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Eviction for Non-Payment

///Eviction for Non-Payment
Eviction for Non-Payment 2017-01-31T15:40:12+00:00
Renting property is a business deal. Responsible landlords maintain their properties well, are courteous when interacting with renters, and typically require written lease agreements so they may avoid the risk of misunderstandings about the terms of the business relationship. As a tenant, you should expect to know how to read a rental advertisement, occupancy standard, “move in” property assessment form, and lease agreement.

If your landlord handles matters verbally and does not offer you a written occupancy standard or written lease agreement, that may be a clue that the landlord is either not aware of Kansas laws or is more likely to ignore the law.

Tenant’s rights are more often protected when those rights are detailed in a written document. A banker would not give you a loan to buy a house unless you signed a written agreement to repay the loan. That agreement would also describe your legal rights to refinance or pay the loan in full before the end of the loan period. When you rent, always ask for a written contract and then read and fully understand the contents of the contract before you sign on the dotted line. If a landlord refuses to offer you a written contract, look for another landlord.

If you are dealing with one of the following issues: 1) tenant is late paying rent, 2) tenant has been given a three-day pay or vacate notice (five-day notice if mailed) for non-payment of rent, or 3) tenant has been summoned to court for legal eviction action due to rent non-payment – the following options will provide thorough and easy to understand details of eviction for non-payment of rent.

A variety of scenarios, as well as questions and answers, are outlined so that a tenant can understand rights and responsibilities under the Kansas Residential Landlord and Tenant Act (KRLTA). Various court procedures as well as practical options are also discussed. After viewing the information, a tenant should be able to understand their situation and decide on a course of action.

The cost of eviction 2014-12-15T20:05:27+00:00

The cost of eviction for a tenant can be immense! The following are ramifications of eviction:

*The tenant will have an eviction on court record
*The tenant could be required to pay for unpaid rent and any damages incurred by the landlord (cleaning and actual physical damages, packing and storing tenant’s property)
*The tenant could have a court judgment on their credit report
*The evicting landlord will most likely give the tenant a bad reference
*It could be difficult to obtain a new rental because landlords will be skeptical about the tenant’s potential to pay as landlords typically check references, court records and credit reports
*If a tenant wants to apply for or is currently receiving rent assistance with a HUD Housing Voucher or government public or rent subsidized housing program, the tenant will lose their housing voucher and/or their ability to move into rent subsidized housing for a few to several years.
*An eviction can even be damaging when trying to obtain other credit because creditors will see it as a possible risk

When must the tenant be fully out of the rental after the court grants the eviction and what happens if the tenant does not vacate accordingly? 2017-01-31T15:40:21+00:00

It is extremely important for the tenant to attend the eviction hearing because, if evicted, the tenant will be informed of the date to vacate the rental (typically up to 10 days from the eviction date). If the tenant does not vacate on the date and time mandated by the court, then a sheriff’s deputy will appear at or shortly after the specified date and time. The tenant will only be given approximately ten minutes to gather any personal belongings and then will be forced to leave the premises. The landlord will also appear and will be allowed at that point to change the locks on the rental. The tenant will have no choice, but to leave all personal belongings behind.

Under Kansas law, the landlord can then store the tenant’s items at the rental or move them to some other storage facility. The landlord must store the items for up to 30 days and must only return the tenant’s belonging if the tenant pays everything that is owed the landlord. If the tenant does not pay then the landlord can keep the tenant’s belongings. However, the landlord must first put an advertisement in a paper of local general circulation fifteen days before the sale or disposal and seven days after the notice is published the landlord must mail a copy of the advertisement to the tenant at their last known address. The advertisement should state the name of the tenant, a brief description of the property, and the date the landlord plans to dispose of the property.

*Note, if the tenant does not attend the eviction hearing, the tenant can call the court to find out if an eviction was granted, and if so, what date the tenant must be out of the rental. The tenant could also contact the local sheriff’s department to find out whether they have a writ of removal to serve to the tenant, and if so, the date it will be served.

What is a court approved pay agreement and what happens if it is not honored? 2014-12-15T20:05:16+00:00

Occasionally, a tenant will appear in court for an eviction, but will be told the landlord will accept a pay agreement. The pay agreement could vary, but usually, it is agreed that as long as the tenant makes allotted payments on time and in full, the tenant can remain in the rental. However, if the tenant ever fails to make a payment the writ of removal (the court order to remove the tenant) can be served without warning. The sheriff will appear at the door with the landlord and the writ of removal and the tenant would be forced to immediately vacate. A tenant also does not realize that even though a pay agreement has been made which allows the tenant to remain in the rental until their lease ends, the tenant will still have an eviction on court record.

