In the late 70’s and 80’s, there were a number of cases that came down addressing and analyzing a situation where tenants entered into a contract for improvements to the real property and subjected, or almost subjected (depending on how the court ruled), the landlord’s property to a mechanic’s lien.
The analysis at that time hinged greatly upon whether an agency relationship existed and whether the landlord bestowed sufficient authority upon the tenant for the tenant to be able to subject the property to a mechanic’s lien.
Several cases articulated various principles, essentially holding that such a determination required more than just a landlord-tenant relationship:
“[t]he fundamental principle is that the ‘mere relation(ship) of landlord and tenant does not in itself create an agency in the tenant within the meaning of the statutes covering mechanic’s liens.’” Paul A. Medley, Inc. v. Money Town, Inc., 581 S.W.2d 46, 49 (Mo. Ct. App. 1979)(quotingSol Abrahams & Son Const. Co. v. Osterholm, 136 S.W.2d 86, 92 (Mo.App.1940); Ward v. Nolde, 259 Mo. 285, 168 S.W. 596, 600 (1914); McGuinn v. Federated Mines and Milling Co., 160 Mo.App. 28, 141 S.W. 467, 468 (1911)).
“A corollary principle is that the mere fact that the landlord or lessor consented to the lessee’s making of alterations for the Lessee’s convenience does not create an agency for purposes of the lien.” Paul A. Medley, Inc. v. Money Town, Inc., 581 S.W.2d at 49 (citingWard v. Nolde, 259 Mo. 285, 168 S.W. 596, 600 (1914); Curtin-Clark Hardware Co. v. Churchill, 126 Mo.App. 462, 104 S.W. 476, 477 (1907); Winslow Bros. Co. v. McCully Stone Mason Co., 169 Mo. 236, 69 S.W. 304, 305 (1902)).
The cases point to the importance of the contractual language between the landlord and the tenant. “For an agency to exist that would allow the tenant to encumber the interest of the landlord in the property, a right ‘must spring from (the) contract, express or implied, between the tenant and landlord.’” Paul A. Medley, Inc. v. Money Town, Inc., 581 S.W.2d at 49 (citingPowell v. Reidinger, 234 S.W. 850, 852 (Mo.App.1921)).
However, in order for a contractor to have a lien, the Court of Appeals, in the Paul A. Medley case held that the landlord must have some intent in requiring that the tenant make some alterations which amount to a “permanent and substantial benefit to the leasehold.” Id.
“In Messina,…the court summarized certain principles that have developed in determining whether a lessee is the agent of the lessor so as to impress the lessor’s interest with a lien. Those principles are as follows:
(a) mere relationship of lessor lessee does not create agency;
(b) at the time of the execution of the lease the lessee must be obligated to make the changes or improvements;
(c) the improvements must be of substantial and permanent benefit to the leasehold;
(d) mere consent by lessor allowing change or improvements is insufficient; and
(e) in ascertaining the requisite intent, both the lease instrument and the whole of the circumstances may be considered.” Bates v. McKay, 724 S.W.2d 565, 571 (Mo. Ct. App. 1986)(citingMessina Brothers Construction Co. v. Williford,630 S.W.2d 201, 210 (Mo.App.1982)).
“In determining whether the improvements were of permanent and substantial benefit to the leasehold, it is appropriate to consider the improvement in question in relation to the size of the building, whether the improvements substantially altered the character of the premises, and the value to the lessor.” Bates v. McKay, 724 S.W.2d 565, 572 (Mo. Ct. App. 1986)
(citing Paul A. Medley, Inc. v. Money Town, Inc., 581 S.W.2d 46, 49 (Mo.App.1979)).
These factors are important because they weigh the interests of the general contractor and the owner of the property in an attempt to arrive at the most equitable outcome. The underlying principle is that Missouri courts seek to determine whether the burden of payment (or loss of payment) should fall on the owner or general contractor in an effort to reduce or prevent any unjust enrichment to the parties involved.
Conclusion Regarding Tenant’s Ability to Subject a Landlord’s Property to a Mechanic’s Lien in Missouri
The answer to whether a tenant can subject a landlord’s property to a mechanic’s lien is very fact intensive. As explained above, there are a number of factors that are weighed before a court will make a determination regarding whether the tenant was deemed an agent for purposes of subjecting the landlord’s property to a valid mechanic’s lien. If you find yourself in a similar situation involving the filing or necessary removal of a mechanic’s lien, please contact one of our experienced attorneys to advise you of your rights.
Are you looking to buy or sell a home? Are you a real estate agent assisting someone with purchasing or selling a home?
Are you prepared to go to court after the closing?
Given the complexity of Missouri real estate laws and the inordinate amount of issues that can arise, buyers, sellers, and real estate agents face a real threat of becoming a party to litigation after participating in Missouri real estate transactions. Even those parties who comply with all laws and regulations face exposure to litigation merely by virtue of their involvement in the transaction.
This guilt-by-association-esque approach may not seem right, but it is an unfortunate reality when something goes awry in a real estate transaction. While there is no guarantee that you will not be named as a defendant in a lawsuit, there are certain things that can be done to greatly reduce the probability of winding up in litigation.
Based on my experience litigating these cases, the 7 most commonly alleged claims involving Missouri real estate transactions are set forth in this article. The prudent real estate agent, homebuyer and/or home seller will educate themselves regarding these claims to know the potential pitfalls, so they are in a better position to avoid exposure to liability and the unpleasantries that accompany a lawsuit.
The table of contents on this page enumerates the 7 claims that are most common when litigating real estate transactions. Each claim is discussed more fully under its respective heading.
1. Fraud
The elements of a fraud claim in Missouri are: “(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity; (5) the speaker’s intent that it should be acted on by the person and in the manner reasonably contemplated; (6) the hearer’s ignorance of the falsity of the representation; (7) the hearer’s reliance on the representation being true; (8) his right to rely thereon; and, (9) the hearer’s consequent and proximately caused injury.” Droz v. Trump, 965 S.W.2d 436 (Mo. App.W.D., 1998); see alsoGreen Acres Enterprises, Inc. v. Nitsche, 636 S.W.2d 149, 153 (Mo.App.1982); Hanrahan v. Nashua Corp., 752 S.W.2d 878, 883 (Mo. Ct. App. 1988).
Fraud is a term used in everyday speak. We know the meaning, but most people don’t know the 9 elements in Missouri that make up a fraud claim. While these are merely technical elements in Missouri law, in laymen’s terms, fraud is synonymous with lying. Thus, even if you don’t choose to memorize the above elements, just remember that if you don’t lie, you probably won’t find yourself on the other end of a fraud claim (no guarantees, but it should greatly reduce the probability).
Statute of Limitations
5 year or 15 year Statute of Limitations (depending on tolling)—S.Mo. § 516.120(5)
R.S.Mo. § 516.120(5) states: “[a]n action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud.”
“[T]he cause of action does not accrue from discovery of the fraud. If ten years elapse without discovery of the fraudulent acts, the statute of limitations begins to run and after five years the cause of action is barred, even if the fraud has not yet been discovered. Id. at 798. This means that the latest a fraud claim may be brought is 15 years after the fraud occurred.” State ex rel. Stifel, Nicolaus & Co., Inc. v. Clymer, 522 S.W.2d 793, 798 (Mo. banc 1975).
Thus, an action for fraud accrues not when the damage occurs or can be ascertained, but when “facts constituting the fraud are discovered.” Schwartz v. Lawson, 797 S.W.2d 828, 832 (Mo.App.1990). The statute of limitations begins to run at the time a cause of action in fraud accrues, which is when plaintiff “discovered or in the exercise of due diligence, should have discovered the fraud.” Gilmore v. Chicago Title Insurance Co., 926 S.W.2d 695, 698 (Mo.App.1996)(citing Burr v. National Life & Accident Insurance Co., 667 S.W.2d 5, 7 (Mo.App.1984)). “The plaintiff maintains the duty to make inquiry to discover the facts surrounding fraud. Where the means of discovery exist, the plaintiff will be deemed to have known of the fraud so as to begin the running of the statute.” Burr v. National Life & Acc. Ins. Co., 667 S.W.2d 5 (Mo. App.W.D., 1984).
2. Violations of the Missouri Merchandising Practices Act
The Missouri Merchandising Practices Act is an act designed to protect consumers by leveling the playing field and incentivizing attorneys to take such cases where consumers are harmed. In order to incentivize attorneys to take these cases, the Missouri legislature included the potential for recovery of attorney’s fees and punitive damages if violations of the Act are found.
Generally, consumers are not equipped to foot an expensive litigation bill, but with the potential for attorney’s fees, some attorneys are more inclined to take the case on a contingency basis (that mean’s that the client only pays attorney’s fees if the client succeeds). This attorney’s fees possibility heightens the recovery potential and gives the consumer more leverage.
“Section 407.020 of the Missouri Revised Statutes, commonly known as the “Missouri Merchandising Practices Act,” provides that, ‘[t]he act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice, or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce … is declared to be an unlawful practice.’ The scope of the MPA is broad. Section 407.025 provides a civil cause of action to consumers who purchase goods or services and suffer damages due to any of the aforesaid unlawful practices.” In re McClelland, 06-41720, 2008 WL 5157685 (Bankr. W.D. Mo. June 20, 2008).
One case simplifies the foregoing paragraph in a succinct manner, “[i]n a private lawsuit for violation of the Missouri Merchandising Practices Act (MMPA), plaintiffs must demonstrate that they:
(1)purchased merchandise…from defendants;
(2) for personal, family, or household purposes; and
(3)suffered an ascertainable loss of money or property;
(4)as a result of an act declared unlawful under the Merchandising Practices Act.”
Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 773 (Mo. banc 2007); Edmonds v. Hough, 344 S.W.3d 219 (Mo. App.2011)(spacing and emphasis added).
The following is a more descriptive breakdown of each element necessary to satisfy the Missouri Merchandising Practices Act (“MMPA”).
(1) purchased merchandise…from defendants
R.S.Mo. § 407.010 (4) defines merchandise as the following: “any objects, wares, goods, commodities, intangibles, real estate or services.”
Based on the definition alone, the first element of the MMPA is satisfied because real estate is considered merchandise. Accordingly, the first element is satisfied by virtue of the type of transaction. Due to the long reach of the MMPA, there is potential that the legislature may amend the MMPA to narrow it. Particularly with the Republican administration in 2017, there is a chance that the MMPA could be greatly limited.
However, at this point, it is difficult to say whether that limitation would involve the definitions section or would limit the reach of the MMPA as to whom it applies (i.e., only merchants).
It should be noted, though, that because the aim of the MMPA is to protect consumers, and because the MMPA allows buyers of residential real estate (typically consumers) to bring an MMPA claim against sellers of residential real estate (oftentimes consumers), the leverage contained in R.S.Mo. § 407.025, which potentially allows for the recovery of attorney’s fees and punitives, not only works for consumers, but also works against them.
The contrary argument to this policy stance is that most real estate contracts that are drafted by sophisticated parties (which are most contracts used by real estate agents and brokerage firms these days) contain a clause which awards attorney’s fees to the prevailing party. However, the distinction lies in the vast reach of the violative acts (which are discussed below under element 4 of the MMPA) versus the requirements that the party prevail on the breach of contract claim. To capitalize on the attorney’s fees provision in the real estate contract, the prevailing party would, presumably, have to prevail on the breach of contract claim. Because the prevailing party would have to prove breach, this would require a greater burden than merely proving that the party violated an act under the MMPA.
The opposing side would then argue that the safeguard under the MMPA is that the judge ultimately decides whether attorney’s fees are awarded at the conclusion of the case. Thus, if the court believes in equity that attorney’s fees are warranted, then reasonable fees will be awarded.
A contractual provision providing for the award of attorney’s fees, does not allow for such flexibility. In any event, the foregoing discussion merely elucidates the advantages and disadvantages of modifying the extent that the MMPA applies to real estate transactions, the application to transactions in which a consumer is the seller, and how attorney’s fees may affect/undermine the legislature’s intent.
(2) for personal, family, or household purposes
This element is very factually based. If the purpose of the transaction is personal and will be used as the buyer’s principal residence, then it satisfies this element. If the purchase of the property is to be used as rental property, there is a legitimate question as to whether this element is satisfied.
There is a high probability that the court will find that this element is not satisfied for rental property because it is for commercial purposes and is not used for personal, family or household purposes.
(3) suffered an ascertainable loss of money or property
As it pertains to the MMPA, the Missouri Court of Appeals stated that “[t]he defrauded party should be awarded the difference between the actual value of the property and the value if it had been as represented, measuring the damages at the time of the transaction.”Schoenlein v. Routt Homes, Inc., 260 S.W.3d 852 (Mo. App., 2008).
(4) as a result of an act declared unlawful under the Merchandising Practices Act
The following are the unlawful acts seen most frequently in the real estate context:
a) Misrepresentation
A misrepresentation is defined as “an assertion that is not in accord with the facts”
When proving a misrepresentation pursuant to the MMPA, a plaintiff does not need to prove
Reliance,
Knowledge that the assertion is misleading/false, or
Any culpable mental state. 15 CSR 60-9.070
b) Half-Truth
A half-truth in its simplest form is defined as a situation where a party “[o]mit[s] to state a material fact necessary in order to make statements made…not misleading.” 15 CSR 60-9.090
c) Omission of a Material Fact
An omission of a material fact is defined as “any failure by a person to disclose material facts known to him/her, or upon reasonable inquiry would be known to him/her.” 15 CSR 60-9.110 (3)
When proving an omission of a material fact pursuant to the MMPA, a Plaintiff does not need to prove:
Reliance, or
Intent. 15 CSR 60-9.110 (4)
d) Unfair Practice
An unfair practice is any practice that:
1A. Offends any public policy as it has been established by
Constitution
Statutes
MO Common law
Federal Trade Commission & interpretive decisions
or
1B. Is unethical, oppressive, or unscrupulous
and
2. Presents risk or causes substantial injury to consumers
15 CSR 60-8.020
Statute of Limitations
5 Year Statute of Limitations—S.Mo. § 516.120(2)
“The statute of limitations [for violations of the MMPA] begins to accrue when the Plaintiff has
[1] knowledge of the wrong and at least nominal damage, or
[2] knowledge that puts plaintiff on notice to inquire further.”
