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Residential Landlord-Tenant Disputes in Kansas: When to Call an Attorney

Tuesday, June 27 2017 9:42 AM

Simple landlord-tenant disputes, such as the return of a security deposit, are usually resolved without the assistance of an attorney. Most are resolved through open communication between the two parties, or, failing that, by a third-party mediator or in small claims court.

However, there are times when legal counsel or representation can help protect your rights or ensure you’re meeting your obligations. While the following shouldn’t be taken as legal advice for your specific situation, here are some general guidelines on when you may want an attorney for a landlord-tenant dispute.

tenancy agreement

If You’re the Tenant

You’re being evicted or threatened with eviction, and your landlord isn’t following legal procedures.

Evicting someone from his or her home shouldn’t be taken lightly. The law requires landlords to follow very specific procedures to ensure that evictions are carried out properly and legally.

If your landlord has the right to evict you (for example, for non-payment of rent), he or she must go through legal channels.  Your landlord cannot change the locks, put your possessions outside, or turn off utilities without first seeking and obtaining an appropriate court order. If your landlord is taking these actions, or threatening to take these actions, consulting a lawyer can help you understand your rights and options.

You believe you’re being evicted unfairly, and you want to fight it.

If you believe you are being evicted unfairly (for example, out of retaliation for a complaint or repair request), a lawyer experienced in landlord-tenant law can help improve your chances of winning the dispute.

You believe your landlord should not be able to access the property.

Unless otherwise stated in the rental/lease agreement, your landlord does not have the right to access the property without notice for any reason.  Typically, the rental/lease agreement will include a provision describing the notice required by a landlord to enter the property and the specific reasons for which the landlord may enter. If there is no written agreement of the parties, the landlord has the right to enter at “reasonable hours” after “reasonable notice” and only for certain purposes.

It is illegal for your landlord to abuse the right of access or to use to it harass you.  Consulting an attorney may help you determine if your landlord is demanding access to the property in violation of the law.

You believe your landlord is discriminating against you.

The federal Fair Housing Act prohibits housing discrimination based on race, color, national origin, religion, sex, disability, or familial status. State and local laws may offer additional protections.

Examples of discrimination might include charging you a higher rental rate or denying services due to one of these factors. If you or someone living with you has a disability, you must be able to make, at your own expense, reasonable modifications to the dwelling in order to make it usable for that individual.

If you believe your landlord is discriminating against you, an attorney can help you understand your rights, and represent you should you wish to pursue damages in court.

There are other actions you can take. You can file a complaint directly with the Department of Housing and Urban Development, or contact a local agency in HUD’s Fair Housing Assistance Program (FHAP) for help.

HUD and state and local agencies in FHAP receive thousands of discrimination complaints a year. If they investigate your complaint and determine there’s reasonable cause to believe your landlord is discriminating against you, a HUD lawyer will represent you before an administrative law judge at no cost. This type of judge is able to award compensation and other relief, as well as impose penalties against the landlord.

Your landlord won’t make necessary repairs.

Kansas law requires landlords to keep their rental property in safe and livable condition. If your landlord puts off or refuses to do necessary repairs like fixing the heat in the winter cold, providing hot water, or replacing a broken door that puts you at risk of theft, you may be able to terminate the lease.

An attorney can help you understand your legal options, and, if need be, help you come to a settlement with your landlord either in or out of court.

Your property was damaged, and you believe it was due to the landlord’s negligence.

If your landlord’s failure to maintain the rental property resulted in damage to your belongings (for example, ignoring a leaky ceiling that then caused water damage to your furniture), you may be compensated for the loss.

If you have renter’s insurance, your insurance company should cover your losses. It will then be up to their attorneys to obtain reimbursement from the landlord.

If you don’t have insurance, or the damage was extensive and your insurance doesn’t cover everything, an attorney can help you in your efforts to obtain reimbursement from the landlord.

You’ve been injured or made ill, and you believe it was due to the landlord’s negligence.

