This handbook was prepared under the auspices of the K.S.U. Student Governing Association. The handbook is intended to provide information and advice about landlord-tenant law for student-tenants. It is hoped that a judicious use of this handbook will allow tenants (and landlords) to avoid many problems in renting and to resolve favorably those problems which do occur. Although an attempt has been made to include accurate and current information, no guarantee with regard to errors or omissions is given. Furthermore, since the information and advice contained herein are general in nature, concern laws that are subject to amendment and interpretation and since the specific facts of a situation will determine the legal rights and obligations, the advice of an attorney should be sought whenever legal problems arise. The Residential Landlord and Tenant Act (cited through this handbook as the Act is found in the Kansas Statutes Annotated 58-2540 et seq. (Chapter 58, Article 25, Section 40 and following sections). Readers should watch for changes by legislative or judicial action, as these changes may affect the content of the handbook.
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Revised September, 1998; July, 1995; July, 1992; January, 1986; and January, 1984-- Dianne K. Urban, Attorney, Legal Services for Students
Revised Spring 1979-- S. Nyles Davis Students' Attorney
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NOTE: the term "landlord" is used herein in its legal and generic sense for the sake of economy. The writer is well aware of many landladies with capabilities equal to or greater than their male counterparts. The author would like to thank the many people who gave their assistance and support for this project. Special thanks goes to his wife for her support in getting him through law school. Manhattan, KS, Donald A. Low, Spring 1976 Students' Attorney
Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I've told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.
W. H. Auden
CONTENTS This handbook discusses landlord-tenant issues in the order in which they would normally arise. Reading this handbook in its entirety would be best, but Section VII and the starred sections below deal with those problems most frequently encountered.
III. Leases and Other Promises
V. Mobile Home Parks Residential Landlord And Tenant Act
A. Decision to Rent. Although many considerations enter into the decision to live off-campus, one important factor should be noted: A lease agreement is a binding contract which cannot easily be terminated. Subleasing a tenant's interest in a living unit may be possible, however. (See IV - R.T.)
B. When to Look.
Early.
C. Where to Look.
1. The Manhattan Mercury and the Kansas State Collegian carry classified ads.
2. Some real estate agencies handle rental properties.
3. Friends are often aware of possible vacancies, especially at the end of semesters.
4. Bulletin boards in the K-State Student Union, UNICORN (on the KSU mainframe), laundromats, etc., may have rental postings.
5. The receptionist in the the Office of Student Activities and Services, Ground Floor, East Side of the Courtyard in the K-State Union, 785-532-6541, has information about rental units and a registry for those seeking roommates or needing housing.
D. Discrimination. Discrimination in housing on the basis of race, religion, color, sex, disability, familial status, national origin or ancestry is generally contrary to city, state, and federal law. Anyone denied housing because of such discrimination should report the case to the appropriate authorities. (See IX).
*E. Evaluation.NEVER RENT A LIVING UNIT SIGHT UNSEEN. Obviously, the amount of rent and other provisions in the lease as well as the physical condition of the unit are the most important factors in evaluating a unit. Another important consideration is the length of the lease agreement. Some landlords offer a lease for a full year even though the tenant may not need the unit in the summer. The tenant would then attempt to sublease the unit during the summer. Since the written consent of the landlord is necessary for a sublease or assignment and finding subtenants may be difficult, tenants should think twice before signing a year's lease. At the very least, written consent to sublease or assign should be obtained when the tenant agrees to rent the unit. (See III, IV - T). The following should also be considered: The reputation of the landlord and manager concerning maintenance, return of security deposits and general relationships with tenants; the security of the apartment against theft; the quality of the construction and insulation as it affects the cost of hearing and cooling; and other "hidden" problems, such as insects, which may not be serious enough to be the landlord's responsibility but which may be annoyances that are costly to correct. Current and former tenants are good sources of information. The Consumer and Tenant Affairs Office at K-State also may provide information about past complaints or problems with various landlords. (See IX).
F. Insurance. Obtaining enter's insurance to cover loss of personal property, especially stereos, is advisable. Renter's insurance will protect against loss of or damage to personal property both in the living unit and off the premises, depending on the type of coverage. Tenants may wish to explore having parents' home owners policies extended to include such protection rather than obtaining separate coverage. Most insurance companies can provide the coverage needed.
A. And Landlords. When an apartment or house is shared by two or more persons, they take on certain legal responsibilities. If all roommates are parties to the rental agreement with the landlord, they are usually legally obligated both individually and as a group to fully perform under the terms of the lease. Thus, if a roommate leaves, the remaining ones are still liable for the entire rent. (Although it is possible and desirable to enter an agreement with the landlord whereby the landlord will not hold tenants jointly responsible, few landlords will do so.
B. And Each Other. Roommates also have legal responsibilities to each other. In renting an apartment together, roommates usually agree to share the responsibilities to the landlord and also the rights to use the apartment. Thus, a roommate who is left paying the entire rent has the right to sue the other roommates for reimbursement. The sharing of other costs, such as utilities, should be explicitly agreed upon, preferably in writing. Although the service companies generally will permit only one person to be responsible, the other roommates should be made liable to that person for their respective shares of the bills.
C. Moving Out. (See IV - Q, R, T.) Problems between roommates may arise because of differences and disagreements concerning personalities, habits and activities. It is better to avoid such problems by using care in the selection of roommates, but if the problem cannot be worked out, moving out may be necessary. Generally, when a roommate moves out, that roommate remains liable for his or her share of the rent until a replacement is found. The remaining roommates have a duty to try to find a replacement but also have a reasonable amount of discretion in accepting the new roommate. (For obvious reasons, it may not be desirable for the new roommate to be similar to the old one.) Since the written consent of the landlord is usually necessary before another person can move in, it would be wise to include a provision in the original lease allowing substitution of roommates. Landlords may be more willing to include such a provision than a general consent to sublease or assign. The new roommate should sign the lease agreement.
A person who pays for the temporary use and occupancy of a living unit is termed a tenant. When a person becomes a tenant, a specific legal relationship with the owner of the property or the landlord is entered pursuant to a lease or a rental agreement. A lease or rental agreement is a specific type of legally enforceable contract which governs the rights and obligations of the parties. A lease is binding on both parties, and if either party breaks a promise made, thereby "breaching" the agreement, the other party may sue to recover the damages or losses which result from the breach. In the past, the lease was treated by the law as a unique type of contract. This treatment and abuses by some landlords led to some rather harsh consequences for tenants. Court decisions and the Residential Landlord and Tenant Act have now more nearly equalized the positions of the landlord and tenant, but both parties must be aware of their rights and responsibilities if problems are to be avoided or resolved without going to court.
A. Oral. Many landlords do not use a written rental agreement. Oral agreements are legally binding for a term (see IV - D), if less than a year in duration, or for a monthly or weekly tenancy, for as many such periods as are mutually desired. (See IV - D.) Oral leases are governed by the Residential Landlord and Tenant Act, and their terms and conditions, if not specified, are simply the contents of the Act. Thus, all notices and disclosures (see IV - F.), including the check-in inventory (See IV - I.), are required by the Act to be in writing even though the rental agreement itself is not. The problem with oral agreements, of course, is the difficulty in proving what was said. Having a witness, preferably one not a party to the agreement, is advisable.
B. Written. Ideally, the written lease should contain all the information concerning the rights, obligations, and remedies of the parties; however, most leases do not. Although the Act provides most of this information, a written lease is still preferable to an oral one. A written lease includes agreements regarding the term of the lease, payment of rent, and other specifics which may later become subject to dispute. Written leases may provide for a specific term of any length or for a periodic tenancy, such a month-to-month or week-to-week tenancy.
