Request By:
Mr. James W. Mills
Acting Director
U.S. Department of Housing and Urban Development
Louisville Office, Region IV
P.O. Box 1044
Louisville, Kentucky 40201
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to Mr. Porterfield's letter asking this Office to review the law regarding evictions and issue an opinion as to the minimum time period for eviction notices used in conjunction with 30-day leases in Kentucky.
You state that public housing authorities throughout the Commonwealth rent housing units to tenants primarily on the basis of 30-day leases as required by HUD. These leases contain the customary provisions including eviction and the notice requirements associated therewith.
You cite the case of Clay v. Terrill, Ky. App., 670 S.W.2d 492 (1984), which you say held that the invalidity of the Uniform Residential Landlord and Tenant Act left the law as it existed prior to the Act's adoption. The court in that case said the original statute requiring a 30-day written notice is still in effect. HUD recently issued a letter to the public housing authorities of Kentucky to implement the court's decision and they are now in the process of modifying their leases.
An attorney for a local housing authority has advised you that the case of Clay v. Terrill, supra, may not be applicable where 30-day leases are concerned. He has cited the case of Estes v. Gatliff, 291 Ky. 93, 163 S.W.2d 273, 276 (1942), where the court said in part:
". . . In the absence of a provision to that effect in the contract or a declaration of a statute, the nonpayment of rent does not operate as a forfeiture operate as a forfeiture of the lease; but there is no question that a provision in the contract for a forfeiture upon such default is valid and binding. . . ."
In Clay v. Terrill, supra, the court said in part as follows:
"Pending some further action by the legislature, the original statute requiring 30-day written notice is still in effect. Mere non-payment of rent does not relieve the landlord of his obligation to follow the proper statutory requirements. . . ."
The Uniform Residential Landlord and Tenant Act of 1974 was struck down as unconstitutional in the case of Miles v. Shauntee, Ky., 664 S.W.2d 512 (1983), on the grounds that it was "special legislation" as it applied only to counties containing cities of the first class and urban-county governments. The 1984 regular session of the General Assembly enacted another Uniform Residential Landlord and Tenant Act, effective July 13, 1984. To avoid the constitutional problems associated with the 1974 Act, the 1984 Act in KRS 383.500 provided that cities, counties and urban-county governments are authorized to enact the provisions of the Uniform Residential Landlord and Tenant Act (KRS 383.505 to KRS 383.700). If adopted, these provisions shall be adopted in their entirety and without amendment. No local ordinance shall be enacted which relates to the subjects covered in the state statute.
Thus, those local jurisdictions which have enacted the provisions of the Uniform Residential Landlord and Tenant Act of 1984 are bound by the provisions of KRS 383.500 to KRS 383.700 including KRS 383.695(2) which states:
"The landlord or the tenant may terminate a month-to-month tenancy by a written notice given to the other at least thirty (30) days before the periodic rental date specified in the notice. "
While we have not been furnished with a copy of your standard lease, presumably you are referring to a lease from month-to-month. See KRS 383.565(3) stating that unless the agreement fixes a definite term the tenancy is week-to-week or month-to-month. In connection with a month-to-month lease and a lease for one month, see the case of Goodwin v. Beutel, Ky., 256 S.W.2d 532 (1953), where the court said:
"It seems to us that this case is clearly within the statute as being a tenancy at will because the terms were from month-to-month. With his usual felicity and logic, Judge Dietzman, for the court in Pack v. Feuchtenberger, 232 Ky. 267, 22 S.W.2d 914, noted the distinction between a lease 'for one month' as being for a definite period not requiring notice to vacate, and a lease 'from month to month,' as requiring notice of the landlord's election. The terms of that lease and the present one are the same except the amount of rental. "
Another piece of 1984 legislation applicable to the subject matter with which you are concerned is KRS 383.195, effective July 13, 1984, which states as follows:
"In those jurisdictions where the Uniform Residential Landlord and Tenant Act is not in effect, a tenancy at will or by sufferance may be terminated by the landlord giving one (1) month's notice in writing, to the tenant requiring him to remove."
Thus, regardless of whether or not a particular local jurisdiction has enacted the provisions of the Uniform Residential Landlord and Tenant Act of 1984, a landlord may not terminate a month-to-month lease unless he gives at least one month's (30 days) advance written notice to the tenant.