Sunday, December 29, 2013

Notes: Appeal of a Kentucky eviction


When a Kentucky landlord wishes to regain possession of real estate occupied by an uncooperative tenant, there is a special statutory procedure called Forcible Entry and Detainer, KRS § 383.200, et seq.. This is commonly known as an action for eviction. The law of Forcible Entry and Detainer applies uniformly throughout the Commonwealth to residential, commercial and agricultural tenancies, and an essential element of a landlord's action is to establish the tenant's possession of the property is wrongful.

The applicability of Kentucky's Uniform Residential Landlord and Tenant Act,  KRS § 383.505, et seq., however, is subject to adoption by local governments, see: KRS § 383.500. Thus, determining if and when a the tenant's possession of the property is wrongful is complicated by its geographic location, if the occupancy is "residential," landlord's compliance with the appropriate notice requirements and the terms of any written or oral agreements.

Landlord's Statutory Cause of Action In District Court

Let us set these issues aside, and simply assume a landlord can make a good faith claim the tenant's possession of the premises is wrongful. If a tenant wrongfully refuses to surrender possession of a premise, a landlord can file a complaint in District Court under KRS § 383.210. There is a standard court approved form for this: Forcible Detainer Complaint. The tenant must be given at least three (3) days advance notice of a hearing. Either party may make written demand for a jury "at the calling of the case for trial," KRS § 383.210(2). The issues will be decided by either the jury or by the judge, and a final judgment will be entered in favor of one party or the other, on the issue of possession. Issues other than wrongful occupancy and possession of a property normally cannot be included in a Forcible Detainer Action. However, I have previously speculated if Kentucky's Uniform Residential Landlord and Tenant Act might complicate the inherent straightforward simplicity of an action for Forcible Detainer. See:  Fantasy Litigation - Forcible Entry and Detainer vs. URLTA.

Notes: Appeal from District Court to Circuit Court
  1. KRS § 383.255 and the Kentucky Rules of Civil Procedure, Rule 72.02, allow seven (7) days after the District Court's final judgment within which to file a Notice of Appeal in the original District Court cause..
  2. Civil Rule 72.02(1) provides: "Appeals from the district court to the circuit court in civil cases shall be taken by filing a notice of appeal in the district court and paying the filing fee required by KRS 23A.210."
  3. Unfortunately. it appears that KRS 23A.210 was repealed in 1999, so the full meaning of CR 72.02(1) remains unclear and it will likely require a trip to a law library. Yikes!
  4. KRS § 383.255(1) requires a tenant to deposit all past due rents, and future rents as they become due during the pendency of the appeal, with the Clerk of the Circuit Court.
  5. Upon tenant's deposit of rents with the Circuit Court Clerk, the "court shall stay all further proceedings on the inquisition." KRS § 383.255(2).
  6. CR 72.04 provides, "The record on appeal to the circuit court shall consist of the entire original record of proceedings in the district court, including untranscribed mechanical recordings made under the supervision and remaining in the custody of the district court or clerk. . . .
  7. In addition to paying all rents to the Circuit Court Clerk, to perfect an appeal the tenant must file a Statement of Appeal as specified in CR 72.10.
  8. Time for perfecting appeal: CR 72.08 provides, "An appeal from the district court must be perfected within 30 days after the date of filing the first notice of appeal."
  9. As a general rule, not much by way of facts or law can be successfully argued on appeal which were not first fully presented to the trial judge and made part of the record.