Clark v. Walker

• Decision Date: 24 February 1979
• Docket Number: No. 49459,49459
• Citation: 590 P.2d 1043,225 Kan. 359
• Parties: Stephen L. CLARK d/b/a Clark Management Company, Plaintiff-Appellant, v. John W. WALKER and George Sudermann, Defendants-Appellees.
• Court: Kansas Supreme Court

Page 1043

590 P.2d 1043

225 Kan. 359

Stephen L. CLARK d/b/a Clark Management Company, Plaintiff-Appellant, v. John W. WALKER and George Sudermann, Defendants-Appellees.

No. 49459.

Supreme Court of Kansas.

Feb. 24, 1979.

Syllabus by the Court

1. K.S.A. 58-2550(D ), which provides that the security deposit shall be forfeited if a tenant of residential property applies the security deposit on the payment of rent, is not unconstitutional as a violation of equal protection of the law or of due process of law.

2. In order for the forfeiture provision of K.S.A. 58-2550(D ) to be effective and enforceable against a tenant, the forfeiture provision must be included in and be a part of the rental agreement.

Richard V. Foote of Matlack, Foote, Scott, Joseph & Wilkinson, P. A., Wichita, argued the cause, and Ben Rishel, Wichita, was with him on briefs, for plaintiff-appellant.

David H. M. Gray of Legal Aid Society of Wichita, Inc., Wichita, argued the cause and was on brief, for defendants-appellees.

PRAGER, Justice:

This is an action brought by a landlord against former tenants of residential property to recover rent due and compensation for damage to the rental property. The primary issue for determination is the interpretation and constitutionality of certain provisions of the Residential Landlord and Tenant Act (K.S.A. 58-2540 Et seq.). The facts in the case are undisputed and are as follows: On June 17, 1976, the defendants, John M. Walker and George Sudermann, entered into an agreement with Stephen L. Clark d/b/a Clark Management Company, to lease an apartment at the Sugar Creek apartments in Wichita. The lease agreement provided for a term extending from June 18, 1976, through December 31, 1976. Rent in the amount of $210 per month was to be paid in advance on the first day of each month. The lease required a late-payment fee of $10 per month if the rent was not paid by the fourth day of the month. In addition, the lease required the tenants to deposit with the landlord the sum of $200 as a security deposit "to guarantee fulfillment of all obligations of the tenant in connection with the rental and use of said premises." The defendants took possession of the apartment and continued to reside there without incident until the month of December 1976. On November 3, 1976, Sudermann notified the plaintiff that the defendants would vacate the apartment at the end of December. After giving notice of their intent to leave, the defendants became concerned that the landlord might not return their security deposit to them. Consequently, when the December rent became due, the defendants tendered a check in the amount of $10 to the apartment manager, Evelyn Bell, for the December rent. The check, which represented the difference between the $210 rent due and the $200 security deposit held by the plaintiff, was placed in an envelope and dropped into the mail slot of the apartment manager's door. Mrs. Bell returned the check to defendants the next day with a note explaining that she could not accept a partial payment of the rent.

On December 6, 1976, Mrs. Bell placed an eviction notice in the defendants' mailbox. After obtaining no response, Mrs. Bell called Walker about payment of the rent. Walker explained that they had tried to pay and that she had refused to accept payment. At that time, Mrs. Bell informed Walker that the lease contained a provision which prohibited the application of the security deposit to the payment of rent. The lease provision was as follows:

"The tenant shall not apply or deduct any portion of the security deposit from the last month's rent or use or apply such tenant's security deposit at any time in lieu of payment of rent."

Walker expressed concern that the defendants would not get their security deposit returned at the end of the tenancy. Mrs. Bell explained that, at the expiration of the lease, the defendants would get back their deposit, minus any charges for cleaning or damages to the property. Walker remained adamant about not paying the balance of the rent due.

Some time in the middle of December, Clark, the owner of the apartment complex in question, called Walker and informed him that legal action would have to be taken if the rent was not paid. Walker told Clark to proceed in whatever manner he thought was necessary. Clark called a second time and inquired why the rent was not being paid. Walker informed Clark that he had heard of some tenants whose security deposit was not returned. Walker testified that Clark informed him that "he could forget the security deposit." No further effort was made to evict the tenants. Both Walker and Sudermann vacated the apartment by the 29th of December 1976. Mrs. Bell made further efforts to discuss the payment of rent with Sudermann, but he refused to pay the December rent. Neither Walker nor Sudermann participated in the post-tenancy inspection of the premises. After the defendants had vacated the premises, Mrs. Bell had some cleaning performed in the apartment unit, paying expenses of $9 for labor and $1.50 for cleaning supplies. The apartment was leased to new tenants commencing January 1, 1977.

