Senate Bill 11: Still Bad, Unnecessary

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). Instead of rehashing the remarks I prepared for when the Senate considered this bill in committee, I want to testify against Senate Bill 11 a little differently today.

At the Senate committee hearing and in our discussions with policymakers about Senate Bill 11—a bill that would specifically and explicitly apply our criminal mischief statutes to the landlord-tenant relationship—I heard again and again how legislators themselves are landlords or “used to be landlords until I got smart enough not to fool with it anymore.” It’s clear that legislators are more likely to be owners than renters. Me, too. I rent two apartments connected to an office building my wife and I own in Louisville.

What I want to encourage you to do as you consider this bill is get out of your own skin a little. Remember that millions of Kentuckians are renters. Probably some people you love or depend on are renters: your brother who is going through a divorce, you daughter just out of college and sharing an apartment with two other girls, a church member, the person who cares for your kid at day care.

The criminal mischief statutes in Kentucky forbid the intentional or wanton destruction of someone else’s property. These statutes already apply to the landlord-tenant context.

But, by explicitly identifying renters as people subject to the criminal mischief statute, the legislature will be inviting landlords to use these statutes to bend renters to their will by threatening them with criminal charges. Look, it says right there in the law that you committed a felony or misdemeanor.

This bill is completely unnecessary and makes renters less protected at a time when they need more protections in Kentucky, not fewer. I am not denying that there are some exceptional instances of renters destroying property. There are bad renters and bad landlords. But, in 99% of the cases where a landlord is claiming damage to a rental property, that claim should be a civil matter. This bill converts a dispute over whether damage exists or how much the damage costs to repair and converts it into a criminal case.

Believe it or not, landlords sometimes take advantage of renters by making inflated claims about property damage. I've had friends and clients with huge move-out bills because the landlord charged them hundreds or thousands of dollars to replace all the carpet and some broken mini blinds. Often these "problems" are ones that existed before the current tenants moved in. Or, the tenants are stuck paying for measures that the landlord always takes after move-out (like repainting or replacing carpet) or are the natural consequence of normal wear and tear.

If the tenants can't pay for that "damage," the landlord is going to threaten them with this statute. Not only that, but lawyers are going to have to counsel people to just pay what the landlord says you owe even if it's outrageous. I used to advise people that they could just refuse to pay whatever was above their security deposit and see if their landlord thought that the costs were worth arguing about in small claims court or District Court. Now, it’s more likely a landlord could bring a criminal charges against them, and I’d have to warn the renters about that. What do you think a renter is going to do when confronted with the possibility of a felony conviction because a landlord spent $1,100 replacing some carpet?

Beyond the simple wrong-direction this bill is driving in, I have some questions about some of the bill’s specific provisions.

Should the amounts in question be the same in the landlord-tenant context as for other property damage charges? As I just said, landlords are very good at manufacturing charges in excess of $1,000, which would be a felony under this statute. That seems…extreme.

Second, what about the term “wantonly”? Wantonly means “grossly careless or negligent; reckless.” If a group of roommates has a party and the party gets wilder than they expected, are they felons if the landlord claims it cost him more than $1,000 to repair and repaint some drywall? Is that what we’re about now?

What if one of the roommates is out of town during the party? Was she reckless when she agreed to room with the other girls? Is she also criminally liable for the damage that happened that night?

Renters in Kentucky need more protections, not fewer. Under normal circumstances (like earlier this session), I would be deeply frustrated and disappointed that the General Assembly is considering this bill at all, that legislators seem so trapped in their own experience as landlords and unable to consider the possibility that innocent renters trying to do the right thing will be subject to abuse and coercion because of this statute.

That this Committee has decided to move on this unnecessary bill at a time of crisis, at a time when regular people do not have access to the Capitol or their Representatives, is jaw-dropping.