Request By:
Leroy Soles, Esquire
Central Kentucky Legal Services, Inc.
800 Lexington Building
201 West Short Street
Lexington, KY 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Kevin M. Noland, Assistant Attorney General
Re: Request for legal opinion
On behalf of an organization in Lexington called the Emergency Housing Coalition (EHC), you have requested a legal opinion as to whether a forcible detainer action is applicable to a certain aspect of its proposed activities.
According to the information you have provided, the EHC wishes to establish a temporary shelter in Lexington for individuals and families who have lost their homes or rental properties due to loss of income, condemnation, or eviction. It is expected that such persons would be allowed to reside in the shelter for seven to ten days without cost. During this time they would be expected to search for a more permanent residence. At the end of the seven to ten day period the individuals and families would be asked to leave.
You have inquired as to whether a forcible detainer action would be the proper recourse for the EHC if an individual or family refused to vacate at the end of the seven to ten day period.
The Uniform Residential Landlord and Tenant Act, KRS 383.505-383.715 (URLTA), is presently applicable to landlord-tenant relations in Fayette County. See, KRS 383.715(1). Therefore, in Fayette County forcible detainer actions are brought under the URLTA. Whether the EHC would need to bring a forcible detainer action in the given circumstances depends upon the applicability of the URLTA.
The forcible detainer provisions of the URLTA include use of the terms "rental agreement, " "rent, " and "tenant. " See, KRS 383.685 and 383.695. The URLTA defines "rental agreement" to mean ". . . all agreements, written or oral, and valid rules and regulations adopted under KRS 383.610 embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises." KRS 383.545(11). "'Rent' means all payments except a security deposit as defined in this section to be made to the landlord under the rental agreement. " KRS 383.545(10).
It is an axiom of contract law that any valid and enforceable agreement involves consideration, such as a rental agreement providing for the payment of rent. The temporary shelter without cost involves no consideration paid by the persons receiving shelter from the EHC, and therefore a valid and enforceable rental agreement within the URLTA would not exist. Without such a rental agreement, whether written or oral, express or implied, it is our opinion that the landlord and tenant relationship within the URLTA is not present.
Another factor which indicates that the URLTA does not apply to the arrangement proposed by the EHC is that persons receiving the temporary shelter presumable would not have exclusive possession of the dwelling unit. The URLTA, KRS 383.545(15), defines "tenant" as ". . . a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others." The URLTA definition of "tenant" does not include a person staying in the temporary shelter if the EHC retains supervision and control of the dwelling unit.
In conclusion, it is our opinion that the URLTA is not applicable to the arrangement proposed by the EHC. As explained above, this conclusion is based upon the following: there would be no landlord and tenant relationship as there would not be a rental agreement that includes consideration to be paid by the person using the temporary shelter, and, the person receiving the shelter would not have exclusive possession of the dwelling unit.
Since the URLTA is not applicable, a forcible detainer action based upon the provisions of the URLTA would not be the proper recourse for the EHC if an individual or family refused to vacate at the end of the seven to ten day period. Rather, if a person refuses to vacate the temporary shelter after his/her privilege to remain has expired, a complaint for criminal trespass in the first degree may be the proper recourse. See, KRS 511.060.