1 Evictions in General Wise - MoBarCLE the case was tried before an associate circuit judge, it was...
Transcript of 1 Evictions in General Wise - MoBarCLE the case was tried before an associate circuit judge, it was...
EVICTIONS IN GENERAL
This section contains information on the three different procedures used for
evictions in Missouri. The three procedures are: (1) rent and possession, (2) unlawful
detainer, and (3) “immediate eviction.” They are used for entirely different purposes but
have a few similarities. .A lease is both a conveyance and a contract. Premier Golf
Missouri, LLC v. Staley, 282 S.W.3d 866, 873 (Mo. App. W.D. 2009). The landlord-
tenant relationship consists of four elements: (1) a contract, express or implied, (2) the
creation of an estate in the tenant either at will or for a term less than that which the
landlord holds, (3) a reversion to the landlord, and (4) the transfer of exclusive
possession and control to the tenant. Letsinger v. Drury College, 68 S.W. 3d 408, 411
(Mo. banc 2002), Robert Newcomb v. St. Louis Office for Mental Retardation, 871
S.W.2d 71, 73 (Mo. App. 1994); Thompson v. Tuggle, 183 S.W. 3d 611, 617 (Mo. App.
W.D. 2006); Santa Fe Trail Neighborhood Redevelopment Corp. v. W.F. Coen &
Company, 154 S.W.3d 432, 440 (Mo. App. W.D. 2005). Marro v. Daniels, 914 S.W.2d
16, 18 (Mo. App. 1995), Kimack v. Adams, 930 S.W. 2d 505, 507 (Mo. App. 1996).
These four elements are what distinguish a landlord-tenant relationship from that of a
hotel guest or other residential situations.
The question of whether a person was a “tenant” in a “transitional shelter” arose
in Thomas v. Cohen, 304 F. 3d 563 (6th Cir. 2002). August House in Louisville, KY was
a “transitional shelter” for women. The women paid $140 per month to live there and
had a room in a house shared with other women. No alcohol or drugs were allowed.
The Director phoned the police to remove several women (the plaintiffs in this case)
who violated the rules. The police cooperated with the director and removed the
women. The women brought a suit against the police officers that removed them for
deprivation of their civil rights. The federal court of appeals held that the women were
tenants and were entitled to due process under the eviction laws before being removed
from the property.
Unlike many other states, Missouri does not have a “Residential Landlord Tenant
Act.” You cannot find all statutes pertaining to landlord-tenant law in one convenient
place in the statute books. Rent and possession actions are governed by chapter 535 of
Materials Provided by Robert J. Wise
the Missouri statutes, unlawful detainers are in chapter 534, and “immediate evictions”
are in §§441.710 to 441.880. Chapter 441, RSMo., pertaining to conveyances, also
contains sections governing landlord-tenant relations. The reader should also be aware
that the statutes and cases contained in this book apply generally to both residential
and commercial rental property. (There are occasional exceptions such as the security
deposit law (§535.300) that refers only to “dwelling units.”)
In order to know which type of eviction to file, you must determine whether you
simply want to collect the rent or if your goal is to remove the tenant from the property.
In the former case, you should file an action for rent and possession; for the latter, you
should sue for unlawful detainer. The remedies are cumulative and not inconsistent so
they can be pled alternatively in the same petition. Ellsworth Breihan Building
Company v. Teha Incorporated, 48 S.W. 3d 80, 83 (Mo. App. 2001). However, a
decision must be made in court as to which remedy to pursue because a judgment
cannot be obtained for both simultaneously. In addition, the landlord (or his attorney)
may want to determine if there are grounds for an expedited procedure under the
“immediate eviction” statutes.
By statute, all three procedures require verified (i.e., notarized) petitions.
(§535.020 for rent and possession, §534.070 for unlawful detainer, and §441.720.1 for
immediate evictions.) Verification is "jurisdictional," meaning "no final judgment can be
entered on an unverified petition in proceedings in which verification is required." Drury
Displays v. Board of Adjustment, 760 S.W.2d 112, 114 (Mo. banc 1988). An
amended petition adding the required verification is sufficient and relates back to the
date of filing of the original (unverified) petition, so long as the petition is verified before
the final judgment is entered. Drury Displays, supra. It also appears that the
verification requirement can be waived. When the defendant did not raise the issue,
and the case was tried before an associate circuit judge, it was held that the court had
jurisdiction and that the case had been tried by consent. Federated Mortgage and
Investment Company v. Jones, 798 S.W.2d 719 (Mo. 1991).
In all three actions, if the tenant is not personally served with process, in rem
jurisdiction can be obtained by posting the summons and petition on the premises.
(§534.090, §535.130; and §441.720 incorporate the posting provisions of §535.030.)
Service by posting is not sufficient for a money judgment but is adequate for a judgment
for possession. Of course, if the tenant appears in court or “otherwise enters an
appearance,” a money judgment can then be obtained. §535.040.
“Self help” evictions are not allowed. §535.010 provides that a landlord may
dispossess a tenant for non-payment only "in the manner herein provided." Phillips v.
