Request By:
Mr. William J. Kathman, Jr.
Busald, Funk, Zevely, P.S.C.
Lawyers Building
P.O. Box 845
Florence, KY 41042
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Richard O. Wyatt, Assistant Attorney General
This letter is in response to your request dated August 2, 1979, for an opinion from this office. Specifically you asked whether a tenant may waive by a lease provision, any requirement there might otherwise be as to notice to terminate upon violation of the lease by non-payment of rent.
Please reference a previous opinion by this office, OAG-78-240, which is enclosed for your convenience. That opinion is reaffirmed now. Non-payment of rent, if specifically stated in the lease agreement may constitute a forfeiture of the leasehold. It is clear that under Kentucky law, the landlord and the tenant may contract for a notice period of less than thirty days [additional reference,
Stoll Oil v. Pierce, 337 S.W.2d 263 (KY 1960)].
Your request adds the issue whether that period may be contractually reduced to zero. There is no Kentucky statute on this issue, nor has any reported Kentucky case addressed this point (KRS 383.140 has been repealed). Common law has no prohibition to such complete waivers. A tenant for a term certain would be governed as stated in OAG-78-240. A tenant from year to year would require a reasonable notice unless specifically stated to the contrary in the lease agreement [51C C.J.S. 142(1)(2)]. Neither tenancies at will or by sufferance require notice at common law [51C C.J.S. 173, 182, 183].
Therefore, it is our opinion that in those areas of Kentucky not covered by KRS 383.505 to KRS 383.715, a tenant may by contract waive any notice of termination of the lease because of a violation of its provisions.