By: Rick Davis
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Kansas Eviction Process and Timeline
In Kansas, eviction proceedings are one of the few areas of law that has its own procedure and timelines that were set by the legislature and must be strictly adhered to by the courts and parties involved in the eviction.
Prior to filing an eviction action, notice must be provided to the tenant that an eviction may be filed and that they have a certain period of time to avoid eviction. Moreover, there are a couple of things to keep in mind when sending these notices. First, if the pre-eviction notice is served by mail, an additional 2-days are added to notice period that must be provided to the tenant. Additionally, Kansas defines a “day” for the purposes of an eviction, as a full 24-hour period. Therefore, if you file the action on the third day, but only 70 hours after the notice was served on the tenant, the eviction will be dismissed as lacking proper notice.
When a tenant is past due on rent, you must provide them with a three day notice. There is no specific form that must be used, but the notice must state the amount owed and that the landlord will file an eviction action if rent is not paid within 3 days. The three day notice can be delivered by posting it on the tenant’s door, hand delivery or mail, but it is important that you keep accurate records of how and when it was delivered and that you use someone to deliver it who could testify about delivering the notice, if necessary.
If you are wishing to evict a tenant for violation of a term of the lease, other than non-payment of rent, you must provide the tenant with a 14/30 notice, which is a letter that states that the tenant has 14 days to cure the violation or else the lease will be terminated 30 days from the date of the notice. Similar to the 3-day notice, there is no specific form, but it is important that the notice states exactly what the lease violation is and the time period in which the lease will be terminated if the issue is not corrected. Examples of lease violations that might trigger termination of the lease include, keeping a pet in the property when pets are excluded from the lease, dumping trash in the front yard of a single family home, or failing to obtain renter’s insurance if required by the lease.
There are certain instances when 30-day notice must be provided to a tenant prior to filing an eviction. These would be when a tenant is residing in a property under an oral or month-to-month lease or when you are choosing not to renew a lease that is set to end. In either situation, you are not terminating the lease, but rather notifying the tenant that you will not be renewing the lease or allowing them to continue in the property. It should be noted that although 30-days notice is required on a month-to-month lease, less notice is required if the tenants pay rent less frequently than monthly under an oral lease or are on a shorter term lease, such as a week-to-week lease. In these instances, the landlord is required only to provide notice equal to the intervals that rent is being paid by the tenant (e.g. 1 week notice if rent is paid weekly).
Timeline without Trial
Once the notice period has expired, the landlord may file an “Unlawful Detainer Petition,” which initiates the eviction process. This is a document that is drafted by either you or your attorney and states the property address, when rent was due, how much rent is unpaid, etc. Once the eviction is filed, the Court will produce a summons (usually within 1-2 days) that has a date for an “Answer Hearing” or the date the tenant must first appear before the court. If the landlord is represented by an attorney, they are not required to appear at the answer hearing. This hearing will be within 14 days from the date the landlord filed its Petition. Once the summons is issued, it is the landlord’s (or their attorney’s) obligation to ensure the summons is delivered to or “served” on the Tenant.
If the tenant does not appear or appears at the Answer Hearing and admits to the non-payment of rent or other lease violation, the Court will enter judgment in favor of the landlord. If the tenant appears and denies they have violated the lease or not paid rent, the court will set the matter for Trial.
Once a judgment is issued, either after the Answer Hearing or at Trial, the landlord must prepare a “Writ of Restitution” to be signed by the judge. The Writ of Restitution is the document that authorizes the sheriff to remove the Tenant from the property. It usually takes a couple days to get the signed Writ back from the judge before it can be forwarded to the Sheriff’s Office.
Once the writ is signed by the judge, it is delivered to the Sheriff who has 14-days to remove the tenant. How it usually works is that the Sheriff will visit the home or apartment and post notice that they will return at a certain date and time. If the tenant has not left by the time posted on the notice, the Sheriff will remove them from the property and the landlord will have the ability to change the locks so as to prevent the tenant’s re-entry. In most instances, the Sheriff will coordinate directly with the landlord to schedule the date and time the tenant will be removed from the property.
Timeline with Trial
If a trial is required, it will be held after the answer hearing and before a writ is signed by the judge. Eviction trials are generally less formal than other proceedings, but still follow the basic procedure of the landlord calling any witness, which the tenant will have the opportunity to question or cross-examine, and the tenant then having an opportunity to call its witness(es). There are few defenses to an eviction action in Kansas, and therefore, trials are usually rather short with the landlord only presenting one witness (the landlord, property manager or someone with knowledge of the lease and payment history of the tenant) and the tenant usually being the only person to testify in defense of the action. Judge make the ruling in eviction cases immediately following the trial and then the process continues as stated above in the section for evictions that do not require a trial.
After the tenant is removed, the landlord may petition the court for an additional hearing to determine the amount of damage to the Property that exceeds the security deposit. These hearings are usually held a few months after the eviction takes place and require new notice to be served on the tenant.
Collecting on a judgment
Unfortunately, obtaining a judgment against a tenant does not guarantee you will receive any money. When you prevail at trial, the court issues an Order declaring that the tenant is required to pay you the amount of the past due rent and other damage to the property. In most cases, the tenant does not voluntarily pay the money that was awarded in the Order. Therefore, in order to collect, you must attempt to garnish bank accounts or wages earned by the tenant. The process for requesting garnishment is fairly simply, but the difficult part is identifying the correct employer or bank account. Rental applications, copies of checks used by the tenant to pay rent, and/or any other documentation regarding the tenants potential employment or assets is helpful when it comes time to collect payment.
It should also be noted that while garnishment is an effective tool for collecting amounts due under a court judgment, the garnishment is limited to the assets and earnings of the tenant. Kansas law fixes the amount that can be withheld from a tenant’s paycheck at 25% and they must meet a certain threshold before any money can be collected. Therefore, if the tenant is working in a low paying job or only part-time, you may not be able to garnish or payments may come in slowly. For these reasons, it is important not to rely on immediate payment after receiving a judgment against a tenant.
If you would like to learn more about the services we offer to tenants, please visit our evictions page at http://www.rickdavislegal.com/practice-areas/residential-eviction/. You can also give us a call at 913-210-1847.