                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 06a0236p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                       X
                                Plaintiffs-Appellants, -
 NATASHA THOMAS; SUSAN GIBBS; EDWINA LEWIS,
                                                        -
                                                        -
                                                        -
                                                            No. 05-5072
          v.
                                                        ,
                                                         >
 ANN COHEN; GLENN CRAIG; JAMES EMBRY; SUSAN             -
                                                        -
                              Defendants-Appellees. -
 HARBOUR, in their individual capacities,

                                                        -
                                                       N
                         Appeal from the United States District Court
                      for the Western District of Kentucky at Louisville.
                    No. 99-00719—Charles R. Simpson III, District Judge.
                                          Argued: January 31, 2006
                                    Decided and Filed: March 31, 2006*
                        Before: RYAN, CLAY, and GILMAN, Circuit Judges.
                                             _________________
                                                  COUNSEL
ARGUED: David A. Friedman, FERNANDEZ FRIEDMAN GROSSMAN KOHN ELLC,
Louisville, Kentucky, for Appellants. Paul V. Guagliardo, JEFFERSON COUNTY ATTORNEY’S
OFFICE, Louisville, Kentucky, for Appellees. ON BRIEF: David A. Friedman, FERNANDEZ
FRIEDMAN GROSSMAN KOHN ELLC, Louisville, Kentucky, for Appellants. Paul V.
Guagliardo, Gregory S. Gowen, JEFFERSON COUNTY ATTORNEY’S OFFICE, Louisville,
Kentucky, for Appellees.
        RYAN, J., delivered the opinion of the court, in which GILMAN, J., joined. CLAY, J. (pp.
7-11), delivered a separate dissenting opinion.
                                             _________________
                                                 OPINION
                                             _________________
        RYAN, Circuit Judge. The district court granted summary judgment in favor of the
defendant police officers in this 42 U.S.C. § 1983 civil rights action in which the plaintiffs allege
that their constitutional rights were violated when the officers evicted them from a transitional

        *
         This decision was originally issued as an “unpublished decision” filed on March 31, 2006. The court has now
designated the opinion as one recommended for full-text publication.


                                                         1
No. 05-5072           Thomas, et al. v. Cohen, et al.                                            Page 2


homeless shelter. We AFFIRM because the court properly concluded that, under Kentucky law,
the plaintiffs lacked a protected property interest in the premises.
                                                   I.
        On December 8, 1998, the defendants, all officers of the Louisville, Kentucky, police
department, removed the plaintiffs, Natasha Thomas, Susan Gibbs, and Edwina Lewis, from Augusta
House, a transitional shelter in which the women were residing. They did so at the request of the
director of the shelter and without affording the plaintiffs legal process of any kind. The director
had earlier asked the plaintiffs to leave the shelter for various violations of house rules, but they
refused to leave.
        At the time of the eviction, Augusta House was owned and operated by Mission House, Inc.
The residence was the least restrictive stage of a three-stage transitional shelter program operated
to help homeless women become financially independent members of mainstream society. There
is no evidence in the record to support the dissent’s characterization of Augusta House as low-
income housing rather than a transitional homeless shelter, and the plaintiffs themselves presented
no proof that Augusta House was not a shelter.
        All Augusta House residents were homeless women with financial difficulties who had
progressed through the first two stages of the Mission House program. Emmaus House was the first
stage of the program. Participants resided there for approximately two months until Mission House
staff determined they were ready to advance to the next stage, the Annex. Emmaus House residents
were subject to a curfew and rules governing a wide range of conduct, and Mission House staff
provided constant supervision. The staff requested that each participant pay a $140 monthly shelter
fee and assigned each participant a sleeping area and chores. In addition to providing shelter in a
structured environment, Mission House offered Bible study opportunities and assisted program
participants in obtaining social security benefits, food stamps, and employment.