*C. Other Promises. Any agreement concerning matters not specifically governed by the Act, such as a promise to make repairs or provide services that are not required, such as painting or installing new carpet, should be made with care to insure that it is legally binding. The requirements for the formation of a contract include evidence of agreement by both parties and an exchange of adequate consideration. "Consideration" means that something of value, or a promise of something of value, is given by all parties. For example, a tenant promises to pay rent in exchange for a landlord's promise to give possession of a rental unit. A landlord's promise to provide extra services made before the beginning of the tenancy is supported by the tenant's promise to enter into the tenancy and to pay rent. The same promise made by the landlord after the tenancy has begun generally should be supported by additional consideration, such as a promise to pay more rent or to continue the tenancy after one is entitled to terminate. A promise to do that which one is already legally obligated to do is usually not sufficient consideration to form a contract. If a written lease is used, it is especially important to include in the written agreement itself any oral agreements which are made prior to or at the time of the signing of the lease. Because of the "parol evidence rule," proving in court that an oral agreement altered the terms of the written lease may not be possible. In other words, the terms of the written agreement, rather than the oral agreement, are likely to be upheld.
D. Additions and Alterations. An agreement, once made, may subsequently be modified or altered by another agreement. Generally, the performance of, or promise to perform something one is already legally obligated to do does not constitute adequate consideration. If the obligation to perform is subject to a valid dispute, however, a compromise agreement will be binding. Though there are other exceptions, all agreements should be made with care and adequate consideration to ensure enforceability.
E. Making Agreements. When making agreements of any kind, the following precautions should be taken:
F. Term or Periodic Tenancy. (See IV - D.) The advantages of a lease for a definite term stating a specific termination date include the following: i) the rent cannot be raised; ii) substantial changes in the rules or regulations cannot be made (See IV - L.); and iii) the tenancy cannot be ended without cause for the term of the lease. The advantage of a periodic tenancy, such as a month-to-month or week-to-week tenancy, is that the tenancy may be terminated at any time if either party gives the proper notice. (See X - A for notice form and IV - Q.) Subleasing or re-renting is generally unnecessary for periodic tenancies.
G. A Model Lease. A model lease is available in the Office of Student Activities and Services. It contains some optional provisions that may be desirable. A tenant may ask the landlord to consider using the model lease, if the landlord does not already have one. If the landlord wants to use his or her own lease, the tenant may consider adding some of the desired provisions to the lease. If the model lease is used, the landlord may attach copies of the landlord's particular rules and regulations or any other written materials concerning the premises, such as procedures for checking out or a list of assessments for various repairs and cleaning. All applicable blanks should be completed. The parties should not hesitate to modify the lease to meet their own needs. Amendments to the lease should be signed or initialed by all parties to the lease.
A. The Act.
All Kansas Statutes are available on the web. Once linked, simply type the statute number desired:
Kansas Residential Landlord and Tenant Act
58-2540 Title
58-2541 Situations not subject to the Act
58-2542 Court jurisdiction
58-2543 Definitions
58-2544 Unconscionable agreements
58-2545 Terms in rental agreements, presumptions if no written
agreement
58-2546 Delivered agreement not signed may be enforceable
58-2547 Prohibited terms in agreements
58-2548 Inventory of rental unit
58-2549 Landlord's obligations pursuant to receipt of rent
58-2550 Security deposits
58-2551 Landlord's disclosures
58-2552 Landlord's delivery of possession of rental unit to tenant
58-2553 Landlord's duties
58-2554 Sale of rental unit by landlord
58-2555 Tenant's duties
58-2556 Landlord's rules and regulations
58-2557 Limits on landlord's right to enter rental unit
58-2558 Tenant's absence
58-2559 Landlord's failure to fulfill duties, notice, termination
58-2560 Landlord's failure to deliver rental unit, tenant's remedies
58-2561 Landlord's claim for unpaid rent, tenant's claim waived if not
filed as counterclaim
58-2562 Rental unit damaged by fire or casualty
58-2563 Landlord illegally excludes tenant from rental unit, remedies
58-2564 Tenant's failure to fulfill duties, notice, termination
58-2565 Tenant's long absence, abandonment
58-2566 Landlord's acceptance of late rent
58-2567 Lien on tenant's personal property unenforceable
58-2568 Landlord's remedies on tenant's termination
58-2569 No self help by landlord permitted for recovery of premises
58-2570 Termination of tenancy
58-2571 Remedies for landlord's unlawful entry of premises and tenant's
denial of lawful access
58-2572 Landlord's retaliatory acts prohibited, remedies
58-2573 Act not applicable
The legal rights, obligations, and remedies of landlords and tenants are determined by the Residential Landlord and Tenant Act and court decisions interpreting the Act. The Act does not apply to: residence at educational and most other institutional settings; fraternal organizations; occupancy of an employee; condominiums and cooperatives; premises used primarily for agricultural purposes; and transient occupancy in a hotel, motel, or rooming house. KSA 58-2541. Leases of mobile homes are covered by the Act but not leases of the lots unless the landlord also is renting the mobile home. KSA 58-2543 (c). (See Mobile Home Parks Residential Landlord and Tenant Act (MHPRLTA) at V. in the Contents for the law regarding rent of mobile home space.) The Act sets forth basic terms and conditions that are read into all rental agreements to which the Act applies. Both oral and written agreements are subject to the provisions of the Act, even if they do not contain any reference to the subjects contained in the Act.
B. General Provisions. 1. The parties are obligated to act in "good faith" in their performance of the rental agreement. KSA 58-2543 (d). 2. The parties may include in the agreement any terms and conditions not prohibited by the Act or other rules of law, including the amount of rent, duration of the agreement and other provisions governing their respective rights and obligations. KSA 58-2545. It is unclear how this provision relates to the prohibition against waiver of rights. (See IV C, 1.)
C. Prohibited Provisions. The Act prohibits the inclusion of certain provisions in rental agreements. KSA 58-2547. The following provisions are unenforceable if included and the tenant may recover actual damages sustained due to the provisions. (See VII - A.):
4. Agreement to pay either party's attorney's fees. Further, an agreement granting the landlord a lien or security interest in the tenant's personal property which would allow the landlord to sell the property in satisfaction of a claim for damages is unenforceable. KSA 58-2567. Finally, an agreement, part of an agreement, or a settlement involving a claim or right under an agreement, if found by a court to be unconscionable when made, may be unenforceable in whole or part. KSA 58-2544. An "unconscionable" agreement is not defined in the Act but is generally an agreement to which one party has little choice but to consent to very unfavorable terms.
D. Duration of Tenancy. A tenancy is either a periodic tenancy, such as a month-to-month or week-to-week tenancy, or one for a definite term, in which case a specific termination date is stated. A periodic tenancy continues from one period to the next under the same conditions as the original agreement until altered or terminated by proper notice. If an increase in rent or change in the rules and regulations is to be effected by the landlord, it must be accomplished by the same notice required for termination (See IV - Q). The tenant then has a choice of accepting the termination or continuing the tenancy with the new terms. When a tenant remains in possession or holds over after expiration or termination of the tenancy and has the landlord's consent to continue occupancy, the tenancy is either weekly or monthly, unless otherwise specified. KSA 58-2570 (c). Many leases provide that unless notice of termination is given by a certain date, the lease will be considered renewed for another year.
E. Unsigned Agreements. If one party does not sign and return to the other party a rental agreement which such other party signed and delivered, the lease is still binding when possession is given and accepted, or rent paid and accepted, if done without reservation, but only for a term no longer than one year. KSA 58-2546. If neither party signs the written agreement, it may still be binding if the parties intended to make a contract.
F. Disclosure. At or before the beginning of the tenancy, the landlord or his or her agent is required to disclose, in writing, the name and address of the manager and the owner or the person authorized to act on behalf of the owner to receive service of legal process and notices and demands. The information must be kept current. If it is not provided, the person who entered into the rental agreement for the landlord becomes the landlord's agent for the purpose of service of process, receiving notices and demands, and fulfilling the obligations of the landlord. KSA 58-2551. (See IV - J.)
G. Rent. If there is no agreement about the amount of rent, a tenant is obligated to pay the fair rental value for the use and occupancy of the dwelling unit. KSA 58-2545 (b). Unless otherwise agreed, the rent is due and payable without demand or notice at the dwelling unit and at the beginning of each month or lesser term. Unless otherwise agreed, the rent is uniformly apportionable from day-to-day. KSA 2545 (c). The latter provision will apply when the lease is validly terminated at a time other than the end of the specified period. In a monthly tenancy, rent can be increased only after thirty (30) days written notice.
