[Link to
GCH-0015](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0015LOPS.doc)

[Link to
GCH-0016](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0016LOPS.doc)

[Link to
GCH-0017](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0017LOPS.doc)

[Link to
GCH-0018](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0018LOPS.doc)

[Link to
GCH-0020](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0020LOPS.doc)

[Link to
GCH-0021](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0021LOPS.doc)

Legal Opinion: GCH-0066

Index: 2.245

Subject: PH Due Process Determination: Kansas

July 17, 1992

DUE PROCESS DETERMINATION

for the

STATE OF KANSAS

TABLE OF CONTENTS

I. Jurisdiction.

II\. Elements of Due Process.

III\. Overview of Kansas Eviction Procedures.

IV\. Analysis of Kansas Eviction Procedures for

Each of the Regulatory Due Process Elements.

V. Conclusion.

ANALYSIS

I. Jurisdiction: State of Kansas.

II\. Elements of Due Process

Section 6(k) of the United States Housing Act of 1937

(42 U.S.C. 1437d(k), as amended by section 503(a) of the National

Affordable Housing Act of 1990, Pub. L. 101-625, approved

November 28, 1990), provides that:

For any grievance concerning an eviction or termination of

tenancy that involves any criminal activity that threatens

the health, safety, or right to peaceful enjoyment of the

premises of other tenants or employees of the public housing

agency or any drug-related criminal activity on or near such

premises, the agency may . . . exclude from its grievance

procedure any such grievance, in any jurisdiction which

requires that prior to eviction, a tenant be given a hearing

in court which the Secretary determines provides the basic

elements of due process . . .

The statutory phrase \"elements of due process\" is defined by

HUD at 24 CFR 966.53(c) as:

. . . an eviction action or a termination of tenancy in a

State or local court in which the following procedural

safeguards are required:

\(l\) Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction;

\(2\) Right of the tenant to be represented by counsel;

\(3\) Opportunity for the tenant to refute the evidence

presented by the PHA including the right to confront

and cross-examine witnesses and to present any

affirmative legal or equitable defense which the tenant

may have; and

\(4\) A decision on the merits.

HUD\'s determination that a State\'s eviction procedures

satisfy this regulatory definition is called a \"due process

determination.\" This due process determination is based upon

HUD\'s analysis of Kansas law, to determine if eviction procedures

under Kansas law require a hearing with all of the regulatory

\"elements of due process,\" as defined in 966.53(c).

HUD finds that the requirements of Kansas law governing the

following types of eviction include all of the elements of basic

due process:

\(1\) an action in the Kansas district court1 for rent and

possession under Chapter 58, Article 25, sections 58-

2501 to 58-2533 and sections 58-2540 to 58-2573 of the

Kansas Statutes Annotated (KSA); and

\(2\) an action in the Kansas district court for forcible

detainer under KSA 58-2542 and 58-2573 and Chapter 61,

Article 23 of the KSA.

HUD\'s conclusion is based on requirements contained in the

KSA, including the Kansas code of civil procedure at KSA Chapter

60 and the Kansas code of civil procedure for limited actions at

Chapter 61. The present due process determination does not apply

1 Actions under the Residential Landlord and Tenant Act may

be filed under the Small Claims Procedure Act (KSA 61-2701). In

such actions, a party cannot be represented by an attorney.

Thus, a small claims eviction action does not meet all the

elements of due process.

KANSAS: DUE PROCESS DETERMINATION

where the PHA elects to file a motion for possession before trial

(pursuant to KSA 58-2571(d)).2

III\. Overview of Kansas eviction procedures

In Kansas, a tenant may be evicted either by an action for

rent and possession, or by an action for forcible detainer.

An action for rent and possession is commenced under the

provisions of KSA Chapter 58, Article 25, sections 58-2501 to

58-2533 and sections 58-2540 to 58-2573. KSA 58-2540 to 58-2573

constitute the Residential Landlord and Tenant Act (RLTA). Under

the RLTA, upon termination of the rental agreement, the landlord

may bring a claim for possession, for rent or both (KSA 58-2568).