        As the women progressed through the program, Mission House gave them greater
responsibility in order to ease their transition into mainstream society. The staff continued to assign
each participant a sleeping area and chores, but the women were subject to fewer rules and received
less supervision. When the women reached Augusta House, they were no longer subject to a curfew
or live-in supervision. They were expected to have employment or income of some kind prior to
moving into Augusta House, but the shelter fee arrangement remained unchanged. The women
resided at Augusta house until “they g[o]t on their feet,” which could take up to a couple of years,
and, with the help of the Mission House staff, they found permanent housing.
        Augusta House was located in a house in a residential neighborhood in order to provide the
residents with the responsibility of maintaining a house before their transition into mainstream
society. At the time of the eviction, each plaintiff was the sole occupant of her bedroom, and the
plaintiffs shared the common living areas, bathroom, and kitchen with other occupants of the house.
The residents were given keys to the house, and they were able to come and go freely, subject to the
house rules. There was no lease between the plaintiffs and Mission House or Augusta House, and
staff members were authorized to enter the bedrooms in Augusta House, move the residents to
different bedrooms, and place two residents in a bedroom if they wished to do so.
        In the fall of 1998, a dispute arose between the plaintiffs and the director of Augusta House,
Laura Zinious, over the plaintiffs’ alleged violation of house rules. After allegedly asking the
residents to leave, as was standard practice when residents violated house rules, Zinious called the
police to have the plaintiffs evicted. The responding officers evicted the plaintiffs over their protests
that they were tenants who paid rent and despite their attempts to show the officers documents from
their legal aid attorney expressing an opinion as to their tenancy.
No. 05-5072           Thomas, et al. v. Cohen, et al.                                            Page 3


        The plaintiffs filed a complaint under 42 U.S.C. § 1983 alleging that the eviction violated
their civil rights protected by the Fourth and Fourteenth Amendments to the United States
Constitution. The officers moved for summary judgment, stipulating, for purposes of the motion,
that the plaintiffs were tenants of Augusta House at the time of the eviction, but claiming the
officers’ actions were protected from suit based on qualified immunity. The court denied the
motion, and the officers appealed.
       A divided panel of this court concluded that the officers were entitled to qualified immunity
with respect to the Fourth Amendment claim, but that the officers were not entitled to qualified
immunity with respect to the Fourteenth Amendment claim. See Thomas v. Cohen, 304 F.3d 563,
565-66 (6th Cir. 2002).
        On remand, the defendants again moved for summary judgment, this time arguing that the
plaintiffs’ living arrangements were not governed by the Kentucky Uniform Residential Landlord
and Tenant Act (KURLTA) and that the plaintiffs, therefore, did not have a recognized property
interest under Kentucky state law. The district court granted the defendants’ motion and the
plaintiffs now appeal.
                                                   II.
        “We review a grant or denial of summary judgment de novo, using the same Rule 56(c)
standard as the district court.” Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999). Summary
judgment is proper only where “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.
P. 56(c). “In deciding upon a motion for summary judgment, we must view the factual evidence and
draw all reasonable inferences in favor of the non-moving party.” Nat’l Enters., Inc. v. Smith, 114
F.3d 561, 563 (6th Cir. 1997).
                                                  III.
        The district court found that no material facts were in dispute and that the plaintiffs did not
have a protected property interest under Kentucky law because the KURLTA expressly provides that
it does not apply to “[r]esidence at an institution, public or private, if incidental to detention or the
provision of medical, geriatric, educational counseling, religious, or similar service.” KY. REV.
STAT. ANN. § 383.535(1). The KURLTA does not define the term “institution,” and we find no
Kentucky authority applying the KURLTA’s “institution exception.” The plaintiffs argue that
Augusta House is not an institution because it is located in a residential building and neighborhood,
but we reject that argument, and, as we will explain, we agree with the district court that, as a matter
of law, the plaintiffs’ residence at Augusta House was incidental to the provision of “educational
counseling, religious, or similar service[s].”