Ball v. Friese Constr. Co., 348 S.W.3d 172 (Mo. App., 2011)(emphasis and spacing added).
“The essential elements of a breach of contract action include: (1) the existence and terms of a contract; (2) that plaintiff performed or tendered performance pursuant to the contract; (3) breach of the contract by the defendant; and (4) damages suffered by the plaintiff.” Martha’s Hands, LLC v. Rothman, 328 S.W.3d 474, 479 (Mo. Ct. App. 2010)(citing Keveney v. Mo. Military Acad., 304 S.W.3d 98, 104 (Mo. banc 2010)).
A breach of contract in a real estate scenario can be the seller or buyer suing the opposing party (buyer or seller) on the basis that their actions constituted a breach of contract. In a similar vein, the buyer or seller may sue their real estate agent or the brokerage firm, usually, whichever entity/person was named on the buyer or seller’s agency agreement.
While the agent has statutory duties s/he must carry out, the agency contract often incorporates a number of said duties as well as its own independent duties (typically). Violation of the statutory duties incorporated into the contract could be the basis for the breach of contract claim. In the event the MMPA claim is not sufficient or groundless against the real estate agent, the breach of contract claim might be the only avenue of recovery.
Statute of Limitations
5 Year Statute of Limitations—S.Mo. § 516.120(1)
“The statute of limitations begins to run “after the causes of action shall have accrued.” § 516.100. But a “cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment.” Id. A cause of action is capable of ascertainment “‘when a reasonable person would have been put on notice that an injury and substantial damages may have occurred and would have undertaken to ascertain the extent of the damages.'” State ex rel. Old Dominion Freight Line, Inc. v. Dally, 369 S.W.3d 773, 778 (Mo. App. S.D. 2012) (quoting Powel v. Chaminade Coll. Preparatory, Inc., 197 S.W.3d 576, 584 (Mo. banc 2006)). “‘At that point, the damages would be sustained and capable of ascertainment as an objective matter.'” Id. (quoting Powel, 197 S.W.3d at 584-85).” N. Farms, Inc. v. Jenkins (Mo. App., 2015).
The agent’s statutory duties include the duty of care and loyalty, which are the essence of a fiduciary duty.
To establish a claim for breach of a fiduciary duty, a plaintiff must prove: (1) the existence of a fiduciary duty between the plaintiff and the defending party; (2) “‘that the defending party breached the duty'”; and (3) “‘that the breach caused the [plaintiff] to suffer harm.'” Henry v. Farmers Ins. Co., 444 S.W.3d 471 (Mo. App., 2014)(citing W. Blue Print Co. v. Roberts, 367 S.W.3d 7, 15 (Mo. banc 2012)).
“Whether a fiduciary duty exists is a question of law, while the breach of that duty is for the trier of fact to decide.” W. Blue Print Co. v. Roberts, 367 S.W.3d 7, 33 IER Cases 1397 (Mo., 2012).
It should be noted that the seller does not have a fiduciary duty to the buyer, and the buyer does not have a fiduciary duty to the seller. Thus, these would not be valid claims against the other party. These claims should be reserved to be alleged solely against the real estate agents and/or brokerage firms, depending on whether the situation lends to such claim.
Statute of Limitations
5 Year Statute of Limitations—R.S.Mo. § 516.120(4); N. Farms, Inc. v. Jenkins (Mo. App., 2015).
The elements of negligent misrepresentation are: “(1) speaker supplied information in the course of his business or because of some other pecuniary interest; (2) due to speaker’s failure to exercise reasonable care or competence in obtaining or communicating this information, the information was false; (3) speaker intentionally provided the information for the guidance of a limited group of persons in a particular business transaction; (4) listener justifiably relied on the information; and (5) that as a result of listener’s reliance on the statement, he/she suffered a pecuniary loss.” White v. Bowman, 304 SW 3d 141 (Mo. App., 2009).
A negligent misrepresentation claim is the hedge for a fraudulent misrepresentation claim. In real estate litigation, usually a negligent misrepresentation claim is brought against the seller (if it deals with misrepresentation) and the seller’s agent and/or the listing agent, again, depending on what the facts the case indicate.
Statute of Limitations
5 Year Statute of Limitations—R.S.Mo. § 516.120(4); Branstad v. Kinstler, 166 S.W.3d 134 (Mo, 2005).
In a negligence action, the plaintiff must allege and prove facts which show: “1) the existence of a duty on the part of the defendant to protect plaintiffs from injury; 2) failure of defendant to perform that duty; and 3) injury to plaintiffs resulting from such failure.” Hill v. Gen. Motors Corp., 637 S.W.2d 382, 384 (Mo.App. E.D.1982) (citing Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo. banc 1976)). “The particular standard of care that society recognizes as applicable under a given set of facts is a question of law for the courts. Whether a defendant’s conduct falls short of the standard of care is a question of fact for the jury.” Harris v. Niehaus, 857 S.W.2d 222, 225 (Mo. banc 1993). Thompson v. Brown & Williamson Tobacco Corp., 207 S.W.3d 76 (Mo. App., 2006).
Negligence Per Se is a variation of negligence in which the duty is set by statute rather than by common law. “Negligence per se arises when the legislature pronounces in a statute what the conduct of a reasonable person must be and the court adopts the statutory standard of care to define the standard of conduct of a reasonable person.”Dibrill v. Normandy Assoc. Inc.,383 S.W.3d 77, 84 (Mo.App. E.D.2012).
To prevail on a negligence per se claim, “the following four elements [must be] met: (1) There was, in fact, a violation of the statute; (2) The injured plaintiff was a member of the class of persons intended to be protected by the statute; (3) The injury complained of was of the kind the statute was designed to prevent; and (4) The violation of the statute was the proximate cause of the injury.” King v. Morgan, 873 S.W.2d 272, 275 (Mo.App. W.D. 1994).
“If a submissible case is made under a negligence per se cause of action, a plaintiff could recover if a jury concluded that a statute was violated and the violation was the proximate cause of the injury.” Sill v. Burlington N. R.R., 87 S.W.3d 386, 392 (Mo. Ct. App. 2002)(citingVintila v. Drassen, 52 S.W.3d 28, 37 (Mo.App. S.D.2001). Thus, “if the [jury] instruction were based upon the theory of negligence per se, the jury would begin their inquiry with the question of proximate cause.” Id.
Statute of Limitations
5 Year Statute of Limitations—R.S.Mo. § 516.120(2) & (4); Kueneke v. Jeggle, 658 S.W.2d 516 (Mo. App. E.D., 1983); Nuspl v. Missouri Medical Ins. Co., 842 S.W.2d 920 (Mo. App. E.D., 1992).
Unjust enrichment is brought in a majority of lawsuits and usually acts as the catch-all claim. Unjust enrichment is an equitable claim created in the law, which seeks to arrive at an outcome the represents principles of fairness.
Most diligent attorneys bring this claim in addition to the other relevant claims to ensure that the claimant can maintain his/her cause of action even if the court decides that no contract existed between the parties (or that there is no claim at law).
The elements of an unjust enrichment claim are: “the plaintiff must prove that (1) he conferred a benefit on the defendant; (2) the defendant appreciated the benefit; and (3) the defendant accepted and retained the benefit under inequitable and/or unjust circumstances.” Howard v. Turnbull, 316 S.W.3d 431, 436 (Mo. Ct. App. 2010); see alsoHertz Corp. v. RAKS Hospitality, Inc., 196 S.W.3d 536, 543 (Mo.App. E.D.2006); Graves v. Berkowitz, 15 S.W.3d 59, 61 (Mo.App. W.D.2000). Even if a benefit is “conferred” and “appreciated,” if no injustice results from the defendant’s retention of the benefit, then no cause of action for unjust enrichment will lie. Howard v. Turnbull, 316 S.W.3d 431, 436 (Mo. Ct. App. 2010)(citingWhite v. Pruiett, 39 S.W.3d 857, 863 (Mo.App. W.D.2001)).
Statute of Limitations
5 Year Statute of Limitations—R.S.Mo. § 516.120(1).
“Section 516.120(1) provides a five-year statute of limitations for ‘[a]ll actions upon contracts, obligations or liabilities, express or implied….’ An action for unjust enrichment is based on an implied or quasi-contractual obligation.Landmark Sys., Inc. v. Delmar Redev. Corp., 900 S.W.2d 258, 262 (Mo.App. E.D.1995). Such actions are subject to the five-year statute of limitations in Section 516.120(1). See Koppe v. Campbell, 318 S.W.3d 233, 240 (Mo.App. W.D.2010).” Royal Forest Condo. Owners’s Ass’n v. Kilgore, 416 S.W.3d 370 (Mo. App., 2013).
Real estate transactions can give rise to various causes of action. While there are no magic steps one can take to avoid a lawsuit, informing one’s self about the most common claims in Missouri real estate litigation may allow the reader to take preventative steps to reduce the possibility of litigation.
The following are the 7 most common claims that are brought in Missouri cases involving real estate matters:
Fraud
Violations of the Missouri Merchandising Practices Act
Breach of Contract
Breach of Fiduciary Duty
Negligent Misrepresentation
Negligence/Negligence Per Se
Unjust Enrichment
While many of these claims are discussed above, one takeaway is that the truth almost always prevails. Thus, if there is some question as to the legality of certain actions, remember most people are best served by taking the higher road and erring on the side of disclosure or taking preventative measures and addressing all problems up front, rather than dealing with bigger issues after the fact.
If you have issues involving a real estate transaction or if you just have questions about a potential situation that could arise, please do not hesitate to contact our attorneys. We’d be more than happy to assist you in any way that we can.
Please let us know real estate claims that you’ve dealt with and any feedback regarding the same in the comments section.
What duty does a Possessor of Land owe to Guests or Trespassers?
“Generally, the status of an entrant on the land, i.e., whether the entrant is a trespasser, licensee, or an invitee, determines the specific duty of care owed by the possessor of land.” Medley v. Joyce Meyer Ministries, Inc., 460 S.W.3d 490 (Mo. App., 2015)(citing Adams v. Badgett, 114 S.W.3d 432, 436 (Mo.App.E.D.2003)).
A possessor of land is “a party ‘who is in occupation of the land with intent to control it.’” Medley v. Joyce Meyer Ministries, Inc., 460 S.W.3d 490 (Mo. App., 2015)(citing Restatement (Second) of Torts section 328E(a)).
Can a Tenant fall under the definition of “Possessor”?
Yes. According to the definition set forth in Restatement Second of Torts, “a non-owner of the premises may be a possessor.” Medley v. Joyce Meyer Ministries, Inc., 460 S.W.3d 490 (Mo. App., 2015).
An invitee is a person “who enters the premises with the consent of the possessor for some purpose of real benefit or interest to the possessor or for the mutual benefit of both.” Adams v. Badgett, 114 S.W.3d 432 (Mo. App., 2003)(quotingGillis v. Collins, 770 S.W.2d 503, 505 (Mo.App. W.D. 1989)).
“An entrant is also an invitee when the possessor extends an invitation to enter the land to the public generally or to some undefined portion of the public.” Adams v. Badgett, 114 S.W.3d 432 (Mo. App., 2003, fn 6).
Other definitions of Invitee that are persuasive in Missouri courts come from the Restatement (Second) of Torts:
“…Restatement (Second) of Torts section 332(3) (defining an invitee as “a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land”); Restatement (Second) of Torts section 332 cmt. e (stating that a person who enters a store to make a purchase is an invitee).” Medley v. Joyce Meyer Ministries, Inc., 460 S.W.3d 490 (Mo. App., 2015, fn 6)
When is a Possessor liable to an Invitee for Injuries Suffered on the Land?
“A possessor of land is liable for injuries suffered by an invitee due to a condition on the land if
(1) the possessor “knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitee[ ]”;
(2) the possessor ‘should expect that [the invitee] will not discover or realize the danger, or will fail to protect [herself] against it’;
(3) the possessor ‘fails to exercise reasonable care to protect [the invitee] against the danger’; and
(4) ’[the] activity or condition on the land is [not] known or obvious to [the invitee], unless the possessor should anticipate the harm despite [the] knowledge or obviousness.’”
Medley v. Joyce Meyer Ministries, Inc., 460 S.W.3d 490 (Mo. App., 2015)(citing Restatement (Second) of Torts sections 343 and 343A(1); Restatement (Second) of Torts section 343 cmt. a)(spacing added).
“[T]he general rule [is] that a landowner owes a duty to use reasonable and ordinary care to prevent injury to invitees.” Woodall v. Christian Hosp. NE-NW (Mo. App., 2015)(quotingState ex rel. Union Elec. Co. v. Dolan, 256 S.W.3d 77, 83 (Mo. banc 2008)).
“[A] possessor of land owes invitees “the duty to exercise reasonable care to protect them against both known dangers and those that would be revealed by inspection.” Adams v. Badgett, 114 S.W.3d 432, 438 (Mo. App., 2003).
“A licensee is one who enters the premises with the permission of the possessor, but merely for his own purpose and interest, ‘from motives of curiosity or private convenience, in no way connected with the business or other relations with the owner.’” Adams v. Badgett, 114 S.W.3d 432, 437 (Mo. App., 2003)(quoting Gillis v. Collins, 770 S.W.2d 503, 505 (Mo.App. W.D. 1989)).
“A licensee enters the property with consent, but for his own purpose.” Hogate v. American Golf Corp., 97 S.W.3d 44, 47 (Mo. App., 2002).
