|Type||Rent & Possession||Unlawful Detainer||Expedited Eviction||Abandonment|
|Purpose||To recover rent or take possession if tenant does not pay rent.||To regain possession of a rental unit only.||To quickly remove a person or tenant because of drug activity, violence, or substantial damage to property.||To regain possession of a rental unit.|
|Notice||Must make a demand for rent after due date, but no specific method required. Actual delivery to tenant required for rent. Posting allowed for only recovering possession.||Notice must be in writing. Length of notice depends on circumstances of lease. Must try to personally deliver, otherwise may post on door.||No notice required if tenant is conducting disapproved acts. Five days notice required if tenant is not person conducting acts.||Notice posted and mailed first class to last known address, return receipt requested.|
|Rent Acceptance||May accept partial payment without giving up right to take judgment and evict. Must accept full payment of rent if offered.||Landlord is entitled to rent up to termination date, double rent after termination date. Should not accept rent after termination date.||Landlord has right to collect rent while the suit is pending.||Landlord can sue for past due rent.|
|Counterclaim||Tenant has right to file counterclaims and defenses.||No counterclaims or equitable defenses allowed.||No provision in law.||Not Applicable.|
|Right to Jury||No right to jury trial.||Tenant may request jury trial.||No Provision in law.||Not Applicable.|
Table of Contents
The eviction process in Missouri can be a difficult one to maneuver for the untrained landlord. For starters, Missouri does not have an act that specifies all of the rights and duties governing the landlord-tenant relationship. The statutes governing landlord-tenant law are found throughout the Missouri Revisor of Statutes and are organized based on the type of eviction process being used by the landlord. Evictions are a judicial process in which a landlord retakes possession of a property leased to a lessee or tenant. “Judicial” is emphasized because Missouri does not allow “self-help” eviction, which will be discussed later.
It should be noted that the landlord-tenant relationship is unique. This relationship is created by a lease which is both a conveyance of property rights as well as a contract. G & J Holdings, LLC v. SM Props., LP 391 S.W.3d 895, 900 (Mo. App. E.D. 2013).
The landlord-tenant relationship has four essential elements:
(1) a contract, either express or implied, between the parties,
(2) The transfer of exclusive possession and control of the premises, or a portion thereof, to the tenant,
(3) the creation of an estate (possessory interest) in the tenant for either a period of time or at will, and
(4) a reversion interest (the right to resume control of land if certain conditions are met). Letsinger v. Drury Coll., 68 S.W.3d 408, 411 (Mo. banc 2002).
How can a landlord legally remove a tenant and/or reclaim possession of a leased property?
There are four procedures available in Missouri for evictions and reclaiming possession of a leased property: (1) rent and possession, (2) unlawful detainer, (3) expedited eviction, and (4) abandonment. Each procedure has its benefits and downsides. Which procedure a landlord uses will be determined by the outcome desired by the landlord as well as the circumstances surrounding the eviction.
As mentioned above, “self-help” evictions, one in which a landlord either actually or constructively evicts a tenant are illegal per Missouri law (a landlord is guilty of forcible entry and detainer if he “removes or excludes a tenant or the tenant’s personal property from the premises without judicial process and court order, or causes such removal or exclusion, or causes the removal of the doors or locks to such premises”). Mo. Rev. Stat. § 534.020. “Any landlord or its agent who willfully diminishes services to a tenant by interrupting or causing the interruption of essential services, including but not limited to electric, gas, water, or sewer service, to the tenant or to the premises shall be guilty of forcible entry and detainer”. Mo. Rev. Stat. § 441.233. This is not to say, however, that judicial proceedings are the only method to remedy issues with a tenant. Since a lease is a contract, landlords and tenants can agree to enter into a new contract to remedy issues pertaining to their lease. For example, a problematic tenant could be enticed to amicably leave the leased property and mutually agree to terminate a lease in a “cash for keys” agreement. The thing to keep in mind is that a landlord cannot forcibly remove a tenant without a court order.
What type of eviction do I need?
As stated above, there are four different procedures for eviction that are available. Below we will discuss when each type is applicable and the pros, and cons of each.
Rent & Possession
Rent & Possession is true to its name in that this action arises when a tenant has not paid rent and the landlord wishes to retake possession of the property and potentially recover missing rent from the tenant. Mo. Rev. Stat. § 535.010. This cause of action has three elements that the landlord must prove in order to prevail in evicting and recovering rent from a tenant.