H. Security Deposit. The maximum security deposit that a landlord
may require is: 1) unfurnished apartment - an amount equal to
a month's rent; 2) furnished apartment - one and one-half (1-1/2)
month's rent; and 3) an additional one-half (1/2) month's rent
for a pet deposit. KSA 58-2550 (a). Interest on the security deposit
is not required, and the landlord may commingle it with the landlord's
own funds. Use. The security deposit is generally used by landlords
to hold the apartment for the tenant until the time of occupancy.
If the tenant decides not to rent, the landlord may try to keep
the entire deposit and even sue for additional damages for the
breach. Such a practice may or may not be upheld by a court, depending
upon the facts in each case. To continue looking for an apartment,
a tenant should obtain a written agreement with the landlord concerning
the return of all or part of the deposit and the tenant's liability
for rent if the tenant fails to take possession. After occupancy,
the security deposit can be used by the landlord for any unpaid
rent, damages to the premises, or other damages caused by tenant's
noncompliance with the lease. The tenant's liability for physical
damages usually is stated as damages beyond normal wear and tear.
Contrary to some landlords' practices, the apartment does not
have to be cleaner than when first occupied. Some leases include
the provision that if a tenant attempts to use the deposit as
rent or deducts it from rent, the tenant forfeits the deposit
and is still liable for rent. Such a provision is enforceable,
but absent such a provision, a tenant using the deposit as rent
or deducting it from rent does not forfeit the deposit and remain
liable for rent. Clark v. Walker, 225 Kan. 359 (1979). KSA 58-2550
(d). According to Burgess v. Stroud, 17 Kan. App. 2d 560 (1992). "...the
statutory forfeiture provisions of K.S.A. 58-2550 (d) requires affirmative
action on the part of the tenant and not simply inaction or silence such
as
delivering notice to vacate without any payment for rent then due. The
tenant in Clark did affirmatively act to indicate his intent to
apply the security deposit to the last month's rent. He not only tendered
a check for the balance of the rent due after deducting the amount of the
deposit, he expressly discussed his reasons for doing so with the building
manager."
Return of the security deposit.
If the landlord retains any of the deposit, the landlord is required
to itemize the deductions in a written notice to the tenant and
return it with the remainder of the deposit within fourteen (14)
days after the determination of the amount of charges, but in
any event, no later than thirty (30) days after termination, delivery
of possession, which includes return of the keys, and demand by
the tenant. Even if no demand is made, the landlord is still required
to send the refund to the tenant's last known address. KSA 58-2550
(b). If the unused portion of the security deposit is not returned
in the time allowed, if too much of the deposit is withheld, or
there is no itemized statement of the deductions, the tenant is
entitled to recover the amount wrongfully withheld plus damages
of one and one- half (1-1/2) times that amount. KSA 58-2550 (c).
According to Love v. Monarch Apartments, 13 K.A. 2d 341 (1989),
if at trial the tenant recovers part or all of the security deposit
from the landlord, the trial court must award damages in an amount
equal to one and one-half (1-1/2) time the amount of the security
deposit recovered. The landlord's good or bad faith or the tenant's
damages or lack of damages are not to be considered.
*I. Inventory. To avoid deductions from the security deposit for damage existing before the beginning of the tenancy, the tenant should inventory the condition of the premises within five (5) days of the date of occupancy. To be useful, the inventory should be specific and detailed. Forms are available in the Student Activities and Services Office. Ideally, the landlord and tenant should jointly inventory the premises and the landlord and tenant should each receive a signed, dated inventory form. If the landlord does not cooperate, the tenant should inventory the premises with an uninterested third party, keep one signed, dated copy and deliver or mail by certified mail a second signed, dated copy to the landlord. KSA 58-2548.
*J. Landlord's Duties. The Act contains specific duties of the landlord. Basically, the landlord is required to:
*K. Tenant's Duties. The corresponding duties of the tenant under the Act are:
1. Comply with all obligations primarily imposed upon tenants by applicable provisions of building and housing codes materially affecting health and safety;
2. Keep that part of the premises under tenant's control, including plumbing fixtures, as clean and safe as the condition of the premises permit;
3. Remove from tenant's dwelling unit all waste in a clean and safe manner;
4. Use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances in the premises;
5. Be responsible for any destruction, defacement, damage, impairment or removal of any part of the premises caused by an act or omission of the tenant or by any person or animal on the premises at any time with the express or implied permission or consent of the tenant; and
6. Not engage in conduct, or allow any person or animal on the premises with the express or implied permission or consent of the tenant, to engage in conduct that will disturb the quiet and peaceful enjoyment of the premises by other tenants. KSA 58-2555.
L. Rules and Regulations. Landlords may adopt a rule concerning use and occupancy of the premises if:
1. Its purposes is to promote the convenience, safety, peace, or welfare of the tenants in the premises; preserve the landlord's property from abusive use; or make a fair distribution of services and facilities held out for the tenants generally;
2. It is reasonably related to the purpose for which it is adopted;
3. It applies to all tenants in the premises equally;
4. It is sufficiently explicit in its prohibition, direction or limitation of the tenant's conduct to fairly inform the tenant of what such tenant must, or must not do, to comply;
5. It is not the purpose of evading the obligations of the landlord; and
6. The tenant has notice of it at the time such tenant enters into the rental agreement. If after a tenant enters into the rental agreement a rule or regulation substantially modifying the rental agreement is adopted, such rule or regulation is not enforceable against the tenant unless consented to in writing. KSA 58-2556. Under a month-to-month lease, each new month is a new tenancy and written consent is probably not required; however, thirty (30) days written notice, prior to a rent-paying date, must be given before the new condition takes effect. (See IV - D.)
M. Miscellaneous. The premises are to be used only as a dwelling unit unless otherwise agreed. The landlord also can require, if the lease so states, that tenants give notice of anticipated absences in excess of seven (7) days. Presumably this information allows landlords to protect against theft or damages and to know that the tenant has not abandoned.
*N. Access by Landlord. After the tenant rents the premises, the landlord, except in case of emergency, or tenant absences in excess of thirty (30) days, may enter the premises only at reasonable hours after giving reasonable notice of entry for the sole purposes of inspection, repair, provision of services, or showing the premises the prospective or actual tenants, purchasers or workers. KSA 58-2557 & 2565 (b). If the landlord abuses the right of access or uses it to harass the tenant, or the tenant refuses to allow lawful access, the wronged party can either terminate or get a court order called an injunction prohibiting future misconduct and, in either case, recover actual damages. KSA 58-2571.
O. Failure to Deliver. The landlord is responsible for delivering possession of the premises in compliance with the rental agreement and KSA 58-2553, which describes the landlord's duties, one of which is to comply with building and housing codes materially affecting health and safety. Rent abates until possession is delivered and the tenant, upon proper five (5) days' notice, may terminate and receive the security deposit. Alternatively, the tenant may demand performance, sue for possession and recover actual damages. If the landlord's failure to deliver is willful and not in good faith, the tenant may recover one and one-half (1-1/2) month's rent or 1-1/2 times actual damages, whichever is greater. KSA 58-2560. (See X - C for notice form.)
P. Destruction of Premises. If the premises are destroyed or rendered substantially uninhabitable by fire or other casualty, the tenant may terminate immediately by giving written notice within five (5) days after vacating, or may continue the tenancy in which case the rent should be reduced in proportion to the decrease in the fair rental value of the premises. KSA 58-2562. (See X - D for notice form.)
