Hello Auntiem!
Thanks for visiting us with this interesting case. Of course, we are
not providing legal advice as to Kansas Landlord-Tenant law. I can
tell you that I do practice landlord-tenant law in Michigan and have
some substantial experience generally, but (as one old judge told me)
landlord-tenant law is about as tough as it gets ? there are so very
many facets that it is very fact driven. With all that said, let's get
to it!
1. How valid is your case for the security deposit? Excellent! More to follow.
2. What are the liabilities? They are the same for both of you, at
least as far as the landlord is concerned. You both signed the lease
and if you look at the small print, I am sure you will see a clause
that establishes "joint and several" liability. That means that the
landlord can sue you, he can sue her, or he can sue both of you
together. It is totally up to him. Now, if he were to sue you ONLY you
could, in the same lawsuit "join" her by filing a paper with the court
? a complaint ? so the action would read LANDLORD vs. AUNTIEM vs. BAD
FRIEND. The landlord can, although he may not, but he CAN sue you for
the remaining rent under the lease. BUT, he has to "mitigate the
damages."
MITIGATION simply means that he has to try to rent the apartment out
to someone else so that your losses are minimized. The rules in Kansas
regarding a landlord's duty to mitigate were stated in Lindsley v.
Forum Restaurants, Inc., 3 Kan. App. 2d 489 (1979): "Where a tenant,
under contract to pay rent on real property, abandons the property and
notifies the landlord of that abandonment, it is the landlord's duty
to make a reasonable effort to secure a new tenant and obtain rent
before he can recover from the old tenant under the contract so as to
lessen the injury. You can find this quote here:
http://www.kscourts.org/kscases/ctapp/2000/20001208/84519.htm
So, your liabilities are the remaining rent. But many landlords can
be understanding. He can waive the right for the unpaid future rent.
Ask him.
Or you can stay there, pay him the rent (I know you said it would be
difficult to afford) and sue BAD FRIEND for her part of the remaining
rent ? in small claims court, so long as the claim is not over $4,000.
(See Small Claims Court rules here:
http://www.kscourts.org/dstcts/4claims.htm )
The Landlord-Tenant Law for Kansas can be found here:
http://www.sedgwickcounty.org/Housing/landlord_tennant_act.html . It's
a Sedgwick County site, but they are showing the state law.
So, let's summarize, shall we?
A. You can sue BAD FRIEND in small claims court for breaching the
contract between the two of you. The fact that your agreement isn't
itself in writing should be of no moment. The "statute of frauds"
should not require that sort of agreement to be in writing. File the
suit when you figure out all of your damages.
B. LANDLORD can sue either, or both, or you for the unpaid future
rent. But he has to wait until after the rent would have been due (he
can't sue you now for it, even if you have moved out ? it actually has
to become due) AND he has to mitigate your damages by attempting
(actively attempting) to rent the apartment to another.
C. IF, but only if, the LANDLORD sues you for the future rent, he
should be suing both of you. If he doesn't, and only sues you AUNTIEM,
then you can either (1) join BAD FRIEND in the lawsuit as a
"third-party defendant," or (2) wait until after the lawsuit is
finished and sue BAD FRIEND in Small Claims Court, so long as the
amount she would owe you is not greater than $4,000. (Even if it is
more than $4,000, you can probably still sue her in Small Claims, but
your recovery would be limited to the $4,000 statutory limit.)
Was I A Help???
I Hope So!
You may have a question, or need me to step through something more
carefully. If so, please hit the CLARIFICATION button and I'll get
right back to you.
Good Luck,
weisstho-ga
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Clarification of Answer by
weisstho-ga
on
23 Feb 2006 06:23 PST
Yes, you should include in your claim the value of the spoiled food,
the "personal assets that she converted to her own use" and ANY OTHER
EXPENSE CREATED BY HER WRONGFUL ACTIONS.
Judge Judy is NOT representative of the magistrates and judges that
hear small claims actions. My experience is that the judges and
magistrates are very respectful of the position of the parties, are
interested in doing "the right thing," are not going to enforce the
legal formalisms of rules of evidence and rules of civil procedure.
Rather, they will give both sides an opportunity to tell their side of
the story.
It will help your case if don't interrupt BAD FRIEND, wait until she
is done speaking and then say "your Honor, . . ." Show great respect
for the court (yes, your Honor; no, your Honor. Note: Don't call the
judge "Judge" - that is considered too informal for in court - it's OK
out of court.)
Don't be shy about claiming Everything. Many times the judge will
split the baby so that each party feels that they won something. So,
make sure that everything that you could claim IS claimed.
Photographs, copies of the lease agreement (which you should attach to
your complaint in the court), and any other tangible evidence should
be available. Have a copy for you, a copy for BAD FRIEND and hand the
original to the judge (he/she will hand it back to you at the
conclusion of the hearing.)
YOU HAVE A RIGHT OF REIMBURSEMENT FOR THOSE THINGS YOU MENTIONED.
YOUR CHANCES OF PREVAILING ARE "GOOD" OR BETTER.
Don't worry about overstepping your bounds. Make all of your claims
and just be prepared to tell the story - calmly and directly to the
judge.
DO NOT ADDRESS BAD FRIEND DIRECTLY IN COURT. Only speak directly to
the Judge. "Your Honor, Ms. BAD FRIEND SAID THIS, BUT HERE IS WHAT
REALLY HAPPENED . . . "
Here are some links for help:
http://www.nolo.com/article.cfm/ObjectID/4DB7013C-0A71-481F-836AB0FB247DB508/catID/D80CF756-DBF6-432D-B625E7D1A29183D0/104/308/273/FAQ/
This is from Colorado but has some excellent stuff:
http://www.courts.state.co.us/exec/pubed/brochures/smallclaimsweb.pdf
And if you visit your local library (or bookstore) there are thousands
of books out there on small claims actions. But look at the Colorado
pamphlet first - its great.
I'm still available to you if you have any questions.
weisstho-ga
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