Request By:
Ms. Rena Gardner Wiseman
Corporate Counsel
Lexington-Fayette Urban County Government
200 East Main Street
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; Barbara J. Bryant, Assistant Attorney General
You have requested an opinion from this Office regarding the legality of certain provisions the Urban County Government wishes to add to an existing ordinance concerning the landlord-tenant relationship. The existing ordinance contains the provisions of the Uniform Residential Landlord Tenant Act, KRS 383.505 et seq.
In your request, you present several questions for our consideration. We will discuss each of the questions separately and in the order in which they appear in your request. Prior to any discussion, however, we wish to make it clear that the conclusions reached in this opinion are based on the premise that the Uniform Residential Landlord Tenant Act, which, as you point out in your letter is being tested on constitutional grounds in the Kentucky Supreme Court, remains applicable to landlord-tenant relationships in Fayette County until the Supreme Court should find otherwise. CR 76.28(4)(a)(c).
Your first question addresses a grant of jurisdiction to the District Court by the Urban County Government. You state:
(1) OAG 80-467 stated that cies (sic) and counties not covered by the Act could, by ordinance, adopt its provisions so long as such ordinance does not conflict with constitutional provisions or statutes. Can then the Urban County Government, by adopting such an ordinance, lawfully confer jurisdiction on the District Court? In other words, is the ordinance valid insofar as it provides, as does the Act, for certain procedures in District Court? This question was not addressed in OAG 80-467. (Emphasis Added.)
The Kentucky Constitution, Section 113, provides that the District Courts shall exercise original jurisdiction as may be provided by the General Assembly. The General Assembly is the legal body, therefore, that must confer jurisdiction on the Courts. Original jurisdiction was conferred on the District Courts by the General Assembly in Chapter 24A of the Kentucky Revised Statutes. In addition, in the specific matter of certain landlord-tenant relationships, the General Assembly conferred jursidiction upon the District Courts in Chapter 383.
It is our opinion, in keeping with the reasoning of OAG 80-467, that the enacting of an ordinance which contains provisions regarding the jurisdiction of the District Court which are identical to the provisions found in URLTA for the jurisdiction of the District Court would not be an enlargement of the Court's jurisdiction and would not, therefore, invalidate such an ordinance.
Your second question addresses the validity of a provision granting a landlord the right to immediately terminate a lease based on a tenant's dangerous conduct. You ask:
(2) Would a provision allowing a landlord the right to immediately terminate a lease based on a tenant's dangerous conduct, be valid? A proposed amendment providing for such termination is attached. (It must be noted that such a provision does not call for the immediate eviction of a tenant, which would clearly conflict with the forcible detainer statute. KRS 383.210.)
It is well established that urban county governments may enact ordinances not in conflict with the Constitution and general statutes of this state. KRS 67A.070, 82.082, OAG 80-467. If the proposed amendment is consistent with the Constitution and general statutes, therefore, an ordinance implementing such an amendment would not be invalid. It is our opinion that the proposed amendment is in conflict with URLTA and the forcible entry and detainer provisions of the Kentucky Revised Statutes 383.200 et seq. and would, therefore, be invalid if enacted. URLTA clearly sets forth what a tenant's obligations are regarding the care and occupancy of the rental unit. KRS 383.605. KRS 383.605 states in part that:
A. A tenant shall: § (6) Not deliberately or negligently destroy, deface, damage, impair or remove any part of the premises or knowingly permit any person to do so; and
§ (7) Conduct himself and require other persons on the premises with his consent to conduct themselves in a manner that will not disturb his neighbor's peaceful enjoyment of the premises.
In addition, the landlord may include in the rental agreement terms and conditions not prohibited by KRS 383.505 to 383.715 and may adopt a rule or regulation concerning tenant's use and occupancy of the premises. KRS 383.565 and KRS 383.610.
Should there be a material noncompliance by the tenant with the rental agreement, or a material noncompliance with KRS 383.605 or 383.610, the landlord may deliver a written notice specifying the acts and omissions constituting the breach and that the rental agreement will terminate on a date not less than fourteen (14) days after receipt of the notice. It should also be noted that if the tenant adequately remedies the breach, the rental agreement does not terminate. KRS 383.660(1).
Should the rental agreement be terminated, the landlord may have a claim for possession. KRS 383.685. The landlord can attempt to recover possession of the premises which a tenant will not relinquish through the forcible entry and detainer procedures of KRS 383.505 to 383.715. A forcible entry and detainer only lies when the tenant no longer has a right to present occupancy due to termination of the rental agreement through expiration of the term or due to the material noncompliance with the duties under the URLTA or the rental agreement. Specific procedures have been established for the forcible entry and detainer actions. KRS 383.210.
The proposed amendment clearly sets up a procedure for dealing with the tenant's material noncompliance with the URLTA or the rental agreement that is in direct conflict with the procedure discussed above that has been established by the General Assembly in URLTA and the forcible entry and detainer provisions.
Paragraph 1(A)-(C) of the proposed amendments states as follows:
(1) In the event of the following conduct by the tenant, any member of the tenant's household or the tenant's guests, which causes one or more of the landlord's other authorized occupants or the landlord himself or his agents to have a reasonable fear or expectation of substantial harm to his or her person or property as a result thereof, the landlord may terminate the rental agreement immediately without the tenant's recourse to any cure provisions;
(A) Conduct which causes or has caused death or serious physical injury to another person or serious physical damage to the premises demised, or,
(B) Conduct which threatens to cause death or serious physical injury to another person, or,
(C) Any threat of any act which could reasonably be construed to jeopardize the safety of another person or persons. (Emphasis Added.)
The committing of the prohibited behaviour outlined in paragraph 1(A)-(C) of the proposed amendment would most likely be considered a non-compliance with the tenant's duties as set out in KRS 383.605 and would very likely be considered a material non-compliance with the provisions of most rental agreements. The appropriate course for the landlord would then be to deliver the written notice as required by KRS 383.660(1) and then to initiate forcible entry and detainer proceedings if necessary; not, in the language of a proposed ordinance in paragraph (3) "Apply to the Fayette Circuit Court for a temporary restraining order, restraining the tenant and/or any other offending person from the premises pending the ultimate disposition of forcible detainer proceedings. . .". The forcible entry and detainer provisions do not contemplate the barring of the tenant from possession prior to the culmination of the forcible entry and detainer proceedings. The proposed amendment, therefore, calling for what in effect is an eviction prior to the culmination of such proceedings, conflicts directly with the statutorily defined procedure established in the comprehensive scheme of legislation on the subject of landlord and tenant relations and would be, therefore, invalid. KRS 67A.070, 82.082 and OAG 80-467.
Your third question relates to the provision in the proposed amendment that allows a landlord to seek a restraining order in Circuit Court. Your question is whether this provision confers jurisdiction upon the Circuit Court. In light of our determination that the restraining order section of the amendment is in conflict with URLTA and the forcible detainer provisions, it is unnecessary to address this question at this time.
Your fourth and final question involves whether the Urban County Government could adopt the provisions of a proposed amendment to Chapter 383. For reasons stated previously in this Opinion, we believe that the proposed amendment, in that it sets out conflicting provisions for the termination of a lease and the eviction of a tenant, is in conflict with URLTA and the forcible entry and detainer provisions and would, therefore, be invalid if adopted by the Urban County Government.