Kansas law says if rent is unpaid when due, and the landlord legally evicts the tenant, then the lease terminates, but occasionally a landlord will send an itemization of damages to the tenant asking that the tenant pay for the full lease term. Can the landlord do that? 2014-12-15T20:05:06+00:00

Kansas law says when rent is unpaid when due, a landlord can terminate the lease agreement and when an eviction is granted the lease is terminated. However, some landlords will send tenants a bill for the remainder of the lease which is most likely not permissible. If this occurs, contact an HCCI Tenant/Landlord Department for a counsel.

The eviction has taken place and now recorded on a court record so why should a tenant nonetheless pay the landlord the rent and any damages owed? 2014-12-15T20:05:00+00:00

The landlord could turn the unpaid rent and any damages owed over to a collection agency or the landlord could file suit in small claims court against the tenant. In addition, the court ordered eviction, and any judgment for payment is not only recorded on court record, but also will appear on the tenant’s credit report. As one might imagine, an unpaid debt does not look favorable on a credit report. However, if the balance is paid to the landlord and then the tenant sends written proof (a receipt or statement of payment in full) to the three major credit bureaus (TransUnion, Equifax and Experian) then by federal law the credit bureaus must acknowledge on the tenant’s credit report that the debt has been paid. A paid debt looks much more appealing to potential creditors than an unpaid debt (contact an HCCI Credit Counselor in reference to questions about paying off debt and credit reports).

A word about debt: If a tenant cannot afford to pay a debt in full, then the tenant could ask the landlord for a written payment plan or the tenant could simply begin making payments to the landlord. If a written agreement is accepted, then it is very important that a tenant commit to paying only what can actually be managed to pay. For example, don’t obligate a payment of $50.00 a week, when paychecks fluctuate and it is uncertain whether that amount can be paid faithfully on a weekly basis. This will only annoy the landlord and possibly cause a lawsuit to be filed.

A word about credit: So why should a tenant care about what is stated on a credit report? It only concerns housing, right? Wrong! Not only can any negative credit potentially keep an individual from renting a desirable house, duplex or apartment (because most landlords pull credit reports), it could also keep someone from purchasing a car, obtaining a credit card, buying a house or, in some cases, from obtaining particular jobs. In addition, poor credit can cause the tenant’s loan/credit card interest rates to be higher.

What if the tenant is legally evicted in court, but wants to appeal the court’s decision? 2014-12-15T20:04:48+00:00

A tenant may file an appeal with the court, but time is of the essence. In this case, the tenant should contact the court to find out the cost and procedure to file an appeal.

Will the tenant need to obtain an attorney for legal representation for the eviction proceeding? 2014-12-15T20:04:40+00:00

Kansas law does not require it and it is actually quite unusual for a tenant to be represented by an attorney in eviction court. This is because when a tenant cannot afford rent, it is highly unlikely the tenant can afford the services of an attorney. In addition, if the tenant acknowledges the eviction is warranted because rent was unpaid then it could be viewed that obtaining an attorney for this purpose is a waste of money. However, a tenant certainly has a right to hire an attorney.

A tenant only has 72 hours to vacate if they cannot pay so why should the tenant bother to clean the rental and/or turn over the keys? 2014-12-15T20:04:30+00:00

Even though time is short it would be a very good idea to clean the rental before vacating. Take photos and have a witness view the clean rental. If a rental is not cleaned prior to a tenant vacating then the tenant can be charged associated costs to clean the unit. If the keys are not returned, the landlord could charge the tenant to either rekey or change the locks.

What if the rent was paid with a check or money order, but the landlord didn’t cash it so he/she could give the tenant a three day notice for rent nonpayment and follow with legal eviction? 2014-12-15T20:04:21+00:00

In a few instances, the landlord simply wants to legally evict the tenant (typically to get back at a tenant) and therefore does not cash a check or money order. In this case the landlord plans to tell the court he/she never received the rent money. If the tenant is sure the rent was paid by check or money order and the landlord claims he did not receive it then a tenant could call the bank to see if the check was cashed or run a trace on the money order. If it is found the check/money order was cashed and the landlord attempts eviction then the tenant can bring written proof to court that the landlord indeed received the rent. However, in some instances, the landlord does not cash the check/money order because the landlord simply wants to rid him/herself of the tenant. If this happens, the tenant can stop payment on the check/money order and then attempt payment to the landlord within the three day period once again. While this sounds like a lot of work, it is important to avoid legal eviction.