Accidents happen. But if you were injured on the rental property as a result of the landlord’s negligence, you may have a case to recover damages. Examples might include stumbling and hurting yourself in a pothole-ridden, poorly lit courtyard, or getting sick as a result of a mold infestation.

These types of cases are tricky to determine. Was the landlord truly careless, or did they do everything reasonably expected but an accident happened anyway? Did mold grow quickly and was it completely unseen, or did the landlord ignore your reports about musty smells?

If You’re the Landlord

You’re evicting a tenant.

Kansas lawmakers have created a special eviction process which allows actions for evictions to proceed through the court system much faster than standard civil actions. The streamlined procedures require landlords to follow detailed procedures.

Putting someone out of his or her home is a serious matter, so the courts typically require strict compliance with these procedures.

Perhaps the most important procedural requirement for an eviction is the notice to leave the premises (or “notice to quit”).  When the notice is for nonpayment of rent, it must satisfy requirements in both the Kansas Residential Landlord and Tenant Act and in the Forcible Entry and Detainer statue. If the notice fails to comply with in any way with either statue, the court acquires no jurisdiction to hear the eviction lawsuit.

Contacting an attorney will help ensure all applicable procedural requirements are satisfied and that you are able to avail yourself to the expedited process available for certain eviction actions.

The tenant is attempting to apply the security deposit in lieu of paying rent.

The security deposit is often a used as a bargaining chip at the end of the rent/lease term or in the event of an eviction for unpaid rent. For example, a tenant may propose to forfeit the return of the security deposit in exchange for the landlord agreeing not to pursue payment of the last month’s rent. If the landlord is agreeable to such an arrangement, it makes for an effective compromise.

While tenants are free to make such an offer, landlords are under no obligation to agree. That’s because, under Kansas law, a tenant is prohibited from unilaterally apply or deduct any portion of the security deposit from the last month’s rent or otherwise attempt to use the security deposit in lieu of paying rent.  If the tenant violates this prohibition, the tenant forfeits the security deposit and the landlord may recover the rent due as if the deposit had not been applied or deducted from the rent due.

An attorney can help you determine whether you are required to return the security deposit or whether the tenant has forfeited the security deposit.

You’re being investigated or sued for illegal discrimination.

If you’re being sued by a tenant for discrimination, or HUD or a local fair housing agency is investigating the claim, it’s time to consult an attorney.

HUD administrative law judges can award civil penalties on top of actual damages and attorney’ fees. Your liability may be even higher if the case goes to court. A discrimination lawsuit or investigation may make the press, harming your reputation.

An attorney can help you resolve the dispute with the tenant as quickly as possible.

You’re being sued for damage to a tenant’s property.

Tenants may sue you if they believe your failure to maintain the property resulted in damage to their belongings. If they make a claim under their renter’s insurance, their insurance company may then come to you for compensation.

Your liability policy comes into play here. If the claim is high, you may choose to let your insurance company handle the situation.

If the claim is low, you may want to settle it yourself with the tenant, or bring in a third-party mediator. This type of claim is also often handled in small claims court.

While you don’t need a lawyer for these situations (legal representation generally isn’t even allowed in small claims court), a lawyer can give you guidance on how best to handle the claim.

You’re being sued for an injury or illness.

If a tenant or visitor sues you, claiming that your negligence led to injury or illness, you’ll want an attorney in your corner. There’s a lot at stake with many personal injury cases, with damages that can include medical bills, lost work, and pain and suffering. If you have liability insurance, your insurance company should provide an attorney to handle the claim.

You’re dealing with negative publicity.

If a tenant dispute goes public, a crime occurs on your property, or an employee gets into trouble, you may find your business in a negative spotlight. A lawyer skilled in public relations matters can help you handle the press or even speak for you. He or she can advise on actions you can take to defend or repair your business reputation.

The general information contained in this article is not a substitute for legal advice. For assistance with legal issues related to landlord-tenant disputes in Kansas, contact Fleeson Gooing today.

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