Ockel, 609 S.W.2d 228 (Mo. App. 1980). A landlord is guilty of a forcible entry and
detainer (§534.020) if he “removes or excludes a tenant or the tenant’s personal
property from the premises without judicial process and court order, or causes such
removal or exclusion, or causes the removal of the doors or locks to such premises,” or
if he “willfully diminishes services to a tenant by interrupting or causing the interruption
of essential services, including but not limited to electric, gas, water, or sewer service. .
.” §441.233.
All three procedures must be filed before an associate circuit judge in the county
where the real estate is located. §§534.060, 535.020, 441.720. Neither the circuit judge
nor the small claims court has jurisdiction to hear eviction cases or to render judgments
for possession of property.
For all three procedures, in determining venue of actions within the sixteenth
judicial circuit, venue shall be in either the western portion or the eastern portion of the
circuit. §478.461. Proper venue shall be in that portion of the circuit in which the
property is located.
In a suit brought under either chapter 534 (unlawful detainer) or chapter 535 (rent
and possession), if the court finds that the tenant allowed another person to have sole
possession of the premises (such as an illegal sublease) it may award double the
amount of damages due. §534.347.
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Robert J. Wise
Julie A. Anderson
RENT & POSSESSION
The rent and possession action arises simply from the non-payment of rent. The
landlord need only allege and prove that there is rent due and payable, that demand
has been made for payment, and that the tenant has failed to pay. §535.020, RSMo.
There is no requirement in Missouri as to how long a landlord must wait to demand rent,
nor is there a waiting period between the demand and filing of a suit. The "demand"
does not have to be in writing. Edward v. Tolbert, 849 S.W.2d 717, 719 (Mo. App.
1993).
Romea v. Heibegger & Associates, 163 F. 3d 111 (2nd Cir. 1998) held that
delinquent rent is a “debt” and a demand letter for delinquent rent from a debt collector
or attorney must comply with the Fair Debt Collection Practices Act.
Only one demand need be made for rent. No additional demand is necessary for
any intervening month(s) between the demand and the judgment date. Gaines v.
Corning, 672 S.W.2d 699, 701 (Mo. App. 1984).
The suit may be brought against tenants, lessees, and "all persons occupying the
premises." §535.020. Thus an individual who has been invited by the lessee to live
with him after taking possession may be a defendant even if such person did not sign
the lease. This is particularly useful since Missouri law includes roommates as "family"
for the purposes of service of summons. Midwest Acceptance Corporation v. Blount,
777 S.W.2d 645, 646 (Mo. App. 1989). One case involving an “occupant” rather than a
“lessee” was Real Estate Investors Four, Inc. v. American Design Group, Inc., 46
S.W.3d 51 (Mo. App. 2001). In that case, family members formed a shell corporation to
rent commercial property. The property was then occupied by a different corporation
formed by the same family members. The landlord was allowed to sue the occupant-
corporation for breach of the lease.
The Missouri Supreme Court has held that there is no right to a jury trial under
§535.040 in an action for rent and possession and that the statute's provision for trial by
judge is constitutionally valid. Rice v. Lucas, 560 S.W.2d 850, 857 (Mo. 1978).
Unlike the procedure for unlawful detainer, a counterclaim may be asserted in
rent and possession actions. In Rahman v. Matador Villa Associates, 821 S.W.2d 102
(Mo. banc 1991), the Court held that chapter 517 permits, but does not require,
counterclaims. Rent and possession cases are not subject to the compulsory
counterclaim rule of Civil Rule 55.32 (a). Becker Glove International Inc. v. Jack
Dubinsky & Sons, 41 S.W. 3d 885 (Mo. banc 2001) specifically held that the
compulsory counterclaim rule does not apply to cases brought under chapter 517.
To avoid delaying the summary action for possession, the court may sever the
issues of possession and damages and hold separate trials on these issues. B-W
Acceptance Corporation v. Benack, 423 S.W.2d 215 (Mo. App. 1967).
If the tenant makes an unconditional tender of all accrued rent and costs on or
before the judgment date, the rent and possession action is ended. §535.160. The
landlord is not required, at any time, to accept a tender of less than the full amount of
rent and costs owed. A landlord may accept or refuse a tender of partial payment
without waiving any rights to pursue the rent and possession suit. Gaines v. Corning,
672 S.W.2d 699, 701 (Mo. App. 1984). A tender of full payment may even be made
after the judgment is entered, if it is on the same day as the judgment or while an
appeal is pending. Mannion v. K. Khan, Inc., 992 S.W.2d 198 (Mo. App. 1999). After
judgment is entered, the tenant may still stop the action if he files an appeal and tenders
all rent and costs while the appeal is pending.
§535.160 limits the required tender to rent and costs. "Rent" is defined as “a
stated payment for the temporary possession or use of a house, land or other real
property, made at fixed intervals by a tenant to a landlord.” §441.005, RSMo. (“Costs”
are the filing fees charged by the court and the fees for service of process--not your
attorney fees or other expenses.) A lease may require that the tenant pay other money
to the landlord, such as late fees. Such additional items may be included in a suit for
rent, and judgment may be obtained, but a rent and possession case cannot be brought
solely for non-payment of late fees. §535.020 provides that these “other [unpaid] sums
shall not be considered rent for purposes of this chapter.”
