                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 06a0229n.06
                                Filed: March 31, 2006

                                          No. 05-5072

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


NATASHA THOMAS;              SUSAN       GIBBS;
EDWINA LEWIS,

       Plaintiffs-Appellants,

v.                                                       On Appeal from the United States
                                                         District Court for the Western
ANN COHEN; GLENN CRAIG; JAMES                            District of Kentucky
EMBRY; SUSAN HARBOUR, in their
individual capacities,

       Defendants-Appellees.
                                               /

BEFORE:        RYAN, CLAY, and GILMAN, Circuit Judges.

       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 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
(No. 05-5072)                               -2-


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
(No. 05-5072)                               -3-


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)                               -4-


       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
(No. 05-5072)                                 -5-


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,
(No. 05-5072)                               -6-


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

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:
(No. 05-5072)                              -7-


       [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 of the Mission House program; rather they provided a relatively
(No. 05-5072)                                -8-


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).
(No. 05-5072)                                 -9-


“‘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
(No. 05-5072)                               - 10 -


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 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)                              - 11 -


       CLAY, J., 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
(No. 05-5072)                               - 12 -


       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
(No. 05-5072)                              - 13 -


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 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 judgment

is proper 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 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
(No. 05-5072)                                - 14 -


       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
(No. 05-5072)                               - 15 -


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 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
(No. 05-5072)                               - 16 -


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 a primary

service. Burke, 103 P.3d at n.9; Sunrise, 777 P.2d at 289. Here, however, the issue is not

simply that housing is a primary service but that housing is the primary goal. Because
(No. 05-5072)                                - 17 -


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 a primary 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. Here, that is not the 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.

       1.     Rental Agreement
(No. 05-5072)                               - 18 -


       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 of 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
(No. 05-5072)                              - 19 -


       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 right to exclude others, not necessarily the right to

exclude all others.

       Here, 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
(No. 05-5072)                               - 20 -


own keys to the premises evidence 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 right to occupy

Augusta House to the exclusion of others is 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,

summary judgment in Defendants’ favor was not proper.

                                           III.
                                       CONCLUSION

        For the foregoing reasons, I would reverse the order of the district court and remand

for trial.
