Request By:
Mr. Aubrey R. Mooney
Webster County Attorney
Courthouse
Dixon, Kentucky 42409
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Providence-Webster County Airport Board seeks our opinion on a matter involving a lease of airport property.
The chairman of the board on June 1, 1977, without a resolution of the board and without any record in the minutes of the board, entered into a lease of the airport hanger and office adjacent thereto with a private individual. Under KRS 183.137(1), the board has the authority to contract with any person or governmental agency for the use of the airport. Such contract shall not prevent, restrict or hamper the general use of the airport by the public. The lease contains no provisions for termination, except that the lease is for one year and, unless renegotiated on June 1, of each succeeding year, shall be continued for a one year term etc.
Your specific question is whether the former chairman could validly enter into a lease of property owned by the airport board without formal action by the board by way of prior approval. The answer is "no".
The airport board is a body politic and corporate. It has the power to contract and be contracted with and do all things reasonable and necessary to effectively carry out the duties prescribed by statute. KRS 183.132. The air board has been characterized as a municipal corporation by the Court of Appeals. Bowling Green-Warren Co. Air Bd. v. Bridges A.S. & S., Ky., 460 S.W.2d 18 (1970) 19. More specifically, KRS 183.133 [powers of the airport board] (2) and (3) empowers the board to contract with persons in connection with the use of landing areas, ramps and other common aviation facilities, terminal or other ground use facilities.
Since the air board is a public body engaged in the performance of a public duty, it is subject to all general laws applicable to other political subdivisions; and without express statutory permission it is not permitted to delegate and surrender to others its official powers which are discretionary in character and require the exercise of judgment. American Airlines, Inc. v. Louisville & Jefferson Co. A.B. (U.S.C.A. -6, 1959), 269 F.2d 811. See also KRS 183.476; and Padgett v. Louisville & Jefferson County Air Board (U.S.C.A. -6, 1974) 492 F.2d 1258.
In Bowling Green-Warren Co. Air Board, above, the court tacitly recognized the power of the board to lease airport facilities to persons.
Even though KRS 183.133(6) permits air boards to issue rules and regulations to implement its statutory powers and duties, if necessary, such regulations must, of course, be consistent with the provisions of KRS Chapter 183.
It is our opinion that the subject lease executed only by the former chairman of the air board and lessee, without any formal action of approval by the air board, is void. Under the statutes, there is no authority for delegating such function to the chairman, although the board could have authorized the chairman to execute the lease upon the official approval of the lease by the air board.
Next, you raise the practical problem of removing the lessee from the leased premises. The board should give the lessee written notice to vacate the premises. Since the lessee is at most only a tenant at will, there is no statutory period for such notice. KRS 383.140 [the old 30 day's notice for tenants at will] was repealed by 1974 Acts, Ch. 378, § 45, effective August 1, 1974. We assume that the board has in effect accepted lease rentals from the lessee.
The courts are not in agreement as to the necessity of notice to terminate a tenancy at will. Under early common law no notice was necessary. However, there is authority that a notice giving the tenant a reasonable time to vacate should be given. The conserative practice would be to give such "lessee" a 30 days' written notice to vacate the premises. See 49 Am.Jur.2d, Landlord and Tenant, §§ 77 and 78.
If the lessee does not vacate the premises after notice, a forcible detainer suit in district court can be filed against the lessee. See KRS 383.200 et seq. We assume that the relation of landlord and tenant in some form exists because of acceptance of rentals. Lovely v. Stacey, 171 Ky. 338, 188 S.W. 389 (1916).