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Kentucky!
Now that no one can pay rent, let's talk about those *LATE FEES* your landlords are trying to charge you.
Two things before we get started:
1) Here's the FAQs I wrote for renters at my day job with @kyequaljustice: (1/21) https://www.kyequaljustice.org/post/questions-and-some-answers-about-gov-beshear-s-suspension-of-evictions-in-kentucky
Now that no one can pay rent, let's talk about those *LATE FEES* your landlords are trying to charge you.
Two things before we get started:
1) Here's the FAQs I wrote for renters at my day job with @kyequaljustice: (1/21) https://www.kyequaljustice.org/post/questions-and-some-answers-about-gov-beshear-s-suspension-of-evictions-in-kentucky
(I wrote these FAQs before the KY Supreme Court suspended all eviction *filings* until at least May 31.)
2) This is not legal advice. This is a *TWITTER THREAD*. Everyone knows Twitter is a hellscape, so don't get your legal advice (this is not legal advice) on Twitter. (2/21)
2) This is not legal advice. This is a *TWITTER THREAD*. Everyone knows Twitter is a hellscape, so don't get your legal advice (this is not legal advice) on Twitter. (2/21)
Okay, rent was due on April 1st. Now your landlord is telling you he/she/it is going to add late fees "pursuant to your contract."
This is a move that is extremely unchill, but also none of these orders suspend renters' contractual obligation to pay rent right now, so
. (3/21)
This is a move that is extremely unchill, but also none of these orders suspend renters' contractual obligation to pay rent right now, so
. (3/21)
How much late fees can a landlord charge you? Is it unlimited in Kentucky? Probably not, according to an *unpublished* Kentucky Court of Appeals opinion from 2018. (Ask your actual lawyer what the significance of an opinion being published versus unpublished is. Again: )
(4/21)
)(4/21)
I reviewed a lease contract last night where the late fee was $100 for any payment received after the 3rd of the month and $5/day in addition to that $100. (5/21)
First, let me just say, a late fee for any payment after the third of the month (THIRD! OF! THE! MONTH!) is—to use some legalese—a total dick move. (6/21)
(Also a dick move: charging late fees during a global pandemic during which the Governor of Kentucky has 1) told us it is our duty as Kentuckians and neighbors to stay home and 2) ordered vast swaths of the economy to shut down.) (7/21)
So, [does math] a tenant could pay $235ish in late fees by the end of April.
Can the landlord *charge* this late fee? Yes.
Can the landlord *collect* this late fee in a Kentucky court? Probably not. (8/21)
Can the landlord *charge* this late fee? Yes.
Can the landlord *collect* this late fee in a Kentucky court? Probably not. (8/21)
A recent unpublished Court of Appeals opinion (Wildcat Property Management v. Reuss) actually addressed late fees in a landlord-tenant agreement. (9/21) https://law.justia.com/cases/kentucky/court-of-appeals/2018/2016-ca-000953-mr.html
In the Wildcat Properties case, the Court found that a $50 late fee plus a $10/day provision was unconscionable. In the case, the late fees could total $300/month, as much as 20% of the monthly rent. The trial court found those late fees unconscionable. (10/21)
Lawyers reading this thread, back me up: Courts almost *NEVER* find contract provisions unconscionable. The standard for unconscionability is that contract term is so unfair no honest person would charge it and no person in their right mind would agree to it. (11/21)
So, to find unconsionability in a contract, a judge basically has to find that a business is dishonest, something judges don't often do.
But, I digress. (12/21)
But, I digress. (12/21)
To summarize, Wildcat Properties gives us the Rule of Thumb for the unconscionability of late fees in Kentucky: late fees equal to or greater than 20% of the monthly rent is unconscionable. (13/21)
In the contract I reviewed last night, the late fees could total $235ish/month for a property that cost $930/month to rent.
In other words, [does math] late fees could exceed 25% of the rent—well beyond the 20% the court found unconscionable in Wildcat Properties. (14/21)
In other words, [does math] late fees could exceed 25% of the rent—well beyond the 20% the court found unconscionable in Wildcat Properties. (14/21)
Is anything below 20% okay? We don't know.
We just know what the court said in Wildcat Properties: 20% or above is probably unconscionable. (15/21)
We just know what the court said in Wildcat Properties: 20% or above is probably unconscionable. (15/21)
In the extraordinary moment we find ourselves (depending on the judge), I’d say courts are going to be pretty reluctant to give exorbitant late fees to landlords when renters couldn't pay rent because of a global pandemic. (16/21)
(Especially depending what the landlord did/said to the renter, what accommodations he/she/it provided, what efforts the landlord made to get accommodations from the landlord's creditors, etc.) (17/21)
Renters, renter advocates, attorneys: please be on the lookout for these kinds of oppressive terms in landlord-tenant contracts. (18/21)
Because landlords cannot evict right now, I expect the bad actors will be using these oppressive late fee provisions in their contracts to pressure/threaten tenants. (19/21)
Do you want to help build power for renters rights in Kentucky during *and after* this pandemic? Get on our renters' rights listserv. (20/21) https://forms.gle/QEXsx9fkR5rgGfjX6
To end this thread, let me say something to the landlords of Kentucky:
Chill, brah. You're going to get your filthy lucre.
Call your bank, your investors, your mortgage servicer: tell them to chill.
You and they are getting the money...eventually.
You always do.
(21/21)
Chill, brah. You're going to get your filthy lucre.
Call your bank, your investors, your mortgage servicer: tell them to chill.
You and they are getting the money...eventually.
You always do.
(21/21)
