Request By:
Hon. Douglas L. Greenburg
Mercer County Attorney
Courthouse
Main Street
Harrodsburg, KY 40330
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Kevin M. Noland, Assistant Attorney General
This is in response to your letter of March 16, 1983, in which you request an opinion as to the following:
1. If a tenant in a fourth class city has failed to pay the rent or has violated some other provision of the lease agreement, what notice to the tenant is required before the court may issue an eviction?
2. If there is a written lease agreement waiving any notice requirement before eviction of the tenant for failure to pay rent or for violations of some other provision of the lease agreement, may the court immediately issue an eviction notice?
First, it is noted that KRS 383.505 to KRS 383.715, the Uniform Residential Landlord and Tenant Act (URLTA), applies only to counties containing cities of the first class and urban county governments. Therefore, the URLTA is not presently applicable to Harrodsburg or Mercer County. Secondly, the statutory provisions of KRS 383.140, requiring a 30-day notice, were repealed in 1974.
The right of a tenant to continued residence in his or her home is a significant interest in property, of which the tenant cannot be deprived without the due process of law required by the Fourteenth Amendment. See,
Greene et al. v. Lindsey et al., 454 U.S. 938, 102 S. Ct. 1874 (1982), No. 81-341. Regardless of the nature of the violation of the lease agreement, the established judicial process, as opposed to self-help, must be utilized in order to validly evict a tenant.
It is our opinion that in non-URLTA jurisdictions no statutory or common law requirement presently exists that would require the landlord to provide to the tenant, who has failed to pay his or her rent or has violated some other provision of the oral or written lease agreement, any notice prior to filing an action, pursuant to KRS 383.200 to 383.285, for forcible entry and detainer. Of course, once the landlord files the action, the tenant would have to be served with a summons and a copy of the complaint.
As to your second question, please reference previous opinions by this office, OAG 78-240 and OAG 79-520, copies of which are enclosed for your convenience. As concluded in OAG 79-520, a tenant in a non-URLTA jurisdiction may by contract waive any notice of termination of the lease because of a violation of its provisions. Nonpayment of rent could constitute one such violation. If the lease agreement contained this type of waiver, upon the tenant's violation of the lease agreement the landlord could consider the lease terminated and immediately file an action in the appropriate court for forcible entry and detainer.