Delayed opening of new downtown apartments leaves tenants in limbo

A new apartment building in downtown Lawrence has delayed the scheduled opening of those new units, leaving people who were expecting to move into those new units in early August scrambling to make other arrangements, while the company says it has no legal duty to help those tenants.

The 800 New Hampshire apartments, owned by First Management, Inc., was scheduled to open Friday, Aug. 4. But in a letter sent to people who had pre-leased apartments in that building, the company said tenants cannot move in until Aug. 18.

Jonathan McClintock, director of property management for the company, said First Management has been working with those tenants on a case-by-case basis to make other arrangements.

But in a telephone interview with the Journal-World, and in letters the company sent to the tenants, he said a clause in the rental contracts says construction delays were a known possibility, and the tenants assumed all of the risk for that.

“There’s a 30-day construction clause,” he said.

That clause reads: “In the event said Premises are part of new construction, Tenant acknowledges and accepts the potential risk of delay in possession due to factors beyond Landlord’s control. If Landlord is unable, for this or any other reason to deliver possession of the Premises at the beginning date of this contract, Landlord shall not be liable for any damages caused thereby, nor shall this agreement be void or voidable, but Tenant shall not be liable for any rent until possession is delivered.”

The clause goes on to state that the tenant may only terminate the contract if possession of the apartment is not made available within 30 days of the beginning date of the contract.

Teresa Baker, who counsels tenants on housing issues for the nonprofit agency Housing and Credit Counseling Inc., in Lawrence, said it’s rare when tenants are not able to move into an apartment on the scheduled date, and when it does happen it’s usually because the previous tenant fails to move out on schedule.

But the situation has been getting more common in Lawrence — the delayed opening of the 800 New Hampshire apartments is the third delayed opening of a major new apartment development in recent years.

First Management also owns the 888 Lofts apartments, also on New Hampshire Street, had a delayed opening earlier this year. And the HERE Kansas apartment complex on the 1100 block of Indiana Street was forced to delay the opening of many apartments in 2016, and some of its units still are not open.

The 800 New Hampshire project is smaller than the other two. It is planned for just 55 units, about half of which were pre-leased, McClintock said. The 888 Lofts building is a 114-unit complex, and HERE Kansas is planned for 240 units.

Baker said she believes the clause in First Management’s contract is legally questionable because it may be in conflict with the Kansas Landlord-Tenant Act.

That act provides, among other things, that if a landlord fails to deliver possession of a dwelling unit on time, rent is abated until the property is made available and the tenant has the right to cancel the rental agreement with five days notice.

The act also says, “no rental agreement may provide that the tenant or landlord agrees to waive or to forego rights or remedies under this act.”

“(B)y including the clause in the lease stating the tenants are on their own, the landlord is not complying with KSA 58-2552. Therefore it could be viewed by a judge that the landlord is asking the tenants to forego their rights under (the act),” Baker said in an email.

Baker added, however, that counselors at HCCI are not attorneys and do not offer legal advice.

Officials at the University of Kansas Student Legal Services, a program of the KU Law School that helps students resolve housing issues, declined to comment on the contract language.

“If a University of Kansas student has a question about their lease, they should come to our office for confidential legal advice about their specific situation,” Steve Allton, a staff attorney with the program, said in an email to the Journal-World.