If the tenant fails to vacate after a judgment is entered and additional rent is
accrued, the landlord may bring a subsequent action for the additional rent. WEA
Crestwood Plaza, LLC v. Flamers Charburgers, Inc., 24 S.W.3d 1, 9-10 (Mo. App.
(2000).
WISE & ANDERSON, LLC
Robert J. Wise
Julie A. Anderson
P. O. Box 480187
Kansas City, MO. 64148-0187
(816) 942-5925
Fax (816) 941-3296
UNLAWFUL DETAINER
There is a difference between “forcible detainer” and “unlawful detainer.” Forcible
detainer usually describes an action taken by a landlord who wrongfully dispossesses a
tenant. §534.020 defines forcible entry and detainer. §441.233 includes additional
misconduct by a landlord which also constitutes forcible detainer. An unlawful detainer
occurs when the tenant holds over beyond the term of the lease.
§534.020 defines forcible entry and detainer:
“If any person shall enter upon or into any lands, tenements or other
possessions, with force or strong hand, or with weapons, or by breaking open the doors
or windows or other parts of a house, whether any person be in it or not, or by
threatening to kill, maim or beat the party in possession, or by such words or actions as
have a natural tendency to excite fear or apprehension of danger, or by putting out of
doors or carrying away the goods of the party in possession, or by entering peaceably
and then turning out by force, or frightening, by threats or other circumstances of terror,
the party out of possession, and detain and hold the same--in every such case, the
person so offending shall be deemed guilty of a ‘forcible entry and detainer’ within the
meaning of this chapter. “
§534.030 defines unlawful detainer:
"When any person willfully and without force holds over any lands, tenements or
other possessions, after the termination of the time for which they were demised or let
to the person, or the person under whom such person claims; or after a mortgage or
deed of trust has been foreclosed and the person has received written notice of a
foreclosure; or at least ten business days have elapsed after the date of the notice
described in subsection 3 of this section; or when premises are occupied incident to the
terms of employment and the employee holds over after the termination of such
employment; or when any person wrongfully and without force, by disseisin, shall obtain
and continue in possession of any lands, tenements or other possessions, and after
demand made, in writing, for the delivery of such possession of the premises by the
person having the legal right to such possession, or the person’s agent or attorney, shall
refuse or neglect to vacate such possession, such person is guilty of an 'unlawful
detainer'."
The purpose of an unlawful detainer action is to recover possession. Although
non-payment of rent may be the reason the landlord terminated the tenancy, the
tenant's tender of rent will not stop an unlawful detainer suit. To terminate a tenancy for
reasons other than non-payment of rent, an unlawful detainer is required. The sole
issue in unlawful detainer is the "immediate right of possession." Phelps v. Phelps, 299
S.W.3d 707 (Mo. App. S.D. 2009), Moser v. Cline, 214 S.W.3d 390 (Mo. App. W.D.
2007), S&P Properties, Inc. v. Bannister, 292 S.W.3d 404, (Mo. App. E.D. 2009),
Broken Heart Venture, L.P. v. A & F Restaurant Corp., 859 S.W.2d 282 (Mo. App.
1993), Davis v. Stewart Title Guar. Co., 695 S.W.2d 164, 165 (Mo. App. 1985),
Mortgage Association v. Wiley, 650 S.W.2d 13, 14 (Mo. App. 1983). If there is timely
notice, in the proper form, properly served, and the landlord has complied with the law
and the lease, there is virtually no defense. The landlord need not give a reason for the
termination of a month-to-month tenancy (in a conventional non-subsidized property) or
a tenancy which has otherwise expired.
The use of unlawful detainer to restore possession is not strictly limited to the
landlord-tenant relationship. Example: The lease of Lessee #1 expires on December
31, 2009 and the landlord has leased the premises to Lessee #2 for a term beginning
on January 1, 2010. Lessee #1 holds over and Lessee #2 cannot move in. The
landlord certainly has an action against Lessee #1 for unlawful detainer but so does
Lessee #2 who has the right of possession as of January 1, 2010. (§534.290.)
Furthermore, if the landlord sues Lessee #1, the latter cannot assert the defense that
Lessee #2, rather than the landlord, has the right of possession.
In Stamatiou v. El Greco Studios, Inc., 898 S.W.2d 571 (Mo. App. 1995) the
court awarded damages in unlawful detainer to an ex-wife who, in the dissolution of
marriage, had been awarded the real property where her ex-husband's restaurant was
located. The plaintiff was awarded damages as of the date of her termination letter,
even though the dissolution decree was pending appeal at the time. The court
reiterated that the sole issue in unlawful detainer is the immediate right of possession.
What Notice must be given to terminate a lease?
Notice must be given to terminate a tenancy, as follows:
1. Sixty days notice to terminate a year-to-year tenancy. §441.050.
2. One month's notice to terminate a month-to-month tenancy, a tenancy at will
or at sufferance, or a tenancy for less than one year. §441.060. Note: The statute
specifies “one month,” not thirty days. Fisher v. Payton, 219 S.W.2d 293, 296 (Mo.