What if rent was paid, but paid in cash, so the tenant has no proof of payment? 2014-12-15T20:04:12+00:00

First, it is never a good idea to pay in cash! It is always best to pay with a check or money order so the document can be traced to find out whether it was cashed. However, if the landlord will only accept cash then do not leave the landlord’s presence until a receipt is received. If the landlord will not give a receipt then a tenant can a write a receipt and ask the landlord to sign. A receipt does not have to be formal; it can be written on any piece of paper. If the landlord refuses to give or sign a receipt, then in the future, a tenant may have to bring a witness when paying rent.

What if the tenant vacated within three days, but the landlord still files for eviction? 2014-12-15T20:04:02+00:00

If the tenant vacates within the three day period then it is very important to write the landlord a letter, keep a copy, explaining that the rental was returned to the landlord within three days. It is equally important to return the keys to the landlord (it’s never a good idea to just leave the keys in the rental). If the keys are not returned the landlord may charge the tenants a rekeying fee or a fee to change the locks.

Furthermore it would be a good idea to drive by and watch the front door of the rental to ensure there is no summons to appear in court tacked to the door. If a tenant sees paperwork affixed to the door of the rental, the tenant should read it to see if it pertains to him/her. A summons would list the date and time the tenant is to appear in court. The tenant could also contact the court over the next several days to find out whether an eviction action has been filed.

If an eviction action has been filed, it would be a good idea for said tenant to appear in court to state the premises was vacated within the seventy-two hour timeframe (take a witness, a U Haul receipt, a new lease agreement with move in date or some other proof that the rental was vacated within seventy-two hours of receiving the pay or vacate notice). However, once an eviction is filed, it will ultimately be up to a Judge to decide if a legal eviction is granted.

What if the tenant is summoned to court, but does not appear? 2014-12-15T20:03:48+00:00

If the tenant does not appear then the eviction will most likely be granted. If this is the case, then the tenant should contact the court to find out when he/she must vacate the rental.

What if the tenant tries to pay part of the money, but cannot afford to pay the full amount? 2014-12-15T20:03:40+00:00

If the tenant attempts to pay only a partial amount owed, then the landlord can accept the money, but reserve the right to evict because the full payment was not received.

What if the tenant wants to pay the landlord, but can’t locate him/her or the landlord tries to avoid the tenant? 2017-01-31T15:40:21+00:00

Where there is a will there is a way! Kansas law says at the beginning of the tenancy the landlord shall disclose the name and address of the person authorized to manage the rental. However, if the landlord does not do so, a tenant can contact the county appraiser’s office and ask for the name and address of the owner. If the landlord will not return phone calls or pick up rent as perhaps he has always done in the past, then the tenant can go to the landlord’s address and leave payment for the landlord. It would be a good idea for the tenant to bring a long a witness as proof payment in full was delivered. The tenant could also mail the rent, but should remember that the rent in full must be received, (not postmarked) within three days, therefore it may be unwise to depend on mail delivery. If after real attempts to pay are made, but the landlord cannot be located, then if the landlord files for eviction the tenant can explain attempts made to pay (bring a witness and the rent money). However, HCCI cannot say what the outcome of an eviction case would be under this circumstance so MAKE EVERY ATTEMPT TO LOCATE THE LANDLORD AND PAY THE RENT IN FULL.

What if the tenant attempts to pay the landlord in full within three days and the landlord refuses to accept the money? 2014-12-15T20:03:21+00:00

The tenant can take a witness, someone who would be willing to testify in court that observed the tenant attempting vital efforts to pay rent in full, but the landlord refused to accept payment. *Note – If the lease calls for late fees then the tenant can also be expected to pay late fees within the three day period.

What if rent is late and the tenant arrives at the rental only to find that utilities have been shut off by the landlord, or that the locks have been changed, or the tenant is in some way barred from entering the residence. 2014-12-15T20:03:17+00:00

This is called an unlawful or self-help eviction and is illegal. If this occurs, contact the police immediately and inform of the landlord’s actions. This is a civil matter, so there is not much the police can do, but perhaps the tenant can obtain a police report as proof of the landlord’s actions. In this situation, you can contact an HCCI Tenant/Landlord Counselor to find out your rights and responsibilities.

What if the tenant suspects the eviction is in retaliation of the tenant contacting a local, state or government agency, for example, city code enforcement due the landlord’s lack of maintenance of the property? 2014-12-15T20:03:06+00:00

Under Kansas law the landlord is not to retaliate against a tenant for complaining to a governmental agency, charged with enforcement of a building or housing code affecting health or safety or if the tenant has complained to the landlord that the landlord is not abiding by the law in reference to maintenance, BUT a landlord can always evict for nonpayment of rent.