        Although Kentucky courts have not interpreted the “institution exception” to the KURLTA,
Kentucky’s general rule of statutory interpretation is that, in the absence of ambiguity, the words
in a statute are given their plain and ordinarily understood meaning, unless such an application
would lead to an absurd result. See Autozone, Inc. v. Brewer, 127 S.W.3d 653, 655 (Ky. 2004). As
the dissent notes, courts have interpreted identical provisions of the Oregon and Washington
versions of the URLTA. See Burke v. Oxford House of Oregon Chapter V, 103 P.3d 1184 (Or. Ct.
App. 2004); Sunrise Group Homes, Inc. v. Ferguson, 777 P.2d 553 (Wash. Ct. App. 1989). Using
a dictionary definition, these courts explained that “incidental ‘does not mean that room and board
must be trivial or unimportant in comparison with the overall institutional purpose; it means that
living there is subordinate or attendant to the institutional purpose.’” Burke, 103 P.3d at 1193
(quoting Sunrise, 777 P.2d at 555). The courts in Burke and Sunrise also rejected the dissent’s
No. 05-5072           Thomas, et al. v. Cohen, et al.                                           Page 4


argument that housing cannot be subordinate or attendant to an institution’s provision of services
when one of the institution’s primary services is the provision of housing. See id. & n.9; Sunrise,
777 P.2d at 555.
       The court in Sunrise affirmed the trial court’s finding that a group home for the
developmentally disabled was an institution, explaining:
       [T]he room and board provided by the Olivia Park facility is incidental to the receipt
       of services the facility was created to provide. Congregate care homes provide those
       who are unable to “maintain a safe environment in an independent living
       arrangement” with supervision and “assistance with activities of daily living and/or
       health-related services[.]”
                While congregate care facilities exist to keep developmentally disabled
       persons mainstreamed, and to that extent are an attempt at “deinstitutionalization,”
       that is not to say they lack an institutional purpose above and beyond the provision
       of fundamental room and board services. The RLTA specifically excludes such
       institutional living arrangements from the scope of its provisions.
Sunrise, 777 P.2d at 555 (citation omitted).
         Similarly, the court in Burke held that Oxford House, an unsupervised halfway house, is an
institution under the Oregon Residential Landlord and Tenant Act. Burke, 103 P.3d at 1194. Oxford
House was established to help “recovering drug and alcohol addicts make the transition to
independent lives in an environment that allows them to continue their recovery process without
professional supervision.” Id. at 1185. The court explained:
       [T]he environment of self-policing and mutual support at Oxford House combines
       with the zero-tolerance principles to amount to services similar to counseling; that
       is, Oxford House provides peer supervision, support, and counseling. . . .
               ....
       . . . People seeking membership at Oxford House are looking to maintain their
       sobriety, establish themselves financially, and govern their own lives without the
       “overseer” that typically accompanies residence at a halfway house. The fact of
       residence is subordinate or attendant to those purposes.
Id. at 1191, 1193.
         As in Burke and Sunrise, the provision of housing here was an integral part of the Mission
House program, but it was incidental to Mission House’s purpose of helping homeless women
become financially independent members of mainstream society. The plaintiffs resided at Augusta
House only as a result of their participation in the Mission House program. As the plaintiffs
progressed through the program, Mission House provided them with various services to help them
integrate themselves into mainstream society. In the early stages of the program, Mission House
staff provided the plaintiffs assistance in obtaining social security benefits, food stamps, and
employment, as well as a rigidly structured environment and constant supervision to help them get
their lives back on track. As they progressed through the program to Augusta House, Mission House
provided the plaintiffs with more responsibility and less structure in a home-like environment to help
them learn how to achieve lasting financial independence upon leaving the program.
       The “deinstitutionalized” home-like environment at Augusta House and its location in a
residential neighborhood did not vitiate or in any way diminish the primary social services character
No. 05-5072           Thomas, et al. v. Cohen, et al.                                           Page 5


of the Mission House program; rather they provided a relatively comfortable and “realistic setting”
in which Mission House could more effectively achieve its purpose of helping homeless women in
the program learn how to achieve lasting financial independence. Mission House provided housing
in Augusta House only to facilitate the provision of this counseling-like service; it did not provide
housing to the general public who would not participate in, or benefit from, its primary social service
program.
