[Link to
GCH-0015](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0015LOPS.doc)

[Link to
GCH-0016](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0016LOPS.doc)

[Link to
GCH-0017](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0017LOPS.doc)

[Link to
GCH-0018](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0018LOPS.doc)

[Link to
GCH-0019](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0019LOPS.doc)

[Link to
GCH-0020](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0020LOPS.doc)

[Link to
GCH-0021](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0021LOPS.doc)

Legal Opinion: GCH-0056

Index: 2.245

Subject: PH Due Process Determination: Kentucky

April 29, 1992

HUD DUE PROCESS DETERMINATION

for the

STATE OF KENTUCKY

TABLE OF CONTENTS

I. Jurisdiction

II\. Elements of Due Process

III\. Overview of Kentucky Eviction Procedures

IV\. Analysis of Kentucky Eviction Procedures for

Each of the Regulatory Due Process Elements

V. Conclusion

ANALYSIS

I. Jurisdiction: State of Kentucky

II\. Elements of due process

Section 6(k) of the United States Housing Act of l937 (42

U.S.C. 1437d(k), as amended by section 503(a) of the National

Affordable Housing Act of 1990, Pub. L. 101-625, approved

November 28, 1990), provides that:

For any grievance concerning an eviction or termination of

tenancy that involves any criminal activity that threatens

the health, safety, or right to peaceful enjoyment of the

premises of other tenants or employees of the public housing

agency or any drug-related criminal activity on or near such

premises, the agency may . . . exclude from its grievance

procedure any such grievance, in any jurisdiction which

requires that prior to eviction, a tenant be given a hearing

in court which the Secretary determines provides the basic

elements of due process . . . .

The statutory phrase \"elements of due process\" is defined by

HUD at 24 CFR 966.53(c) as:

. . . an eviction action or a termination of tenancy in a

State or local court in which the following procedural

KENTUCKY: DUE PROCESS DETERMINATION

safeguards are required:

\(l\) Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction;

\(2\) Right of the tenant to be represented by counsel;

\(3\) Opportunity for the tenant to refute the evidence

presented by the PHA including the right to confront

and cross-examine witnesses and to present any

affirmative legal or equitable defense which the tenant

may have; and

\(4\) A decision on the merits.

HUD\'s determination that a State\'s eviction procedures

satisfy this regulatory definition is called a \"due process

determination.\" The present due process determination is based

upon HUD\'s analysis of the laws of the State of Kentucky to

determine if eviction procedures under those laws requires a

hearing with all of the regulatory \"elements of due process,\" as

defined in 966.53(c).

For those jurisdictions that have adopted the Uniform

Residential Landlord and Tenant Act, HUD finds that the

requirements of Kentucky law governing an action for forcible

entry and detainer in the Kentucky district court under the

Kentucky Revised Statutes include all of the elements of basic

due process, as defined in 24 CFR 966.53(c). This conclusion

is based upon requirements contained in the Kentucky Code, case

law and court rules.

III\. Overview of Kentucky eviction procedures

In Kentucky, a landlord may claim the right of possession of

real property through a civil forcible entry or detainer action

(FED), a special form of statutory proceeding under Kentucky law.

Kentucky Revised Statute (KRS) 383.210.

In addition, cities, counties and urban governments have

been authorized to enact the provisions of the Uniform

Residential Landlord and Tenant Act (URLTA). KRS 383.500. In

jurisdictions that have adopted the URLTA, a landlord may claim

the right of possession of real property through a FED action

brought in accordance with the provisions of the URLTA as set

forth in KRS 383.500 through 383.715.

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KENTUCKY: DUE PROCESS DETERMINATION

In both URLTA and non-URLTA jurisdictions, FED actions are

filed in the civil division of the district courts of the State

of Kentucky. KRS 383.210; KRS 383.540. The requirements of the

FED statute and the Kentucky Rules of Civil Procedure (Civil

Rules) govern procedure in FED actions. Civil Rule 1 provides:

These Rules govern procedure and practice in all actions of

a civil nature . . . except for special statutory

proceedings, in which the procedural requirements of the

statute shall prevail over any inconsistent procedures set

forth in the Rules.

