If you are a landlord and have dealt with a tenant who has breached their lease by failing to pay rent and/or failing to comply with the terms of the lease, you are not alone. If you are a landlord and have not had this issue arise, your time will come. As tempting as it may be to immediately attempt to throw an unruly and non-abiding tenant out of the house or apartment, doing so can have serious legal consequences. First and foremost: keep your cool and exercise restraint. Second: know the proper eviction procedure for your locale.

In Kentucky, the eviction procedure is known as a "forcible detainer" action under the law and is outlined in KRS Chapter 383. The biggest misconception in forcible detainer actions is that the end result will be the landlord receiving the money owed to him for past due rent and/or damages. However, this is not the purpose of a forcible detainer action. The purpose is solely to determine who has the right to possession of property. In order to recover the monies owed by the tenant for past due rent, late fees, damages, etc., a landlord is required to file a separate civil action against the tenant.

The need to evict typically arises in two situations: (i) the nonpayment of rent; or (ii) the tenant's material noncompliance with certain terms of the lease. If either of these occurs, then it is time to take immediate action. A review of the general procedure landlords must abide by is set out below.

Check to see if URLTA applies in your jurisdiction

Kentucky has codified the Uniform Residential Landlord Tenant Act in KRS 383.500 - 383.715 ("URLTA"). Furthermore, pursuant to KRS 383.500, in order for the URLTA to be applicable in a given locale, that particular city, county, or urban county government must adopt the URLTA in its entirety. In areas where the URLTA has been adopted, tenants are often afforded greater protection at the landlord's expense. Landlords should always check to see if the URLTA has been adopted in the jurisdiction in which they own and lease property. Otherwise, the express terms of the lease typically control. Please note that the information contained herein is for locales where the URLTA has been adopted.

Provide Adequate Notice

So, the tenant is short a few hundred bucks on rent this month. Or, he decided to throw a gigantic party that caused noise disturbances and resulted in damage to the property, all in violation of the terms of the lease. It may seem counterintuitive that the tenant has to be informed he breached his obligations (isn't it obvious?), but the law requires it. Casually mentioning the tenant's wrongdoing to him in the elevator or on the phone is not sufficient. Formal, written notice specifying the acts and/or omissions constituting the breach must be provided to the tenant. The written notice should contain the following elements:

Tenant's name and the address of the property which they are occupying.

• If for nonpayment of rent - the total amount past due, when it became due, and a demand that it be paid within seven (7) days from the date of the notice.
• If for material noncompliance - a description of the breach, whether or not the same breach has occurred within the past six (6) months, and a demand that the breach be remedied within fourteen (14) days.
• Notice of how many days the tenant has to pay/cure the breach and date on which the lease will terminate must also be included.

Written notice must be given by mail or by physically posting the notice on the tenant's door. The best practice is to do both. Want to go the extra mile? Take a picture of the notice on the door or send it certified mail. This may serve as proof that proper notice was given to the tenant.

The Notice Period

The waiting period is dependent on the type of breach. If a tenant has failed to pay rent, a landlord must give the tenant seven (7) days to pay the rent in full before terminating the lease.

If the tenant has materially breached the lease terms, a landlord must inform the tenant that the agreement will terminate no less than fourteen (14) days after the receipt of the notice. If the breach is not remedied in fifteen (15) days, the lease agreement will then be terminated. If the tenant has engaged in the same act (or omission) as the current material breach within the previous six (6) months, a fourteen (14) day notice is still required, but the landlord no longer is required to allow the tenant to remedy the breach. The landlord may simply notify the tenant that the lease agreement will terminate in fourteen (14) days.

Leases which were signed for a specified amount of time, such as a year, but that now operate on a month-to-month basis will typically continue to be subject to the same terms and conditions as the original lease. In the event the tenant is occupying the property on a month-to-month basis, the landlord is entitled to terminate the lease for any reason (or no reason at all), provided that he gives a thirty (30) day notice to the tenant of his intent to terminate the lease. However, in ULTRA locales, if based on nonpayment of rent or material noncompliance, the seven and fourteen day requirements still apply.

Deal with a Tenant's Remedial Efforts

Most times, a tenant will beg and plead to make things right after receiving a notice of eviction. When this happens, landlords need to be especially familiar with their rights and remedies, as a soft heart can lead to an empty wallet or damaged property.

After the required seven days and entry of a forcible detainer judgment, a tenant can be sent packing. But, what if the tenant presents the landlord with half of the required rent, and a promise to pay the rest in a few days? As the old saying goes, a bird in hand is worth two in the bush. It may be instinctive to take whatever money is available, so as to mitigate losses. This is a bad decision. Accepting partial payment is, in effect, accepting the tenant's breach and waives the right to seek eviction for non-payment. Acceptance of any money will require a new notice period.

There are times that some form of partial payment from the tenant or other entity may be attempted to be made to the landlord, even though the landlord has not agreed to accept the partial payment. For instance, an electronic deduction from a checking account may automatically deliver some funds into an account. Similarly, if the housing is approved for Section 8 housing or other federal subsidies, then the U.S. Department of Housing and Urban Development ("HUD") or another federal agency may send fractional lease payments to a landlord on behalf of a tenant, with the tenant obligated to pay the remaining balance. In these instances, the landlord must hold the received payments separately without cashing them and must return the payment to the tenant or agency. By doing so, the landlord demonstrates to the court that he is not accepting the partial payment and has not waived his right to pursue eviction.

Proceed with Legal Action

If the waiting period has passed and the tenant has not paid or vacated, then a forcible detainer complaint must be filed to regain possession of the property. The forcible detainer complaint should be filed in the district court clerk's office where the property is located. The end of the waiting period does not signal that a landlord may take actions into his own hands; he cannot lock out a tenant, remove their belongings, forcibly get them off the property, or withhold essential services. He must follow proper legal procedure.

There will be a filing fee, court costs, and a fee to serve the tenant. In some instances, the landlord may obtain injunctive relief during the course of the suit (meaning that the court will issue a temporary order requiring the tenant to do, or not do, some action). It is also possible the landlord can recover damages for a tenant's noncompliance; if the tenant's noncompliance is "willful," the landlord may even recover attorney fees.

If the judge grants a forcible detainer judgment, then the tenant has seven (7) days to either vacate the property or file an appeal with the circuit court. If an appeal is filed, the court will require the tenant to make rental payments to the court for the duration of the appeal, which will then be given to the landlord or refunded to the tenant at the close of the case. If the tenant does not file an appeal and does not willingly vacate, the landlord must obtain a writ of possession from the district court and present it to the Constable in order to have the judgment and writ enforced. The Constable will then be authorized to enter and regain possession of the property.

And Repeat

Unfortunately, landlords may experience the unpleasant eviction process more than once. The first time that a forcible detainer action must be filed can be a daunting process. Having legal counsel to guide you through the procedure is extremely beneficial. Moreover, if the property is owned by a business entity (as opposed to an individual), then legal representation is required.