Prosecuting and Defending Forcible Entry and Detainer Actions
| Publication year | 1996 |
| Pages | 20 |
65 J. Kan. Bar Assn. September, 20 (1996). PROSECUTING AND DEFENDING FORCIBLE ENTRY AND DETAINER ACTIONS
September, 1996
Copyright (c) 1996 by the Kansas Bar Association; Stephen Kirschbaum
Introduction
Landlords wishing to evict unwilling residential tenants must use a summary proceeding called Forcible Entry and Detainer (FED). The law is well settled in Kansas that a landlord must strictly comply with all prerequisites of the Forcible Entry and Detainer statute, K.S.A. 61-2301 to 61-2311, before the Court may assume jurisdiction. [FN1] In Goodin v. King, the court, citing 36A C.J.S., Forcible Entry & Detainer, p. 996, § 31, stated:
Since . . . the action of forcible entry and detainer is a special statutory proceeding, summary in its nature, and in derogation of the common law, it follows that the statute conferring jurisdiction must be strictly pursued in the method of procedure prescribed by it, or the jurisdiction will fail to attach, and the proceeding will be coram non judice and void, unless the defects in procedure may be, and are waived. There is no presumption in favor of the record. [FN2]
Page 21
Since Goodin was decided in 1963, appellate decisions in Kansas have not specifically taken up the issue of a landlord's strict compliance with conditions precedent and strict pursuit of remedies as jurisdictional requirements for FED actions. Although these requirements are still alive, the substantive law that constitutes the requirements has changed dramatically. The sources of these changes are the Kansas Residential Landlord and Tenant Act (KRLTA), K.S.A. 58-2540 to 58-2573, and the vast proliferation of federal law that controls federal housing programs ranging from public housing to the numerous government-subsidized programs administered by such agencies as the U.S. Department of Housing and Urban Development. Thus, both state and federal sources of law have specific requirements for termination of tenancies that bear heavily upon the jurisdictional mandate established by the earlier cases. In addition, they provide elaborate frameworks that define the landlord-tenant relationship in Kansas. The details of these frameworks often add important dimensions to the litigation of FED actions for both parties. Moreover, anti-discrimination legislation at both the state and federal level plays an increasingly important role in housing law in general and can have a strong impact upon FED actions. (See Defending against evictions that violate anti-discrimination legislation, page 31.).
The purpose of this article is to provide the practicing lawyer with a basic understanding of the mechanics of forcible entry and detainer actions in Kansas, from prosecution to the assertion of defenses and counterclaims by tenants. To this end, the article begins with an overview of the applicable substantive law contained primarily in the Kansas Residential Landlord and Tenant Act (KRLTA) and the case law interpreting it. [FN3] The eviction process will then be examined from beginning to end, i.e., from meeting the mandatory conditions precedent for the filing of the suit, through the litigation, to the rendering, enforcement and appeal of judgment.
The landlord-tenant relationship
Based in part on the Uniform Residential Landlord-Tenant Act, the Kansas Residential Landlord and Tenant Act was enacted in 1975. The KRLTA is comprehensive legislation that determines the landlord-tenant relationship from initiation of the tenancy to its termination. Under the KRLTA, the rental agreement may include terms and conditions to which the parties agree so long as they are not prohibited by law. [FN4] An explicit rental agreement between the parties is not required. In the absence of an agreement, the tenant must pay as rent the fair-rental value for the use and occupancy of the dwelling. [FN5] Rent is payable without demand or notice at the time and place agreed upon by the parties. Unless otherwise agreed, it is payable at the dwelling unit at the beginning of any term of one month or less and otherwise in equal monthly installments at the beginning of each month. [FN6] A rental agreement that fails to fix a definite term creates a month-to-month tenancy, except a week-to-week tenancy is established in the case of a roomer who pays weekly rent. [FN7] K.S.A. 58-2546 provides that when a landlord or tenant fails to sign and deliver a rental agreement, the knowing acceptance of rent without reservation or the taking of possession of the premises, respectively, gives the agreement the effect of having been signed and delivered.