IV\. Analysis of Kentucky eviction procedures for each of the

regulatory due process elements

A. Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction

(24 CFR § 966.53(c)(l))

1\. Forcible Entry or Detainer Action in non-URLTA

jurisdiction

In non-URLTA jurisdictions, the landlord is not required to

give the tenant any notice before commencing the FED action.

Upon complaint to the district court, a warrant is issued

and served on the defendant. The warrant serves as judicial

process. KRS 383.210. The warrant contains the names of the

plaintiff and defendant, states that the defendant forcibly

detains specified lands or tenements of the plaintiff, and

provides a general description of the lands or tenements

detained. The warrant also directs the tenant to summon a jury

to meet on the premises, or another convenient place on a

specified date to inquire into the forcible detainer. KRS

383.210. No affidavit or other statement is required as the

foundation of the warrant. Tolbert v. Young, 189 S.W. 209

(1916); Tinsley v. Majorna, 240 S.W. 2d 539 (1951).

The warrant provides notice of the possessory action, and of

the tenant\'s opportunity to appear and defend against the

landlord\'s claim for possession. However, the warrant does not

provide adequate notice of the grounds for the action to

terminate tenancy, as required by HUD\'s due process definition.

We have not found any provision of Kentucky statute or court

rule, or any case law, requiring that the tenant be notified of

the grounds supporting the landlord\'s claim for possession in an

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KENTUCKY: DUE PROCESS DETERMINATION

FED action in a non-URLTA jurisdiction.

2\. Forcible Entry and Detainer Action in URLTA

jurisdiction

Under the URLTA, notice requirements, with specific time

limits, are specified to terminate the rental agreement because

of breach of the agreement, or other tenant acts or omissions.

KRS 383.660(1) provides that:

. . . if there is a material noncompliance by the tenant

with the rental agreement . . . the landlord may deliver a

written notice to the tenant specifying the acts and

omissions constituting the breach and that the rental

agreement will terminate upon a date not less than fourteen

\(14\) days after receipt of the notice. If the breach is not

remedied in fifteen (15) days, the rental agreement shall

terminate as provided in the notice . . . .

KRS 383.560(1) states that a person has notice of a fact if

the person has actual knowledge of it, has received a notice or

notification of it, or from all facts and circumstances known to

the person has reason to know it exists. A tenant receives

notice if it is \"delivered in hand to the tenant or mailed by

registered or certified mail . . . to his last known place of

residence.\" KRS 383.560(3)(c). The URLTA lease termination

notice specifies the \"acts and omissions\" which are the grounds

for lease termination.

If the tenant remains in possession after expiration of the

term of the rental agreement or its termination, the landlord may

bring an action for possession. KRS 383.695. An action for

possession may be brought in the Kentucky district court with

respect to any conduct or with respect to any claim arising from

a transaction subject to the URLTA. Section KRS 383.540 provides

that in addition to any other method provided by rule or statute,

personal jurisdiction over a tenant may be acquired in a civil

action or proceeding instituted in district court.

An action for possession is initiated by the filing of a

complaint with the court. Civil Rule 3. Upon the filing of the

complaint, the clerk shall issue the required summons. The

summons and complaint are served together. The summons shall be

served by delivering a copy to the tenant personally or by

certified mail. If service is by mail, three (3) days are added

to the time for answer. Civil Rule 4.04.

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KENTUCKY: DUE PROCESS DETERMINATION

Civil Rule 8.01 provides that a pleading which sets forth a

claim for relief shall contain:

. . . a short and plain statement of the claim showing that

the pleader is entitled to relief, and a demand for judgment

for the relief to which he deems himself entitled.

Thus the FED complaint contains a \"plain statement\" of the

grounds for termination and eviction.

Notice \-- conclusion

For jurisdictions that have adopted the URLTA, adequate

notice of the grounds for terminating the tenancy and for

eviction is provided both in the lease termination notice prior

to action, and in the complaint filed at commencement of the

action. Thus, for URLTA jurisdictions, Kentucky law requires

adequate notice of the grounds for eviction.

B. Right to be represented by counsel

(24 CFR 966.53(c)(2))

The right of a tenant to be represented by counsel is

implied by statute and by rule, e.g., KRS 383.210(2) (either

party may demand a jury trial in person or by attorney); Civil

Rule 11 (\"every pleading, motion, and other paper of a party

represented by an attorney . . . .\").