A landlord may commence an action against the tenant for rent and

possession based on nonpayment of rent or material noncompliance

with the rental agreement by the tenant, or against any person

wrongfully in possession after termination of the rental

agreement or rental term (KSA 58-2552, 58-2564 and 58-2570).

KSA 58-2555 provides that tenants shall:

\(a\) comply with all obligations primarily imposed upon

tenants by applicable provisions of building and

housing codes materially affecting health and safety

. . . and

. . .

\(g\) Not engage in conduct or allow any person . . . in the

premises with the express or implied permission or

consent of the tenant, to engage in conduct that will

disturb the quiet enjoyment of the premises by other

tenants.

2 KSA 58-2571(d) allows a landlord to obtain an order

granting possession without the necessity of a full trial. The

landlord files a motion requesting possession concurrent with

filing of an action. Notice of the motion is served on the

tenant. The hearing on the motion is not on the merits of the

case, only on whether the judge is satisfied that \"granting

immediate possession of the dwelling unit to the landlord is in

the interest of justice . . . .\" HUD\'s due process determination

does not apply where the PHA files a motion for possession prior

to trial pursuant to KSA 58-2571(d). If the PHA files such a

motion, the PHA may not exclude a grievance concerning the

eviction from the PHA\'s grievance procedures.

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KANSAS: DUE PROCESS DETERMINATION

Under KSA Chapter 61, Article 23 a landlord may commence an

action for forcible detainer. Actions for forcible detainer

include \"actions brought against persons alleged to have made

lawful and peaceable entry into lands or tenements and have

unlawfully and by force detained the same\" (KSA 61-2301).

KSA 61-2302 provides that actions for forcible detainer \"may be

had in all cases against tenants holding over their terms.\" The

provisions of the RLTA also apply to such actions (KSA 58-2542 to

58-2573).

This HUD due process determination will focus on the use of

a forcible detainer action for evictions which may be excluded

from a PHA\'s grievance procedure pursuant to a HUD due process

determination (i.e., evictions for drug-related criminal activity

or criminal activity that threatens health or safety of a tenant

or PHA employee). Thus this analysis will consider a forcible

detainer action for failure to perform conditions of the lease

(i.e., material noncompliance) under KSA 58-2555.

The district court has jurisdiction over any RLTA actions

(KSA 58-2542). Unless otherwise provided in the RLTA, the code

of civil procedure for limited actions (KSA Chapter 61, Articles

16 to 26) governs forcible detainer actions and rent and

possession actions. KSA 61-1603 provides that the code of civil

procedure for limited actions:

may be used to govern the procedure for civil actions in the

district court: . . . where the amount in controversy or

otherwise claimed damages, excluding costs, does not exceed

\$10,000.

The code of civil procedure for limited actions adopts and

incorporates specific provisions of the general rules of civil

procedure (KSA Chapter 60).

IV\. Analysis of Kansas eviction procedures for each of the

regulatory Due Process elements

The following analysis considers whether each element of

HUD\'s regulatory due process definition is satisfied in an

eviction action in district court for forcible detainer or for

rent and possession.

A. Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction

(24 CFR 966.53(c)(l))

1\. Notice to terminate rental agreement

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KANSAS: DUE PROCESS DETERMINATION

The RLTA (KSA 58-2564(a)) provides that:

Except as otherwise provided in this act, if there is a

material noncompliance by the tenant with the rental

agreement or a noncompliance with KSA 58-2555 materially

affecting health and safety the landlord may deliver a

written notice to the tenant specifying the acts and

omissions constituting the breach and that the rental

agreement will terminate upon a date not less than thirty

\(30\) days after receipt of the notice, if the breach is not

remedied in fourteen (14) days . . . However, in the event

that the same or a similar breach occurs after the fourteen

day period provided herein, the landlord may deliver a

written notice to the tenant that the rental agreement will

terminate upon a date not less than thirty (30) days after

receipt of the notice without providing the opportunity to

remedy the breach . . .