*Q. Termination. A tenancy for a definite term expires on the date specified in the lease, without notice, unless prior notice is required by the lease. Many written leases for a term provide for an automatic renewal for a new term if prior written notice is not given. (See X - B for notice form.) The termination of a month-to-month tenancy requires a written notice stating that the tenancy shall terminate upon a periodic rent-paying date at least thirty (30) days after receipt of the notice. (See X - A for notice form.) A written notice is required even if there is no written rental agreement. Only fifteen (15) days' notice is required for military personnel under orders to change station. (See X - E for notice form.) Seven (7) days' notice is required for a weekly tenancy. KSA 58-2570. A tenancy may be terminated at any time by mutual consent of the parties,but the tenant should receive a written termination agreement prepared by an attorney. (See IX - E.) The following should be done upon moving out:
*R. Irregular Termination. If a tenant moves out before the end of the term, the tenant is likely to be obligated for rent to the end of the term; however, any rent received by the landlord from re-renting the premises should be deducted from the amount owed. Landlords are not entitled to "double rent". Furthermore, the landlord has a duty to make reasonable efforts to re-rent at a fair rental value in order to lessen or mitigate damages. If a reasonable attempt to re-rent is not made, the tenancy is deemed terminated by the landlord as of the date that the landlord has notice of the abandonment. KSA 58-2565 (c). A tenant wishing to move out before the end of the term should attempt to sublease or assign the apartment. (See IV - T.) Even if the landlord is unwilling to consent to a sublease or assignment, the landlord is still obligated to re-rent the apartment to a prospective tenant. In any event, written notice of the intent to vacate should be given as soon as possible. (See VII - C to avoid possible criminal penalties for moving out and failing to pay rent.) Some rental agreements provide for the forfeiture of the entire security deposit in case of breach by the tenant. The validity of such a "liquidated damages" provision is questionable where the amount of deposit exceeds the amount of lost rent or other damages. (See IV - H.)
S. Abandoned Property. Any property left in or at the dwelling unit by the tenant after moving out may be taken, stored by the landlord at tenant's expense, and sold thirty (30) days later. At least fifteen (15) days before the sale, a notice must be printed in the paper and within seven (7) days after the publication, a copy sent to the tenant's last known address. Before the sale, the tenant can redeem the property by paying the expenses of the landlord. KSA 58-2565.
*T. Subleasing or Assigning. The written consent of the landlord is required before an assignment or sublease can be made. An assignment is an agreement giving a third person or "assignee" all the rights and responsibilities of the original tenant or "assignor" under the original lease. Since the assignor cannot retain an interest in the apartment, an assignment is possible only when there is no desire to re-occupy the apartment during the remainder of the lease. Although the assignee is liable to the landlord, the assignor or original tenant also remains liable. The landlord may or may not have to sue the assignee first, depending on the terms of the original lease. To avoid continued liability, the original tenant should, if possible, have the new tenant sign a new lease with the landlord and get a written release. The release should state that the landlord accepts the new lease in substitution for the old one and that he releases the original tenant from further obligations under the original lease. The release should be prepared by an attorney. (See IX - E.) A sublease is an agreement giving a sublessee rights and responsibilities for only a portion of the remaining term of the lease. Under a sublease, the sublessee is responsible to the original tenant who remains responsible to the landlord. If the sublessee fails to live up to the agreement, the original tenant may still be liable to the landlord for rent and other damages. A sublessee has the same rights and remedies against the landlord as the original tenant. A written sublease is advisable. Forms are available in the Office of Student Activities and Services.
All Kansas Statutes are available on the web. Once linked, simply type the statute number desired:
Mobile Home Parks Residential Landlord and Tenant Act
58-25,100 Title
58-25,101 Application and exclusions
58-25,102 Court jurisdiction
58-25,103 Definitions
58-25,104 Unconscionable agreements
58-25,105 Terms in absence of written agreement
58-25,106 Terms prohibited in agreements
58-25,107 Landlord's obligations pursuant to receipt of rent
58-25,108 Security deposits
58-25,109 Landlord's required disclosures
58-25,110 Landlord's delivery of space
58-25,111 Landlord's duties
58-25,112 Sale of rental unit by landlord
58-25,113 Tenant's duties
58-25,114 Landlord's rules and regulations
58-25,115 Limits on landlord's right to enter mobile home
58-25,116 Tenant's use limited to residential, sublet upon written
agreement
58-25,117 Landlord's failure to fulfill duties, notice, termination
58-25,118 Landlord's failure to deliver space, tenant's remedies
58-25,119 Landlord illegally excludes tenant from rental space,
remedies
58-25,120 Tenant's failure to fulfill duties, notice, termination
58-25,121 Tenant's long absence, abandonment
58-25,122 Landlord's acceptance of late rent
58-25,123 Landlord's termination of holdover tenancy, remedies
58-25,124 Remedies for landlord's unlawful entry and tenant's denial of
lawful access
58-25,125 Landlord's retaliatory acts prohibited, remedies
58-25,126 Act not applicable
The Act, K.S.A. 58-25,100, et. seq., became effective January 1, 1993, and governs the rental of mobile home space in mobile home parks. (The Residential Landlord and Tenant Act [RLTA] continues to apply to the rental of both the mobile home and the space by the same landlord.)
A. IMPORTANT PROVISIONS OF THE MOBILE HOME PARKS RESIDENTIAL LANDLORD AND TENANT ACT.
1. NOTICE REQUIREMENTS FOR MONTH-TO-MONTH TENANCY. Unless there is a written agreement to the contrary, either party must give 60 days' written notice of termination. The statute does not state that the tenancy must terminate on a periodic rent-paying date. Unlike the RLTA, no shorter notice period is given for those in military service. (See X-I for notice form.)
2. TENANT'S DUTY TO LEAVE SPACE IN AS GOOD A CONDITION AS WHEN THE TENANT TOOK POSSESSION. Though the RLTA requires that the tenant be liable for damages beyond normal wear and tear, the MHPRLTA requires that the tenant leave the mobile space in as good a condition as when the tenant took possession.
3. NOTICE TO TENANTS OF RIGHTS. A rental agreement for a space in a park of 5 or more mobile homes shall contain a notice that tenants have certain rights according to the MHPRLTA and that copies of the act may be obtained from the landlord upon request. No penalty is stated for the landlord's failure to comply.
4. SECURITY DEPOSIT EQUAL TO 2 MONTHS' RENT. The amount of the security deposit may not be greater than 2 months' rent and there are restrictions on the landlord's safekeeping of the deposit. If the landlord sells the park, the landlord must transfer the deposits to the purchaser and notify the tenant or return the deposit to the tenant. The tenant must object to deductions from the deposit within 20 days after receiving notice or give up any right to receive more than that amount.
5. LANDLORD'S WRITTEN NOTICE OF UTILITY CHARGES. The landlord shall give a written explanation of utility rates, charges and services to the tenant before any lease is signed unless the tenant is to pay the utility company directly. No penalty is stated for the landlord's failure to comply.
6. LANDLORD'S WRITTEN 60 DAYS' NOTICE OF RENT INCREASE. The landlord must give 60 days' written notice of rent increase; however, the rent cannot increase any earlier than the expiration date of the original rental agreement or any renewals or extensions.
7. LANDLORD'S RESTRICTION OF TENANT'S PURCHASES. The landlord cannot restrict the tenant's choice of seller of fuel, furnishings, goods, or services for the mobile home unless necessary to protect the health, safety or welfare of tenants; however, the landlord may impose reasonable requirements to standardize utility hookups. The tenant can be required to pay no more than the actual cost of such standardization.
8. PERMITTED RULES. Rules similar to those permitted by the RLTA are also permitted by the MHPRLTA. Though the rules must be given to the tenant before the rental agreement is entered according to both the RLTA and the MHPRLTA, 30 days' notice of rule changes is required only by the MHPRLTA. According to both acts, the changes made after the parties enter the rental agreement are effective only if they do not substantially modify the rental agreement or if the tenant consents in writing.
9. PROHIBITED ACTIONS BY THE LANDLORD. The Landlord may not: deny rental unless the tenant or prospective tenant cannot conform to park rules; require entrance or exit fees except for services actually rendered; receive a fee for the sale of a mobile home unless appointed the tenant's agent by a written contract; prohibit tenants from meeting regarding the park if the meeting is held at reasonable hours and when the facility is not otherwise in use; charge a fee based on the number of family members; charge a fee to an individual resident who share the mobile home with one other person; charge a fee for a guest who stays less than 30 days in any calendar year; deny a tenant the right to sell the mobile home at the tenant's own price; or unreasonably disapprove the purchaser as a tenant, but the landlord may require a mobile home which is sold in rundown condition to be removed from the park with 60 days' notice.