        We conclude that the plaintiffs’ residence at Augusta House was incidental to the
“educational counseling, religious, or similar service[s]” Mission House provided in fulfilling its
mission of helping homeless women become financially independent members of mainstream
society. Therefore, the plaintiffs’ residence at Augusta House was not governed by the KURLTA.
                                                  IV.
         In the alternative, we conclude that, even if the plaintiffs’ residence at Augusta House did
not fall under the KURLTA’s “institution exception,” the plaintiffs failed to qualify as tenants under
the KURLTA because they have presented no evidence that they had a right to exclusive possession
of Augusta House or their individual bedrooms. The district court also concluded that the plaintiffs
did not qualify as “tenants” under Kentucky common law, but the plaintiffs do not address this issue
on appeal and have therefore waived it. See Ewolski v. City of Brunswick, 287 F.3d 492, 516-17 (6th
Cir. 2002). The plaintiffs argue only that they were tenants under the KURLTA.
        The KURLTA defines a tenant as “a person entitled under a rental agreement to occupy a
dwelling unit to the exclusion of others.” KY. REV. STAT. ANN. § 383.545(15). “‘Rental agreement’
means all agreements, written or oral, and valid rules and regulations adopted under KRS 383.610
embodying the terms and conditions concerning the use and occupancy of a dwelling unit and
premises,” id. § 383.545(11), and a “dwelling unit” is “a structure or the part of a structure that is
used as a home, residence, or sleeping place by one (1) person who maintains a household or by two
(2) or more persons who maintain a common household,” id. § 383.545(3).
        Contrary to the plaintiffs’ claim, it is not clear whether each plaintiff’s “dwelling unit” was
Augusta House as a whole or her individual bedroom, but we need not answer that question because
the plaintiffs have presented no evidence that they were “entitled under a rental agreement” to
occupy Augusta House or their individual bedrooms “to the exclusion of others.” They merely
argue that each plaintiff had a key to Augusta House and sole possession of her bedroom at the time
of eviction. In contrast, the defendants have provided evidence that Mission House had an
unrestricted right to house others in Augusta House as well as a right to assign Augusta House
residents to different bedrooms and place more than one resident in a bedroom.
        We agree with our dissenting colleague and with the court in Torbeck v. Chamberlain, 910
P.2d 389, 392-93 (Or. Ct. App. 1996), that the phrase “to the exclusion of others,” does not require
that a party be entitled to exclude all others, including co-tenants, to be protected by the KURLTA.
But the dissent, like the plaintiffs, confuses the plaintiffs’ good fortune of exclusive possession with
a right to exclusive possession. The fact that the plaintiffs had keys to Augusta House does not
imply a right to exclusive possession when the landlord had a right to provide keys to whomever else
it chose. Along similar lines, the fact that each plaintiff had her own bedroom, which, although its
doors could not be locked, the other residents of Augusta House had no right to enter, provides no
evidence of a right to exclusive possession.
       Here, the plaintiffs have presented evidence only that they had the good fortune of exclusive
possession of their bedrooms during their approximate two-month stay at Augusta House. The
defendants presented evidence that Mission House could permit others to reside in Augusta House
and could move the plaintiffs to different bedrooms or place other residents in their bedrooms at any
No. 05-5072           Thomas, et al. v. Cohen, et al.                                          Page 6


time, and the plaintiffs present no evidence to dispute that. And, contrary to the dissent’s assertion,
the record does not reflect that the Mission House staff had only a limited right to enter Augusta
House. It merely reflects that the staff did not reside there in furtherance of Mission House’s goal
of helping the plaintiffs become financially independent members of mainstream society. Therefore,
there is no factual dispute that the plaintiffs were not entitled to possess Augusta House or their
individual bedrooms “to the exclusion of others,” and they failed to qualify as tenants under the
KURLTA as a matter of law.
                                                  V.