“The possessor of land owes a licensee the duty to make safe dangersknown to the possessor.” Adams v. Badgett, 114 S.W.3d 432, 438 (Mo. App., 2003)(emphasis added).
What is the difference between a Licensee and an Invitee in Missouri?
“Our Supreme Court has drawn the distinction between a licensee and an invitee—‘an entrant becomes an invitee when the possessor invites him with the expectation of a material benefit from the visit.’”
Adams v. Badgett, 114 S.W.3d 432 (Mo. App., 2003)(quoting Carter v. Kinney, 896 S.W.2d 926, 928 (Mo. banc 1995)).
What Duties does a Possessor owe to a Trespasser to Land?
“The general rule is that a possessor of land is not liable for harm caused to a trespasser by failure to put land in a reasonably safe condition.” Humphrey v. Glenn, 167 S.W.3d 680, 683 (Mo. 2005)(quotingSeward v. Terminal Railroad Ass’n of St. Louis, 854 S.W.2d 426, 428 (Mo. banc 1993)).
Does a Possessor of Land ever Owe a Trespasser a Duty?
Yes. There are a number of exceptions where the possessor of land does owe a duty to a trespasser in Missouri.
The following are a few occasions when a possessor has a duty to a trespasser:
“where the trespasser’s presence becomes known, a duty of reasonable care is owed” Humphrey v. Glenn, 167 S.W.3d 680, 683 (Mo. 2005).
“a possessor of land owes a duty of care to child trespassers for a dangerous artificial condition he or she maintains at a place on the land that children are likely to trespass” Humphrey v. Glenn, 167 S.W.3d 680, 683 (Mo. 2005).
The possessor of land may be liable if s/he “created or maintained an artificial condition on land that was potentially dangerous” to any trespassers. Humphrey v. Glenn, 167 S.W.3d 680, 684–85 (Mo. 2005).
Additionally, the trespasser would have to prove the following elements for the possessor to be held liable:
(1) the possessor knew or should have known of constant trespass in the limited area where the condition existed;
(2) the possessor of the land knew the condition was likely to cause death or serious bodily harm to the trespasser; and
(3) the condition was of such a nature that the possessor had reason to believe the trespasser would not discover the hazard.
Humphrey v. Glenn, 167 S.W.3d 680, 685 (Mo. 2005).
Is a Landowner Liable for Injuries on the Property during Construction?
Generally no.
“[C]ontrary to the general rule, a landowner does not owe a duty to invitees if the landowner relinquishes possession and control of the premises to an independent contractor during a period of construction.” Woodall v. Christian Hosp. NE-NW (Mo. App., 2015).
Why is the Landowner not Responsible for Injuries occurring during a Period of Construction?
“Under these circumstances, the landowner is no longer considered the possessor of the land and is therefore relieved of potential liability.” Woodall v. Christian Hosp. NE-NW (Mo. App., 2015).
Are there Circumstances Where the Landowner can still be liable for injuries during a Construction Period?
Yes, but “[t]he only way the landowner may be liable under [such] circumstances is if the injured employee demonstrates that the landowner retained possession and control of the premises, by establishing facts showing that landowner controlled the independent contractor’s work. Matteuzzi v. Columbus Partnership, L.P., 866 S.W.2d 128, 132 (Mo. banc 1993).
“[T]he [land]owner’s involvement in overseeing construction must be substantial[;] the control must go beyond securing compliance with the contracts; the [land]owner must be controlling the physical activities of the employees of the independent contractors or the details of the manner in which the work is done.” Id. (quotations omitted).
Is an Independent Contractor an Invitee or a Licensee?
This depends on the circumstances really, but the Missouri Supreme Court found in Matteuzzi that the employee of an independent contractor was considered an invitee. Matteuzzi v. Columbus Partnership, L.P., 866 S.W.2d 128, 132 (Mo. banc 1993).
The caveat is that the independent contractor has to have the landowner’s permission to be on the property or the entrant (independent contractor or its employee) may be classified as a trespasser instead. Id.
Landlord and Tenant Responsibilities in St. Louis, Missouri
The following discussion is for educational purposes only.
The laws of Missouri are constantly changing, and the author of this website makes no representation or warranty as to the currentness, applicability, relevance, or for any other use the reader might conceive, regarding the information contained on this website.
It is well-advised to contact an experienced landlord-tenant attorney when dealing with an eviction or other issue relating to the landlord-tenant relationship. Even after you contact an attorney, however, you should continuously educate yourself on landlords’ and tenants’ rights.
The below discussion discusses the rights of landlords and tenants and general laws governing the tenancy relationship.
What is the Process of Eviction in St. Louis, MO?
The following is a general overview of an eviction proceeding in Missouri. Keep in mind that there are different grounds for evicting a tenant, and those are discussed below.
Thus, the following is the typical procedure and is merely a broad description of the phases in which an eviction action proceeds in Missouri.
This information should never be substituted for competent legal advice regarding the specific facts of your case.
To even initiate an eviction action, the landlord must have some right to evict the tenant.
How do you know if you’re following the proper legal process for evicting a tenant?
If a tenant does not comply with the duties imposed upon him/her by contract or statute, there may be sufficient grounds for eviction. Landlord responsibilities are also taken into account and are discussed below.
The attorney general put together a guide, and the following was a general summary of tenants’ general duties in Missouri:
Tenant should act reasonably to not damage the premises
Tenant should generally maintain the premises in a safe and clean manner (i.e., properly dispose of trash, etc.)
Tenant should pay rent timely
Tenant should ensure that s/he/it keeps the landlord apprised of the possibility of any subtenants and seek permission prior to subleasing the property. R.S.Mo. 441.030 (2016).
Tenant shall not engage in criminal or unlawful activity on the leased property 020 (2016).
In any event, the tenant’s failure to carry out these duties may give the landlord the right to evict that person.
In addition to the general duties set forth above, the law also requires the tenant to comply with the terms in the lease. R.S.Mo. 441.030 (2016). These terms make up additional duties for the tenant.
If the tenant does not fulfill the obligations in the lease, and thereby materially breaches the same, the landlord most likely has legal rights to bring an eviction action.
Many cases are fact specific, so you should always seek out a landlord-tenant attorney to assist you with your dispute before taking any drastic measures as a landlord or as a tenant.
Preparation of the Unlawful Detainer or Rent & Possession Petition
The next step in the process consists of the lawyer preparing the petition.
The petition is basically where the lawyer alleges the facts of the case and the legal elements for each claim. This is the document that is filed with the court to commence the eviction action.
However, in addition to filing the petition with the court, another responsibility that the landlord (or his/her/its attorney) must undertake is effectuating service of the lawsuit and summons on the defendants.
The summons must be served four days prior to the court date for the eviction.
Also, the lawsuit must be served personally on the defendant or by leaving it with a person who is at least 15 years old and resides or is in charge of the property. R.S.Mo § 534.050 (2016).
If no one can be served at the property, then the summons can be mailed and a posting can be made on the premises if proof be made by affidavit of the posting and of the mailing of a copy of the summons and complaint, the judge shall proceed to hear the case as if there had been personal service, and judgment shall be rendered and proceedings had as in other cases, except that where the defendant is in default no money judgment shall be granted the plaintiff under the order of publication and ordinary mail procedure set forth in this section.
If such summons is returned executed, then the judge shall set the case on the next available court date.
If no one is present, the server may post the demand and complete a sworn affidavit attesting to service.
The way the lawsuit is served therefore impacts the landlord’s remedies, as is discussed above.
During the eviction action, which is usually a remarkably short proceeding, at least relative to other cases, the attorneys have an opportunity to conduct discovery.
Discovery is basically a way to elicit and obtain evidence by requesting documents and/or testimony from the other side by use of request for production of documents, interrogatories, requests for admissions, and depositions, when necessary.
The above is not an exhaustive list of discovery that can be conducted, but it sets forth the common discovery tools used in a typical case.
After sufficient evidence is obtained, the lawyers may want to limit legal issues or the admission of certain pieces of evidence through motion work. In some extreme cases, the lawyer can even move for summary judgment, which is basically a way to obtain judgment without the necessity of a trial.
If the case cannot be disposed of or settled during the discovery and/motion phase, the parties will have to go to trial.
An eviction trial is not usually very long, and often only consists of a few witnesses.
Some of the documents include the ledgers from the landlord and/or tenant, check stubs or online bank statements, as well as the lease agreement that was entered into between the parties.
Depending on your case, there may be a variety of legal and/or ownership issues that arise, but make sure that your lawyer brings the proper claims, so that the Court has jurisdiction to hear any potential ownership disputes (as noted below, ownership disputes are usually not considered in an unlawful detainer action).
What are the Renters’ Rights Regarding Security Deposits in Missouri?
The security deposit charged by the landlord cannot exceed the amount of 2 months’ rent R.S.Mo. § 535.300.1 (2016).
The landlord must return your security deposit to you within 30 days–If any of the security deposit is retained by the landlord, an itemized list of the damages and/or reasons for retaining the rent must be provided to the tenant R.S.Mo. § 535.300.2 (2016).
If the Landlord does not return the security deposit and/or the itemized list within 30 days, the tenant can sue for double the amount of the deposit that was improperly retained by the landlord.
Tenant is not allowed to withhold the last month’s rent in lieu of requesting return of the security deposit
Landlord is retaining that amount in the form of security for damages to the premises-this means that Missouri law treats the last month’s rent separately matter from the security deposit
What Amounts of the Security Deposit can the Landlord Lawfully Hold?
The Landlord can hold the amount that is reasonably necessary to take care of the following costs:
Any deficiency in rent that the tenant still owes
To repair any damage to the premises (this does not include ordinary wear and tear, the lease may alter the landlords’ and tenants’ respective responsibilities)
Compensate the landlord for any damages caused by the tenant’s improper notice to vacate the premises according to law or the rental agreement. R.S.Mo. § 535.300.3 (2016).
If you had to choose what chapter governed the Landlord Tenant Act in Missouri, it would probably be an argument between the following three chapters: Chapters 535, 534, and 441 of the Missouri Revised Statutes.
Said chapters govern eviction actions and general rules pertaining to the landlord-tenant relationship.
Evictions are filed in the Associate Circuit Court of the county where the property is located, and thus the civil procedural rules contained in R.S.Mo Chapter 517 generally govern eviction actions as well.
Unlawful detainer proceedings are summary in nature and the ordinary rules and proceedings of other civil actions do not apply.[citation omitted] As such, Missouri courts construe the unlawful detainer statute consistent with its intended “special summary nature.” [citation omitted] State ex rel. Deutsche Bank Nat’l Trust Co. v. Chamberlain (Mo. App., 2012).
In addition to complying with the landlord-tenant specific laws, a landlord must abide by the common law and other general Missouri statutes during the course of the lease as well as during any eviction proceedings.
One of the most notable and most important statutes for landlords to be cognizant of is the Missouri Merchandising Practices Act (“MPA”). The MPA is important to know for residential landlords because it applies to leases with consumers.
The MPA is an incredible hammer for consumers (tenants), indicating that the landlord needs to avoid any acts that could be deemed unconscionable or deceptive to the consumer during the course of the lease and potentially the eviction process.
If you have questions as to what actions may be deemed unconscionable or deceptive, please contact one of our real estate attorneys here.
In what Court are Eviction Cases filed in St. Louis?
As noted above, eviction cases are governed by the procedural rules set forth in Chapter 517 of the Missouri Revised Statutes, which means that eviction actions will be filed in the Associate Circuit Court of St. Louis County or St. Louis City, in whichever county the property is located.
How much does it cost to file an Eviction Action in St. Louis?
Regardless of whether you are filing your eviction action under Chapter 534 or 535, the St. Louis County Circuit Court charges $50.00 to file the petition.
Then, additionally, you must serve the summons and petition.
The costs to serve an eviction action vary, depending on your situation and your desired outcome (which type of service you need).
The St. Louis County Sheriff’s Office charges the following for the service of landlord summons:
Thus, if you have two tenants that need to be evicted off of your property, then you will pay just $50.00 for the petition, plus another $XX.XX for service which will equal your total fees.
Keep in mind that the above costs are only for filing and service fees.
If you hire an attorney to represent you in the case, you will have additional costs in the form of attorney’s fees.
Why Should it be a Landlord’s Responsibility to inform himself about the Missouri Merchandising Practices Act?
The Missouri Merchandising Practices act which is sometimes abbreviated as the MMPA or simply MPA can be devastating to landlords. Those landlords who do not make it their responsibility to educate themselves on the MMPA may be walking into a snakepit without protection.
While the MPA does not apply in the commercial context, it does apply to residential leases.
If a landlord violates the MPA, the leverage quickly shifts to the tenant, and the landlord faces potential liability . When this occurs, the landlord will no longer be calling the shots.
The MPA not only provides for attorney’s fees for the prevailing party (at the discretion of the judge); the MPA also allows a judge or jury to award punitive damages.
Further, the MPA is to be construed broadly in favor of the consumer, which means the landlord will be fighting an uphill battle.
Usually the landlord has the power because it/s/he is usually the owner of the property, which means that it/s/he had enough money to purchase the real estate.
As most of us know, the party with the deeper pockets usually has an advantage in the litigation because they can take any necessary measures without any worry of financial obstruction. Thus, the landlord can usually strong arm the tenant, whether that is right or wrong is a discussion for another day, but it is a practical reality.
Consumers can fight back using the Missouri Merchandising Practices Act. That’s why landlords should inform themselves on the Missouri Consumer Protection laws to avoid a devastating lawsuit.
If you have questions about a Missouri Merchandising Practices claim with respect to the landlord-tenant relationship or in any other context, please contact one of our lawyers today.
Based on the Missouri Statute of Frauds statute, your lease only has to be in writing if it is “for a longer time than one year.” R.S.Mo. Section 432.010 (2015).
