rent tenant kentucky
Is this eviction notice legal?
<p>I had to buy money order to pay rent. I paid this rent on time. However, I was notified later that day that the money order was 3 cents less than was due. The person who rang up my money order entered it incorrectly. This was at the end of the apartment's office hours, while I was still at work, so I had no way to pay it immediately. </p>

<p>At this point, there was one more day left to pay.</p>

<p>The next day I went to pay before I went to work, office was closed. So I left work in the middle of the day to pay the 3 pennies, and office was again closed. I was not permitted to leave work again. I was notified again that I did not pay it, I explained I came by twice and the office was closed.</p>

<p>At this point, it was at the end of the final day for rent to be due. </p>

<p>The next morning, I went to the office to pay 3 cents, as well as deliver a letter of apology, with the 3 pennies enclosed. The manager immediately told me they cannot accept change, and since it was technically late, I had to either pay the 3 cents with a money order or cashier's check.</p>

<p>I had zero chance to leave work today. Therefore, I could not take care of it. I already had to be late for work to visit the office this morning. When I got home from work, there was an eviction notice on my door (pay or exit notice). The notice explained that I owe a total amount of $866.56, which is my total amount of rent ($795.36) as well as a late fee ($71.20). </p>

<p>However, I had already paid $795.33 on time, which was 3 cents short of the total. This notice did not mention anything about owing 3 cents. Its exact words are:</p>

<blockquote>
  <p>You are hereby notified that you are indebted to [Apartment Name] <strong>in the sum of $866.56</strong> for rent, late fees, and the use of the premises indicated above now occupied by you and that the landlord demands payment of the rent or possession of the premises within (7) SEVENdays from the date of delivery of this notice. <strong>Please pay the full amount above</strong> which includes late fees of $71.20, in order to avoid further charges or action. Payment must be made by cashier's check or money order made payable to [Apartment Name]. Personal checks will not be accepted for payment of this delinquent balance.</p>
</blockquote>

<p>(Emphasis mine)</p>

<p>Basically, it's as if I never paid them a penny.</p>

<p>It is my understanding that legally, a notice of this nature <em>must</em> be <em>accurate</em>, and this notice was not accurate. There is no indication that I already paid a majority of it, and that I only owed 3 cents (plus late fee). Therefore, from what I've studied, this notice is nullified given the fact that it is asking for a balance which I already paid a majority of. </p>

<p><strong>QUESTION</strong></p>

<p>Is my understanding correct that since the notice has the incorrect amount, that the notice is nullified and invalid? </p>

<p>When you tendered three pennies, that should have satisfied the debt as the landlord does not have the right in this situation to insist on payment in a money order in lieu of currency. A money order requirement is only effective as a means by which to refrain from accepting personal checks, not cash. This is the ignorance of the property manager at work.</p>

<p>At a minimum, refusing to accept the pennies would constitute a violation of the landlord's duty of good faith:</p>

<blockquote>
  <p>§ 383.550. "Good faith" obligation</p>
  
  <p>Every duty under KRS 383.505 to 383.715 and every act which must be
  performed as a condition precedent to the exercise of a right or
  remedy under KRS 383.505 to 383.715 imposes an obligation of good
  faith in its performance or enforcement.</p>
</blockquote>

<p>Imposing a late fee in this situation may also be unconscionable:</p>

<blockquote>
  <p>§ 383.555. Unconscionability</p>
  
  <p>(1)   If the court, as a matter of law, finds: (a)    A rental agreement or
  any provision thereof was unconscionable when made, the court may
  refuse to enforce the agreement, enforce the remainder of the
  agreement without the unconscionable provision, or limit the
  application of any unconscionable provision to avoid an unconscionable
  result; or</p>
  
  <p>(b)   A settlement in which a party waives or agrees to forego a claim
  or right under KRS 383.505 to 383.715 or under a rental agreement was
  unconscionable when made, the court may refuse to enforce the
  settlement, enforce the remainder of the settlement without the
  unconscionable provision, or limit the application of any
  unconscionable provision to avoid an unconscionable result.</p>
  
  <p>(2)   If unconscionability is put into issue by a party or by the court
  upon its own motion, the parties shall be afforded a reasonable
  opportunity to present evidence as to the setting, purpose, and effect
  of the rental agreement or settlement to aid the court in making the
  determination.</p>
</blockquote>