       We conclude that the plaintiffs lacked a protected property interest under Kentucky law
because their residence at Augusta House constituted residence at an institution, which is not
governed by the KURLTA, and, in the alternative, they failed to qualify as tenants under the
KURLTA. We AFFIRM the district court’s order granting summary judgment in favor of the
defendants.
No. 05-5072           Thomas, et al. v. Cohen, et al.                                            Page 7


                                         _________________
                                             DISSENT
                                         _________________
        CLAY, Circuit Judge, dissenting. This case arises out of Plaintiffs’ claim that Defendant
Laura Zinious evicted them from Augusta House in retaliation for lodging a complaint with the
Board of Health. Plaintiffs allege that the eviction violated their Fourteenth Amendment due process
rights by depriving them of an opportunity to be heard prior to the eviction as required by Kentucky
law. This Court previously denied Defendants qualified immunity on Plaintiffs’ due process claim,
holding that the Kentucky Uniform Residential Landlord Tenant Act (“KURLTA”), Ky. Rev. Stat.
Ann. §383.505-383.705 (West 2005), provided the tenants at Augusta House with an interest
protected by the Due Process Clause of the Fourteenth Amendment and that this right was clearly
established. Thomas v. Cohen, 304 F.3d 563 (6th Cir. 2002). Defendants now claim that Plaintiffs
are not entitled to due process because Plaintiffs are not tenants under KURLTA. Specifically,
Defendants contend that Augusta House is a “transitional women’s shelter,” and thus excluded from
KURLTA’s coverage by § 383.535(1), which provides that KURLTA does not apply to living
arrangements that are “incidental” to the provision of certain specified services. Additionally,
Defendants contend that Plaintiffs are not “tenants” as that term is defined by KURLTA. Because
I believe that Defendants cannot evade KURLTA’s statutorily mandated eviction procedures simply
by labeling Augusta House a “transitional shelter” and Plaintiffs’ monthly rent a “shelter fee,” I
would reverse the order of the district court and remand for trial.
                                               I.
                                          BACKGROUND
         Before delving into the legal arguments presented in this appeal, I find it necessary to briefly
clarify the nature of the issue before this Court. The question this Court decides today is not, as the
majority claims, whether residents of traditional shelters are “tenants” entitled to KURLTA’s
protections, but rather whether KURLTA permits landlords to deprive residents of low-income
housing of statutorily mandated eviction procedures simply by labeling low-income housing a
“shelter.” Plaintiffs’ residency at Augusta House was not transient; they lived at Augusta House for
several months pursuant to a rental agreement and Defendant Zinious indicated that she anticipated
Plaintiffs would reside at Augusta House for “a couple of years.” (J.A. at 179.) Additionally, each
Plaintiff paid $140 a month in exchange for his or her own room, which no other resident had the
right to enter. Finally, no supervisory staff resided at Augusta House. Plaintiffs lived at Augusta
House as independent adults.
        This distinction is crucial to the instant appeal because residents at typical shelters clearly
are not entitled to KURLTA’s protections. As will be discussed later, typical shelter residents,
unlike Plaintiffs, do not live at shelters pursuant to rental agreements. Defendants attempt to classify
Augusta House as a shelter in order to escape compliance with Kentucky’s statutory eviction
procedures. The majority errs in accepting Defendants’ characterization of Augusta House without
analysis.
                                                II.
                                            DISCUSSION
        Whether Plaintiffs are tenants under KURLTA presents a factual dispute that should not be
resolved on summary judgment. As will be more fully explained below, Plaintiffs present sufficient
evidence to allow a reasonable jury to conclude that their residency at Augusta House was not
incidental to the provision of any services and thus that § 383.535(1) does not exclude Plaintiffs’
living arrangement from KURLTA’s coverage. Similarly, Plaintiffs present sufficient evidence to
No. 05-5072           Thomas, et al. v. Cohen, et al.                                           Page 8


allow a reasonable jury to conclude that they were “tenants” as that term is defined by KURLTA.
Therefore, the district court erred in granting summary judgment in favor of Defendants.