(1) A landlord tenant relationship exists. Houston v. Columbia Fed. Sav. And Loan Ass’n, 569 S.W.2d 211, 214 (Mo. App. 1978) citing Davis v. Bradford, 308 S.W.2d 363, 366 (Mo. App. 1957). As discussed above, there are four elements to establishing a landlord tenant relationship. This relationship is typically established by the formation and signing of a lease agreement that essentially states the tenant will be allowed to use or live on the property for a period of time, and after that time, the property will revert back to the control of the landlord.
In an alternative, if a person purchases land that is already being leased, the purchaser may also commence Rent & Possession procedures if the tenant, lessee, or sublessee fails to pay rent to the purchaser. Mo. Rev. Stat § 535.070. Note, however, that in order to recover past due rent, the purchaser must notify tenants in writing of the fact that title to the property has been transferred, the means of the transfer, and the date of the transfer with the notice being attached to a copy of the deed that was recorded. Inv. All., LLC, v. Bordeaux, 428 S.W.3d 693, 699 (Mo. App. E.D. 2014) (explaining Mo. Rev. Stat. § 535.070 gives a purchaser the right to commence Rent & Possession proceedings, subject to the notice requirements of Mo. Rev. Stat. § 535.081. Further, the court held Mo. Rev. Stat. § 535.090 incorporates by reference § 535.070, which thereby incorporates § 535.081, requiring a purchaser who wishes to recover rents to give “adequate and timely notice”). Without the required notice, a purchaser can only pursue a remedy for possession, but not for unpaid rents. Inv. All., LLC, v. Bordeaux, 428 S.W.3d 693, 699 (Mo. App. E.D. 2014).
(2) A default in the payment of rent. A default occurs when the lease has a specified time when rent is due, and the rent is not paid by the specified time. Mo. Rev. Stat. § 535.050. It is prudent in a leasing contract to also include a clause that states if the rent is not paid, the lease is forfeited. In plain terms – if the tenant does not pay the rent on time, the landlord can terminate the lease.
(3) A demand for rent by the landlord after the rent becomes due. A demand for rent is simply a communication to the tenant that rent is past due, and that the landlord is insisting the rent owed is paid. The communication does not need to be in writing: a verbal warning, email, text message, etc. can all suffice. Edwards v. Tolbert, 849 S.W.2d 717, 719 (Mo. App. W.D. 1993).
What defenses could a tenant respond with to a Rent & Possession?
- The rent has, in fact, been paid or the amount demanded is otherwise incorrect.
- The landlord has refused a valid tender of the full rent with any associated costs that are due.
- The landlord is not entitled to rent. This third defense is generally raised in response to a breach of the warranty of habitability or an accusation of constructive Eviction.
Breach of Warranty of Habitability
According to the Missouri Supreme Court, “all residential leases include an implied warranty of habitability obligating lessors to guarantee the dwelling is habitable and fit for living at the inception of the term and that it will remain so during the entire term. Because a landlord is obligated to provide a habitable dwelling, a breach of the warranty justifies retention of possession by the tenant and withholding of rent until habitability has been restored.” Kohner Props., Inc. v. Johnson, 553 S.W.3d 280, 282 (Mo. banc. 2018). However, if the tenant remains at the leased property, they are required to continue paying rent, but into an escrow account until a court decides how the withheld rent should be distributed. Kohner Props., Inc. v. Johnson, 553 S.W.3d 280, 282 (Mo. banc. 2018).
In order to argue Breach of Warranty of Habitability, the tenant must show:
- Entry into a lease for residential property;
- The subsequent development of dangerous or unsanitary conditions on the premises materially affecting the life, health, and safety of the tenant;
- Reasonable notice of the defects to the landlord; and
- Subsequent failure to restore the premises to habitability. Hollifield v. Las Cumbres, LLC, 655 S.W.3d 238, 242 (Mo. App. W.D. 2022).
Constructive Eviction occurs 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.” Ridley v. Newsome, 754 S.W.2d 912, 915 (Mo. App. W.D. 1988). In order to claim constructive eviction, the tenant must move out of the premises. Ridley v. Newsome, 754 S.W.2d 912, 915 (Mo. App. W.D. 1988).
One final thing to note is that a tenant can eliminate a Rent & Possession suit by fully paying all rent that is owed. If a tenant does this, a landlord may not pursue removal of the tenant any further under Rent & Possession. This method of eviction is best if the landlord is ok with maintaining a landlord-tenant relationship with the current lessee so long as the landlord collects the money that is due.
Unlawful detainer occurs when a tenant remains at the leased property when they no longer have a right to be there and the landlord has properly demanded possession. Mo. Rev. Stat. 534.030 (1). The only issue in an unlawful detainer suit is the immediate right of possession. Broken Heart Venture, L.P. v. A & F Rest. Corp., 859 S.W.2d 282, 286 (Mo. App. E.D. 1993). An unlawful detainer suit is brought for the purpose of removing a tenant. Unlike a Rent & Possession suit, tenant’s payment of rent will not stop an unlawful detainer suit.