A departure from common law, K.S.A. 58-2552 requires the landlord at the commencement of the tenancy to deliver possession of the premises to the new tenant and, if necessary, bring an action for possession against any person wrongfully in possession. This statute also imposes a warranty of initial habitability on the landlord. [FN8] In the event that the landlord fails to deliver possession of the unit to the tenant, K.S.A. 58-2560 provides that rent abates and the tenant can either (a) terminate the tenancy with a five-day written notice to the landlord, in which case the landlord must return the security deposit, or (b) demand performance of the rental agreement and, if the tenant elects, institute an FED action against the landlord or any person wrongfully in possession and recover damages. Where the failure to deliver possession is willful and not in good faith, the new tenant is entitled to 1 1/2 months' rent or 1 1/2 times the actual damages, whichever is greater. [FN9]
The KRLTA also provides remedies when a tenant abandons the premises. In such a case, the terms of K.S.A. 58-2565 control. If, after the tenant has been 10 days in default for nonpayment of rent and has removed a substantial portion of the tenant's belongings, the landlord may assume, absent notice by the tenant to the contrary, that the tenant has abandoned the dwelling unit. [FN10] Subsection (c) requires the landlord to make reasonable efforts to rent the unit at a fair rental if the tenant abandons. If the landlord fails to mitigate damages in this manner or accepts the abandonment as
Page 22
a surrender, the rental agreement is terminated as of the date the landlord has notice of the abandonment. Where the landlord does mitigate and the new tenancy begins prior to the expiration of the rental agreement, the latter is deemed to be terminated as of the date the former begins.
Subsection (d) sets out the procedure for sale by the landlord of household goods, furnishings, fixtures or any other personal property left in or at the dwelling unit when a tenant abandons or surrenders possession. The landlord may take possession of the tenant's personal property, store it at the tenant's expense and sell or dispose of it after 30 days, if all notice requirements set out in this subsection are met prior to the sale. [FN11] Since distraint for rent was generally abolished with the passage of the KRLTA, [FN12] it is worth noting again that this procedure applies only in the limited situation of a tenant's abandonment or surrender of possession of the premises. Subsection (e) directs the priority of debts to which the proceeds of a landlord sale are to be applied. The statute permits the landlord to retain any remaining balance limited only by a liability to a creditor with a secured interest in the property if the creditor gave the landlord notice as specified in subsection (d). [FN13]
A decade ago, the court interpreted K.S.A. 58-2565 in Davis v. Odell, [FN14] noting that a landlord's right to dispose of a tenant's personal property pursuant to subsection (d) depends upon a showing that the tenant abandoned or surrendered possession of the dwelling unit and his or her personal property. The court stated, "Generally, abandonment is the act of intentionally relinquishing a known right absolutely and without reference to any particular person or for any particular purpose." [FN15] However, it qualified this general rule when it stated that mere nonuse of the property or the temporary absence of the owner without evidence of intention are not enough to constitute an abandonment. [FN16] Surrender, on the other hand, is "created by operation of law when the parties to a lease do some act so inconsistent with the subsisting relation of landlord and tenant as to imply that they have both agreed to consider the surrender as made." [FN17] The court found that the case law is clear that a tenant does not surrender a leasehold unless there is an agreement between the parties that the lease is terminated. Importantly, the court held that because there was no abandonment or surrender by the tenants, the landlord's disposal of the tenants' personal property was not proper under the KRLTA and constituted conversion as a matter of law. [FN18] Citing Geiger v. Wallace, [FN19] the court entertained the possibility that a landlord's malicious, willful or wanton violation of a tenant's rights by wrongfully disposing of personal property may give rise to punitive damages. [FN20]
The provisions set out in K.S.A. 58-2565 have obvious implications for FED actions. Most notable among them is the determination regarding whether a tenant has abandoned or retained legal possession of the premises. The KRLTA prohibits a landlord from otherwise recovering or taking possession of the dwelling unit except in rare circumstances, such as when the tenant abandons or surrenders the property. K.S.A. 58-2569 forbids such extrajudicial methods of reclaiming possession as willful diminution of services to the tenants by interrupting or causing the interruption of electric, gas, water or other essential service to the tenant. The KRLTA provides that upon...
To continue reading
Request your trial