App. 1949), Davidson v. Kenney, 971 S.W. 2d 896, (Mo. App. 1998).
3. Ten days' notice is sufficient for an unlawful detainer if the tenant (a) assigns
or transfers his interest without written consent, (b) violates the "conditions" of a written
lease, (c) commits waste, (d) allows the illegal possession, sale or distribution of
controlled substances upon the premises, (e) permits the premises to be used for
gambling or prostitution. §§ 441.020 and 441.040. (Non-payment of rent is generally
not a violation of a condition of a lease but only a violation of a "covenant." See
Edwards v. Collins, 199 S.W. 580 (Mo. App. 1917) for a discussion of the difference
between covenants and conditions.)
4. Sixty days’ notice must be given “when a person occupies and has an
ownership interest in a mobile home and is leasing the land or the lot upon which the
mobile home is located,” even if the tenancy is for less than a year. §441.060.4 (2).
The plaintiff must prove that he has complied with §441.060 regarding notice,
unless such notice is unnecessary. Fisher v. Payton, 219 S.W.2d 293, 296 (Mo. App.
1949)
It is not sufficient to inform the tenant that he is in default or in violation. The
notice must specifically state that the lease is terminated. Josephson v. National
Screen Service Group, Inc., 810 S.W.2d 708 (Mo. App. 1991).
The termination of the lease and the demand for possession must be served on
the tenant or posted on the premises. §534.050. Ordinary mail is not sufficient.
There are two exceptions to the rule that an unlawful detainer action must be
preceded by the landlord’s demand for possession:
1. If the tenant gives written notice that he intends to quit the premises at a
specified time and fails to do so. §441.100.
2. If the tenant holds over at the end of a fixed term lease. §441.070. Jim
Medve Investment Company v. Bailous, 740 S.W.2d 678, 680 (Mo. App. 1987),
Cusumano v. Outdoors Today, Inc., 608 S.W.2d 136, 139 (Mo. App. 1980).
Note: The required notice may be waived by the lease. The language which was
upheld in Gordon v. Williams, 986 S.W. 2d 470 (Mo. App. 1998) stated,” [Tenants]
hereby waive any notice which may be required by statute or otherwise prior to the
commencement of an action to obtain possession of the premises by summary
proceedings or otherwise.”
Other Unlawful Detainer Issues
In an unlawful detainer case, what is the effect of the landlord accepting rent from
the tenant after the termination date? The acceptance of rent after the termination or
expiration of a lease creates a rebuttable presumption of a waiver. Haack v. Great
Atlantic and Pacific Tea Co., 603 S.W.2d 645 (Mo. App. 1980). "Generally speaking,
the acceptance by a landlord of rent which accrues after the breach of condition
contained in a lease implies a waiver of the right to declare a forfeiture for that breach
unless there are circumstances arising from such acceptance which negative the
presumption of the lessor's affirmance of the lease. …Of course, the acceptance of rent,
which accrues after the breach of covenant or condition does not establish waiver as a
matter of law; the question whether waiver occurred is primarily an issue of intent."
Rietsch v. T.W.H. Co. Inc., 702 S.W.2d 108 (Mo. App. 1985).
Because unlawful detainer is intended to be a summary action, certain issues
may not be heard in an unlawful detainer case. For example, questions of title cannot
be tried. §534.210, RSMo. Peoples Finance Corporation v. Lincoln, 131 S.W.2d 520
(Mo. 1939), McNeill v. McNeill, 456 S.W. 2d 800, 805 (Mo. App. 1970).
Absolutely no counterclaims are allowed in unlawful detainer suits and no
equitable defenses (such as mistake, estoppel, or waiver) are available. Moser v.
Cline, 214 S.W. 3d 390 (Mo. App., 2007), V.F.W. Post #7222 v. Summerville Saddle
Club, 788 S.W.2d 796 (Mo. App. 1990), S.L. Motel Enterprises, Inc. v. East Ocean,
Inc. 751 S.W.2d 114 (Mo. App. 1988), and Lake in the Woods Apartments v.
Carson, 651 S.W.2d 556 (Mo. App. 1983). In Bach v. McGrath, 982 S.W. 2d 734 (Mo.
App., E.D. 1998), the court rejected the defendant’s argument that he was in
possession under an oral contract to purchase the real estate. The court ruled that even
if the defendant could avoid the Statute of Frauds, he would have, at best, an equitable
defense. He may be able to prevail in a suit for specific performance, but he had no
defense to the unlawful detainer action.
The Missouri Supreme Court has rejected an attempt to allow an affirmative
defense of estoppel in unlawful detainer. Mosher v. Levering Investments, Inc., 806
S.W.2d 675, 677 (Mo. banc, 1991). In Broken Heart Venture L.P. v. A & F Restaurant
Corp., 859 S.W.2d 282 (Mo. App. 1993) the tenant was not allowed to set-off
improvements to the property against rent. The defendant's claim, that it owed no rent
because it was entitled to a set-off for improvements, was not legally sufficient to defeat
summary judgment.
