Request By:
Mr. Col Owens, Director
Office of Kentucky Legal Services Programs, Inc.
801 Lexington Building
201 West Short Street
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear
As the Director of the Office of Kentucky Legal Services Programs, Inc., you have asked the Office of the Attorney General to render a formal advisory opinion concerning the following question:
"Can any city government regardless of its class designation under KRS, adopt by local ordinance any or all of the provisions of the Uniform Residential Landlord-Tenant Act, KRS 383.505 - 383.715, under the authority granted cities by the "Home Rule" legislation, Senate Bill 41, passed by the 1980 General Assembly?"
Our response to your question is in the affirmative, with a note of reservation which we will explain more fully below.
There has always been some confusion regarding the territorial application of the Uniform Residential Landlord-Tenant Act of 1974 (URLTA). KRS 383.530 provides that the "act applies to, regulates, and determines rights, obligations, and remedies under a rental agreement wherever made, for a dwelling unit located within this state." However, KRS 383.715(1) quite specifically states that the provisions of this act "shall apply only to counties containing cities of the first class and urban-county governments." In OAG 77-294, copy attached, the series of amendments to the act while progressing through the General Assembly in 1974, are recited and the conclusion was drawn, still correctly we believe, that KRS 383.715(1) must be given controlling weight over KRS 383.530. That is, KRS 383.530 must not be construed so as to extend the applicability of the URLTA beyond the rental properties located in Jefferson and Fayette counties.
The opinion above referred to is not dispositive of your question, however. What you wish to know, in the opinion of this office, is whether a city other than that of the first class (Louisville) or urban-county government (Lexington) may voluntarily impose upon itself by ordinance, the provisions of URLTA even though it is quite clear the provisions of this act are not mandated to be applied. In other words, can a city not covered under URLTA, adopt an ordinance incorporating any or all of the act's provisions.
This office was asked and addressed nearly the identical question in OAG 76-333, copy attached. In that opinion, this office concluded that a city of the second class (Newport) could not adopt by a city ordinance, the provisions of URLTA. We stated:
"As a consequence, the city of Newport, being a city of the second class, would not be governed by terms of said act, and, as a matter of fact, could not utilize the terms of the act even by the adoption of an ordinance where it in any way conflicted with the general law relating to landlords and tenants, to which you refer. As you know, cities cannot enact ordinances in violation of the statutory law of the state. See McQuillin, Mun. Corps., Vol. 5, § 15.22, and the case of City of Owensboro v. Board of Trustees, 301 Ky. 113, 190 S.W.2d 1005 (1945); and Reed v. Hostetler, 245 S.W.2d 953 (1952)."
Although we believe this opinion has been misconstrued to have concluded cities not covered under URLTA could not, under any circumstances, adopt by ordinance a substantial part of the act's provisions, we want to now make it clear that construction is not the position of this office on the matter.
It is clear that the intent of the URLTA legislation when first introduced was to mandatorily place the strictures of URLTA upon all cities in the Commonwealth. For whatever reason, the legislature drew back the reach of the law's application so as to only mandate its provisions regarding rental agreements and properties on counties containing a city of the first class and urban-county governments. There is nothing in the provisions of URLTA to suggest that if a city not covered by its provisions wished to adopt some of its principles, it was to be precluded from doing so. There is no prohibitory language in the law as concerns cities of other classes and the subject of rental agreements and property. Thus, in our opinion, as stated in OAG 76-333, supra, the only restriction placed upon those cities not mandatorily under URLTA in adopting ordinance provisions along the same lines is to make sure any such ordinance did not conflict "with the general law relating to landlords and tenants. . . ." That is, a city not covered by URLTA would be unable to adopt an ordinance inconsistent with the general laws on forcible detainer, for example. Such cities could adopt through the device of an ordinance only those parts of URLTA that did not conflict with the general statutory laws of the Commonwealth relating to rental agreements and property.
The above limited reservation we believe to be fully compatible and consistent with the authority generally granted to cities by the so-called "home rule" legislation you referred to which was passed by the 1980 General Assembly in Senate Bill 41. Section 2 of Senate Bill 41, which has been codified as KRS 82.082, gives cities of the various classes home rule power by providing that any such city may exercise any power and perform any function within its boundaries that is in furtherance of a public purpose of a city and not in conflict with a constitutional provision or statute. KRS 82.082 reads in full as follows:
"(1) A city may exercise any power and perform any function within its boundaries, including the power of eminent domain in accordance with the provisions of the Eminent Domain Act of Kentucky, that is in furtherance of a public purpose of the city and not in conflict with a constitutional provision or statute.
(2) A power or function is in conflict with a statute if it is expressly prohibited by a statute or there is a comprehensive scheme of legislation on the same general subject embodied in the Kentucky Revised Statutes including, but not limited to, the provisions of Chapter 95 and 96."
As we have stated above, it is our opinion that URLTA fails to expressly prohibit cities not covered by its provisions from enacting by ordinance such parts of the URLTA not otherwise covered by the general laws of the Commonwealth. Furthermore, there is no comprehensive scheme of legislation on the same general subject applicable to cities other than those covered by URLTA. That is, there is nothing regarding rental agreements applicable to the various classes of cities similar to the treatment of city police and fire departments in KRS Chapter 95 or utilities in cities as in KRS Chapter 96.
Therefore, it is our conclusion and opinion that cities not covered under the provisions of URLTA may, pursuant to the home rule powers given them by the General Assembly, voluntarily adopt by ordinance provisions identical to those in URLTA or similar thereto, so long as such provisions do not conflict with any general statutes applicable to or meant to otherwise govern rental agreements and property.