Therefore, your St. Louis, Missouri lease can be valid and enforceable even if it is oral, but as noted above, an oral lease is only valid if it is for one year or less.
What if the building is destroyed by fire during the lease, does the Landlord or Tenant have to repair it?
R.S.Mo. Section 441.010 states that “unless [the] tenant specifically covenant or contract to rebuild or repair” in the event of a fire, the tenant is off the hook to repair the same.
There is an exception, however.
If the fire was caused by the tenant’s connivance, procurement, or neglect, then the landlord may have a suit against the tenant. Otherwise, the tenant is not responsible for repairs or the rebuild of the premises in the event of a fire. R.S.Mo. § 441.010 (2016).
What Happens to the Rental Agreement if the Tenant is Carrying out Illegal Activities on the Premises?
R.S.Mo. Section 441.020 states “[w]henever any lessee of any house, apartment or building permits any gaming table…brothel…illegal possession, sale or distribution of controlled substances upon the premises, the lease or agreement for letting such house or building shall become void…”
The tenant will then have the right to treat the lessee as a holdover tenant.
Depending on the length of the lease, a tenant cannot typically sublet the property unless s/he has the landlord’s permission in writing.
R.S.Mo. Section 441.030 states: “[n]o tenant for a term not exceeding two years, or at will, or by sufferance, shall assign or transfer his term or interest, or any part thereof, to another without the written assent of the landlord…” R.S.Mo. § 441.030 (2016).
What are the Landlord’s Rights if the Tenant Sublets or Conducts Illegal Activity?
The landlord has the right to give 10 days notice to vacate the premises and then has the right to reenter the premises and take possession. R.S.Mo. § 441.040 (2016).
When proving that the tenant sublet or conducted illegal activity on the premises, the landlord has the burden of proving the same. R.S.Mo. § 441.040 (2016).
If the landlord receives written notification from a law enforcement authority stating that the tenant is engaged in illegal activity, then the landlord shall not be liable for damages incurred by the tenant from institution of the eviction proceeding against the tenant. R.S.Mo. § 441.040 (2016).
Additionally, a landlord under Chapter 534 may, if s/he is the prevailing party, collect double damages from the unlawfully subleasing tenant. The damages, however, are not to exceed twice the amount of rent due. R.S.Mo § 534.347 (2016).
In order to terminate a year to year tenancy, either party by giving written notice of at least 60 days before the end of the year term. R.S.Mo. § 441.050 (2016).
What type of Tenancy Agreement do I have if there is no Written Lease?
If there is no written lease in Missouri, the tenancy is treated as if it were a month to month tenancy (the preceding sentence presupposes that the lease is not used or rented for agricultural purposes, other than garden purposes). R.S.Mo. § 441.060.3 (2016).
How does a Tenant terminate a Month-to-Month Tenancy?
Either the Landlord or the Tenant may terminate a month-to-month lease by providing one month’s written notice to the other. R.S.Mo. § 441.060.4 (2016).
What are the Landlord’s Rights if s/he believes the Tenant Abandoned the Lease?
The landlord may remove the tenant’s personal property without liability.
However, the landlord must first ensure that the premises are legally considered abandoned.
How do I know if Property is Abandoned?
Property is deemed abandoned in Missouri 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 and certified mail, return receipt requested, a notice of the landlord’s belief of abandonment.
(4) the tenant fails to pay rent or respond in writing to the landlord’s notice within ten days after the date of posting and deposit of such notice by either first class mail or certified mail, stating the tenant’s intention not to abandon the premises. R.S.Mo. § 441.065 (2016).
What does the Written Notice by the Landlord Need to State (After Suspected Tenant Abandonment)?
“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 receipt requested, stating the tenant’s intention not to abandon the premises. R.S.Mo. § 441.065 (2016).
What is the Penalty for the Tenant if s/he stays after the Lease Ends (Holds Over)?
This really depends whether the hold over by the tenant is against the wishes of the landlord.
Regardless of whether the tenant and landlord have a residential or commercial rental agreement, the tenant should get something in writing that reflects the landlord’s consent to stay past the lease.
In such a case, if the writing is not a property rental agreement, but only permission to stay, the tenant would continue paying rent, and the lease would go on a month to month basis.
If this were the scenario, there would be no penalty imposed against the tenant.
However, if the tenant holds over without the permission of the landlord, the landlord may be able to recover double rent from the tenant according to R.S.Mo section 441.080.
First, the landlord must make demand in writing requiring the possession of the premises.
If the tenant refuses, the tenant will be responsible for double the rent for the amount of time that the landlord (or whoever is entitled to possession) is kept out of possession.
What are the Tenant’s Rights Regarding Deduction of Rent for Cost of Repairing the Property?
In order for a tenant to be eligible to deduct rent, the tenant must meet the right conditions, which include:
resided in the rental premises for a period of six consecutive months;
have paid all rent charges owed to the landlord during that time period;
did not receive a notice from the landlord regarding a violation of a provision in the rental agreement or a house rule that has not been cured R.S.Mo. 441.234.1 (2016).
If all of the above elements are satisfied, the tenant has the right to deduct rent if:
a condition on the residential premises detrimentally affects habitability, sanitation or security of the premises, and the condition constitutes a violation of a local municipal housing or building code R.S.Mo. 441.234.2 (2016).
However, the maximum amount of rent withholding cannot exceed the following:
$300, or
Half the rent payment, whichever is greater (but the rent withholding amount cannot exceed one month’s rent) R.S.Mo. 441.234.2 (2016).
Before withholding rent, the tenant must first notify the landlord that s/he intends to correct the condition at the landlord’s expense.
What are the Landlord’s Rights if the Tenant sends Notice of Intention to Correct Condition of the Property?
If the landlord provides the tenant, within the notice period (14 days of notice from the tenant), a written statement disputing the necessity of the repair, then the tenant may not deduct the cost of repair from the rent.
What Can the Tenant Do to Rebut the Landlord’s Objection Letter?
The tenant can then obtain a written certification from the local municipality or government entity stating that the condition violates a housing or building code, if applicable.
If the tenant is able to produce the same, the tenant will again have the ability to correct the condition and deduct the costs from the rent if the landlord does not repair the property within 14 days of the notice of intent to correct condition or of the production of the certification from the government, whichever date is later. R.S.Mo. § 441.234.2 (2016).
If any of the conditions regarding habitability, security of the premises, or a condition that violates the local municipal housing or building code is caused by the renter, then the renter does not have the right to deduct such costs of repair from the rent. R.S.Mo. § 441.234.3 (2016).
Do I need an Attorney to Perform an Eviction in St. Louis?
Not necessarily, unless the landlord is an entity (then you must), but you probably should hire an attorney regardless because Missouri statutes require that you use the judicial process to evict tenants.
There are no “self-help evictions” in the state of Missouri.
A self-help eviction is a commonly used term that refers to action taken by the landlord to oust the tenant without instituting a lawsuit, or a situation where the landlord sneaks in and changes the locks while the tenant is gone.
The applicable statute describes it as “removal” or “exclusion” of the tenant “without judicial process and court order.” R.S.Mo. Section 441.233.1 (2016). If the landlord does remove the tenant without using the judicial process, then the landlord is guilty of forcible entry. R.S.Mo. Section 441.233.1 (2016).
This subjects the landlord to potential liability for his/her/its actions.
The landlord cannot cut off the utilities to force the tenant to leave either. R.S.Mo. Section 441.233.2 (2016).
There is an exception to cutting off the utilities, and that is if the cutting off of utilities is for health or safety reasons, the landlord is absolved from the forcible entry liability, at least as it pertains to cutting off utilities. .S.Mo. Section 441.233.2 (2016).
The judicial process must be used in order to legally remove a tenant from the property if they will not do so on their own accord.
There are specific eviction statutes that the landlord must follow, and those are discussed throughout this site.
While an individual does not need an attorney to carry out an eviction in St. Louis, that person might be playing Russian roulette if s/he opts to proceed “pro se.”
The landlord-tenant laws present a mine field of regulations, and an unwary landlord could easily overlook one of the statutory or regulatory requirements and self-destruct to the tune of thousands of dollars.
With that being said, it is prudent to hire a knowledgeable landlord-tenant attorney to help you carry out the eviction properly.
The Property is in a Terrible Condition, what are the Renters Rights?
A landlord warrants, by virtue of the rental agreement, pursuant to Missouri common law and statutes, that certain duties to the tenant will be satisfied.
When these warranties are not fulfilled, the tenant may have certain rights against the landlord.
All of these warranties apply in the residential setting and a few of them apply in the commercial lease setting.
The following are a few of these warranties that the landlord owes to the tenant:
Warranty of Habitability (this warranty is not owed in commercial context)
Warranty that the landlord will allow the tenant to use and enjoy the property without interfering
Duty of good faith and fair dealing to carry out the terms of the lease agreement
Warrant that the premises will be suitable for the intended purpose (if discussed in the lease–this usually goes hand in hand with the warranty of habitability)
“We adopt the view that a lease is not only a conveyance but also gives rise to a contractual relationship between the landlord and tenant from which the law implies a warranty of habitability and fitness by the landlord. Under contract principles a tenant’s obligation to pay rent is dependent upon the landlord’s performance of his obligation to provide a habitable dwelling during the tenancy. Lemle v. Breeden, supra, 462 P.2d. l.c. 475 (6, 7); Javins v. First National Realty Corporation, supra, 428 F.2d 1082 (7-10). In the breach of implied warranty of habitability approach, the same conduct is spoken of as “a substantial breach of a material covenant”. Wulff v. Washington, 631 S.W.2d 109, 111 (Mo. App.W.D., 1982).
This warranty is only applicable in residential leases in Missouri unless a specific provision in the lease provides for the same.
What are the Tenant’s Rights when the Landlord breaches the Warranty of Habitability?
“A more responsive set of remedies are thus made available to the tenant, the basic remedies for contract law, including damages, reformation and rescission.” Kline v. Burns, supra, (111 N.H. 87,) 276 A.2d l.c. 252 (2); Lemle v. Breeden, supra, 462 P.2d l.c. 475 (6, 7).” King v. Moorehead, supra at 75-76.
If the landlord evicts a tenant by physically depriving him of possession, he breaches the implied covenant of quiet enjoyment and the obligation of the tenant to pay rent is suspended. King v. Moorehead, 495 S.W.2d 65, 69 (Mo. App., 1973)(citingDolph v. Barry, 165 Mo.App. 659, 148 S.W. 196, 198 (1912))(emphasis added).
“The courts soon came to realize that a tenant’s possession and quiet enjoyment could be molested by something less than physical extrusion by the landlord.” King v. Moorehead, 495 S.W.2d 65 (Mo. App., 1973)
“A constructive eviction arises 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.” King v. Moorehead, 495 S.W.2d 65 (Mo. App., 1973)(emphasis added).
In the constructive eviction approach, the landlords’ wrongful conduct is described as “substantial interference with the lessee’s beneficial enjoyment of the demised premises”. Wulff v. Washington, 631 S.W.2d 109, 111 (Mo. App.W.D., 1982).
What are the Renter’s Rights if the Landlord Constructively Evicts Him/Her?
“Under this doctrine the tenant is allowed to abandon the lease and excuse himself from the obligations of rent because the landlord’s conduct, or omission, not only substantially breaches the implied covenant of quiet enjoyment but also ‘operates to impair the consideration for the lease’.” King v. Moorehead, 495 S.W.2d 65 (Mo. App., 1973) (quoting Dolph v. Barry, 165 Mo.App. 659, 148 S.W. 196, 198(3) (1912).
“Thus, the first remedy created by the courts to insure habitability, and to exonerate the tenant’s obligation for rent under a lease for lack of it, was ‘designed to operate as though there were a substantial breach of a material covenant in a bilateral contract’.” King v. Moorehead, 495 S.W.2d 65 (Mo. App., 1973) (quoting Lemle v. Breeden, 51 Haw. 426, 462 P.2d 470, 475(5) (1969))(spacing and emphasis added).
Late fees are governed by the lease. The lease typically sets forth the date that the rent is due, and if it is not paid or received by the landlord (depending on the language of the lease) by said date, then the landlord can charge a late fee.
However, if there is no late fee set out in the lease, the landlord is not entitled to charge a late fee.
Any late fees that are included in the lease have to be reasonable.
Otherwise, the court may find that the lease agreement is unconscionable or unenforceable and/or could find that including such an agreement in the lease constitutes an unfair practice under the Missouri Merchandising Practices Act.
For that reason, landlords should always try to be conscious about fairness and act reasonably with the tenant to prevent this unnecessary exposure to liability.
Does a Leasing Tenant have to give Consent before the Landlord sells the Property?
Not unless there is a provision in the lease which requires it.
The landlord can transfer the property freely without the consent of the tenant, but the tenant will not lose credit for rents that were paid to the previous landlord if said payments were made prior to the notice of the sale. R.S.Mo. 441.140 (2016).
What are a Landlord’s Remedies if the Tenant Fails to Pay Rent?
In a situation where the tenant fails to pay rent, the landlord can take any of the following action (there may be some slight variations depending on the language in the lease):
“‘(1) [r]emain out of possession, treat the lease as subsisting and collect rent;
(2) give notice to tenant, resume possession of the premises and attempt to relet in order to mitigate any damages; or
(3) reenter, resume possession in its own right and, effectively, terminate the lease.'” Blue Ridge Center Ltd. Partnership v. Zadeh, 943 S.W.2d 357, 358 (Mo. App. 1997) (quoting MRI Northwest Rentals Investments I, Inc. v. Schnucks-Twenty-Five, Inc., 807 S.W.2d 531, 534 (Mo. App. 1991))(spacing added for legibility purposes).
Is the Landlord required to Re-let the Property if the Tenant Vacates and Stops Paying Rent in the Middle of the Lease?
This question deals with the landlord’s duty to mitigate.