All that is required to prove Unlawful Detainer is:
- Proof that the landlord lawfully possessed the premises and
- The defendant unlawfully entered into and detained or unlawfully detained the premises. Mo. Rev. Stat. § 534.200.
Simply put, an Unlawful Detainer occurs when a lease is either over by its term or is terminated by a violation of a term on the lease and the tenant does not vacate the premises.
Notice is required prior to the filing of an Unlawful Detainer action. The amount of notice required of a landlord depends on the circumstances of the tenancy.
Sixty (60) days notice is required to terminate a year-to-year tenancy. Mo. Rev. Stat. § 441.050.
One month’s notice (note, it is not 30 days, but one “rental period”)(O’Connell v. Deering, 631 S.W.3d 649, 655 (Mo. App. S.D. 2021)) is required for a month-to-month tenancy, a tenancy at will or at sufferance, or a tenancy for less than one year. Mo. Rev. Stat. § 441.060.
Missouri law allows landlords, after giving 10 days’ notice to the tenant, to evict a tenant if the tenant:
- uses the rented property for any illegal purposes such as
- a brothel,
- allowing the illegal possession, sale, or distribution of controlled substances upon the premises; Mo. Rev. Stat. § 441.020.
- subleases or assigns the lease to another without the written assent of the landlord,
- violates any conditions of the written lease. Mo. Rev. Stat. § 441.030.
When giving the required notice, it is not sufficient to inform the tenant that he is in default or has violated the lease, the notice must specify the tenant has forfeited their rights under the lease and that the lease is terminated. Josephson v. Nat’l Screen Serv. Grp., Inc., 810S.W.2d 708, 709 (Mo. App. W.D. 1991). For delivering the notice that the lease is terminated, the written notice must either be given to the tenant, leaving notice with a person over the age of fifteen (15) years, residing on or being in charge of the premises, or, if no one is available, posting the notice on the premises. Mo. Rev. Stat. § 534.050. Note that rules for subsidized housing sometimes differ from non-subsidized housing. In this case, the notice must be mailed via first class mail and either personally served on the tenant or placed “under or through the door, if possible, or else by affixing the notice to the door.” 24 U.S.C. § 247.4(b) (2021).
Other Notes about Evictions
If a landlord is seeking to remove a tenant by using an Unlawful Detainer action, “the acceptance by a landlord of rent which accrues after the breach of condition contained in a lease implies a waiver of the right to declare a forfeiture for that breach unless there are circumstances arising from such acceptance which negative the presumption of the lessor’s affirmance of the lease.” Rietsch v. T.W.H. Co., Inc., 702 S.W.2d 108, 118 (Mo. App. S.D. 1985).
Missouri’s expedited eviction procedure is for a very limited set of circumstances: In an emergency situation where less expeditious legal means would result with reasonable certainty any of the following:
- Physical injury to other tenants or the landlord;
- Physical damage to landlord’s property and the cost of repair is greater than 12 months of rent;
- Landlord must first make a reasonable attempt to abate the emergency situation through public law enforcement authorities or mental health services.
- Drug-related criminal activity has occurred within or in the immediate vicinity of the property by either the tenant, a member of the tenant’s household, or a guest of the tenant;
- The property leased to the tenant was used in any way to further, promote, aid, or assist in drug-related criminal activity;
- The tenant has given permission to enter or invited a person and knew that said person had been removed or barred from the leased property as a result of an Expedited Eviction;
- The tenant has failed to promptly notify the landlord that a person who was previously removed from the property has returned to, entered onto, or remained on the property. Mo. Rev. Stat. § 441.740.
If the conduct at issue is being conducted by a person other than the tenant, such as a guest, the landlord must give the tenant five days’ notice and specify what the disapproved conduct is in the notice. Mo. Rev. Stat. § 441.740. In response to the notice, the tenant may use the five days to report the criminal activity to the police or prosecutor or by seeking a protective or restraining order regarding such person or activity. Mo. Rev. Stat. § 441.750 (2). However, if the conduct at issue is being conducted by the tenant, no notice is required. Mo. Rev. Stat. § 441.780.
Not only can a landlord bring this action, but the local prosecuting attorney may also bring this action against a person who meets the above requirements. Mo. Rev. Stat. § 441.710. If the prosecuting attorney prevails in their action, the landlord may be liable for the prosecution’s attorney fees. Mo. Rev. Stat. § 441.850. Also, if a problem as described above is brought to the attention of a prosecuting attorney and the landlord and both fail to address the problem, an “interested party” (which is described as any incorporated, not-for-profit neighborhood association, such as an HOA, or community-based organization which represents the well-being and interests of the community where the leased property is located) may bring an Expedited Eviction action against the tenant and recover their costs and attorney’s fees from the landlord. Mo. Rev. Stat. § 441.850.
