or oral lease with a tenant; (2) the tenant is in breach of that lease, usually for non-payment of rent; and (3) the tenant was given 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, a Landlord can apply for and receive what amounts to a warrant for the sheriff to oversee their forcible removal from the property.
Procedurally, this means a Landlord must wait the appropriate time after giving notice to vacate before filing the forcible detainer action (typically 30 days unless a shorter time is provided in the lease), 1-2 weeks for a hearing after filing a Forcible Detainer Complaint, 1-2 weeks for a tenant to vacate after being found guilty of Forcible Detainer, and several days for the local Sherriff to schedule and execute a 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.
Take for instance the landlord with a rental property in the name of an LLC. If this Landlord shows up to Court without an attorney, they will be told they can’t proceed because, as an unlicensed attorney, they can’t represent their own LLC in a legal action. The Landlord then has to retain an attorney, refile the complaint, and perhaps wait another two weeks before getting a Court date. Or, consider the Landlord who gives notice to vacate but files the complaint without waiting the requisite time after giving the notice. The Landlord’s complaint is likely to be dismissed by the Court and the Landlord will have to 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.
Landlords sometimes find themselves waiting longer than necessary to reclaim their property because they give notice to vacate and then accept a portion of the back-rent before a Court finds the tenant guilty of Forcible Detainer. In this instance, the law assumes the Landlord and tenant have reached an agreement on past due rent, or an agreement that will bring the Tenant current. In this instance, the Landlord must start the whole process over again.
These are just a few examples we see of desperate property owners tripping over legal hurdles and costing themselves valuable time and rental income. As you can see, the Forcible Detainer process can be anything but simple and efficient.
The attorneys at Skeeters Bennett Wilson & Humphrey have the experience and knowledge necessary to ensure your eviction happens as quickly and as smoothly as possible. Call us today for a free consultation.