In Central Bank of Kansas City v. Mika, 36 S.W. 3d 772 (Mo. App. 2001) a
bank brought an unlawful detainer action against persons who failed to vacate a
property after their mortgage was foreclosed. The defendants claimed that the bank was
guilty of fraud and had wrongfully foreclosed. The court held that the defendants could
not use such a defense in an unlawful detainer suit and affirmed summary judgment for
the bank.
The one factor that may significantly delay an unlawful detainer is the right to a
jury trial under §534.160. (There is no right to a jury trial in the other two types of
evictions.) However, the landlord may be able to obtain summary judgment because,
by statute, the plaintiff need only prove that he was lawfully possessed of the premises
and that the defendant unlawfully entered into or unlawfully detained the premises.
§534.200, RSMo. It is also valid for a lease to contain a provision waiving the right of
jury trial. The Missouri Supreme Court upheld such a waiver provision in Malan Realty
Investors, Inc. v. Harris, 953 S.W. 2d 624 (Mo. banc, 1997).
On occasion, a defendant in an unlawful detainer action, who has been a tenant
for more than three years, will assert §534.300 as a defense. This statute states that
chapter 534 “shall not extend to any person who has had the uninterrupted occupation
or been in quiet possession of any lands or tenements for the space of three whole
years together. . . “Case law, however, consistently holds that §534.300 does not
apply to landlord-tenant situations. Kohnen v. Hameed, 894 S.W. 2d 196 (Mo. App.
1995), Phelps v. Phelps, 299 S.W.3d 707, 710 (Mo. App. S.D. 2009) (citing F. A.
Sanders Real Estate & Investment Co. v. Becker, 202 S.W. 2d 549 (Mo. App. 1947)).
In P.M. Construction Services, Inc. v. Lewis, 26 S.W.3d 284 (Mo.App.2000) an owner
stayed in possession of a property after a foreclosure and an unlawful detainer was filed
against him. The owner attempted to rely on the three-year limitation in §534.300. The
court held that the three-year period did not begin until the foreclosure and did not
include the time he occupied the premises prior to the foreclosure.
The landlord in an unlawful detainer suit may recover possession and money
damages “for waste and injury committed upon the premises . . . as for all rents and
profits due and owing up to the time of the rendering of the verdict or finding of the
judge.” §534.310. §534.330 provides for a judgment of double the damages found by
the judge or jury. Massey v. Goforth, 305 S.W.2d 894 (Mo. App. 1957) states that the
double damages provision is mandatory and not subject to court discretion. The
damages are measured from the time of the demand for possession up to the date the
tenants vacate the premises. Moser v. Cline, 214 S.W. 3d 390 (Mo. App., 2007).
Cases on Constitutional Validity & Related Issues
A series of decisions has arisen from the recent wave of foreclosures. Several
cases have challenged the unlawful detainer post-foreclosure process.
“The requirements to assert an action for unlawful detainer following foreclosure
are clear. The plaintiff must demonstrate that the deed of trust has been foreclosed
upon, the defendant received notice of the foreclosure, and that the defendant refused
to surrender possession of the property.” JP Morgan Chase Bank v. Tate, 279 S.W. 3d
236, 239 (Mo. App.., E.D. 2009).
In State ex rel. Deutsche Bank National Trust v. Chamberlain, 372 S.W. 3d
24 (Mo. App. W.D. 2012) the defendants tried to argue that they were not raising issues
of title but rather issues of standing. They argued that due to improper procedures, the
plaintiff lacked standing to bring an unlawful detainer action. The Court held that in an
unlawful detainer action, “standing” is defined by Sec. 534.200 which states that a
plaintiff must prove only that he is lawfully possessed of the premises and that the
defendant is wrongfully in possession. A grantee under a trustee’s deed has “statutorily
conferred standing.” State ex rel. Kansas City Power & Light Co. v. McBeth, 322
S.W. 3d 525, 530, (Mo. banc 2010). (Deutsche Bank actually came to the appellate
court on a writ of prohibition. The defendants requested discovery regarding the deed of
trust and the pre-foreclosure process. The trial court compelled discovery and the Court
of Appeals granted a writ of prohibition stating that the trial court abused its discretion
by compelling discovery on issues “that have no connection to Deutsche Bank’s
standing to sue.”)
In a 6-1 vote, the Missouri Supreme Court in Wells Fargo Bank v. Smith, 392
S.W. 3d 446, (Mo banc 2013) upheld the constitutionality of the unlawful detainer
statutes which were challenged as violations of due process and equal protection. This
decision gives a history of and the reasoning for the current unlawful detainer process.
The statutes were challenged as unconstitutional because, allegedly, they do not
provide a means of challenging the title of the party bring the unlawful detainer action.
The court stated that the unlawful detainer statutes “do not, cannot, and never were
intended to resolve question of ownership or the validity of title.” The court relied on
Lindsey v. Normet, 405 U.S. 56 (1972) on the constitutional issues. The court found
that the defendants’ rights could be protected through one of the following procedures
(1) sue to enjoin the foreclosure sale before it occurs (which the Smiths never
attempted) or (2) “if the sale has occurred and the buyer has sued for unlawful detainer,
bring a separate action challenging the foreclosure purchaser’s title and seek a stay of
the unlawful detainer action in that separate case.”
