How to Initiate an Eviction

As a property manager, you probably already know that eviction is a measure of last resort, but there are unfortunate cases when you must forcibly remove a tenant. The tenant might have not paid rent or violated the terms of the lease. In these types of instances, you can pursue legal action to force the tenant out so you can then rent the unit to a more responsible party.

It is important to set your emotions aside and proceed carefully when evicting a tenant. Kansas law has a very specific procedure that you must follow when evicting a tenant. Although it may seem like the quickest and most satisfying solution, you cannot just shut off the utilities and change the locks. The law is designed to protect property managers like yourself and the tenant by establishing a certain criteria and steps to follow when going through this process.

Material Non-compliance vs. Failure to Pay Rent

To begin the eviction process, you must determine the specific violation and the reason for eviction. For each type of eviction, the tenant is given the opportunity to rectify the situation to stop the eviction from proceeding.

If a tenant is in material non-compliance, the tenant must receive a 14-day eviction notice. Material non-compliance is when a tenant breaks the terms of a lease, and they are often related to health and safety issues. For example, the tenant is smoking inside of the property when they weren’t supposed to. Under Kansas law, the tenant has 14-days to remedy the problem – in our example this would entail only smoking in designated areas. If the situation is not rectified within the 14-day window, the landlord can evict the tenant after 30 days.

If the tenant fails to pay rent in a timely manner, you can issue them a three-day eviction notice. The tenant is allowed to pay the rent within the three days to stop the eviction proceedings.

A long-term lease can be terminated for any reason with a 30-day notice.

Notice of Eviction

To begin the eviction process, the tenant must be provided written notice. You must clearly inform the tenant of the specific problems, and the reason why the eviction process has started. The notice gives the tenant the ability to fix the problem within the legally defined timeline.

The notice can be served in person to the tenant or placed “in a conspicuous place,” like taped to the door. Notices can also be mailed, but mailing the notice adds two days to the timeline required under law. You must make a reasonable effort to ensure that the tenant is properly informed about the start of the eviction process.

Forcible Detainer

If the tenant does not move out or fails to rectify the problem within the proper waiting period, you can file a petition with the clerk of the district court. The petition contains an overview of the facts and reasons for evicting the tenant and the specific location of the property. The petition could also state specific damages done by the tenant or the tenant’s failure to pay rent. If there is rent due, the petition may include a request for the tenant to pay the outstanding rent.

Once the petition is filed, the court issues a summons, requiring the tenant to appear in the court. In Kansas, a summons is generally served by the sheriff’s office or an attorney licensed in the state. The summons comprises the time and the place where the tenant is required to appear in court. It is a legal document that gives tenants the ability to defend themselves in court.

Appearing in court

The tenant or an attorney representing the tenant must appear in court at the time and place on the summons. The initial court appearance is a chance for the dispute to be resolved without going to trial. If an agreement cannot be reached, a trial will be scheduled on the issue.

Filing a dispute

If a tenant believes he or she has a viable defense against the eviction, they must file an answer within 14 days after the initial appearance. The answer must be filed with the court, but you and your attorney should also receive a copy. The answer to the summons must contain the following information:

• Nature of the dispute
• A reasonable defense to the claims made by the property manager
• The person’s current contact information.

A tenant can raise several different issues in a dispute, including:

• Landlord and tenant negotiated a deal to pay partial rent.
• The tenant was not given proper notice about the eviction.
• The rent was raised, and the tenant was not properly informed.
• The property requires maintenance that has not been completed.
• The eviction is retaliation for actions taken by the tenant, such as reporting the landlord to state or local officials about the condition of the property.
• The landlord is discriminating against the tenant. Kansas law prevents any eviction based on religion, nationality, gender, family status or disability.

Eviction hearing

At an eviction hearing, both sides will present a case to the judge. The judge will weigh the evidence and render a decision based on the facts in the case. The court will require you to present evidence as to why the tenant needs to be evicted. For example, you can present evidence that the tenant failed to pay rent or shows photos of damage done to property. A judge will usually issue a ruling immediately from the bench in an eviction case.

Writ of restitution

If a judgment is issued in favor of the landlord, a writ of restitution will be issued. The writ is an official court document and directs the sheriff’s office to remove the tenant. The writ must be executed within 14 days after the person named in the document receives it. The sheriff’s office is allowed to use “reasonable force” to remove the tenant from the property.

Collecting a debt

A ruling in an eviction case does not guarantee you any money, but you can seek compensation for damages or outstanding rent. You will have to petition court for compensation after the judge rules on the eviction, as the tenant will most likely not voluntarily pay. You then must serve the tenant with a notice that compensation is being sought. You have several legal means to collect the money, such as garnishing wages, but certain requirements must be met. You will definitely want a competent attorney to help you navigate the process and receive payment.

We know that you want to have your problematic tenant removed as quickly as possible so you can move on. To accomplish this, you will need an attorney who is familiar with the intricacies of evictions and knows what to do when proceedings are less than smooth. At Oswald Law, we have efficiently settled many cases involving tenant eviction and are here to help you get through the process. Contact us today to schedule an appointment.