A.      Standard of Review
        This case comes before us as an appeal of a district court’s grant of summary judgment in
favor of Defendants. We review a district court’s decision to grant summary judgment de novo.
Kalamazoo Acquisitions v. Westfield Ins. Co., 395 F.3d 338, 341 (6th Cir. 2005) (internal citations
omitted). Summary judgment shall be granted when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c). “The district court, and this court in its review of the district court,
must view the facts and any reasonable inferences drawn from them in the light most favorable to
the party against whom judgment was entered.” Kalamazoo Acquisitions, 395 F.3d at 342 (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Neither this Court
nor the district court may weigh the evidence or make credibility determinations. Logan v. Denny’s
Inc., 259 F.3d 558, 570 (6th Cir. 2001).
B.      Plaintiffs’ Residency at Augusta House is Not Incidental to the Provision of Services
         Section 383.535(1) of the Kentucky Revised Code does not exclude Plaintiffs’ living
arrangements from KURLTA’s coverage. Section 383.535 provides that KURLTA shall not extend
to “[r]esidence at an institution, public or private, if incidental to detention or the provision of
medical, geriatric, educational counseling, religious, or similar services.” Ky. Rev. Stat. Ann.
§ 383.535(1). To fall within this exclusion, a residence must meet the following three criteria:
(1) the residence must be at an institution; (2) the institution must provide medical, geriatric,
educational counseling, religious, or similar services; and (3) the residence must be incidental to the
provision of such services. See id. Although Plaintiffs’ residency at Augusta House likely satisfies
the first two criteria, Plaintiffs’ residency is not incidental to the provision of services. Therefore,
§ 383.535(1) does not exclude Plaintiffs from KURLTA’s coverage.
         Plaintiffs’ residency at Augusta House was not “incidental” to any provision of services
because Plaintiffs’ landlord, Mission House, provided Plaintiffs with housing primarily to ensure
that Plaintiffs were provided a place to live and not to further any other service provided by Mission
House. As the majority opinion recognizes, no Kentucky court has interpreted the term “incidental”
in the context of § 383.535(1). At least two other state courts, however, have interpreted identical
provisions in their own landlord tenant acts. These courts have recognized that a person’s residency
is “incidental” to the provision of services when it is “subordinate or attendant to the [relevant]
institution[’s] purpose.” See Sunrise Group Homes, Inc. v. Ferguson, 777 P.2d 553, 555 (Wash. Ct.
App. 1989); see also Burke Oxford House of Oregon, 103 P.3d 1184 (Or. Ct. App. 2004) (en banc)
(citing Sunrise). In this case, Mission House, the relevant institution, identifies its primary goal to
be the provision of housing and shelter for the poor. Because one of Mission House’s primary goal
is to provide housing, the provision of housing is not subordinate or attendant to Mission House’s
provision of other services. Indeed, it is entirely possible that Mission House’s other services are
actually attendant to the goal of providing housing.
        Even if the so-called transitional living services were not incidental to the housing provided
at Augusta House, it does not follow that the housing at Augusta House is incidental to these
services. See Gray v. Pierce County Hous. Auth., 97 P.3d 26 (Wash. Ct. App. 2004) (holding that
a housing authority’s provision of housing to individuals with low income, bad credit, criminal
history, and/or history of past evictions was not excluded from the protections of Washington’s
Landlord Tenant Act simply because the housing authority conditioned the residency on life skills
classes). The comment to § 1.202 of KURLTA makes clear that § 383.535(1) was intended to
No. 05-5072           Thomas, et al. v. Cohen, et al.                                          Page 9


exempt housing that facilitates the provision of some primary service. Uniform Residential
Landlord Tenant Act, Nat’l Conference of Comm’r on State Laws, available at Rental Housing
Online, http://www.rhol.org/rental/KURLTA.htm (last visited March 6, 2006). This is evidenced
through the comment’s list of housing that is incidental to the provision of services: prisons,
nursing homes, hospitals and college dormitories. Id. In all of these examples, housing is provided
to facilitate services that the relevant institution was created to provide. Prisons provide housing
to segregate prisoners from the public at large. Nursing homes and hospitals provide attendant
housing so that doctors and nurses are able to continuously care for the sick, elderly, and disabled.