10. TENANT'S IMPROVEMENTS. Unless otherwise agreed in writing, improvements (except a natural lawn) purchased and installed by a tenant remain the tenant's property and may be removed by the tenant provided the tenant leaves the space in substantially the same or better condition than upon taking possession.
11. LANDLORD'S ACCESS. The landlord cannot enter the tenant's mobile home without consent except in case of extreme hazard but may enter the mobile home space at reasonable hours to inspect, make repairs, supply services or show the space.
12. RESTRICTIONS ON TENANT'S USE. The tenant may use the home only as a residence and must have a written contract with the park management to rent the home to another.
13. NOTICE TO REMEDY BY REPAIRS OR PAYMENT. For both the landlord and tenant, notice to terminate for noncompliance with duties materially affecting health and safety or with the rental agreement shall state as the termination date a date that is not less than 30 days after receipt of notice. There is no statement that the termination date must be on a rent-paying date. (According to the RLTA, only the tenant's notice must state as the termination date a periodic rent-paying date not less than 30 days after receipt of the notice.) Like the RLTA, the MHPRLTA provides that a good faith effort to remedy within 14 days after receipt of notice prevents termination. (See X - G for notice form.)
14. TERMINATION FOR NONPAYMENT OF RENT. The landlord may terminate the rental agreement upon 3 days' written notice if rent is not paid. Like the RLTA, the MHPRLTA provides penalties for landlords who unlawfully remove or exclude tenants from the premises or willfully diminish services to the tenant even though the landlord may have a good reason to terminate the rental agreement.
15. ABANDONMENT BY THE TENANT. Abandonment occurs if the tenant is absent without reasonable explanation for 30 days and rent is at least 3 days late. Abandonment ceases if the tenant pays all costs, including cost of removal, storage, notice and utilities. If a mobile home is abandoned, the landlord must notify the owner and lienholder. The mobile home may not be removed from the space unless the landlord signs a written agreement permitting removal. The statute grants the landlord a lien on the mobile home for costs.
16. TENANT'S REGISTRATION FORM. A standardized registration form shall be completed by each tenant upon rental showing the legal owner's name, the mobile home's make, year and serial number, and if there is a lien, the lienholder's name. The landlord shall file the forms as long as the mobile home occupies a space in the park.
17. PROHIBITED RENTAL AGREEMENT PROVISIONS. Both the RLTA and the MHPRLTA prohibit similar provisions but the MHPRLTA also prohibits any provision by which the landlord is appointed the tenant's agent for sale of the mobile home. Possibly a tenant could appoint the landlord as agent after the rental agreement is signed.
B. COMPARISONS OF THE MHPRLTA AND THE RLTA
1. An unconscionable agreement can be totally or partially unenforceable according to both acts. K.S.A. 58-2544; K.S.A. 58-25,104.
2. Both acts state that rental agreements may include terms not otherwise prohibited and also provide for resolution of issues in the absence of certain terms. K.S.A. 58-2545; K.S.A. 58-25,105.
3. Unsigned contracts can be enforceable under certain circumstances according to both acts. K.S.A. 58-2546; K.S.A. 58-25,109, (d)(1), (2) & (3).
4. Prohibited provisions are unenforceable according to both acts, and the MHPRLTA adds as a prohibited provision one that would appoint the landlord as the tenant's designated agent for sale of the tenant's mobile home. K.S.A. 58-2547; K.S.A. 58-25,106 (See A. 17. above.)
5. The RLTA requires inventory of the premises within 5 days of occupancy but the MHPRLTA requires no inventory of the mobile home space. K.S.A. 58-2548.
6. Both acts provide that a rental agreement may not permit receipt of the rent free of the landlord's obligations to perform his or her duties. K.S.A. 58-2549; K.S.A. 58-25,107.
7. Though provisions regarding security deposits occur in both acts, the MHPRLTA permits a deposit of as much as two rather than one months' rent, and prescribes rules for safekeeping of the deposits, and in the event of sale, for the transfer of the deposit, notice to the tenant, and notice by the tenant in case of objection. (See A. 4. above.) K.S.A. 58-2550; K.S.A. 58-25,108.
8. The landlord or the landlord's agent must disclose the manager or the agent to the tenant according to both acts. K.S.A. 58-2551; K.S.A. 58-25,109.
9. The landlord must deliver possession to the tenant and may bring an eviction action for damages against one wrongfully in possession according to both acts. K.S.A. 58-2552; K.S.A. 58-25,110.
10. Duties of the landlords and tenants are stated in both acts. K.S.A. 58-2553, -2555; K.S.A. 58-25,111,-113.
11. The law regarding the landlord's sale of rental property is similar according to both acts but for the security deposit provisions according to the MHPRLTA. (See A. 4. and B. 7. above.) K.S.A. 58-2554; K.S.A. 58-25,112.
12. The provisions regarding the landlord's enforcement of rules are similar in both acts but for the 30-day notice requirement for changes according to the MHPRLTA. (See A. 8. above.) K.S.A. 58-2556; K.S.A. 58-25,114.
13. The landlord's right to enter is modified in the MHPRLTA because the landlord rents only the space. (See A. 11. above.) K.S.A. 58-2557; K.S.A. 58-25,115.
14. Both acts restrict use of the premises to residential but only the MHPRLTA requires a written contract permitting the tenant to rent to someone else. (See A. 12. above.) K.S.A. 58-2558, K.S.A. 58-25,116.
15. Material noncompliance by either the landlord or the tenant with the rental agreement or their duties stated in the statute materially affecting health and safety, permits the other party to give notice to cure and/or terminate the tenancy. (See A. 13. above for a discussion of the termination date.) K.S.A. 58-2559, -2564; K.S.A. 58-25,117,-120.
16. Remedies for failure of the landlord to deliver possession are similar in both acts. K.S.A. 58-2560; K.S.A. 58-25,118.
17. Unlike the RLTA, the MHPRLTA does not specifically provide that unless a tenant files a counterclaim at the time a landlord sues for possession for damages, the tenant gives up the right to file such claim. Other laws, however, require that the tenant file certain counterclaims or lose the right to do so. K.S.A. 58-2561; K.S.A. 61-1709.
18. Unlike the RLTA, the MHPRLTA includes no provision dealing with damage or destruction of the premises. K.S.A. 58-2562.
19. Both acts state that if the landlord unlawfully removes or excludes the tenant or willfully diminishes services, the tenant may recover possession or terminate the rental agreement and recover the greater of 1½ times a month's rent or actual damages. If the tenancy terminates, the landlord must return the security deposit. K.S.A. 58-2563; K.S.A. 58-25,119.
20. Abandonment procedures differ vastly in the two acts. (See A. 15. above.) K.S.A. 58-2565; K.S.A. 58-25,121.
21. The landlord's acceptance of late rent generally results in the landlord's loss of the right to terminate the tenancy according to both acts. K.S.A. 58-2566; K.S.A. 58-25,122.
22. While the RLTA prohibits the tenant from granting the landlord a lien in the tenant's personal property, the MHPRLTA grants the landlord a lien on the tenant's mobile home for costs in the case of abandonment. (See A. 15. above.) K.S.A. 58-2567; K.S.A. 58-25,121.
23. The RLTA specifically states the landlord's remedies upon termination (K.S.A. 58-2568) and the conditions under which termination can occur. The RLTA further states that the landlord may not take possession "...by action or otherwise, including willful diminution for service...except in the case of abandonment, surrender or as otherwise permitted in this act." (K.S.A. 58-2569) The MHPRLTA also states the conditions under which termination can occur but does not specifically restrict the landlord in taking possession as does the RLTA. Though both the MHPRLTA (K.S.A. 58-25,119) and the RLTA (K.S.A. 58-2563) forbid the landlord's unlawful removal or exclusion of the tenant or the willful diminution of services, the definition of "unlawful removal or exclusion of the tenant from the mobile home park" is questionable according to the MHPRLTA since the act does not limit the landlord's taking of possession to "abandonment, surrender, or as otherwise permitted in this act." Perhaps such an omission permits a broader range of methods by which the landlord may take possession. On the other hand, specific restrictions on the landlord's taking possession may be unnecessary since the landlord owns only the space, not the mobile home. Since the landlord has no interest except a lien in case of abandonment, taking possession of the mobile home itself would be illegal. Further, taking possession by diminishing services is prohibited by K.S.A. 58-25,119. Laws other than the MHPRLTA could make other self-help methods exercised by the landlord illegal as well.