<p>This term is defined as follows in § 383.545(16):</p>

<blockquote>
  <p>"Unconscionable" means an act or conduct which is willful and is so
  harsh and unjust as would be condemned or considered to be wrongful
  and would be shocking to the conscience of honest and fair-minded
  persons.</p>
</blockquote>

<p>The notice should not be effective to bring an eviction action because it states a demand that the landlord is not authorized to make. The notice is probably attempting to comply with this statutory requirement:</p>

<blockquote>
  <p>§ 383.660. Tenant's noncompliance with rental agreement - Failure to
  pay rent</p>
  
  <p>(1)   Except as provided in KRS 383.505 to 383.715, if there is 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 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 subject to
  the following. If the breach is remediable by repairs or the payment
  of damages or otherwise and the tenant adequately remedies the breach
  before the date specified in the notice, the rental agreement shall
  not terminate. If substantially the same act or omission which
  constituted a prior noncompliance of which notice was given recurs
  within six (6) months, the landlord may terminate the rental agreement
  upon at least fourteen (14) days' written notice specifying the breach
  and the date of termination of the rental agreement.</p>
  
  <p>(2)   If rent is unpaid when due and the tenant fails to pay rent within
  seven (7) days after written notice by the landlord of nonpayment and
  his intention to terminate the rental agreement if the rent is not
  paid within that period, the landlord may terminate the rental
  agreement.</p>
  
  <p>(3)   Except as provided in KRS 383.505 to 383.715, the landlord may
  recover damages and obtain injunctive relief for any noncompliance by
  the tenant with the rental agreement or KRS 383.605 or 383.610. If the
  tenant's noncompliance is willful the landlord may recover actual
  damages and reasonable attorney's fees.</p>
</blockquote>

<p>By not accurately stating the non-payment, the notice may be ineffective legally.</p>

<p>The circumstances of your case would not entitle the landlord to attorneys' fees. <em>O'Rourke v. Lexington Real Estate Co. L.L.C.</em>, 365 S.W.3d 584 (Ky. App. 2011).</p>

<p>My guess is that the late fee is $71.20 because there are really two components of your rent, one of which is $712 per month with a 10% late fee, and the other of which is $83.33 which is probably some passed through charge for utilities or a water and sewer bill or some sort of tax.</p>

<p>If indeed the late fee is a percentage of the unpaid rent, then first of all, the late fee shouldn't be more than 0.3 cents (which rounds down to zero), and second of all, the unpaid portion may very well be not rent, but a passed through charge that is not subject to the late fee, depending upon what the lease says about how amounts received are to be applied.</p>

<p>If the late fee is indeed a percentage of the amount owing, so that you owed at most 3.3 cents on the day after the rent was due, which rounds to 3 cents. Then, by tendering 3 pennies on that day, you satisfied your obligation in full and they are not living up to their obligation.</p>

<p>If the late fee is stated as a sum certain in the lease, however, and not as a percentage, you might be obligated to pay $71.23 by the terms of the lease, even though charge a late fee of $71.20 for paying 3 cents one day late probably violated usury and consumer protection laws in Kentucky, as well as the common law related to liquidated damages which requires penalties in contractual agreements to be proportionate to the breach of the contract. The maximum legal interest rate in Kentucky is set forth at § 360.010 of its statutes is is the greater of the commercial discount rate on 90 day paper plus 4%, or 19%, which is smaller. There is a civil penalty of double the amount of the usurious interest paid. § 310.020. Still, as a practical matter, it may be easier to tender a money order for $71.23 than to deal with a bureaucratic nightmare. </p>

<p>Honestly, this is the sort of scrooge-like behavior that TV stations love to splash on the evening news, and contacting one of them might be one of your better options. Another option may be to contact a legal aid society, or to contact the local bar association to see if they have a pro bono lawyer available to take this case.</p>

<p>Another plausible option would be to communicate directly to the owner of the property in lieu of the property manager, setting forth the facts in writing.</p>

<p>If I were a lawyer for the landlord, I would be embarrassed to bring a case like this one, and the judge would probably chew me out for bringing it.</p>