C. Opportunity for the tenant to refute the evidence

presented by the PHA, including the right to confront

and cross-examine witnesses (24 CFR 966.53(c)(3))

The court may issue subpoenas for witnesses and may compel

witnesses to attend and testify. KRS 383.230. Under the rule

concerning the order of trial, a defendant has the right to

present evidence, and to rebut the evidence of the plaintiff.

Civil Rule 43.02.

Leading questions may be used on cross-examination of an

adverse party and to interrogate any unwilling or hostile

witness. Civil Rule 43.05.

A party may call an adverse party or an officer, director,

or managing agent of a public or private corporation or of a

partnership or association, or an administrative officer of

the state or any political subdivision thereof, which is an

adverse party, and interrogate him by leading questions and

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KENTUCKY: DUE PROCESS DETERMINATION

contradict and impeach him in all respects as if he had been

called by the adverse party . . . .

Civil Rule 43.06.

A witness may be impeached by any party, without regard to

which party produced him, by contradictory evidence, by

showing that he had made statements different from his

present testimony, or by evidence that his general

reputation for untruthfulness renders him unworthy of belief

. . . .

Civil Rule 43.07.

Kentucky law establishes the tenant\'s right to refute the

landlord\'s case, including the right to cross-examine witnesses.

D. Opportunity to present any affirmative legal or

equitable defense which the tenant may have

(24 CFR 966.53(c)(3))

The rules provide that a defendant shall assert defenses.

Civil Rule 8.02 states that a party shall:

state in short and plain terms his defenses to each claim

asserted and shall admit or deny the averments upon which

the adverse party relies.

Civil Rule 8.03 states that in pleading to a \"preceding

pleading\" a party shall:

set forth accord and satisfaction, arbitration and award,

assumption of risk, . . . and any other matter constituting

an avoidance or affirmative defense.

Although a tenant is not required to submit a written answer

to the plaintiff\'s complaint, the tenant may do so. See Tolbert

v\. Young, 189 S.W. 209 (1916).

Under Kentucky law, the defendant-tenant may raise in the

FED action any available legal or equitable defense against the

landlord\'s claim to possession of the property.

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KENTUCKY: DUE PROCESS DETERMINATION

E. A decision on the merits (24 CFR 966.53(c)(4))

The structure of the FED trial and hearing requirements

under Kentucky law imply that the court decision in an FED action

must be on the merits, i.e., based on the legal and factual

issues presented at the proceeding.

For a case where facts are tried to a jury:

The jurors, after hearing the evidence, shall, by their

inquest say whether the defendants, or either of them, be

guilty or not guilty of the forcible entry or detainer

complained of . . . .

KRS 383.235.

If neither party demands a jury, the case is tried by the

court. KRS 383.210. The Civil Rules provide that in all actions

tried upon the facts without a jury, or with an advisory jury,

the court shall find the facts specifically and state separately

its conclusions of law thereon and render an appropriate

judgment. Civil Rule 52.01. In a jury or non-jury trial,

judgment is issued after trial of the case:

Upon return of the inquest the court shall enter a judgment

according to the inquisition, either for the plaintiff, in

substance, that he have restitution of the premises . . .;

or for the defendants, in substance, that they recover of

the plaintiff their costs in this behalf expended . . . .

KRS 383.240

Whether the FED action is tried to the court or to a jury, a

defendant must be given the opportunity for a decision on the

merits.

V. Conclusion

For those jurisdictions that have adopted the Uniform

Residential Landlord and Tenant Act, Kentucky law governing FED

eviction procedures in the Kentucky district court requires that

the tenant have the opportunity for a pre-eviction hearing in

court which provides the basic elements of due process as defined

in 24 CFR 966.53(c) of the HUD regulations.

This due process determination is issued by HUD under

section 6(k) of the U.S. Housing Act of l937. By virtue of this

7

KENTUCKY: DUE PROCESS DETERMINATION

determination, a PHA in Kentucky may evict a public housing

tenant by an action for forcible entry and detainer in the

Kentucky district court (in URLTA jurisdictions) for any

grievance involving any criminal activity that threatens the

health, safety, or right to peaceful enjoyment of the premises of

other tenants or employees of the public housing agency, or any

drug-related criminal activity on or near such premises. The PHA

is not required to first afford the tenant the opportunity for an

administrative hearing on the eviction.

8