24. Both acts provide for termination of tenancy and for the landlord's remedies in the event that the tenant does not vacate. Sixty days rather than 30 days' notice is required for month-to-month tenancies according to the MHPRLTA. The MHPRLTA does not provide, as does the RLTA, for a quick court proceeding by the landlord to obtain possession. (See also A. 1. above.) K.S.A. 58-2570; K.S.A. 58-25,123.
25. Remedies for the tenant's refusal to allow the landlord access and for the landlord's unlawful entry are similar in both acts. (See A. 11. above.) K.S.A. 58-2571; K.S.A. 58-25,124.
26. Prohibitions against retaliatory action by the landlord are similar in both acts except that the MHPRLTA adds as one of the prohibited actions, "failing to renew a rental agreement". Both acts prohibit increasing rent or decreasing services. If "decreasing services" is interpreted to include "failing to renew a rental agreement" according to the RLTA, both acts have essentially the same effect. The RLTA provision is virtually meaningless if it does not include the failure to renew a rental agreement as a prohibited retaliatory act. Tenants for a fixed term would gain nothing from the statute since the lease would likely prevent a rent increase and K.S.A. 58-2563 describes the penalty for otherwise diminishing services. Month-to-month tenants would gain nothing either because the rent can always be raised with 30 days' notice or the tenancy terminated with 30 days' notice. Interpreting "decreasing services" in the RLTA as including "failing to renew a rental agreement" would give meaning to the prohibition against a landlord's retaliation. K.S.A. 58-2572; K.S.A. 58-25,125.
Persons in military service and persons entering military service who must terminate rental agreements should be aware not only of Kansas law but of the Soldiers and Sailors Act as well. In addition, residential leases themselves may include termination provisions. If several termination options are available, the best one should be chosen. If a tenant vacates without meeting legal termination requirements, the tenant could be liable for rent to the end of the term of the lease and possibly for other damages. A. Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A. App. §501, et. seq. This act permits certain persons to terminate residential rental agreements by giving written notice if certain requirements are met.
1. To be entitled to terminate according to the Act, a tenant must be in active military service or must have been ordered to report for induction under the Selective Training and Service Act of 1940 as amended or must be a member of the enlisted Reserve Corps who has been ordered to report for military service. The period of military service begins with the entry date into active duty with the U.S. Army, Navy, Marines, Coast Guard or into the Public Health Service as an officer detailed by proper authority for duty either with the Army or Navy. Active military service also includes periods during which one undergoes training or education under U.S. supervision preliminary to induction.
2. The lease must have been entered before entry into active military service.
3. The leased premises must have been occupied by the military person or his/her dependents.
4. Written notice must be sent to the landlord by certified mail, preferably return receipt requested. The receipt should be sent to the person holding the tenant's power of attorney, since the tenant might not be available. Such person should also keep a copy of the tenant's notice. The notice should be mailed after entering active military service and the termination date should be date which is 30 days after the first date on which the next rental payment is due following the date the notice is mailed or delivered. (See X-F for notice form.) Arguably, the Act also provides some protection for roommates of military persons who have exercised their rights. 50 U.S.C.
A. App. §513 provides to other liable parties essentially the same protection against enforcement of obligations as it provides to the military person.
B. Kansas Law. K.S.A. 58-2570(b) The landlord or tenant may terminate a month-to-month tenancy by a written notice given to the other party stating that the tenancy shall terminate upon a periodic rent-paying date not less than thirty (30) days after receipt of the notice, except that no more than fifteen (15) days' written notice by a tenant shall be necessary to terminate any such tenancy where the tenant is in the military service of the United State and termination is necessitated by military orders. (See X - E for notice form.) Any rental agreements for a definite term or more than thirty (30) days shall not be construed as a month-to-month tenancy, even though the rent is reserved payable at intervals of 30 days. The 15 day notice provided above for termination "necessitated by military orders" appears to apply only to month-to-month leases, not to leases for a specific term such as one year. Another important issue is whether "termination is necessitated by military orders." When one receives orders for temporary duty, for example, those temporary orders may not necessitate termination. No Kansas cases address this issue.
C. Specific Lease Provisions. Military personnel often sign leases for a specific term only if the lease provides for termination upon 15 days' notice under certain circumstances. If a leases contains such a provision, correct interpretation of the lease is the key. If the language in the lease is the same as the termination language in K.S.A. 58-2570(b), the same issues would be raised. According to the Kansas contract, law, if the language in a lease is ambiguous, the language is usually interpreted against the party writing it. For that reason, if the tenant's interpretation of the language is plausible, the tenant might argue that the tenant's interpretation should abe followed by the court. If a tenant gives notice as permitted by the lease, the notice must comply with the requirement stated in the lease. (See X - E for notice form for 15 days' notice, which may used as a guide.)
The remedies for breaking or "breaching" the rental agreement or failing to abide by other legal requirements depend on the nature and degree of the failure to perform as required. The facts and circumstances in each particular situation determine the action which can be taken by the wronged party.
*A. Generally. For failure to perform as legally required, when that failure is not "material", i.e. substantial or important, the wronged party may: (1) sue for damages or (2) obtain a court order called an injunction to prevent the other party from behaving wrongly. KSA 58-2559(b) & 58-2564(c). In the absence of specific laws, such as the law permitting the award of one and one-half (1-1/2) times the amount of the security deposit wrongfully withheld by the landlord (see IV-H), the parties are generally limited to actual damages sustained, such as the cost of repairs or the difference in rental value before and after breach. In some situations, such as abuse of access of landlords or inclusion of a prohibited provision in the lease, actual damages are difficult to determine. Though actual damages may be very small, the court can impose punitive damages to discourage further violations. Some leases contain a provision calling for forfeiture of the entire deposit upon breach of the lease as "liquidated damages". Such a provision is valid only if the actual damage could not be easily determined and the amount to be forfeited is a reasonable approximation of the anticipated actual damage. In a premature termination, the landlord could charge for efforts and expenses of re-renting, including advertising and bookkeeping costs. If there is no loss of rent or other damages to the landlord, it is doubtful that the landlord is entitled to a large security deposit. The Act does not specifically permit tenants to make minor repairs and deduct the cost from rent after giving the landlord notice and an adequate opportunity to repair. If the tenant does so, the landlord may begin an eviction action for nonpayment of rent. Although the tenant can counterclaim for damages caused by the nonrepair, the tenant could be evicted. (See IV-G.) Most cases which have upheld the right to repair and deduct or withhold rent have required that notice of the defects and an adequate opportunity to repair be given to the landlord. Before repairing and deducting, a tenant should discuss the matter with an attorney. (See IX-E.)
