Sunday, July 7, 2013

Fantasy Litigation - Forcible Entry and Detainer vs. URLTA

Beware the hypothetical.

In Kentucky the statutory action for Forcible Entry or Detainer, K.R.S. §383.200 - §383.285, is widely understood and acknowledged to be a summary proceeding to determine the right of possession of real property, and nothing else. (citations omitted) It is a statute with statewide application, unlike the Uniform Residential Landlord and Tenant Act (URLTA) which is a local option law. Where it has been adopted by local governments, URLTA and Forcible Entry or Detainer overlap, and the latter is employed to evict tenants from residential leaseholds governed by the former.

Under the Kentucky Rules of Civil Procedure (K.R.C.P.) it would be simplicity itself to combine a claim for Forcible Entry or Detainer and a claim for unpaid rents in a single action arising from a common set of facts. Or, to entertain a counterclaim by the tenant for money damages for the landlord's breach of a lease agreement. This has the virtue of being expressly authorized by URLTA in K.R.S. §383.645(1):
"In an action for possession based upon nonpayment of the rent . . .  the tenant may counterclaim for any amount he may recover under the rental agreement . . . . "
The different parts of the action could be adjudicated sequentially.

The biggest bug in the hypothetical soup is the different service of summons procedures specified for Forcible Entry or Detainer and  for a claim for money damages under the K.R.C.P. Service of summons for a Forcible Entry and Detainer action is controlled by K.R.S. §454.030, Forcible entry or detainer, how notice served:
"If the officer directed to serve notice on the defendant in forcible entry or detainer proceedings cannot find the defendant on the premises mentioned in the writ, he may explain and leave a copy of the notice with any member of the defendant's family thereon over sixteen (16) years of age, and if no such person is found he may serve the notice by posting a copy thereof in a conspicuous place on the premises and by mailing a copy of the notice to the mailing address of the premises mentioned in the writ by regular mail through the United States Postal Service, postage prepaid. The notice shall state the time and place of meeting of the court."
This is different from the rules for service of summons in the K.R.C.P.

I'm not complaining. The prevailing system seems to work just fine, but at the expense of ignoring the seemingly clear language of the URLTA in K.R.S. §383.645(1)


Addendum, December 30, 2013 -

After re-reading the last part of this blog post, it does not make as much sense to me now as what I imagined when I first wrote it. The problem of merging any issue other than the right of possession into the expedited statutory Forcible Detainer action, or "an action for possession based upon nonpayment of the rent" as K.R.S. §383.645(1) words it,  is the risk of destroying the streamlined efficiency of the eviction process. The procedure and timetable specified for Kentucky's statutory Forcible Detainer action is very different from that provided for general damage breach of contract actions proceeding under the Kentucky Rules of Civil Procedure. The statutory scheme for Forcible Detainer has no room for counterclaims or any issue other than the right of possession. Yet the URLTA, K.R.S. §383.645(1), expressly allows for tenant counterclaims in a landlord's action for possession.

I have no idea how the courts will resolve this seeming conflict should it ever arise in actual practice.