In March 1977, the landlord, Clark, filed this lawsuit against both Walker and Sudermann. Plaintiff claimed damages for nonpayment of rent in the amount of $210, $10 for the late payment fee, and $10.50 for the expenses required in cleaning the apartment. In the action, the plaintiff relied upon K.S.A. 58-2550 of the Residential Landlord and Tenant Act, which deals with the subject of security deposits required in leases of residential property. It provides as follows:

"58-2550. Security deposits; amounts; retention; return; damages for noncompliance. (A ) A landlord may not demand or receive a security deposit for an unfurnished dwelling unit in an amount or value in excess of one month's periodic rent. If the rental agreement provides for the tenant to use furniture owned by the landlord, the landlord may demand and receive a security deposit not to exceed one and one-half (11/2) month's rent, and if the rental agreement permits the tenant to keep or maintain pets in the dwelling unit, the landlord may demand and receive an additional security deposit not to exceed one-half (1/2) of one month's rent.

"(B ) Upon termination of the tenancy, any security deposit held by the landlord may be applied to the payment of accrued rent and the amount of damages which the landlord has suffered by reason of the tenant's noncompliance with K.S.A. 58-2555 and the rental agreement, all as itemized by the landlord in a written notice delivered to the tenant. If the landlord proposes to retain any portion of the security deposit for expenses, damages or other legally allowable charges under the provisions of the rental agreement, other than rent, the landlord shall return the balance of the security deposit to the tenant within fourteen (14) days after the determination of the amount of such expenses, damages or other charges, but in no event to exceed thirty (30) days after termination of the tenancy, delivery of possession and demand by the tenant. If the tenant does not make such demand within thirty (30) days after termination of the tenancy, the landlord shall mail that portion of the security deposit due the tenant to the tenant's last known address.

"(C ) If the landlord fails to comply with subsection (B ) of this section, the tenant may recover that portion of the security deposit due together with damages in an amount equal to one and one-half (11/2) the amount wrongfully withheld.

"(D ) Except as otherwise provided by the rental agreement, a tenant shall not apply or deduct any portion of the security deposit from the last month's rent or use or apply such tenant's security deposit at any time in lieu of payment of rent. If a tenant fails to comply with this subsection, the security deposit shall be forfeited and the landlord may recover the rent due as if the deposit had not been applied or deducted from the rent due.

"(E ) Nothing in this section shall preclude the landlord or tenant from recovering other damages to which such landlord or tenant may be entitled under this act.

"(F ) The holder of the landlord's interest in the premises at the time of the termination of the tenancy shall be bound by this section." (Emphasis supplied.)

It should be noted that under subsection (B ) of K.S.A. 58-2550, upon termination of the tenancy, any security deposit held by the landlord may be applied to the payment of accrued rent or to damages to the property caused by the tenant. Under subsection (D ), however, if a tenant applies or deducts any portion of the security deposit from the last month's rent or applies a deposit at any time in lieu of rent "the security deposit shall be forfeited" and the landlord may recover the rent due as if the deposit and not been applied or deducted from the rent due. The plaintiff contended that the statute means just what it says and, since under the undisputed facts in this case the defendants as tenants deducted the $200 security deposit from the last month's rent, the security deposit was forfeited to the landlord. Under his analysis, the landlord can recover the full $210 December rental payment together with the $10 late charge and damages to the property caused by the tenants. In defending the action, counsel for Walker and Sudermann maintained that the defendants were entitled to a credit for their $200 security deposit. They argued that the security deposit should not be forfeited because The written lease did not contain any forfeiture provision and, furthermore, that the forfeiture provision of K.S.A. 58-2550 (D ) is unconstitutional in that it deprives a tenant of due process of law and equal protection of the law.

After considering the undisputed evidence presented at the trial and the trial briefs submitted by the parties, the trial court found that subsections (B ) and (D ) of K.S.A. 58-2550...