*B. Material Noncompliance. If either the landlord or the tenant is guilty of a material noncompliance with the rental agreement or a noncompliance with duties imposed by the Act materially affecting health and safety, the wronged party may terminate by giving at least thirty (30) days prior written notice. (See IV-J,K for landlord's and tenant's duties pursuant to the Act.) The problem facing both parties is the uncertainty in knowing what constitutes a "material" noncompliance and which breaches are remediable by repairs or payment of damages. It would be advisable to have such matters specified in the lease. Either party may also sue for damages or obtain injunctive relief. Use of the escrow ordinance should also be considered. (See VII - F.) Landlord's Breach. The written notice to the landlord or his or her agent should specify the alleged breach and state that unless the situation is remedied within fourteen (14) days, the rental agreement will terminate on a periodic rent-paying date not less than thirty (30) days after receipt of the notice. The noncompliance, of course, cannot have been caused by the tenant. (See X - G for notice form.) If, within fourteen (14) days of the receipt of the notice, the landlord makes a good faith effort to initiate repairs or pays damages, the tenant will thereby be prevented from terminating. In effect, the landlord will have "cured" the breach. If the lease is properly terminated, the tenant is entitled to the return of any security deposit. KSA 58-2559. Tenant's Breach. The landlord has a corresponding right of termination for a tenant's material breach by giving an appropriate thirty (30) days' written notice, but the termination does not have to occur on a periodic rent-paying date. The lease will terminate thirty (30) days after receipt of the notice, unless the breach is "cured". The tenant, like the landlord, has only fourteen (14) days after receipt of the notice to remedy the breach, if the breach is remediable. KSA 58-2564. Recurring Breaches Tenant's Breach. In the event the tenant causes the same or a similar breach to occur after the fourteen (14) day "right to cure" period, the landlord may deliver a written notice to the tenant stating that the rental agreement will terminate upon a date not less than thirty (30) days after receipt of the notice without providing an opportunity to remedy the breach. The tenancy will terminate on the date specified regardless of the periodic rent-paying date. KSA 58-2564 Landlord's Breach. If the landlord commits the same or similar breach after the fourteen (14) day "right to cure" period, the tenant may deliver a written notice to the landlord specifically describing the breach and stating that rental agreement will terminate upon a periodic rent-paying date not less than thirty (30) days after receipt of the notice without allowing the landlord an opportunity to remedy the breach. KSA 58-2559.
*C. Non-Payment of Rent. The landlord may terminate the rental agreement if rent is unpaid when due and the tenant fails to pay rent within three days, after written notice by the landlord of nonpayment and such landlord's intention to terminate the rental agreement if the rent is not paid within such three-day period. The three-day notice period shall be computed as three consecutive 24-hour periods. When such notice is served on the tenant or to some person over 12 years of age residing on the premises, or by posting a copy of the notice in a conspicuous place thereon, the three-day period shall commence at the time of delivery or posting. When such notice is delivered by mailing, an additional two days from the date of mailing should be allowed for the tenant to pay such tenant's rent and thereby avoid having the rental agreement terminated. K.S.A. 58-2564. Even though the lease is terminated, the tenant may still be liable for damages in breaching the lease, i.e., re-rental costs, rent until re-rented, etc. While theoretically possible, tenants are not likely to face criminal charges for nonpayment of rent because the Kansas Bill of Rights provides that no person shall be imprisoned for debt, except in case of fraud. Since the law may punish only for fraud, not the failure to pay rent, the landlord would, arguably, have to give something to the tenant, such as possession of the rental unit, while relying on the tenant's deception. Typically, the tenant pays the rent and the landlord permits the tenant to move into the unit. If the tenant later simply cannot pay the rent and moves out, no fraud occurred in the original occupancy of the unit. The 1992 legislature repealed two statutes regarding criminal penalties [K.S.A. 36-206 and K.S.A. 36-197 (Cum. Supp. 1992)] because the laws would be unconstitutional as applied in most circumstances. When repealing these laws, the legislature added the word "lodging" to the types of services included in the crime of theft of services (K.S.A. 21-3704); however, the typical landlord and tenant relationship may not actually be "lodging". The general theft statute (K.S.A. 21-3701) is not likely to apply since the statute requires the "intent to deprive the owner PERMANENTLY of the possession, use of benefit" of the property. If the landlord's delivery of the rental unit is a result of the tenant's deception, the tenant might conceivably be charged with criminal deprivation of property, which requires exerting unauthorized control over property with the intent to deprive the owner of the TEMPORARY use of the property (K.S.A. 21-3705).
D. Waiver. If the landlord accepts late payment of the rent without reservation or accepts a performance of the tenant's obligations that varies from the terms of the rental agreement, the right to terminate the tenancy for that breach is waived, unless otherwise agreed after the breach has occurred. KSA 58-2566. E. Implied Warranty of Habitability. Even before the passage of the Act, the Kansas Supreme Court found that all urban residential leases contained an implied warranty of habitability requiring compliance with the minimum standards concerning health and safety set forth in city housing codes. The case, Steele v. Latimer, 214 Kan. 329 (1974), was read by many to imply that the remedies for breach of implied warranty by the landlord include allowing the tenant to repair the defects himself or herself and deduct the costs from the rent, or to withhold all or part of the rent until repairs are made. The legislature, however, did not specifically include these remedies in the Act. The tenant should be able to sue for the damages caused, such as the diminished value of the premises, or to counterclaim for damages if sued by the landlord in an eviction action.
*F. Escrow Ordinance. In Manhattan, a city ordinance allows tenants to pay their rent into an account held by the city after the city building official certifies that the dwelling unit endangers the life, health, property,or safety of the occupants. The escrow account can only be used for three (3) months, during which period the landlord can only obtain the deposited rent to pay for repairs or utilities. As long as rent is paid into the escrow account, eviction for non-payment of rent is prohibited. If the dwelling unit is still unfit after three (3) months, the money is returned to the tenant. To use the escrow ordinance, the tenant should contact the Housing Code Inspector, 785-537-4506.
G. Eviction. If a tenant does not pay rent or refuses to vacate after a lawful termination of the tenancy, the landlord's only legal recourse is to bring an action in court to have the tenant evicted. Other self-help action by the landlord is not legal. An attempt to physically remove the tenant and his possessions may constitute assault and/or battery and conversion of personal property. Such an attempt, as well as cutting off essential services such as heat and electricity, is also punishable by recovery of damages in court equal to one and one-half (1-1/2) month's rent or the damages sustained, whichever is greater, and in some cases, by recovery of punitive damages. In such cases, the tenant may also either terminate or go to court to recover possession. If the rental agreement is terminated the landlord must return the security deposit. KSA 58-2563. An eviction action is called a Forcible Entry and Detainer (FED) action and brought in the district court. A three (3) day written notice giving the tenant the opportunity to vacate is required to be given before the commencement of the FED action. If the action is for non-payment of rent, a three (3) day notice giving an opportunity to pay rent must be given in addition to the three (3) day notice to vacate, although the may be incorporated into the same notice. A normal FED action will usually take over two (2) weeks before the tenant is actually evicted. A quicker procedure is now provided that allows immediate recovery of possession before a hearing at which the tenant has the right to appear and present arguments. KSA 58-2570 (d). If the tenant's holdover is willful and to in good faith, the landlord is able to not only recover possession but, in addition, an amount equal to one and one-half (1-1/2) month's rent or one and one-half (1-1/2) times the actual damages, whichever is greater. KSA 58-2570 (d). If a tenant wants to fight an FED, the tenant should contact an attorney promptly. The tenant might argue that notice was improper, that the breach was remedied, that no opportunity to remedy was given, that the landlord's action was retaliatory, or that the landlord's breach justified non-payment. The tenant might also counterclaim for damages. Certain counterclaims, if not raised during the landlord's suit, may not be brought later.
H. Retaliatory Conduct. A landlord may not retaliate by increasing rent or decreasing services because a tenant complains to a government agency about violations of housing and building codes, complains to the landlord about noncompliance with the duties imposed by the Act, or joins a tenants' organization. The Act does not specifically prohibit retaliatory termination, but does give the tenant a defense to the landlord's action for possession and such a prohibition would seem to be implied. Landlord's may, of course, raise rent as permitted by law or agreement for actual increases in costs (other than costs necessary to comply with the Act) and may terminate for other breaches of the lease by the tenant, such as non-payment of rent.
I. Resolving Problems. Because taking a person to court may be time consuming and expensive, attempting to resolve problems informally is advisable. Most landlords try to be cooperative and want to avoid problems as much as their tenants do. In dealing with landlords, tenants should be reasonable and patient, but aware of their legal rights, assertive and specific about complaints. The landlord is more likely to pay attention if several tenants complain. Any agreements resolving disputes should be writing. (See III - C, D.) Contact an attorney for assistance. (See IX - E.)