WISE & ANDERSON, LLC
Robert J. Wise
Julie A. Anderson
P. O. Box 480187
Kansas City, MO. 64148-0187
(816) 942-5925
Fax (816) 941-3296
“IMMEDIATE EVICTION”
The procedures of §441.710 through §441.880 differ from unlawful detainer in
that: (1) The remedies apply only to certain limited circumstances involving drug activity
or dangers to persons or property; (2) In most cases, no notice is necessary to initiate
an action; (3) The landlord has the right to collect rent while the suit is pending
(§441.840); (4) New remedies of “partial eviction” and “probationary tenancy” are
created; (5) Certain persons other than the property owner may have standing to evict a
tenant; (6) Restraining orders may be granted in certain circumstances.
The new procedures are similar to rent and possession and unlawful detainer in
that (1) the suit must be brought in the associate circuit court in the county where the
premises are located, (2) the petition must be verified, and (3) service may be obtained
by posting. (§441.720.1.)
§441.720.1 also provides that a hearing shall be set “as soon as practicable but
in no event shall such hearing be held later than fifteen days following the service of the
summons.” In reality, the courts set their own dockets and such an expedited setting
may not be available.
§441.740 provides for “immediate eviction” or a restraining order if:
1. There is an emergency situation which would “imminently cause with a
reasonable certainty either” (a) physical injury to other tenants or to the lessor or (b)
property damage in excess of twelve months’ rent. (The lessor must first make a
reasonable attempt to abate the emergency situation through law enforcement
authorities or mental health services before he may bring this action.)
2. “Drug-related criminal activity has occurred on or within the property
leased to the tenant.” This provision does not require any degree of culpability on the
part of the tenant, merely that the activity has occurred in his unit.
3. “The property leased to the tenant was used in any way to further, promote,
aid or assist in drug-related criminal activity” (Emphasis added). As in the previous
provision, there is no specific nexus between the tenant and the activity.
4. “The tenant, a member of the tenant’s household or a guest has
engaged in drug-related criminal activity either within, on or in the immediate vicinity of
the leased property.” (Emphasis added.)
5. “The tenant has given permission to or invited a person to enter onto or remain
on any portion of the leased property, and the tenant did so knowing that the person
had been removed or barred from the leased property pursuant to the provisions of
§§441.710 to 441.880” or
6. “The tenant has failed to promptly notify the plaintiff that a person whom the
plaintiff previously had removed from the property leased by the tenant, with the
knowledge of the tenant, has returned to, entered onto or remained on the property
leased by the tenant.”
Actions under these provisions may be brought by the landlord or by the
prosecuting attorney of the jurisdiction where the leased property is located. §441.710.
If neither initiates the action, or if they fail to pursue the matter with “reasonable
diligence,” an “interested party” may be substituted as a plaintiff. §441.730. An
“interested party” is “any incorporated, not-for-profit neighborhood association or
community-based organization which represents the well-being and interests of the
community where the leased property is located.” §441.730. If the prosecutor or an
“interested party” notifies the landlord of such a problem and he takes no action within
thirty days, the prosecutor or “interested party” may bring the suit and recover their
costs and attorney’s fees from the landlord. §441.850.
The expedited procedure may be used regardless of the status of any criminal
procedure or even if there is no criminal action instituted and even if the defendant has
been acquitted in a criminal court of the related offense. §441.800.1. However, a
criminal conviction may be used as collateral estoppel in the civil action. §441.800.2.
There is some inconsistency in the provisions dealing with continuances and
discovery. §441.720.2 states that the court shall not continue or stay an action “except
for compelling and extraordinary reasons.” On the other hand, the court may allow
discovery “if further discovery would not unduly delay the action and would ensure fair
disposition of the action.” §441.810.
If any of the conduct described in §441.740 is alleged to be the act of a person
other than the tenant, the plaintiff must give the tenant five days’ notice and must
specify the conduct on which the suit will be based. §441.750. In such cases, when
someone other than the tenant is the alleged perpetrator, the tenant may avoid the suit
by using the five-day period to report the criminal activity to the police or prosecutor or
by seeking a protective order or restraining order against such person or activity.
§441.750.2.
If the tenant is himself the subject of the allegations, as is usually the case, no
notice whatsoever is needed prior to filing the suit. §441.780.
Some of the grounds set forth in §441.740 do not require culpability on the part of
the tenant, but the lack of culpability can be an affirmative defense. The tenant can
prevent his eviction by proving (1) he “in no way furthered, promoted, aided or assisted
in” the described activity, and (2) he “did not know or have reason to know that such
activity was occurring on or within the property, or (3) he “was unable to take action to
prevent the activity because of verbal or physical coercion by the person conducting the
activity.” §441.750.1. These affirmative defenses will prevent the tenant from being
evicted, but the plaintiff can still obtain an order for the “immediate removal” and barring
of the person who was engaged in the activity. §441.760.