Colleges provides dormitories so that students can attend college classes. In contrast, Mission
House’s provision of residency at Augusta House does not facilitate Mission House’s ability to
provide any of the so-called “transitional living services.” According to the majority these services
include: (1) help obtaining food stamps and social security; (2) assistance in finding employment;
and (3) Bible study classes. First, food stamps and social security can be obtained in a matter of
hours. Plaintiffs’ residency at Augusta House, however, was permanent. Thus, it seems clear that
Plaintiffs’ residency at Augusta House was intended to continue long after Plaintiffs obtained food
stamps and social security. If Plaintiffs already had food stamps and social security, their continued
residency at Augusta House could not facilitate Mission House’s ability to help them obtain food
stamps and social security. Similarly, Plaintiffs were required to have employment prior to living
at Augusta House. Thus again, it would seem that Plaintiffs’ residency at Augusta House could not
have facilitated Mission House’s ability to assist Plaintiffs in obtaining employment. Finally, the
Bible study classes were optional. If Plaintiffs were not required to attend these classes, their
residency at Augusta House could not be for the purpose of facilitating such attendance. Therefore,
it seems fairly clear that Plaintiffs’ residency at Augusta House was not intended to facilitate
Mission House’s provision of transitional services and that Defendants are simply seeking away to
avoid following KURLTA’s eviction procedures.
         The majority erroneously characterizes Burke and Sunrise as having rejected my position.
This is simply not the case. Burke and Sunrise rejected the position that housing was not incidental
to the provision of services simply because housing was an important service. Burke, 103 P.3d at
n.9; Sunrise, 777 P.2d at 289. In this case, however, the issue is not simply that housing is an
important service but that housing is the primary goal. Because providing housing is the primary
goal, the provision of housing cannot be incidental to any other service. This distinction is important
because in some cases, as in Burke, housing may be an important service without being a primary
goal. As the Burke court explained that while housing was “central” it was nonetheless “incidental”
because it existed to facilitate the institution’s sole purpose – assisting drug addicts with recovery.
Burke, 103 P.3d at n.9. In other words, the housing was a means to an end. Id. In the instant case,
housing is not being provided to further any service or goal. In contrast to Burke, where the housing
facilitated a peer counseling system for recovering drug addicts, or Sunrise, where the housing
facilitated the defendants’ provision of medical services, Plaintiffs’ residency at Augusta House did
not facilitate the provision of any services. Id. at 1192; Sunrise, 777 P.2d at 289. This is made clear
by the majority’s complete inability to point to any specific service that Mission House provided to
Plaintiffs’ at the time of their residency at Augusta House, let alone any service facilitated by the
residency.
C.     Plaintiffs Are “Tenants” as Defined by KURLTA
        Similarly, Plaintiffs provide sufficient evidence to allow a reasonable juror to find that
Plaintiffs are tenants within the meaning of KURLTA. KURLTA defines tenant as “a person
entitled under a rental agreement to occupy a dwelling unit to the exclusion of others.” Ky. Rev.
Stat. Ann. § 383.545(15). The record demonstrates that Plaintiffs lived in Augusta House pursuant
to a rental agreement, which arguably granted them the right to live in Augusta House to the
exclusion of others. Therefore, a jury should be allowed to determine whether Plaintiffs are tenants
within the meaning of KURLTA.
No. 05-5072           Thomas, et al. v. Cohen, et al.                                        Page 10


       1.      Rental Agreement
        It is fairly obvious that Plaintiffs and Zinious entered into an oral rental agreement, which
allowed Plaintiffs to occupy Augusta House. Section 383.545(11) defines rental agreement as “all
agreements, written or oral, . . . embodying the terms and conditions concerning the use and
occupancy of a dwelling unit and premises.” Ky. Rev. Stat. Ann. § 383.545(11). In this case,
Plaintiffs allege that they had an oral agreement with Mission House to use and occupy Augusta
House. Plaintiffs support these allegations with evidence, namely, Plaintiffs’ residency at Augusta
House prior to the eviction and Plaintiffs’ payment of rent to Mission House. Moreover, Laura
Zinious, the manager of Augusta House, admits that she had an oral agreement with Plaintiffs
permitting them to use and occupy Augusta House. Therefore, Defendants’ assertion that no rental
agreement existed is unsupported both by Kentucky law and the record.