The RLTA termination notice requirements must be satisfied before

commencing an action for rent and possession or a forcible

detainer action.

KSA 61-2304 provides that before commencing an action for

forcible detainer, a party \"desiring to commence an action . . .

must notify the adverse party to leave the premises.\" Notice

to quit may be served personally on the tenant or, if the tenant

cannot be found, he or she may be served by leaving a copy at the

tenant\'s usual place of residence, by delivering a copy to some

person over 12 years of age residing on the premises, by posting

a copy in a conspicuous place on the premises, or by certified

mail (KSA 58-2510 and 61-2304).

2\. Petition commencing action

KSA 61-1703 states that:

\(a\) An action pursuant to the code of civil procedure for

limited actions is commenced at the time of:

\(l\) Filing a petition with the clerk of the district

court, if service of process is obtained or the

first publication is made for service by

publication, within 90 days after the petition is

filed, except that the court may extend that time

an additional 30 days upon a showing of good cause

by the plaintiff; or

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KANSAS: DUE PROCESS DETERMINATION

\(2\) Service of process or first publication, if

service of process or first publication is not

made within the time specified by provision (l).

\(b\) If service of process or first publication purports to

have been made but is later adjudicated to have been

invalid due to any irregularity in form or procedure or

any defect in making service, the action shall

nevertheless be deemed to have been commenced at the

applicable time under subsection (a) if valid service

is obtained or first publication is made within 90 days

after that adjudication, except that the court may

extend that time an additional 30 days upon a showing

of good cause by the plaintiff.

\(c\) An entry of appearance shall have the same effect as

service.

The petition must contain a short and plain statement of the

claim showing that the pleader is entitled to relief (KSA 60-207,

60-208 and 61-1707). Upon filing of the petition, the clerk of

the district court issues a summons. (KSA 61-1801) The summons

must:

be directed to the defendant, state the name and address of

the plaintiff\'s attorney, if any, otherwise the plaintiff\'s

address, and the time when the law requires the defendant to

either appear or plead to the petition . . . (KSA 61-1802)

The petition and the summons are served together. Service

may be made on the defendant personally or by substituted

service. Substituted service may be made by leaving copies at

the defendant\'s usual place of residence with some person of

suitable age and discretion residing therein, or by delivering a

copy of the summons and petition on an agent authorized by law to

receive service of process. If service cannot be made

personally, or by substituted service, service may be made by

certified mail (KSA 61-1805). In a forcible detainer proceeding,

service must be made at least three days before the day appointed

for the appearance or answer of the defendant (KSA 61-2306).

3\. Notice \-- conclusion

Kansas law provides adequate notice of the grounds for

termination of tenancy and eviction. Such notice is contained in

the termination notice prior to commencement of the action, and

also in the petition served on defendant at commencement of the

action.

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KANSAS: DUE PROCESS DETERMINATION

B. Right to be represented by counsel

(24 CFR 966.53(c)(2))

Many provisions of the code of civil procedure for limited

actions refer to the role of counsel, e.g., KSA 61-1721 (default

judgment \-- defendant\'s failure to file an answer or appear,

personally or by counsel); KSA 60-205(b) (service on party with

an attorney); KSA 60-211 (signing of pleadings, liability of

attorney for frivolous claim, defense or denial). These

provisions imply that the litigant has the right to be

represented by counsel.

C. Opportunity for the tenant to refute the evidence

presented by the PHA, including the right to confront

and cross-examine witnesses (24 CFR 966.53(c)(3))

KSA 61-1718 provides that testimony of witnesses must be

taken \"orally in open court.\" KSA 60-243 governs the scope of

examination and cross-examination of a witness:

A party may interrogate any unwilling witness or hostile

witness by leading questions. A party may call an adverse

party or an officer, director, or managing agent of a public

or private corporation or of a partnership or association

which is an adverse party, and interrogate him and impeach

him in all respects as if he had been called by the adverse

party, and the witness thus called may be contradicted and

impeached and may be cross-examined by the adverse party

only upon the subject matter of his examination in chief.