The tenant may stay execution if he can prove “by clear and convincing
evidence” that his immediate removal would pose a serious danger to him which
“outweighs the safety, health and well-being of the surrounding community and of the
plaintiff.” §441.770.4. However, §441.880.1 provides that the court shall order a stay of
execution only if the court finds the following: (1) The tenant did not aid or assist in the
drug-related criminal activity or, if the tenant is a drug user or is drug dependent, he will
enter a court-approved drug treatment program; (2) The drug-related activity must not
have occurred within one thousand feet of a school or have involved the sale or
distribution of drugs to minors; (3) There were no weapons possessed in connection
with the drug activity; (4) There was no protective order issued to protect witnesses
pursuant to §441.820; (5) The tenant has not previously received a stay in a case
brought under these provisions; and (6) “The stay of execution will not endanger the
safety, health or well-being of the surrounding community or the plaintiff.” During the
period of the stay, the tenant is on a “probationary tenancy” for six months or the
duration of the lease, whichever is shorter. The court may impose conditions on the
probationary tenancy which include drug testing, community service, drug treatment, or
such terms “as are necessary to further the purposes of §§441.710 to 441.880 or to
protect the safety, health or well-being of the surrounding community or the parties.”
§441.880.3.
Unlike unlawful detainer, a landlord is entitled to collect rent during the pendency
of an action under these procedures. §441.840
If a witness has been “threatened, intimidated or otherwise has reason to fear for
their safety” the court may issue an order protecting the safety of the witness by
appropriate means including but not limited to “the nondisclosure of names, addresses
or the in camera examination of witnesses.” §441.820. In addition, “relevant evidence
obtained in good faith by a law enforcement officer of agency shall be admissible in a
civil action brought pursuant to these sections.” §441.790.
Some issues raised by these procedures were addressed by the United States
Supreme Court in HUD v. Rucker, 535 U.S. 125 (2002) which involved a federal law
requiring public housing tenants to be evicted for one instance of drug use by the
tenant, a member of his family, or a guest. The Court held that the lease could lawfully
require the tenant to be responsible for drug use by his family or guests even if it
requires eviction for conduct off the premises or conduct of which the tenant was
unaware.
WISE & ANDERSON, LLC
Robert J. Wise
Julie A. Anderson
P. O. Box 480187
Kansas City, MO. 64148-0187
(816) 942-5925
Fax (816) 941-3296
TENANT’S DEFENSES
The most common complaints made by tenants deal with the condition of the
property. Major problems that affect the habitability of the premises are covered by the
related doctrines of constructive eviction and warranty of habitability. The “repair and
deduct” statute addresses minor problems. In extreme cases, a court can appoint a
receiver to take charge of the property.
Constructive Eviction / Warranty of Habitability
The principles of constructive eviction can be found in Detling v. Edelbrock, 671
S.W.2d 265 (Mo. banc, 1984), King v. Moorehead, 495 S.W.2d 65 (Mo. App. 1973)
and Yaffe v. American Fixture, 345 S.W.2d 195 (Mo. 1961). “Constructive eviction”
occurs when the lessor interferes with lessee’s beneficial possession or enjoyment of
the property. Shop ‘N Save Warehouse Foods v. Soffer, 918 S.W.2d 851 (Mo. App.
E.D. 1996). Ridley v. Newsome, 754 S.W.2d 912, 915 (Mo. App., 1988) defines
constructive eviction as occurring “when the lessor, by wrongful conduct or by the
omission of a duty placed upon him in the lease, substantially interferes with the
lessee’s beneficial enjoyment of the demised premises.” 754 S.W. 2d at 915. To
maintain the defense of constructive eviction, the tenant must give the landlord notice of
any defect not known to the landlord and must allow reasonable time for repair. Proffer
v. Randall, 755 S.W.2d 655 (Mo. App. 1988).
The elements of a defense or a cause of action for breach of warranty of
habitability are (1) entry into a lease, (2) the subsequent development of dangerous or
unsanitary conditions on the premises materially affecting the life, health and safety of
the tenant, (3) reasonable notice of the defects to the landlord, and (4) the landlord’s
subsequent failure to restore habitability. Moser v. Cline, 214 S.W. 3d 390 (Mo. App.,
2007), Detling v. Edelbrock, 671 S.W.2d 265 (Mo. banc, 1984), Loven v. Davis, 783
S.W.2d 152 (Mo. App., 1990). A tenant who wishes to assert breach of implied
warranty of habitability while maintaining possession of the premises must pay the rent,
as it becomes due in custodia legis, i.e. paid into the court. King v. Moorehead, 495
S.W.2d 65 (Mo. App., 1973).
A defendant cannot rely on constructive eviction if he has not left the premises.
“A tenant’s liability for rent is suspended if a constructive eviction by the landlord causes
an abandonment of the premises.” O’Bar v. Nickels, 698 S.W.2d 950 (Mo. App., 1985)
states that a wrongful act, neglect, or default by landlord which renders the premises
“unsafe, unfit, or unsuitable for occupancy and a tenant is thereby deprived of the
beneficial enjoyment of the premises, amounts to a constructive eviction if the tenant
abandons the premises within a reasonable time.” There is nothing in Missouri law that
gives the tenant free rent in the event of the landlord’s breach. If a breach of warranty
of habitability is proven, the tenant is entitled to pursue traditional contract remedies.