If a tenant stops paying rent in the middle of the lease, does the landlord have to mitigate the damages that would accrue to the tenant (rent that would add up), or can the landlord sit back and let the outstanding rent accumulate?
A landlord has no duty to mitigate rent damages in an action in ejectment.
The purpose of an action for ejectment is to test the right to possession of real property. Gilbert, 765 S.W.2d at 293. To require the plaintiff to mitigate its damages by attempting to rent, let alone sell, the property over which it is trying to gain actual possession is incongruous with this purpose. Smith v. Seamster, 36 S.W.3d 18 (Mo. App.W.D., 2000).
However, when the action is one for rent and possession, the landlord would only have a duty to mitigate if s/he/it chooses the following option upon a tenant default:
“[landlord give[s] notice to tenant [and] resume[s] possession of the premises” at that point, the law does impose a duty for the landlord to mitigate. Blue Ridge Center Ltd. Partnership v. Zadeh, 943 S.W.2d 357, 358 (Mo. App. 1997).
For example, in MRI Northwest Rentals Investments I the Court held that the lessor assumed a duty to mitigate because it took the keys back from the tenant and assumed possession of the premises. MRINorthwest Rentals Investments I, Inc. v. Schnucks-Twenty-Five, Inc., 807 S.W.2d 531 (Mo. App. E.D., 1991).
If the landlord chooses to wait out the rent payments and not take possession, then the landlord does not assume the duty to mitigate rent damages in Missouri.
“In Missouri, a lessor is under no duty to mitigate his damages by seeking to relet the leased premises when the lessee abandons the premises prior to the expiration of a commercial lease, but may let the premises lie idle and collect the rents as they come due.” Hurwitz v. Kohm, 516 S.W.2d 33, 37 (Mo.App., St.L.Dist.1974).
Unlawful Detainer (Chapter 534 of Missouri Revised Statutes)
What is an Unlawful Detainer proceeding?
An unlawful detainer is a legal term in Missouri used to describe the commonly used word “eviction.”
It is defined under R.S.Mo. 534.030.1 as follows:
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 proper written notice of a foreclosure and 10 business days elapse; 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, possesses lands, tenements or other possessions, and refuses to leave after demand is made by the landlord, in writing, for the delivery of such possession…R.S.Mo. Section 534.030.1 (2015)(modified in form and substance to facilitate legibility)
If a person commits any of the above-described acts, said person is guilty of an unlawful detainer.
What is the Purpose of an Unlawful Detainer Action?
“‘[T]he principle issue in an unlawful detainer action is the immediate right of possession.'” State ex rel. Deutsche Bank Nat’l Trust Co. v. Chamberlain (Mo. App., 2012)(quotingWalker v. Anderson,182 S.W.3d 266, 269 (Mo. App. W.D. 2006) (quotingS.L. Motel Enters., Inc. v. E. Ocean, Inc., 751 S.W.2d 114, 117 (Mo. App. E.D. 1988)).
What does the Landlord have to prove in an Unlawful Detainer Action?
“Section 534.200 provides in pertinent part that:
The complainant shall not be compelled to make further proofof the . . . detainer than that he was lawfully possessed of the premises, and that the defendant . . . unlawfully detained the same.” State ex rel. Deutsche Bank Nat’l Trust Co. v. Chamberlain (Mo. App., 2012)(emphasis added).
What if the Tenant claims that s/he owns the Property during the Unlawful Detainer Action?
The Associate Courts in Missouri do not typically entertain claims to title during an unlawful detainer action.
In keeping with the clear and unambiguous provisions of these statutes, our courts have uniformly held that “‘[i]ssues relating to title or matters of equity . . . cannot be interposed as a defense in unlawful detainer actions.'” Walker, 182 S.W.3d at 269 (quoting S.L. Motel Enters., Inc., 751 S.W.2d at 117); see also Central Bank of Kansas City v. Mika, 36 S.W.3d 772, 774 (Mo. App. W.D. 2001) (holding a trial court has no authority to entertain matters of equity, whether raised as claims or defenses, in an unlawful detainer action); Lake in the Woods Apartment, 651 S.W.2d at 558 (holding that because the sole issue in an unlawful detainer action is possession, equitable issues cannot be interposed as a defense). State ex rel. Deutsche Bank Nat’l Trust Co. v. Chamberlain (Mo. App., 2012).
In many common cases, the tenants will retain an attorney and will bring a collateral proceeding regarding the title to the property, such as a wrongful foreclosure or a quiet title action.
The lawyer will then move to consolidate the cases, so both the unlawful detainer and the issue regarding title are heard concurrently (by the same judge).
Rent/Possession Proceedings (Chapter 534 of Missouri Revised Statutes)
What is a Rent/Possession Proceeding?
“Whenever any rent has become due and payable, and payment has been demanded by the landlord or the landlord’s agent from the lessee or person occupying the premises, and payment thereof has not been made,” the landlord can bring a rent and possession action. R.S.Mo. § 535.020 (2016).
Any demand that is made after the right to rent and possession accrues or whenever the rent becomes due pursuant to the lease agreement. R.S.Mo. § 535.060 (2016).
How long does Rent have to be due before the Landlord can take Possession?
If the tenant’s rent is one month overdue or more, if the landlord has the “subsisting right by law to reenter for nonpayment of such rent” the landlord is entitled to institute an eviction proceeding. R.S.Mo. § 535.120 (2016).
R.S.Mo Section 535.020 creates a cause of action for rent and possession, and the following case sums up the statute and explains the claim:
Whenever any rent has become due and payable, and payment has been demanded by the landlord or the landlord’s agent from the lessee or person occupying the premises, and payment thereof has not been made, the landlord or agent may file a statement, verified by affidavit, with any associate circuit judge in the county in which the property is situated, . . . K.O. Real Estate, LLC. v. O’Toole, 291 S.W.3d 780 (Mo. App., 2009).
How long does a Rent/Possession Action usually take to Resolve?
Rent/Possession actions usually take anywhere from 1-3 months to resolve, which again, depends on the judge and the docketload.
Can a Landlord take Judgment for Money Damages against the Tenant?
This depends on what type of jurisdiction the landlord has over the tenant. The jurisdiction over the tenant depends on what type of notice the tenant is provided regarding the lawsuit.
Thus, the service of the rent/collection case can vastly change the dynamic of the case because it determines whether money damages can be recovered by the landlord. Service by posting will not allow the landlord to seek damages from the tenant, but personal service on the tenant will allow the landlord to seek damages for rent.
Thus, the action should be more appropriately termed a “Rent claim” or a “Possession claim,” or a “Rent and Possession claim.”
Where are Expedited Eviction Actions filed in St. Louis County?
An expedited eviction action “shall be filed in the associate circuit court for the county in which the premises are located.” Therefore, an expedited eviction action will be filed in the same place that the other eviction actions are filed: the Associate Circuit Court of St. Louis County.
The cause of action shall be set for hearing “as soon as practicable but in no event shall such hearing be held later than [15] days following the service of summons.” R.S.Mo. § 441.720 (2016).
How does a Conviction for a Drug-Related Activity on the Leased Property affect the Expedited Eviction Action?
The criminal case will collaterally estop the Defendant from raising any defenses to the essential allegations of the criminal offense in the eviction proceeding. Collaterally estop basically means to bar the defendant from raising any defense. R.S.Mo. § 441.800.2 (2016).
Does a Landlord have a Duty to Protect Tenants from harmful acts committed by Third Parties?
“A landlord in Missouri does not have a general duty to provide security for the purpose of deterring criminal acts of third parties.” Vittengl v. Fox, 967 S.W.2d 269 (Mo. App.W.D., 1998).
“[I]n Missouri as well as many other states a duty will generally be found only when there are special circumstances, such as…
[1] when the landlord has made contractual or other representations or assurances to the tenant concerning security…
[2] the landlord had notice of the danger because there have been previous instances of crimes of similar character on the premises…
[3] the landlord has exposed the tenant to an enhanced risk of crime, and the landlord has notice of the risk…
[4] the landlord knows of the presence of a particular dangerous or violent individual constituting a risk to the tenant, or
[5] there is some other “special circumstance” warranting, as a matter of policy, the shift of responsibility for the tenant’s security from the tenant to the landlord.”
Vittengl v. Fox, 967 S.W.2d 269 (Mo. App.W.D., 1998)(quotingMeadows v. Friedman R.R. Salvage Warehouse, 655 S.W.2d 718, 721 (Mo.App.1983))(spacing added).
Does the Landlord have to provide lighting in Common Areas?
Generally no, unless there is some type of agreement or circumstances that would require the landlord to provide the same.
“The landlord is not required, absent agreement or statute, to furnish lights in halls, stairways, entranceways, and passages used in common by a number of tenants, unless the premises are inherently dangerous by reason of construction.” Reinagel v. Walnuts Residence Co., 194 S.W.2d 229, 239 Mo.App. 701 (Mo. App., 1946).
Is Tenant Responsible for Rent if a Fire, Tornado, or Act of God Destroys the Property?
No. The tenant is off the hook from rent payments if the property is destroyed due to a natural disaster, Act of God, Fire, tornado, or other natural or man-made disaster. R.S.Mo. § 441.645 (2016).
Are you a landlord looking to resolve issues with a problem tenant?
Perhaps you’re just looking to evict a tenant from your property, so you can get a paying tenant into the property…
In either case, you will likely need a St. Louis landlord-tenant lawyer to help you accomplish this task.
Our lawyers know the intricacies of St. Louis’ landlord-tenant laws and can help you achieve your desired outcome.
Between tenants who refuse to pay, complaints about habitability or warranty issues, and the threat of destruction to the real estate, our attorneys have dealt with a wide array of landlord tenant issues in St. Louis.
We know that it can be difficult and time consuming to follow all of the statutes and regulations pertaining to the landlord-tenant laws and that’s why our attorneys do the legwork for you.
We can advise you of your rights with respect to the tenant and allow you to make an informed decision. The attorney handling your case will then move expeditiously and in a calculated manner to bring about your desired goal.
Our attorneys will not stop with resolving your issue with the tenant, however. The lawyer will advise you as to how you might be able to prevent this landlord-tenant issue in the future.
These prevention techniques can be implemented by the lawyer through proper drafting of the lease agreement, counseling on the St. Louis landlord tenant laws, and taking the necessary precautions.
Some precautions include providing notice or taking other steps to preserve the landlord’s right in the case.
Further, our St. Louis landlord-tenant attorneys will help you execute on any orders or judgments entered by the court in order to free up your property, so you can rent to paying tenants.
If you need assistance with a landlord-tenant issue in St. Louis, contact a litigation attorney here.
In addition to assisting clients, with preparation and prevention of loss, most worthy real estate trial lawyers pride themselves in the litigation phase. Which raises the question, what is the difference between trial and litigation? Many people think of them as the same thing.
However, litigation is more the general description of all of the motion work and other collateral and evidentiary matters that must be handled throughout the case. Trial is merely one phase of the litigation process that disposes of the case, absent appeals or re-trials.
Our attorneys have litigated numerous real estate cases and have obtained favorable results for many clients. We know the ins and outs of working up a case involving a real property transaction, and we often find creative ways to get you compensated through insurance or through settlements or taking judgment against the seller of the real estate.
In addition to bringing a lawsuit against the seller, our attorneys are aware that the real estate agents involved in the transaction often could have prevented the need for litigation if they would have just acted with diligence.
Because Missouri statutes require real estate agents to adhere to certain standards and carry out a number of different duties to their clients, the law holds that the agents’ failure to do so places them in a position of culpability.
If the real estate agent is culpable, they often are responsible for some or all of the liability incurred by the buyer and/or seller of the real estate.
Because issues arise quite frequently during real property transactions, real estate agents are required to have errors and omissions insurance to specifically address such failures.
An aggrieved buyer or seller should avail themselves of the errors and omissions insurance held by the real estate agent. That’s an important reason for lawyers to always consider bringing the realtors as well as the brokerage firms into the litigation if the facts lend to such causes of action.
This is just one potential avenue, among many, that our real estate attorneys use to help our clients recover.
If you’ve experienced a loss during a real estate transaction, please contact one of our litigation attorneys here.
What if I have a Property Line Dispute with my Neighbor? What are my Rights?
As one can imagine, your rights are dependent upon the facts surrounding your case. There are a number of different remedies and/or defenses in a case where two neighbors are battling over who owns what property.
At first blush, one might believe that a survey of the land should resolve all problems, which may very well be the case.
However, there are a number of doctrines that can be used as a defense in these situations.
If your property is the property upon which the person or entity is trespassing, you may have a number of rights and even potential causes of action, such as any of the following:
Ejectment
Trespass to Land
Negligence
Injunction (temporary or permanent)
Other potential causes of action depending on the specific facts
If you are the person or entity accused of encroaching on another’s property, you might have certain defenses, which may include but are not limited to:
Adverse possession
Easement of any of the various sorts permitted in Missouri (which will be discussed below)
Section 516.010 of the Missouri Revised Statutes governs ejectment claims. Basically, the statute bars a claimant from recovering possession of lands unless that person or their predecessor or ancestor had claim to the property within 10 years prior to the time of the lawsuit. R.S.Mo. Section 516.010 (2016).
If you are dealing with an adverse possessor on your property, then you will need to bring an action within less than 10 years to be able to protect your rights. Obviously, the sooner you can get trespassers off your property the better.
What are the elements of Adverse Possession in Missouri?
“In order to acquire title by adverse possession under § 516.010,2 the claiming party has the burden of proving that he ‘possessed the land, and that the possession was (1) hostile, that is, under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous, for 10 years prior to commencement of [the] action to perfect title by adverse possession.’ Shoemaker v. Houchen, 994 S.W.2d 40, 44 (Mo.App. W.D.1999). The burden of proving each element by a preponderance of the evidence is on the party claiming adverse possession, and failure to prove even one element defeats the claim.” Lancaster v. Neff, 75 S.W.3d 767 (Mo. App., 2002)(citing Id.).
