Love v. Monarch Apartments
| Citation | 771 P.2d 79,13 Kan.App.2d 341 |
| Decision Date | 24 March 1989 |
| Docket Number | No. 61891,61891 |
| Parties | Sharon LOVE, Appellant, v. MONARCH APARTMENTS, Appellee. |
| Court | Court of Appeals of Kansas |
Syllabus by the Court
1. A trial court has no discretion over the damages to be awarded under K.S.A. 58-2550(c). If the tenant is successful in recovering a part or all of the security deposit from the landlord, the trial court must award damages in an amount equal to one and one-half the amount of the security deposit returned to the tenant. The award does not depend upon the landlord's good or bad faith nor does it depend upon the tenant's damages or lack of damages.
2. A tenant's action under K.S.A. 58-2559(b) for damages for breach of the landlord's statutory duties under K.S.A. 58-2553 is essentially an action for breach of contract and the traditional remedies for breach of contract are available if a breach is proven. The availability of this action does not depend upon the tenant's giving notice to the landlord or the landlord's failure to make a timely, good faith effort to remedy the breach.
3. The primary measure of damages for a landlord's breach of statutory duties under K.S.A. 58-2553 is the difference between the fair rental value of the apartment as it should have been and the fair rental value of the apartment as it actually was, insofar as the difference resulted from the landlord's breach of statutory duties. The tenant is also entitled to any consequential damages flowing from the breach if such damages may fairly be considered as arising, in the usual course of things, from the breach itself, or may reasonably be assumed to have been within the contemplation of the parties as the probable result of the breach.
Richard E. Jones, Topeka, and Charles S. Scott, Sr., of Scott, Scott, Scott & Scott, of Topeka, for appellant.
Rene M. Netherton, Topeka, for appellee.
Before GERNON, P.J., and DAVIS and ELLIOTT, JJ.
This appeal involves questions arising under the Kansas Residential Landlord and Tenant Act, K.S.A. 58-2540 et seq. The tenant, Sharon Love, appeals the trial court's (1) refusal to order a full refund of her security deposit; (2) denial of statutory damages for the wrongful withholding of her security deposit (K.S.A. 58-2550[c]; and (3) denial of damages for the landlord's alleged breach of a statutory duty to provide habitable housing (K.S.A. 58-2553). We affirm on the first issue, reverse with instructions to award the full amount of statutory damages on the second issue, and reverse and remand for further proceedings on the third issue.
Sharon Love entered into a written lease agreement with Monarch Apartments and paid a $150 security deposit for apartment # 4 at 441 Winfield in Topeka, Kansas. Shortly after moving in, she experienced a serious problem with termites. Her walls swelled, clods of dirt came out, and, when she checked on her children one night, she saw termites flying around their room. She complained to Monarch's manager and its managing general partner; she consulted an attorney, who also contacted Monarch's manager and its general partner. After these complaints, Monarch arranged for an exterminator. While the apartment was being treated, Sharon Love stayed at a local motel at Monarch's expense and then stayed with her sister.
Upon moving back to the apartment, she again had problems with termites. She complained, and Monarch arranged for her to move into apartment # 2, which had been recently rehabilitated.
Before she moved into apartment # 2 in April, she noticed roaches. She asked Monarch's manager to have the apartment sprayed, but no spraying was done. Upon moving in, she noticed that roaches crawled over the walls and ceiling, and the floors where one of her little girls was also trying to crawl. She complained, and Monarch called an exterminator, who sprayed the apartment. When the roach problem persisted into May, the exterminator returned and "bombed" the apartment. When the roaches still persisted, plaintiff bought and used a spray from a hardware store. As a result of inhaling fumes from all these sprayings, plaintiff and her two little girls became sick and were treated at a local hospital.
When Sharon Love complained, Monarch offered to let her move back into her old apartment. Instead, Love called the "Section 8" housing representative of Topeka Housing Authority and obtained permission to move to a different complex.
About the time she moved out of the Monarch Apartments, Love requested the return of her security deposit. Monarch sent her a letter stating that it would be returning only $97 of her $150 deposit. Of the remaining $53, $40 would be retained for the cost of shampooing her carpet and $13 for "general clean-up." Within two weeks of the first letter, Monarch sent a second letter stating that it would not be returning any of her security deposit because she had terminated her lease prior to its expiration date.
The district court granted judgment for Sharon Love in the amount of $110, representing the amount of her security deposit less $40 for Monarch's cost of shampooing the carpet. Sharon Love argues on appeal that the court erred in allowing Monarch to withhold the $40.
A tenant is responsible for any damage he or she causes to the premises. K.S.A. 58-2555(f). If a tenant causes damage, the landlord may apply the tenant's security deposit to the amount of damages suffered by giving the tenant an itemized, written notice upon the termination of the tenancy. K.S.A. 58-2550(b); Vogel v. Haynes, 11 Kan.App.2d 454, Syl. p 1, 730 P.2d 1096, rev. denied 240 Kan. 806 (1986).
Love argues that the damage to her carpet was caused by normal wear and tear and points out that, under the lease, the "[t]enant is not liable for the repairs of damages caused by normal wear and tear." Although the trial court did not expressly find that the damage to the carpet was more than caused by normal wear and tear, this finding was implicitly made when the trial court allowed Monarch to withhold $40 of the security deposit. See Celco, Inc., of America v. Davis Van Lines, Inc., 226 Kan. 366, Syl. p 2, 598 P.2d 188 (1979), and Bruce v. Smith, 204 Kan. 473, Syl. p 1, 464 P.2d 224 (1970) ().
On appeal, the question becomes whether the trial court's finding is supported by substantial competent evidence. Greg Toelkes, the director of operations for Monarch's general contractor, testified that the apartment was "virtually brand new" before Sharon Love moved in, that the carpet had visible stains after she moved out, and that, in his opinion, the damage was more than normal wear and tear. Under these circumstances, we conclude that the trial court did not err in allowing Monarch to withhold $40 from Sharon Love's security deposit for the cost of shampooing the carpet.
Monarch argues that the trial court erred in allowing Love even a partial refund of her security deposit because Love terminated her lease prematurely. Because Monarch did not cross-appeal, this issue is not properly before us. Barkley v. Toland, 7 Kan.App.2d 625, 627, 646 P.2d 1124, rev. denied 231 Kan. 799 (1982).
Monarch withheld Sharon Love's entire security deposit. The trial court correctly ordered a refund of $110 from the security deposit held by Monarch. Monarch did not show that the $13 it withheld for general cleanup was for anything other than normal wear and tear, for which Sharon Love was not responsible under the lease. And, because the rental agreement did not contain a forfeiture provision, Monarch was not entitled to withhold anything for Sharon Love's premature termination of her lease. Clark v. Walker, 225 Kan. 359, 367, 590...
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