        Defendants argue that a rental agreement does not exist because Mission House did not
believe that it was entering into a rental agreement and Plaintiffs’ “unilateral expectation” is
insufficient to create a contract or agreement. This argument runs contrary to the facts. Zinious
admits that she agreed to allow Plaintiffs’ to use and occupy Augusta House. Moreover, whether
Zinious considered the agreement to constitute a “rental agreement” misses the point. Whether the
operative terms and understandings between the parties to the agreement constituted a rental
agreement under the applicable law involves a legal determination. Factually, in the instant case,
Zinious admitted the agreement embodied certain terms, which rendered it a rental agreement under
Kentucky law.
       2.      Exclusion of Others
        Next, Plaintiffs provide sufficient evidence to allow a reasonable juror to conclude that the
rental agreement granted them the right to occupy Augusta House to the exclusion of others. No
Kentucky court has defined the phrase “to the exclusion of others” in the context of KURLTA.
However, the Oregon Court of Appeals has interpreted “to the exclusion of others” in an identical
provision of its landlord tenant act. Tobeck v. Chamberlain, 910 P.2d 389 (Or. Ct. App. 1996). The
Oregon Court of Appeals held that exclusion of others means the exclusion of the public at large and
not the exclusion of other tenants, or in some cases, even the landlord. Id. at 392-93. Several
considerations render the Oregon court’s interpretation persuasive. First, KURLTA instructs courts
to apply its provisions liberally to improve the quality of housing. Ky. Rev. Stat. Ann. § 383.505.
Thus, “tenant” should be interpreted broadly to expand KURLTA’s coverage, not to exclude living
arrangements from KURLTA’s protections. Second, the Oregon court’s interpretation is in accord
with the common law. At common law, a tenancy was defined as the right to occupy a premises to
the exclusion of others, including the landlord. See Richmond v. Standard Elkhorn Coal Co., 300
S.W. 359, 360 (Ky. 1927). Nonetheless, common law courts have recognized exceptions to a
tenant’s ability to exclude others. Id. For example, in Kentucky, common law courts have upheld
the existence of a tenancy despite a landlord’s contractual right to enter the premises for limited
purposes. See id. Third, tenant is defined as a person with the right to exclude others, not
necessarily the right to exclude all others.
        In this case, Plaintiffs have offered evidence that they had the right to exclude the public
from Augusta House. Plaintiffs each had keys to the house. Plaintiffs’ possession of their own keys
to the premises evidences their ability to lock the members of the public out of Augusta House and
quintessentially symbolizes their right to exclude others. Additionally, each Plaintiff occupied her
own room and had the right to exclude other residents from her space. Finally, the record indicates
that Zinious and Mission House staff had only limited rights to enter Augusta House, as opposed
to a general occupancy right. That is, they could enter to enforce house rules but did not have a have
the right to live at Augusta House. Therefore, whether the rental agreement granted Plaintiffs the
No. 05-5072           Thomas, et al. v. Cohen, et al.                                         Page 11


right to occupy Augusta House to the exclusion of others, at the very least, constitutes an issue for
the jury.
       In summary, Plaintiffs have offered sufficient evidence to allow a reasonable juror to find
both that § 383.535(1) does not render KURLTA inapplicable to Plaintiffs’ residency at Augusta
House and that Plaintiffs are tenants within the meaning of KURLTA. Thus, KURLTA may have
granted Plaintiffs a protected property interest and summary judgment in Defendants’ favor was
improper.
                                             III.
                                         CONCLUSION
       For the foregoing reasons, I would reverse the order of the district court and remand for trial.