Hostile– “a possession antagonistic to claims of all others, with an intent to occupy as one’s own” Lancaster v. Neff, 75 S.W.3d 767, 772 (Mo. App., 2002). “[E]ven if the possessor mistakenly believed he had title and occupied the land as his own, the [hostile] element is satisfied” Id.
Open and Notorious – “‘visible acts of ownership exercised over the premises,’ such as maintaining and improving the property.” Id.
Actual– “determined by the nature and location of the property and a use by the possessor based upon and expected therefrom, including planting and mowing of grass.” Id.
Exclusive– “the claimant holds the land for the claimant only and not for another, for example using the land as his or her own backyard and not allowing others to so use the property.” Id.
Continuous– “must be [ten] consecutive years and need not be the ten years just prior to the filing of the law suit, but once the period has run, the possessor is vested with title and the record owner is divested” Id.
A license is generally described as “[a] permission, usu. revocable, to commit some act that would otherwise be unlawful; esp., an agreement…that it is lawful for the licensee to enter the licensor’s land to do some act that would otherwise be illegal, such as hunting game.” Black’s Law Dictionary 1002 (9th Ed. 2009).
“A mere license may exist by parol, and ordinarily is not assignable, and is revocable unless it has been executed and the party has incurred expense on the faith of it, so that he would be injured by its revocation.” Main Street Feeds v. Hall, 19 S.W.3d 688 (Mo. App. S.D., 2000).
“An easement is a non-possessory interest in the real estate of another.” Burg v. Dampier, 346 S.W.3d 343 (Mo. App., 2011).
An easement is generally defined as “[a]n interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose (such as to cross it for access to a public road).”
“An easement in gross conveys a personal interest in or right to use the land of another independent of ownership or possession of land, Henley v. Continental Cablevision of St. Louis Cnty., Inc., 692 S.W.2d 825, 827 (Mo.App. E.D.1985), and thus lacks a dominant tenement.” Burg v. Dampier, 346 S.W.3d 343, 353 (Mo. App., 2011).
Click the following link for a more in-depth explanation regarding easements in gross.
“Missouri courts have developed the following four-factor test for the establishment of a visible easement:
There must have been a unity of common ownership followed by a separation of title of the subject property into dominant and servient estates;
The purported easement must have been constructed, altered or artificially arranged by the common owner so as to constitute an open, obvious and visible benefit or advantage to the claimant’s property and a burden to the servient portion of the premises;
The purported easement must have been used long enough before the separation of title and under such circumstances so as to show that the alteration or artificial arrangement was intended to be permanent; and
The purported easement must be reasonably necessary for the full beneficial use and enjoyment of the dominant estate.[citations omitted]” Hillside Development Co., Inc. v. Fields, 928 S.W.2d 886 (Mo. App.W.D., 1996).
What is an Implied Easement from Pre-existing Use?
To establish an implied easement from pre-existing use, the petitioner must prove the following elements:
“(1) unity and subsequent separation of title;
(2) obvious benefit to the dominant estate and burden to the servient portion of the premises existing at the time of conveyance;
(3) use of the premises by the common owner in their altered condition long enough before the conveyance and under such circumstances as to show that the change was intended to be permanent; and
(4) reasonable necessity for the easement.”Causey v. Williams, 398 S.W.2d 190, 197 (Mo.App. 1966).Baetje v. Eisenbeis, 296 S.W.3d 463 (Mo. App., 2009).
When does a Necessary Easement or Easement By Necessity Arise?
“An easement by necessity arises ‘whenever land has been sold which is inaccessible except by passing over the land of the grantor.’” Baetje v. Eisenbeis, 296 S.W.3d 463 (Mo. App., 2009)(quoting Vossen v. Dautel, 116 Mo. 379, 22 S.W. 734, 735 (1893).”
What must a claimant prove to obtain an Easement by Necessity?
“To obtain an easement by necessity, the petitioner must show prior unity of title, and subsequent deprivation of access to a public roadway. Orvis v. Garms, 638 S.W.2d 773, 778 (Mo.App. S.D.1982); McDougall v. Castelli, 501 S.W.2d 855, 858-59 (Mo.App.1973).” Baetje v. Eisenbeis, 296 S.W.3d 463 (Mo. App., 2009).
The Court goes on to state that the easement by necessity cannot be obtained merely because it is convenient. The necessity for the easement must exist. SeeBaetje v. Eisenbeis, 296 S.W.3d 463 (Mo. App., 2009).
“If one has a substitute way off the land, he or she is not entitled to an easement by necessity. Id. ‘[T]his is true even if the substituted way is less suitable, quite inconvenient and involves substantial cash outlay.’” Id.
“A user may acquire a prescriptive easement over the land of another by continuous, uninterrupted, visible, and adverse use which endures for at least 10 years. Moss v. Ward, 881 S.W.2d 238, 241 (Mo.App.1994). In the absence of a showing that the use was permissive in its origin, and where the use has been open, continuous, visible and uninterrupted for 10 years, the courts presume that the use was adverse and under a claim of right. This shifts the burden to the landowner to show that the use was in fact permissive rather than adverse. Id.; Speer v. Carr, 429 S.W.2d 266, 268 (Mo.1968).”Phillips v. Sommerer, 917 S.W.2d 636 (Mo. App.W.D., 1996).
“The general rule is that an easement may be created by grant, express or implied, or by prescription but it cannot be created by parol, except that in certain circumstances an easement may exist by reason of an estoppel.” Main Street Feeds v. Hall, 19 S.W.3d 688 (Mo. App. S.D., 2000).
“There is a further doctrine comporting with reason and justice and recognized as clear equity…that a license to use a way or an easement, though without consideration at its inception, may not be revoked at will where, from the very nature of the license, the licensee was expected to go to great expense in order to enjoy it, and where that expense has been incurred. In such case equitable estoppel arises and the relations of the parties may not be severed and the easement destroyed at the whim and by the act of the licensor alone. They must be severed, if at all, on equitable principles.” Id.
In Majors v. Bush, the Court discussed whether an oral license could ever ripen into an easement. The Court generally held that it could, citing to 28 C.J.S. Easements, section 24, p. 678: “an oral grant will be upheld where it is accompanied by consideration, action in reliance on the grant, and by the grantee’s being permitted the granted use.” Majors v. Bush, 356 Mo. 17, 200 S.W.2d 892, 895 (1947).
“Generally speaking, an easement or a license may terminate by reason of abandonment or the completion of the purpose thereof or when that purpose may no longer be accomplished by means of that easement or license.” Dick v. Shannon, 596 S.W.2d 79 (Mo. App. S.D., 1980)(citingBall v. Gross, 565 S.W.2d 685 (Mo.App.1978)).
Does Non-Use of an Easement Constitute Abandonment of the Easement?
The mere non-use of an easement for the statute of limitations period is not sufficient to extinguish an easement. Harrison v. State Highways and Transp. Com’n, 732 S.W.2d 214 (Mo. App. S.D., 1987). This non-use must also be accompanied by “an intention on the part of the owner of the dominant estate to abandon it.” Id.
“As a general rule, an easement acquired by grant or reservation cannot be lost by mere nonuser for any length of time, no matter how great. The nonuser must be accompanied by an express or implied intention to abandon.” Id. citing 25 Am.Jur. Easements and Licenses, § 105, p. 509.
If a Possessor of Property makes Repairs, can the Possessor recover for the Fair Value of the Repairs to the Property?
Yes. Section 524.160 of the Missouri Revised Statutes gives a possessor, who made improvements to property, a right to compensation for any improvements that were made in good faith by the possessor. R.S.Mo. 524.160 (2016).
“The tort of nuisance arises when a defendant’s use of his or her property is so ‘unreasonable, unusual, or unnatural’ that it substantially impairs the rights of another to enjoy his or her property. Moore v. Weeks, 85 S.W.3d 709, 716 (Mo.App. W.D.2002).” Rychnovsky v. Cole, 119 S.W.3d 204 (Mo. App., 2003).
If you believe you have a nuisance claim, we are proud to offer real estate lawyer services through counseling, negotiating, and litigating on behalf of our clients.
“Where real estate is involved, ‘trespass is the unauthorized entry upon the land of another, regardless of the amount of force used, even if no damage is done or the injury is slight.’ [Rosenfeld v. Thoele, 28 S.W.3d 446, 449 (Mo.App. E.D.2000).] The unauthorized entry may be made by a person or an object as a result of a person’s actions. Id. The tort of trespass arises from the direct physical interference with the person or property of another. Rychnovsky v. Cole, 119 S.W.3d 204, 211 (Mo. App., 2003)(citingLooney v. Hindman, 649 S.W.2d 207, 212 (Mo. banc 1983)).
An ejectment action is defined as “[a] legal action by which a person wrongfully ejected from property seeks to recover possession, damages, and costs.” Black’s Law Dictionary 594 (9th Ed. 2009).
“To make a claim for ejectment, the plaintiff must show the defendant was in possession of premises to which plaintiff had a right of possession. Smith v. Seamster, 36 S.W.3d 18, 20-21 (Mo.App. W.D.2000). Plaintiff must further plead that he was damaged as a result of the defendants’ unlawful possession of the premises. Section 524.060.” Rychnovsky v. Cole, 119 S.W.3d 204 (Mo. App., 2003).
The statute further elaborates on the elements, laying them out, in relevant part, as follows:
Plaintiff was entitled to the possession of the premises;
Plaintiff must describe the premises;
Plaintiff must be entitled to the possession of the premises (the Plaintiff must prove at the time of the commencement of the action in ejectment, the Plaintiff had possession of the premises claimed and Plaintiff had the right to possess the same R.S.Mo. 524.080 (2016);
Defendant “on some day to be stated, entered into such premises, and unlawfully withholds from the plaintiff the possession thereof”
Plaintiff is damaged because he has been kept out of possession. R.S.Mo. 524.060 (2016).
Is there a statute that gives a Lawful Owner of Property a Right to Eject Trespassers?
Yes. In fact, all of Chapter 524 of the Missouri Revised Statutes is dedicated to the cause of action known as Ejectment.
However, specifically, R.S.Mo. 524.010 gives persons or entities the right to bring an action in ejectment, stating the following: “[a]n action for the recovery of the possession of premises may be maintained in all cases where the plaintiff is legally entitled to the possession thereof.” R.S.Mo. 524.010 (2016).
If you are a landlord of commercial property, and you need the services of a commercial real estate attorney to eject a non-paying tenant, please contact us for a free consultation.
What is the difference between a Mortgage and a Deed of Trust?
Despite the frequent use of the term “mortgage,” mortgages are rare and are not commonly used in Missouri.
Why? I thought that’s what you have on your house in Missouri.
This brief discussion is designed to teach the differences between a deed of trust and a mortgage.
Missouri uses a deed of trust. Kansas uses a mortgage.
So, if you’ve been calling it a mortgage your whole life and you live in Missouri, you’ve been using the wrong terminology (at least from a technical, legal standpoint).
A mortgage is defined as “a conveyance of title to property that is given as security for the payment of a debt or the performance of a duty and that will become void upon payment or performance according to the stipulated terms.” Black’s Law Dictionary 1101 (9th ed. 2009).
There is a common misconception that anyone who borrows money from a bank to purchase a home is typically required to sign a mortgage.
Rather than referring to the instrument as a mortgage, people who are not sure, should more generally and more properly refer to such document as an instrument that creates a security interest in the home.
Basically what that means is that you give the bank a mortgage, and the bank has an encumbrance, or lien, on your property.
A security interest is just a general way of describing the mortgage.
A security interest is defined as “a property interest created by agreement or by operation of law to secure performance of an obligation (especially repayment of a debt).”[1]
When you borrow from the bank to purchase your home, you typically receive a promissory note from the bank, which is usually for the amount of the purchase price (unless you have money down).
Along with the promissory note, the bank requires you to give them a mortgage, essentially putting the house up for collateral in case you don’t make timely payments on the promissory note.
Thus, the borrower becomes the mortgagor (because they’re giving the mortgage), and the bank becomes the mortgagee (because they are receiving the mortgage).
This was an extremely confusing concept in law school, but after dealing with real estate matters on a daily basis for a long time, you find ways to remember these little nuances.
Now, let’s look at a deed of trust.
Deed of Trust
A deed of trust is defined as “a deed conveying title to real property to a trustee as security until the grantor repays a loan. This type of deed resembles a mortgage.” Black’s Law Dictionary 476 (9th ed. 2009).
Approximately 20 states in the United States use mortgages while the remaining are deed of trust states.
If you compare the definitions of a deed of trust and a mortgage, you really wonder what is the actual difference. In the most basic sense, they are used for the same purpose.
The major distinction is that the deed of trust is conveyed to a trustee. The trustee is a third party, who legally holds the title to the property and enforces the terms of the agreement (deed of trust), usually at the direction of the lender, until the debt is satisfied.
A trustee under a deed of trust has neither the power nor the obligations of an ordinary trustee. See generally Baxter Dunaway, Law of Distressed Real Estate § 24:64 (2012); I. E. Associates v. Safeco Title Ins. Co., 702 P.2d 596, 600 (1985).
The trustee “[t]echnically. . . is not a trustee at all, but is merely a functionality of limited power, under a type of mortgage conferring on him or her the power to convey under the prescribed conditions, and is bound to follow the provisions of the deed of trust and applicable law.” Baxter Dunaway, Law of Distressed Real Estate § 24:64 (2012); I. E. Associates v. Safeco Title Ins. Co., 702 P.2d at 600.
