Senate Bill 11: A Bad, Unnecessary Bill

Senior Litigation and Advocacy Counsel Ben Carter testified this morning in a Senate committee hearing in Frankfort against Senate Bill 11. Here are his prepared comments.

Good morning my name is Ben Carter. I'm the senior litigation and advocacy counsel for a statewide nonprofit law firm called the Kentucky Equal Justice Center. I'm here to testify against Senate Bill 11 (bill text). This bill is unnecessary, it would deepen the power imbalance between landlords and renters in Kentucky, and would put our County Attorneys and Commonwealth's Attorneys to work as private debt collectors working for the exclusive benefit of landlords.

Unnecessary

This bill is unnecessary because wantonly or intentionally destroying or damaging the property of another person is already at crime in Kentucky. SB 11 references those statutes—already on the books. All SB 11 does is make explicit their application to the landlord–tenant relationship. It doesn't actually give landlords any additional rights or subject tenants to any punishments they're not already subject to if they intentionally or wantonly destroy someone else's property.

Since this bill doesn't expand the criminal liability of tenants or give landlords any additional rights, it's worth asking, "What is the point of this bill? How will this bill be used in actual practice?"

This is a bill for bullies.

I've been representing tenants and other consumers in private practice and at legal aid for more than a decade. So, I can tell you that in practice unscrupulous landlords will wave this law in front of their tenants' faces to gain additional unfair advantage over their tenants by threatening them with criminal liability when there's a dispute over property damage.

"Move out now or I'll file criminal charges against you."

"Pay me $1,700 for new carpet or I'll file criminal charges against you."

In my line of work, I've had the opportunity to review a lot of letters from a lot of landlords after a tenant has moved out of the property. I've seen a lot of specious claims about "property damage" to justify the landlord's decision to keep the entire security deposit: carpet that needs to be replaced, walls that need to be repainted. Maintenance issues. Normal wear and tear issues. Not intentional damage to property. Not even anything that justifies keeping the deposit. Just the cost of doing business if you're a landlord. (I should say, I'm a landlord. I have two apartments connected to my law office in Louisville. So, if you want to say that some landlords are opposed to this, mark me down as a landlord opposed.)

Yet, landlords routinely tell tenants that they're responsible to pay for that "damage". It's unfair. This bill would only deepen that unfairness. Imagine how much more effective those threats will be if we're if the landlord tells them that they're lucky he's not filing criminal complaint against them and cites this statute.

That's what this bill is good for. It's good for landlords' attorneys to be able to reference in threatening letters to tenants.

It's good for landlords to scare tenants with.

It doesn't actually do anything except increase the leverage on tenants by making explicit there the potential for their liability under these pre-existing statutes.

This is a pro-bully bill filed at a time when the entire state is working toward ending bullying in our schools.

(As an aside, how does the security deposit fit into this? If a landlord keeps a $900 security deposit for $1,100 of claimed damage, is the property damage $200 or $1,100? Is it a good idea to make people felons over a landlord's loss of $200?)

We should be moving the opposite direction! Instead of choosing sides in a civil dispute, we should remove disputes over property damage between a landlord and tenant from the criminal penal code.

The "crime" and its punishment we're describing here is so outsized compared to how the civil justice system treats these matters. If a renter damages property and the repairs cost more than $1,000 but less than $2,500, the landlord could pursue that matter in small claims court. But, we're also saying that the renter committed a felony? How is what would be a small claims matter in civil court a felony in criminal court?

Putting public servants to work collecting debts for landlords.

This is just the legislature choosing sides in a civil dispute. If a landlord does not fix a refrigerator or a water heater or provide safe lighting outside a residence, the tenant can’t run to the county attorney and charge the landlord with a crime. But if the tenant moves out and the landlord finds more than $1,000 in damage (which would not take much), he or she can use the power of the state to charge the tenant with a felony and force repayment?

Instead of making explicit tenants liability for property damage under criminal sanction of the threat of criminal sanction we should be *removing* the landlord‑tenant relationship from the statute.

This is a civil matter. When a landlord wrongfully keeps my clients' security deposits by making false claims of damage, they're not charged with theft by unlawful taking. We have to file a civil action to get those funds back. The same should be true when property is damaged and there's a question as to who is responsible for it. Is it normal wear and tear or something more?

This will move things in exactly the wrong direction that we need to be moving to Kentucky. Renters need more protections, not fewer.

Finally, this bill would encourage landlords to use the Commonwealth Attorney's office and County Attorney's office as taxpayer-funded collections firms working for the exclusive benefit of landlords. Prosecuting tenants criminally would save landlords the cost of hiring an attorney and actually prosecuting a civil matter to collect money for property damage. The power of the state (and the leverage that comes from the threat of criminal sanction) should not be used to assist landlords in collecting debts--legitimate or not--from their tenants.

This unnecessary bill would use state resources to collect private debts and give landlords even more leverage over renters in Kentucky. Our state's landlord-tenant laws are in desperate need of updating and modernization, but this is not the reform we need.

Thank you for your time this morning. I will be happy to answer any questions here or you can contact me afterward to follow up.

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