What if the landlord has accepted rent late for months or even years, but now suddenly wants to evict? 2014-12-15T20:03:01+00:00

Kansas law says acceptance of late payment of rent without reservation by the landlord that varies from the terms of the rental agreement can be used as a defense in court. In other words, if the landlord has always accepted rent late, but then suddenly attempts to evict, the fact that the landlord accepted late rent on a regular basis without complaint or recourse could make it difficult for the landlord to evict or may even delay an eviction, but don’t count on it! If, during the initial court hearing, a tenant disagrees with the eviction because the landlord has always accepted late rent, then a tenant will most likely be granted a court trial and will be able to explain his case to the judge. However, the fact is that the rent is owed! Therefore, even if it buys more time, the tenant will eventually be evicted.

Tenant has been summoned to court for legal eviction action due to rent non-payment 2014-12-15T20:02:43+00:00

After the three days (or five, if mailed) have passed and the tenant does not pay or vacate, the landlord or his/her attorney can file for legal eviction then the tenant will be summoned to appear in court. It is very wise to attend the court hearing whether a tenant is certain he/she will be evicted or not. If a tenant does not attend the court hearing then the tenant will have no idea what to expect and what date the tenant must be fully moved out of the rental.
At the hearing, the tenant will most likely stand before the landlord’s attorney, the landlord (if the landlord files pro se) or a Judge. The tenant is given a form that asks if the tenant agrees, disagrees or pleads no contest that rent is owed. If the tenant signs that he/she agrees or pleads no contest, then it is practically certain that the tenant will be evicted. If the tenant disagrees, then the tenant will most likely be given a trial date. At the trial the tenant will stand before a Judge and be able to bring any proof that rent was paid or perhaps that improper notice was delivered or that the tenant never received any notice of unpaid rent.

Tenant has been given a three-day pay or vacate notice (five-day notice if mailed) for non-payment of rent 2017-01-31T15:40:21+00:00

In the State of Kansas when a tenant is late paying rent, the landlord can deliver a three day written notice to either pay or vacate. For example, if rent is due on the first day of the month, then on the second of the month a tenant can receive a written three day pay or vacate notice, verbal notices do not count. If the lease allows a grace period and rent is due on the first, but perhaps must be received by the fifth, then on the sixth a tenant can expect to receive a three day notice. The landlord may give a few more days or a couple of weeks to possibly a month or more to get caught up, but typically the landlord will run out of time and patience and deliver the notice. The three days (seventy-two hours) starts counting when the notice is delivered to the tenant. If the landlord actually notes a date and time on the notice then the tenant must pay or vacate and turn over the keys within 72 hours of the notice. If the landlord only puts the date on the notice then the tenant has 3 days to pay or vacate before the landlord is permitted to file for legal eviction.

The notice can be hand delivered by the landlord or a representative of the landlord, and attached to the door of the rental or given directly to someone residing in the rental as long as that person is over the age of twelve. The notice does not have to be obtained from the court. It holds the same significance whether it is written/typed on paper or written on a napkin. If the notice is mailed then the tenant has two additional days to either pay or vacate (a full five days). If the tenant cannot come up with the money then a friend, family member or social service agency may be able to assist the tenant with rent money. Social service agencies are easy to locate in most localities (a tenant can contact local city government to inquire about agencies that may assist with rent money or simply dial 211 for information about social service agencies if in a United Way funded area).

Definition of three days: Three days does not only include business days. The notice can be delivered on weekends and holidays! Three days is just that, three days (seventy-two hours) from the date the notice was delivered. If the tenant pays in full within the three day period then the tenancy goes on. If the tenant does pay, it is very important to obtain a dated receipt proving the rent was paid within the three day period. However, if the tenant neither pays nor vacates within the stated time period then the landlord can file for legal eviction. The landlord can either obtain an attorney or file pro se (pro se- meaning the landlord represents himself/herself in court). Once the eviction is filed the tenant will receive a summons to appear in court. The summons can either be delivered by hand to the tenant (or an occupant over the age of 12), or posted on the rental door and can be served by the sheriff’s department, by the landlord or by the landlord’s representative.

{Note to landlords – if you have never evicted a tenant pro se, the court will not assist you with the process as it could be perceived as offering legal advice. It is typically a good idea, and money well spent, to seek the legal advice of an attorney at least the first time you undertake the legal eviction process.}

Tenant is late paying rent 2014-12-15T20:02:18+00:00

Unfortunately, it does not matter if a tenant loses his or her job, suffered a cut in pay, a spouse, domestic partner or roommate abandoned the tenant with all the bills, the tenant suffered unexpected medical expenses, the rent check was lost or stolen, the tenant endured a serious lack of maintenance, etc, etc…. a tenant can and will most likely be evicted if rent is unpaid!

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