“Although technically, under a deed of trust, legal title passes to the trustee, holders of deeds of trust do not have an ownership interest in the land, rather, such conveyance of title is solely for the purpose of security, leaving in the trustor a legal estate in the property, as against all persons except the trustees and those lawfully claiming under them.” 54A Am. Jur. 2d Mortgages § 121 (2012); see also Aviel v. Ng, 161 Cal. App. 4th 809, 74 Cal. Rptr. 3d 200 (1st Dist. 2008).
In fact, “[t]he trustee is typically not even a necessary party to suits relating to the mortgaged property.” 18 Mo. Prac., Real Estate Law-Transact. & Disputes § 16:1 (3d ed.) (2012 fn 2). SeeLibby v. Uptegrove, 988 S.W.2d 131 (Mo.App.1999).
The addition of the trustee is the primary factor that causes the deed of trust to differ from the mortgage. 18 Mo. Prac., Real Estate Law-Transact. & Disputes § 16:1 (3d ed.)(2012). However, not only the addition of the third party causes a difference, but also the change in procedure due to the presence of this third party (the trustee).
In the case of a mortgage, the lender will convey the title to the borrower but have the borrower execute and record a mortgage to ensure the borrower is in compliance with the terms of the note and mortgage.
Are Deeds of Trust and Mortgages Filed in the same Location?
Yes.
In order to put the whole world on notice, both instruments, deeds of trust and mortgages, should be recorded in the recorder or register of deeds office in the county in which the real property is located. R.S.Mo. § 442.380 (2012); K.S.A. 58-2221 (2012).
Any lender that fails to timely record the instrument runs the risk of losing priority to deeds of trust or mortgages that are executed subsequently. See Golden Delta Enterprises, L.L.C. v. US Bank, 213 S.W.3d 171, 176 (Mo.App.2007).
In Kansas, “[one that] purchases without actual notice of a prior unrecorded mortgage, obtains priority over such unrecorded mortgage.” Jackson v. Reid, 30 Kan. 10, 1 P. 308 (1883).
If you need help filing a deed of trust or other real estate document, our attorneys would be more than happy to assist you with that service.
Does it Matter who Physically Holds the Deed of Trust or Mortgage?
No.
It does not make a significant difference as to who physically holds the document because the document becomes part of the public record upon recording and the significant effect is that of the priority which the mortgage or deed of trust receives, which is based on the order of recording (unless one can rebut the presumption and prove actual notice was received by the purported junior lienholder). Jackson v. Reid, 30 Kan. 10, 1 P. 308 (1883); See Golden Delta Enterprises, L.L.C. v. US Bank, 213 S.W.3d at 176.
When does the Lender have the Right to Foreclose under a Deed of Trust? Is it Constitutional?
With deeds of trust, “title remains in the mortgagor ‘until entry for breach of the condition of the deed of trust’ . . . or “until entry for breach of condition, and then foreclosure under power of sale.” Graham v. Oliver, 659 S.W.2d 601, 603 (Mo. Ct. App. 1983); see also Tipton v. Holt, 610 S.W.2d 659, 661 (Mo.App.1981).
An extremely important concept in both the context of a deed of trust and a mortgage is that both instruments are contracts between the lender and the borrower. Baxter Dunaway, Law of Distressed Real Estate § 24:64 (2012).
This notion is important in the context of non-judicial foreclosure as issues regarding the constitutionality and borderline violation of due process have been called into question because the state is allowing another party to dispose of the homeowner’s property (through non-judicial foreclosure sale, on the courthouse steps) without due process of the law.
With respect to the contracts and the actions of lenders in carrying out non-judicial foreclosures based on those contracts, the Courts have stood strong against the unconstitutionality argument: “[t]he Fifth Circuit put it this way: to hold that the state, by recognizing the legal effect of those arrangements, converts them into state acts for constitutional purposes would effectively erase … the constitutional line between private and state action and subject to judicial scrutiny under the Fourteenth Amendment virtually all private arrangements that purport to have binding legal effect.” Apao v. Bank of New York, 324 F.3d 1091, 1094 (9th Cir. 2003).
Building on that concept, the foreclosure process is substantially different in certain respects, and many of those differences will be covered in the next section.
What is the Foreclosure Process in Missouri (Deed of Trust State) vs. Kansas (Mortgage State)?
Foreclosure is “a legal proceeding to terminate a mortgagor’s interest in property, instituted by the lender (the mortgagee)[2] either to gain title or to force a sale in order to satisfy the unpaid debt secured by the property.”[3] Foreclosure proceedings can be instituted judicially, which is the typical procedure in a state with mortgages, or a lender can initiate procedures by providing proper notice and instructing to trustee to carry out a the process pursuant to state law and power granted to the trustee in the deed of trust, if applicable.
In Missouri, a creditor with a security interest in real property and the right to foreclose has the option of instituting a judicial or non-judicial foreclosure sale.
Judicial foreclosures are substantially more time consuming and costly, so from a practical standpoint, most foreclosures are non-judicial. See Karen M. Pence, Foreclosing on Opportunity: State Laws and Mortgage Credit 5 (Fed. Reserve Bd., Finance and Economics Discussion Series No. 2003-16, 2003), available at http://www.federalreserve.gov/pubs/feds/2003/200316/200316pap.pdf. See also Black’s Law Dictionary 719 (9th ed. 2009) (defining judicial foreclosure).
Some scholars believe that “it is possible to foreclose [non-judicially on] a major property in [a] little more than a month.” 18A Mo. Prac., Real Estate Law–Transact. & Disputes § 58:1 (3d ed. 2012).
A non-judicial foreclosure or sometimes referred to as a power-of-sale foreclosure is defined as “a foreclosure process by which, according to the mortgage instrument and a state statute, the mortgaged property is sold at a non-judicial public sale by a public official, the mortgagee, or a trustee, without the stringent notice requirements, procedural burdens, or delays of a judicial foreclosure.” Black’s Law Dictionary 719 (9th ed. 2009).
Missouri’s foreclosure statute states the following, in relevant part:
“[a]ll mortgages of real property or security agreements providing for a security interest in personal property, or both, with powers of sale in the mortgagee or secured party, and all sales made by such mortgagee, secured party or his personal representatives, in pursuance of the provisions of the mortgages or security agreements, shall be valid and binding by the laws of this state upon the mortgagors and debtors, and all persons claiming under them, and shall forever foreclose all right and equity of redemption of the property so sold….” R.S.Mo. § 443.290 (2012).
This type of sale is sometimes referred to as a power of sale foreclosure because the trustee that holds the deed of trust is typically given the power of sale by way of contract. The contract in which the power of sale is contained is the deed of trust. A power of sale is specifically defined as “a power granted to sell the property that the power relates to.” Black’s Law Dictionary 1289 (9th ed. 2009). “The power’s exercise is often conditioned on the occurrence of a specific event, such as nonpayment of a debt.” Black’s Law Dictionary 1289 (9th ed. 2009).
Without the power of sale provision listed in the deed of trust, the trustee cannot legally invoke its right to sell the property in question. In such a case, the property would have to be judicially foreclosed upon to properly carry out a foreclosure sale.
It is important to note that a contract (deed of trust) governs the relationship between the lender, borrower, and trustee.
This is important from a constitutional standpoint as briefly discussed above. Because some borrowers, who had their home foreclosed upon, raised the issue that a non-judicial foreclosure does not provide for adequate due process before their property is taken, Missouri courts were faced with ruling upon the same. See Graham v. Oliver, 659 S.W.2d 601, 603 (Mo. Ct. App. 1983).
The Missouri Supreme Court ruled that the relationship was governed by the contract (the deed of trust), and “that the power of sale exercised by the trustee during foreclosure is not principally derived from statute nor otherwise granted by the state.” AgriBank FCB v. Cross Timbers Ranch, Inc., 919 S.W.2d at 268.
Therefore, the mere enforcement or interpretation of the contract by the court does not constitute sufficient state action to raise an issue regarding deprivation of due process. See AgriBank FCB v. Cross Timbers Ranch, Inc., 919 S.W.2d at 268.
In short, the mere fact that the state is enforcing a private contract between the lender and borrower does not designate such enforcement as state action.
As noted above, Kansas is a judicial foreclosure state. Judicial foreclosure is defined as “a costly and time-consuming foreclosure method by which the mortgaged property is sold through a court proceeding requiring many standard legal steps such as the filing of a complaint, service of process, notice, and a hearing.” Black’s Law Dictionary 719 (9th ed. 2009).
Kansas statutes also require “the officer [executing the sale to] give[] public notice of the time and place of sale once each week for three consecutive weeks prior to the day of sale, by publication in the county in which the judgment was rendered and in the county in which the land and tenements are located.” K.S.A. 60-2410 (West 2012).
The court then reviews the proceedings and if it finds them “regular and in conformity with law and equity, it shall confirm the same.” K.S.A. § 60-2415 (West 2012).
While this process appears simple on its face, according to a recent paper by Karen M. Pence,
[J]udicial [foreclosure] procedures are substantially more time consuming than power-of-sale procedures. Wood (1997) finds that judicial foreclosures, on average, take 148 days longer than nonjudicial foreclosures, while Freddie Mac’s guidelines for mortgage servicers indicate that foreclosures in the most time-consuming state, Maine (a judicial foreclosure state), take almost 300 days longer than in the quickest state, Texas (a power-of-sale state).
Grant S. Nelson & Dale A. Whitman, Reforming Foreclosure: The Uniform Nonjudicial Foreclosure Act, 53 Duke L.J. 1399, 1514 (2004 fn 20) (quoting Karen M. Pence, Foreclosing on Opportunity: State Laws and Mortgage Credit 5 (Fed. Reserve Bd., Finance and Economics Discussion Series No. 2003-16, 2003), available at http://www.federalreserve.gov/pubs/feds/2003/200316/200316pap.pdf.).
A power-of-sale state refers to a state in which the trustee has the right to sell the home based on the deed of trust.
What are some Benefits of Judicial Foreclosure States?
This is notable data for the borrower because it suggests that lenders are more reluctant to judicially foreclose due to the extensive time commitment and costs involved. See generally Black’s Law Dictionary 719 (9th ed. 2009).
Thus, in judicial foreclosure states, borrowers have much greater leverage to negotiate a loan modification and/or induce the lender into executing a forbearance agreement. A loan modification is an adjustment to the original note to account for and hopefully, allow the borrower to make timely payments.
“Any agreement to extend, modify, or subordinate a deed of trust will normally be recorded.” 6 Mo. Prac., Legal Forms § 3:231 (3d ed.).
A forbearance agreement is typically an agreement to postpone, reduce, or suspend payment due on a loan for a limited and specific time period. Interest that accrues during the forbearance remains the debtor’s responsibility.
When the forbearance expires the unpaid interest is added (capitalized) to the principal balance of the loan. A forbearance request must be approved by the lender.
Typically, the lender agrees not to foreclose on the property or accelerate payments due on the loan during the forbearance period.
In exchange, the debtor agrees not to contest any actions taken by the creditor to collect the debt in the event that the debtor fails to make scheduled payments or live up to other terms of the forbearance agreement. Available at http://definitions.uslegal.com/f/forbearance-agreement.
For example, a lender, instead of investing money in attorney’s fees and attempting to foreclose and then have to deal with forcibly removing a homeowner from the premises, it may just take opt to modify its original note, take a small hit on the interest rate, but ultimately implement a viable payment plan for the homeowner.
While this course of action may seem unfair to the lender, the reality is that, all of the parties will benefit, if a reasonable loan modification can be carried out.
The lender is not typically in the business of managing recently foreclosed upon homes, and it incurs substantial expenses in maintaining and attempting to resell the acquired property.
For this very reason, the lender may be compelled to modify the note almost as much as the borrower. If a successful note modification can be carried out, the result is that the lender continues to receive payments on its note, and the borrower gets to keep his collateral (his home).
Analysis of Real Estate Laws in Deed of Trust vs. Mortgage States
Although the most prominent difference between a deed of trust and a mortgage is the participation of a trustee, the procedural posture of the transaction is substantially changed by the presence of this third party. The trustee allows lenders that have their note secured by a deed of trust to sidestep the judicial foreclosure process thereby providing proper notice and initiating the foreclosure on its own accord.
When dealing with a deed of trust, the title is held in a somewhat different manner than a mortgage. On its face, however, it does not appear to confer the same legal title in the property to the borrower.
The reality is that, in substance, the title held by the borrower is similar because in both settings the borrower does not actually acquire full rights and ownership to the property until the note secured by the property is paid in full. This satisfaction of debt would be evidenced by a release of deed of trust or in the case of a mortgage, a release of the mortgage, which is filed in the recorder of deeds office and in effect extinguishes the lien from the property.
Based on the above, one can see the great risks of foreclosure imposed on a debtor due to the expedited process and the more lenient safeguards in a deed of trust context. See generally Black’s Law Dictionary 719 (9th ed. 2009).
As a result, many attorneys look at Kansas as a more debtor-friendly state and typically feel that they are in a better position to assist a Kansas debtor in the event of a default on the note. That is not to say that a debtor in default in Missouri is without remedies; there are numerous safeguards for non-judicial foreclosure states with which a lender must strictly comply throughout the foreclosure process as discussed above. See R.S.Mo. § 443.290 (West 2012).
When a lender does not comply with such statutory procedural requirements, the attorney representing the debtor may have an avenue to attack the foreclosure sale. A successful defense to a foreclosure sale would come in the form of a petition to set aside the foreclosure, which could result in a wrongful foreclosure or the mere setting aside of the foreclosure. “The term ‘wrongful foreclosure’ has been used both in relation to suits in equity as a ground to set aside a sale and suits at law as a ground to recover tort damages.” Dobson v. Mortgage Elec. Registration Sys., Inc./GMAC Mortg. Corp., 259 S.W.3d 19, 22 (Mo. Ct. App. 2008).
A remedy in tort for wrongful foreclosure is much different in that it only “lies against a mortgagee [] when the mortgagee had no right to foreclose at the time foreclosure proceedings were commenced.”[4] Accordingly, a debtor may have some various defenses even when a deed of trust evidences and collateralizes the debt.