King v. Moorehead, 495 S.W.2d at 75-76. Traditional contract remedies would provide
recovery for actual damages that are proved; they would not allow the tenant to occupy
the premises indefinitely without paying rent.
The landlord’s failure to perform maintenance would not constitute a defense
unless the lack of maintenance reaches the point of constructive eviction or breach of
warranty of habitability, as previously discussed. The implied warranty of habitability
does not require that the landlord provide a “perfect, aesthetically pleasing condition.”
Detling v. Edelbrock, supra.
Wetherbee, Ltd. v. Allred, 969 S.W. 2d 756 (Mo. App. 1998) held that the
tenant may enforce lease provisions and require the landlord to maintain the premises
even if the conditions are not so bad as to constitute constructive eviction. In this case,
the landlord failed to repair the roof as required by the lease. The court allowed the
tenant, while still residing on the premises, to bring suit against the landlord to require
him to perform the maintenance.
“Constructive eviction” occurs when the lessor, through act or omission,
interferes with the tenant’s possession or enjoyment of the property. “Commercial
frustration” occurs when the happening of an event, not foreseen by the parties and not
caused by or under control of either party, has destroyed or nearly destroyed the value
of the performance or purpose of the contract. Shop ‘N Save Warehouse Foods v.
Soffer, supra.
REPAIR & DEDUCT
If the landlord fails to perform minor repairs, the tenant may have a remedy under
§441.234, RSMo. which gives the tenant the right, under limited conditions, to make
repairs and deduct the cost of repair from the rent.
Several conditions must be met, and several step taken, before the tenant may
make any deductions from the rent. (1) The tenant must have legally resided on the
premises and paid all rent and charges for six consecutive months before he is eligible
to use this procedure. (2) The problem in question must be a code violation which
affects the “habitability, sanitation, or security” of the premises. Of course, the code
violation must not have been caused by the tenant, his family, or guests. (3) The
reasonable cost of repair is less than $300.00 or half a month’s rent; whichever is
greater, but not more than one month’s rent. (4) The tenant must give the landlord
written notice of the problem. The landlord then has fourteen days to respond. (5) The
landlord may request written certification of the code violation from the local
government. The landlord then must repair the problem within fourteen days after
receiving such written certification. (6) If the landlord still fails to make the repairs, the
tenant may do so and deduct the amounts “as documented by receipts” which are
submitted to the landlord. (7) The tenant may not deduct more than one month’s rent in
any one year.
WISE & ANDERSON, LLC
Robert J. Wise
Julie A. Anderson
P. O. Box 480187
Kansas City, MO. 64148‐0187
(816) 942‐5925
Fax (816) 941‐3296
ABANDONMENT
There is one, and only one, situation in which the landlord can remove the
tenant’s belongings from the rental property without a court order. That one situation is if
the landlord can establish that the tenant has abandoned the premise.
Abandonment occurs, per §441.065, when (1) “the landlord has a reasonable
belief that the tenant has vacated the premises and intends not to return,” (2) the rent is
unpaid for 30 days, and (3) the tenant fails to respond to a statutorily prescribed notice
letter.
One very convenient feature of the statute is that the required notice letter is
included in the statute itself. The letter must be posted on the premises and mailed by
both regular and certified mail to the tenant’s last known address. The tenant must
respond in ten days by either regular mail or by paying rent. If the tenant fails to
respond, the landlord may deem the premises abandoned, re-rent the premises, and
remove or dispose of the tenant’s personal property without liability.
We recommend that this procedure be used conservatively. If there is not
sufficient evidence of abandonment, and if the tenant returns to the property, the
landlord may be liable for forcible detainer under §441.233. Certainly the landlord
should take photographs of every room in the rental residence, before moving anything,
in case he should ever need evidence as to why he thought the property was
abandoned.
The text of the statute reads as follows:
441.065. Any property of a tenant remaining in or at the premises, after the tenant
abandons the premises, may be removed or disposed of by the landlord without liability
to the tenant for such removal or disposition. The premises shall be deemed
abandoned if:
1. The landlord has a reasonable belief that the tenant has vacated the premises and
intends not to return;
2. The rent is due and has been unpaid for thirty days; and
3.The landlord posts written notice on the premises and mails to the last known address
of the tenant by both first class mail and certified mail, return receipt requested, a notice
of the landlord's belief of abandonment. The notice shall include the following, where
appropriate: "The rent on this property has been due and unpaid for thirty consecutive
days and the landlord believes that you have moved out and abandoned the property.
The landlord may declare this property abandoned and remove your possessions from
this unit and dispose of them unless you write to the landlord stating that you have not
abandoned this unit within ten days of the landlord having both posted this notice on
your door and mailing this notice to you. You should mail your statement by regular
first-class mail and, if you so choose, by certified mail, return receipt requested, to this
address ........... (here insert landlord's name and street address)"; and
4. The tenant fails to either pay rent or respond in writing to the landlord's notice within
ten days after both the date of the posting and deposit of such notice by either first class
mail or certified mail, return
WISE & ANDERSON, LLC
Robert J. Wise
Julie A. Anderson
P. O. Box 480187
Kansas City, MO. 64148-0187
(816) 942-5925
Fax (816) 941-3296