KSA 61-1711 permits, in limited circumstances, the use at

trial of a pre-trial deposition, so far as admissible under the

rules of evidence, for any purpose against any party who was

present or represented at the taking of the deposition or who had

notice thereof, if the deponent cannot be or was not called as a

witness at trial. In the interest of justice and on such terms

and conditions as will fairly protect the parties, the court may

also on motion permit at trial the use of pre-trial depositions

as follows:

Any deposition may be used by any party for the purpose of

contradicting or impeaching the testimony of deponent as a

witness . . .

The deposition of a party or of anyone who at the time of

the taking was an officer, director, or managing agent or a

person designated under KSA 60-230 or 60-231 to testify on

behalf of a public or private corporation, partnership or

7

KANSAS: DUE PROCESS DETERMINATION

association or governmental agency which is a party may be

used by an adverse party for any purpose . . . (KSA 60-232

and 61-1711.)

Subpoenas can be issued to compel the attendance of

witnesses or the production of documentary evidence at trial (KSA

61-1719).

Thus, the tenant-defendant has the opportunity to present

evidence and witnesses to refute the case presented by the PHA.

D. Opportunity to present any affirmative legal or

equitable defense which the tenant may have

(24 CFR 966.53(c)(3))

In response to a landlord\'s complaint, a defendant tenant

shall file a responsive pleading. KSA 60-207 states that \"there

shall be a petition and an answer . . .\" KSA 60-212(b) provides

that:

Every defense, in law or in fact, to a claim for relief in

any pleading . . . shall be asserted in the responsive

pleading . . . if one is required.

A defendant tenant \"shall state in short and plain terms

such party\'s defenses to each claim asserted and shall admit or

deny the averments upon which the adverse party relies\" (KSA

60-208). KSA 60-208 states that:

In pleading to a preceding pleading a party shall set forth

affirmatively accord and satisfaction, arbitration and

award, assumption of risk, contributory negligence,

discharge in bankruptcy, duress, estoppel, failure of

consideration, fraud, illegality, injury by fellow servant,

laches, license, payment, release, res judicata, statute of

frauds, statute of limitations, waiver, and any other matter

constituting an avoidance or affirmative defense . . . A

party may also state as many separate claims or defenses as

the party has regardless of consistency and whether based on

legal or on equitable grounds or on both.

The Kansas rules permit a defendant to raise any available

defenses to the PHA\'s claim for possession, whether the defense

may be deemed equitable or legal in character. Further, the

defendant may plead any of the affirmative defenses enumerated

under the Kansas statute.

E. A decision on the merits (24 CFR 966.53(c)(4))

8

KANSAS: DUE PROCESS DETERMINATION

KSA 61-1722 provides that:

any order or other form of decision, however designated

which adjudicates less than all the claims shall not

terminate the action as to any of the claims, and the order

or other form of decision shall be subject to revision at

any time before the entry of judgment adjudicating all the

claims.

Thus a final decision must adjudicate all the claims of both the

plaintiff and the defendant.

V. Conclusion

Kansas law governing eviction actions in the Kansas district

courts for forcible detainer or for rent and possession requires

that the tenant have the opportunity for a pre-eviction hearing

in court which provides the basic elements of due process as

defined in 24 CFR 966.53(c) of the HUD regulations.

This due process determination is issued by HUD under

section 6(k) of the U.S. Housing Act of 1937. A Kansas PHA may

evict a public housing tenant by an action in the Kansas district

court for forcible detainer or rent and possession, for any

criminal activity that threatens the health, safety, or right to

peaceful enjoyment of the premises of other tenants or employees

of the PHA, or any drug-related criminal activity on or near the

premises. The PHA is not required to first afford the tenant the

opportunity for an administrative hearing on the eviction.

9