Comment

The current procedure on forcible detainer (Article 23 of Chapter 61) is somewhat antiquated and was never revised when the old "Justice of the Peace" Code was replealed in 1969.

1.  Scope.  This article shall govern lawsuits brought to evict a person from possession of real property or of an interest in real property. 

Comment

This is essentially the same as K.S.A. 61-2301 and 2302.

2.  Judgment not bar to other actions.  A judgment in a lawsuit brought under this article shall not be a bar to any subsequent lawsuit brought by either party for claims not included in such judgment. 

Comment

This is the same as K.S.A. 61-2303.

3.  Notice to leave premises.  Before a lawsuit to evict a person pursuant to this article is filed, the party desiring to file such lawsuit shall deliver to the other party a notice to leave the premises for which possession is sought.  The notice shall be delivered at least three days before commencing the lawsuit, by leaving a written copy with the other party or by leaving a copy thereof with any person over the age of 12 years residing on the premises described in such notice, or if no such person is found upon the premises, by posting a copy of such notice in a conspicuous place thereon, or by mailing a copy of the notice to the other party at the address of the premises described in the notice.  The three day notice period provided for in this section shall be computed as three consecutive 24-hour periods to commence at the time the notice is delivered, posted or mailed.  If the notice is mailed, an additional two days from the date of mailing should be allowed for the person to leave the premises before the lawsuit is filed.  Intermediate Saturdays, Sundays and legal holidays shall be included in the computation of the notice period.  The form of the notice shall be substantially in the form set forth in the rules to be adopted hereunder by the supreme court.

Comment

This is to clarify the current law at K.S.A. 61-2304.  There are two statutes whicih now must be satisfied when drafting what is commonly called the "three day" notice:  K.S.A. 61-2304 and K.S.A. 58-2564.  This section attempts to combine the requirements of both.

4.  Petition.  The petition shall describe the premises for which possession is sought and why the plaintiff is seeking possession.  If there is rent due for possession of the premises, the petition may include a request for judgment for that amount or the plaintiff may bring a subsequent lawsuit for that amount.  The form of the petition shall be set forth in the rules to be adopted hereunder by the supreme court.

Comment

The law in Kansas was amended effective July 1, 1999 to allow this.  Chapter 58 (H.B. 2222), 1999 Session Laws.

5.  Summons; time for appearance.  The form of summons in lawsuits under this article shall be the same as for other lawsuits filed under this chapter.  The time stated in the summons requiring the defendant to appear in response to the petition shall be determined by the court.  Such time shall be not less than 3 nor more than 14 days after the date the summons is issued.

Comment

The time for appearance by the defendant shall be not less than 3 days nor more than 14 days after issuance of summons.

6.  Appearance and dispute by defendant.  A defendant shall either appear in person or by counsel at the time and date set forth in the summons or file on or before such date a written answer.  The answer shall contain the information as required under Article 2(4)(b).

Comment

This is nearly the same as K.S.A. 61-2307 but now tracks with the other changes made in Article 2.

7.  Trial.
(a) If a trial is necessary, the trial shall be conducted within eight days after the appearance date stated in the summons.
(b) No continuance shall be granted unless the defendant requesting a continuance shall file a bond with good and sufficient security approved by the court, conditioned for the payment of all damages and rent that may accrue if judgment is entered against the defendant.

Comment

Forcilbe detainer suits need to be scheduled for appearance and trial quickly because of the pressing nature of the dispute.  This section follows the current law at K.S.A. 61-2308 and 2309.

8.  Writ of restitution.
(a) If judgment is entered against the defendant for possession of the subject premises, the court shall issue, at the request of the plaintiff, a writ of restitution which shall direct anyone who is authorized to serve process and who is named in the writ to place the plaintiff in possession of the premises described in the writ.  The form of the writ shall be set forth in the rules to be adopted hereunder by the supreme court.
(b) The writ of restitution shall be executed within 10 days after the person named in the writ to whom it is directed receives it, and that person shall file a return as with other writs under this chapter.  The person serving the writ may use such reasonable force as is necessary to execute the writ.
(c) If the person named in the writ to whom it is directed shall receive a notice from the court that the proceedings have been stayed by appeal, that person shall immediately delay all further proceedings upon the execution; if the premises have been restored to the plaintiff, the person named in the writ shall immediately place the defendant in the possession thereof. 

Comment

This is the same as K.S.A. 61-2310 and 2311 except this setion clarifies who may serve the writ and the how it may served.