Although the distinction between a mortgage and deed of trust appears slight, an overview of the foreclosure process in each state should provide a wake-up call to homeowners to know the dangers that a foreclosure may pose.
Especially in a city that borders two states with very different foreclosure laws, it is crucial for a homeowner to know the protections in his own state.
When purchasing a home, if the homeowner is armed with this knowledge, s/he may be aware of the greater leverage in the event that s/he defaults on her note.
This leverage can then be used to buy yourself time until you can get back on your feet.
[1] Black’s Law Dictionary 1478 (9th ed. 2009) (“[W]hen a buyer uses the lender’s money to make the purchase and immediately gives the lender security by using the purchased property as collateral,” the security interest is more specifically titled a purchase money security interest.)
[2] The lender is not always responsible for instituting foreclosure proceedings, on some occasions a lienholder can foreclose on their lien.
I recently purchased a home, but the seller misrepresented something on the disclosures, what should I do?
Depending on the damages that you’ve suffered (how much money that you spent to resolve the problem), you may wish to consult with an attorney to explore your potential options for recourse.
When searching for representation, remember that in order for a lawyer to find your case attractive, there has to be some type of recovery at the end of the case.
Otherwise, the attorney will have no incentive to take the case.
That means you need to have damages that are significant enough to warrant the retention of counsel. This is particularly important because real estate misrepresentation cases are already teed up for litigation, and litigation can get very expensive.
Thus, you have to ask yourself, “why would an attorney take my case?”
In answering this question, keep in mind that attorneys are in the business of helping people but also want to make money.
So here are three ways to appease counsel and to help you determine if your case may be worth the fight:
(1) you’re willing to pay hourly fees to pursue your real estate misrepresentation claim;
(2) you have substantial damages that would incentivize an attorney to take the case in that s/he will receive a percentage of the recovery (if representation is based on a contingent fee agreement); or
(3) locate an attorney provisions fee in the real estate contract–many Missouri real estate contracts include attorney’s fee provisions as the real estate agents, depending on the brokerage firm, are usually required to use the contract approved by the local or regional real estate association.
Please note that contracts with attorney’s fee provisions and Missouri law only allows for awards of reasonable attorney’s fees. Additionally, the provisions in the real estate purchase agreement usually only award attorney’s fees to the prevailing party.
If you need assistance interpreting your real estate contract or in litigating a misrepresentation case, contact a lawyer here.
Do I need to do anything with my Real Estate when my Spouse dies in MO?
The answer to this question depends on how you held the property as co-tenants.
There are several ways to hold title to Missouri real estate as a co-tenant, and those are set forth below.
If the property is held in a joint tenancy or tenancy by the entirety, the surviving joint tenant typically files an affidavit in the county in which the property is located.
The affidavit basically just tells the recorder of deeds office that the deceased tenant is no longer living, and the recorder of deeds should record the affidavit in the record to update the true legal titleholder of the real property.
How to take my ex-wife off the property after divorce (i.e., MO divorce decree requires removal of one spouse)?
During a marital dissolution or what we commonly refer to as a divorce, the property of the married couple is inventoried and the assets are typically divided equitably.
Because real property is unique, there are very few times that the property will actually be physically partitioned (where the Court physically divides the land.) This is akin to a situation where a line is drawn down the middle of the room, and one person gets the right side the other person gets the left side–however, this example is an exaggeration of what really happens. Although the Court could decide that the land needs to be partitioned as previously described, such an outcome is rare and usually only happens in particularized circumstances, usually involving agricultural land.
Normally, instead of a physical partition, the court will partition the land and allow one of the parties to buy the other out, or the property will be sold and each party will receive proceeds in accordance with that party’s ownership interest in the real estate.
In any case, a divorce typically necessitates the division of property, which means that the real estate held by the married couple must be allocated to one spouse or the other.
It is not commonplace for the Court to sell the property unless an equitable divide using the other assets simply cannot be reached.
When the decision of ownership of the real estate is made, the Court often gives a certain period of time from the date of the Court’s order in which the property must be transferred to the spouse who is to receive the real estate.
So, how is this typically accomplished?
Usually a quitclaim deed is prepared by a real estate attorney and is executed by both parties (because title between husband and wife is typically held in tenancy by the entirety in Missouri, both must sign).
Additionally, there are certain counties in Missouri that require the grantors and grantees to sign the deed. St. Louis, for example, imposes this requirement.
Below is a list of requirements for filing a real estate deed in St. Louis.
How to add my new spouse to the legal title of my property? (I.e. My wife and I just got married, and I want to add her name to the title of the real estate)
When two people get married it is not unnatural to want to co-own the home together. It is also common for one of the spouses to enter into the marriage with property that is titled solely in their own name. This occurs when the spouse acquires property prior to the marriage.
If they are truly in love (we hope love exists in all marriages), it is typical for the spouse who owns the property to add the non-titled spouse to the property.
How do you do this?
The joint titling of spouses can be accomplished through the recording of a deed to the real estate.
The deed must be recorded in the Office of the Recorder of Deeds in the county in which the real estate is located.
The party who solely owned the property prior to the marriage simply names both himself and his new wife as the grantees in the deed. The legal description of the property is contained in the deed as well as the language necessary to legally pass the title to both spouses.
Note: This is an extremely dumbed-down description of the deed preparation and filing process and does not include all of the requirements or steps. Consult an attorney to assist you with your specific case.
What DifferentWays Can a Co-tenant hold title to Property in MO?
The way that two people hold title can be the difference between their kids receiving everything and their kids receiving nothing.
For that reason, it is critically important to understand the different ways you can hold title in St. Louis, Missouri. You will also learn the nuances between each vesting type.
Below are laymen’s explanations from a real property attorney of how co-tenants can be vested in St. Louis.
“Joint tenants with rights of survivorship and not as tenants in common” is the typical language used to vest joint titleholders as a joint tenancy. In laymen’s terms, if two people hold real property as joint tenants, and one dies, the surviving party will become the sole titleholder upon the death of the other person. In this case, the property is not divided between the estate and the surviving titleholder.
Tenants by the Entirety is almost the same type of legal title as joint tenants, at least for practical purposes.
A tenancy by the entirety, however, is a special type of vesting that’s carved out solely for married couples in Missouri.
It basically gives the titleholders rights of survivorship but also gives additional protection from creditors, when only one of the tenants by the entirety has a creditor. The creditor cannot assert a lien on the property unless both the husband and wife are debtors of that creditor.
If they are not, typically the creditor cannot assert a lien on the real estate.
Tenants in common is another type of vesting for the titleholders of real estate in Missouri.
A tenancy in common is the default vesting in Missouri, which essentially means that if no tenancy is specified between joint titleholders, they will hold the property as tenants in common.
This is a different default vesting than bank accounts and vehicles in Missouri, which have a default vesting of joint tenancy.
Tenants in common have a distinct ownership share of the property that is separate from that of the other tenant. Although the co-tenants equally share the property, they each own a share individually.
This means that if one of the tenants in common dies, the surviving tenant in common’s ownership share will remain the same. The deceased tenant in common’s interest will then pass to the decedent’s estate or the surviving tenant in common may have a right of first refusal.
What Do I need to File regarding my Real Property?
As noted above, deeds and mortgages should be filed in the recorder of deeds office.
However, the same statute which requires deeds of trust to be filed, R.S.Mo. section 442.380, states that any written instrument that either: “conveys any real estate, or whereby any real estate may be affected, in law or equity” shall be recorded in the recorder of deeds office of the county where the property is located.
If I have a Written Lease, Do I have to file it with the Recorder of Deeds Office?
You only have to file the lease with the recorder of deeds if you want it to be effective against third parties. A contract for deed would be an example of a document that a lessee/purchaser would want to file with the recorder of deeds office.
This would put all third parties on notice that you have an interest in the property.
From a practical standpoint, it acts as a deterrent for potential purchasers because they will see a cloud on the title.
Most wary purchasers will not go through with the sale if there is any issue with the title.
If you have questions about whether you need to file your written document, please feel free to contact one of our attorneys.
What are some of the Formal Requirements for Filing a Deed in the Missouri Recorder of Deeds Office?
The recorder of deeds office is not governed by Missouri. Each county has their own recorder of deeds office that monitors and manages the filings related to real property in their respective county. Thus, Missouri does not have a one-size-fits-all requirement for filing deeds. You need to reference each specific county to learn the deed filing requirements.
Below is a general description of the filing requirements imposed by the Saint Louis County Recorder of Deeds Office.
What are some of the Formal Requirements for Filing a Deed in St. Louis County Recorder of Deeds Office?
Despite the state’s lack of uniformity, there are a number of commonalities amongst the various county recorder of deeds offices. The St. Louis County recorder of deeds has some pretty strict requirements in order to properly prepare a deed.
The deed must be typed on a white or light-colored paper
The paper cannot have watermarks/logos
It must be printed on one side, not both sides of the paper
The font must be at least 10-point
All type including signatures needs to be black or dark ink
Signatures must have the name typed, stamped or printed below
There must be a 3 inch margin at the top of the first page
Then any additional margin must be at least ¾ of an inch
The following must be on the first page of the deed to the property:
Title of the document;
Date of the document;
All grantors’ names;
All grantees’ names;
Any statutory addresses;
Legal Description;
Reference book and page number(s) if required.
The deed does not need a cover page but the person or entity filing the same can include one. Any cover page must include the “first page” requirements that are listed above.
If you need assistance handling a real property matter or preparing or filing a deed in St. Louis, contact one of our attorneys now.
Purchasing real estate may be one of the most important decisions that you make in your life. When you’re considering the various options regarding a real estate purchase in St. Louis, you would be well-advised to consult with an experienced attorney who can inform you of your options.
Our attorneys are honored and privileged to assist our clients with a number of different St. Louis real estate transactions and other real property matters on a daily basis.
In our view, a real estate transaction is a process. Like any other process, there are numerous phases which a purchaser of real estate must go through in order to realize a successful transaction.
The first phase includes research and preparation.
Real Estate Research and Preparation
In order to have a smooth real estate transaction, common sense dictates that you need to do the proper research.
Some of this research includes finding the right real estate agent, finding the right attorney, performing background research on the property, performing searches on comparable sales in that area (your real estate agent can usually assist with this).
There are also a number of other things you need to do before diving into the real estate game, and your lawyer and real estate agent can likely assist with any preliminary questions or matters.
Some examples of issues to review before purchasing real estate include, but are not limited to:
checking the crime rate in the area in which the property is located
public school district in which the property is located
access to libraries, parks, malls, major interstates
noise from traffic or other disturbances
water drainage issues from neighboring properties
other general caveats for the buyer are discussed throughout this website
As part of the preparation process, the purchaser needs to be familiar with the material terms of the contract.
There are some complex provisions as well as boilerplate provisions in the typical real estate contract, and your real estate attorney can help you distinguish the two.
This preparation is necessary, so you know what you’re undertaking when you enter into the real estate purchase contract.
The bottom line is that you’re about to make an incredibly large investment, so you probably should rely on the advice of an attorney who deals with real property transactions on a regular basis.
Real Estate Contract Review and Preparation
Many people wait until after a dispute arises to contact an attorney, but you should inform yourself of the terms in the real estate contract as well as have a lawyer review the language contained in the contract.
This should all be done prior to purchasing the property in order to avoid the pitfalls that may accompany the purchase.
Sometimes the realtor may have a form contract that is approved by the local or regional real estate association, and these are often drafted to be fair for both parties.
However, if you have additional leverage in a real estate transaction, or have potential leverage, your attorney can provide suggestions to help you arrive at your desired outcome.
Additionally, there may be boilerplate language in the contract that significantly impacts your rights in the transaction.
Your lawyer can explain these things to you. This is particularly important when the language is complex, and you are unable to understand it.
So, in accordance with the above, regardless of whether you are a buyer or seller of real estate, you should have an attorney prepare or review your agreement to ensure that it is free from potentially hazardous provisions.
As noted above, a real estate transaction often involves a significant amount of money. When a lot of money is involved, logic dictates that the buyer or seller could potentially lose a lot of money if the transaction goes south.
As such, the assistance of an attorney can help you gain, preserve, or prevent the loss of valuable assets and/or money.
We have attorneys with experience litigating issues that arise from a real estate sale, attorneys who prepare all the documentation relating to the sale of property, and counselors who can help guide you and negotiate a home purchase or sale.
If you need assistance, contact a St. Louis Lawyer today.
Entrusting an Attorney to Handle Your Real Estate Transaction
While it may seem cost effective to negotiate the deal on your own, if any problems occur, it’s all on you. Hiring a lawyer to take on some of these issues can often allocate the burden of managing the case yourself.
Plus, you dish off the work to an attorney, whose job is specifically dedicated to litigation and preparing a case for you.
Ultimately, the attorney will take his time pursing the insurance carrier, or the other party with whom you’ve entered into the transaction.
That will allow you more time to focus on your business. If things work out correctly, your claim may even provide for attorney’s fees which would take care of the legal fees.
If you need assistance with a real estate matter, we can provide legal counsel with a number of different matters such as:
purchase and sale disputes,
construction claims,
landlord-tenant disputes,
claims involving adverse possession,
prescriptive easements,
quiet title and
other issues arising from or relating to real estate.
In addition to contractual language, other potential dangers in the purchase of property can result from defective titles, undisclosed facts on the seller’s disclosures, liens on the property, contingencies in the contract, and disputes with the real estate that remain unresolved.
These are just a few of the issues we can help you with.
We are happy to hear any real property issue that you have, and if we can’t help you with it, we can assist you in finding a competent attorney who can.
Please continue to research our site for more information and if you need further guidance, contact one of our St. Louis real estate attorneys today.
If you specifically need assistance with litigating a real estate matter, contact a litigation attorney here.