J. Small Claims Court. The small claims court has jurisdiction over any action for the recovery of money or property not exceeding $1,800 in value from someone in Riley County, unless the party is prohibited from doing so because of filing ten (10) claims previously in the same calendar year. Although the Act does not require claims arising from the landlord-tenant relationship to be brought in small claims court, tenants and landlords may use this relatively simple and inexpensive procedure. The small claims court does not have jurisdiction to grant an injunction, which is a court order requiring a person to do or refrain from doing some act, or to hear Forcible Entry and Detainer actions. Bringing a lawsuit in small claims court is a simple matter: The tenant should obtain a petition form from the court clerk, fill in the reason for suing in simple language, state the dollar amount claimed for damages, return the form to the clerk for filing and pay a $16.50 filing fee if the claim does not exceed $500 or $36.50, if the claim exceeds $500,unless the judge waives the fee for good cause. The clerk will inform the tenant of the time the case will be heard by the judge, typically one to three weeks after filing. In a landlord-tenant case, the tenant should name as defendant the owner and/or agent who has been disclosed in the lease. (See IV - F.) According to KSA 61-2705, "...a defendant who has a claim against the plaintiff, which arises out of the ... occurrence that is the subject matter of the plaintiff's claim, shall file a statement of the defendant's claim if the claim does not exceed..." the small claims court limit. If, on the other hand, the defendant's claim exceeds the limit, the defendant may, but is not required to, file a counterclaim. (Failure to file a counterclaim when required to do so means that a later claim would not be permitted.) Generally, no attorneys are permitted to represent either party at the hearing, although they may, and probably should, be consulted for advice on presentation of the claim, possible counterclaims, etc. Since the judge will determine the validity of the claim from the evidence presented at the hearing, written material and/or witnesses should be presented. Written statements of witnesses are generally considered "hearsay" and probably will not be considered as evidence unless the witnesses are present in the courtroom. Reluctant witnesses may be subpoenaed. The case should be organized and presented clearly, concisely, and without undue emotion. After the presentation of the plaintiff's claim, the judge and defendant may question the plaintiff. The defendant then presents any defense or counterclaim, and may then be questioned by the plaintiff and judge. If the judge determines that the plaintiff's claim is valid, the judge may include payment of the filing fee as part of the judgment against the defendant. Though there is an absolute right of appeal from small claims court within ten (10) days, an attorney should be consulted before appealing because the party who appeals and loses on appeal generally pays the other party's attorney fees. (See IX - E.) If the judgment is not paid, the judgment creditor is required to mail to the judgment debtor within 15 days of the date of the judgment a form supplied by the court and to file proof of mailing with the court. The judgment debtor shall then submit to the clerk of the court, within 30 days after receipt of the form, a statement describing the debtor's assets, property, employment and financial institutions. Failure to submit such information may result in a finding of contempt. Once the judgment creditor has the necessary information, the creditor may begin garnishment or attachment proceedings to recover the money owed.
A. Roommate Moves Out or Does Not Move In. (See II.) Although the roommate who moves out is generally liable to the landlord for rent, usually the landlord will want the entire rent from the remaining tenants. If full rent is not paid, the tenants may be evicted. The remaining tenants must try to find a replacement but may have to get the landlord's consent. If a reasonable effort is made, but no replacement is found or the landlord will not consent, the only recourse is to sue the departed roommate for his or her share of the rent. If the departing roommate is protected by the Soldiers and Sailors Act, the remaining tenants may have similar protection. (See VI - A.)
B. Landlord Abuses Access Rights. (See IV - N.) The landlord may enter only at a reasonable time, after reasonable notice and for a permissible purpose. If the landlord lets himself or herself in with a pass key and continues to do so despite requests to stop, the tenant can either terminate the rental agreement with proper notice according to an attorney's advice or get a court order prohibiting the wrongful conduct, and in either event, sue the landlord for damages. (See IV - N and IX - E.)
C. No Written Lease and Landlord Wants to Raise Rent or Impose New Regulations. (See IV - A, C, D, G, L.) Most oral rental agreements are on a month-to-month basis. The landlord can raise rent as much as he or she wants as long as the landlord gives the required thirty (30) days written notice, unless the tenant can show retaliatory conduct. (See VII - H.) Thirty (30) days' written notice in advance of the rent-paying day is also required for a change in regulations. If the rental agreement is for a specific term, even if the agreement is oral, in increase in rent or a substantial change in regulations is illegal without the tenant's consent. All regulations have to be reasonable, fairly explicit and applicable to all tenants equally. (See IV - L.)
D. Landlord will Not Make Repairs. If the landlord is legally obligated to make repairs and does not, the tenant may sue for damages. The tenant may also terminate the tenancy after giving the landlord a written notice specifying the problems and stating that unless a good faith effort is initiated to remedy the situation by repairs or payment of damages within fourteen (14) days, the tenancy will terminate on a rental-paying date at least thirty (30) days after receipt of the notice. (See X - G for notice form.) Finally, the tenant may use the Manhattan escrow ordinance. The specific remedy will depend on the nature of the problem and the result desired. (See VII.)
E. Landlord Will Not Return All or Portion of Security Deposit. The landlord must return the security deposit, or a written itemized statement of any deductions along with the balance of the security deposit, within thirty (30) days of the date of termination. If the landlord does not, the tenant can sue for the amount owed plus one and one-half (1-1/2) times the amount wrongfully withheld as damages. If the tenant recovers part or all of the security deposit from the landlord, the trial court must award damages in an amount equal to one and one-half (1-1/2) times the amount of the security deposit returned to the tenant. Love v. Monarch Apartments, 13 KAN App.2d 341 (1989). The landlord is entitled to compensation if there are damages to the premises beyond normal wear and tear. Since normal wear and tear is difficult to determine, the tenant should try to inspect the premises with the landlord at the time of moving out to resolve any disputes. The condition of the premises upon termination should be compared with the inventory sheet completed at the beginning of the tenancy. (See IV - H, I, & Q.)
F. Landlord Threatens Eviction If there Is Another Loud Party, Etc.). (See VII - A, B.) The Act is not clear about what constitutes grounds for a termination upon a written notice. Normally, a tenant or landlord who is not complying with the lease or the Act in a substantial or important way for the first time must be given fourteen (14) days to remedy the situation,unless it is not remediable. The problem is in knowing what is a "material noncompliance" and what is not remediable. Those provisions in the lease or the regulations that are underlined or capitalized are generally considered important by the landlord, but the fact that something is not specifically mentioned in the lease does not mean that it is not important. Even if having loud parties is a material noncompliance, it is not clear whether the problem can be remedied by not having loud parties during the fourteen (14)-day period. The matter should be discussed with the landlord and specific guidelines agreed upon. Upon a second written notice of the same or a similar breach, no fourteen (14)-day "right to cure" period is permitted the breaching party. (See VII - B.)
G. Utility Bills Seem Excessive. This problem may be caused by the fact that the unit is all-electric and/or inadequately insulated, or that the cost of heating, lighting or cooling common areas such as hallways or laundry rooms is included in the bill. Tenants should check before renting to be sure that none of these problems exist. The tenant may not have a legal right to complain unless the landlord misrepresented the cost or failed to perform repair and maintenance duties. Landlords may be liable for the excessive costs due to heating, lighting or cooling common areas under some situations, but determining the amount is somewhat difficult.
Various notices which may be copied and used follow.
NOTICE OF TERMINATION OF MONTH-TO-MONTH TENANCY
TERMINATION PURSUANT TO RENTAL AGREEMENT
TERMINATION OF MONTH-TO-MONTH TENANCY WHEN NECESSITATED BY MILITARY ORDERS
TERMINATION OF TENANCY PURSUANT TO THE SOLDIERS' AND SAILORS' RELIEF ACT OF 1940
TERMINATION PURSUANT TO RENTAL AGREEMENT FOR MOBILE HOME SPACE
NOTICE OF TERMINATION OF MONTH-TO-MONTH MOBILE HOME SPACE RENTAL AGREEMENT
14-30 NOTICE TO REPAIR MOBILE HOME SPACE
September 25, 1998