In a very specific set of circumstances, a tenant can get a court order to hold off on evicting the tenant if they meet certain requirements. A stay of execution order is available if tenant establishes the following:
- The person is a drug user and drug dependent and will promptly enter a court-approved drug treatment program, or the tenant did not aid or assist in the drug-related criminal activity;
- The criminal activity did not occur within one thousand (1,000) feet of a school or did not involve the sale or distribution of drugs to minors;
- A weapon or firearm was not used or possessed in connection with the activity that is the subject of the action;
- The court has not or will not issue a protective order;
- The tenant has not previously received a stay of execution for cause under this exception;
- The stay of execution will not endanger the safety, health or well-being of the surrounding community or the plaintiff. Mo. Rev. Stat. § 441.880 (1).
If the court grants a stay of execution, the tenant will be considered on a probationary tenancy for six months or the duration of the lease – whichever is shorter – and may include conditions such as drug testing, community service, drug treatment, or any other term to ensure the safety, health, or well-being of the surrounding community or the parties. Mo. Rev. Stat. § 441.880 (3).
An exception to the rule that a landlord requires judicial process to take possession is if the rented property is abandoned. The premises is considered abandoned if:
- The landlord has a reasonable belief that the tenant has vacated the premises and intends not to return;
- The rent is due and has been unpaid for thirty (30) days; and
- The landlord posts the following notice on the premises and mails to the last known address of the tenant by both first class mail and certified mail, return receipt requested:
“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 (insert landlord’s name and street address).”
- 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. Mo. Rev. Stat. § 441.065.
Where the landlord, without the tenant’s consent, enters and takes possession of the demised premises, or any part thereof, during the continuance of the lease and excludes the tenant therefrom. Wilson v. Kavanaugh, 941 S.W.2d 605, 608 (Mo. App. W.D. 1997).
When a tenant or lessee of a property agrees to become the tenant of a purchaser who has acquired ownership of the land, the remainder or reversion interest in the land, or the right to the rent or services by which the tenant holds. Cooper v. Ratley, 916 S.W.2d 868, 870 (Mo. App. 1996).
Breach of Covenant Of Quiet Enjoyment
When a lessee (tenant) has been actually or constructively evicted from the leased premises. Cty of St. Joseph, Mo. v. St. Joseph Riverboat Partners, 141 S.W.3d 513, 517 (Mo. Ct. App. 2004).
A covenant of quiet enjoyment (an agreement that the landlord or a landlord’s agents will not disturb the tenant) is typically implied in landlord/tenant agreements. Hamilton v. Wright’s Adm’r, 28 Mo. 199, 206 (Mo. 1859).
Occurs when the lessor (landlord), by wrongful conduct or by the omission of a duty placed upon him in the lease, substantially interferes with the lessee’s (tenant) beneficial enjoyment of the demised premises (rented property). St. Joseph Riverboat Partners, 141 S.W.3d at 517.
When the happening of an event not foreseen by the parties and not caused by or under the control of either party has destroyed or nearly destroyed the value of the performance or the purpose of the contract. St. Joseph Riverboat Partners, 141 S.W.3d at 517.
A premises or part thereof occupied, used, or held out for use and occupancy as a place of abode for human beings, whether occupied or vacant. Mo. Rev. Stat. § 441.500 (6).
The owner or lessor of the premises or a person authorized by the owner to exercise any aspect of the management of the premises. Mo. Rev. Stat. § 441.005 (1).
A written or oral agreement for the use or possession of premises. Mo. Rev. Stat. § 441.005 (2).
Any person who leases premises from another to the exclusion of others during the rental or lease period and who is obligated to pay rent. Mo. Rev. Stat. § 441.005 (3).
Any person lawfully occupying a dwelling unit as his or her place of residence, either as a tenant or a lessee, whether or not that person is occupying the dwelling unit as a tenant from month to month or under a written lease, undertaking, or other agreement. Mo. Rev. Stat. § 441.500 (14).
Land, tenements, condominium or cooperative units, air rights and all other types of real property leased under the terms of a rental agreement, including any facilities and appurtenances, to such premises, and any grounds, areas and facilities held out for the use of tenants generally or the use of which is promised to the tenant. “Premises” includes structures, fixed or mobile, temporary or permanent, vessels, manufactured homes, mobile trailer homes, and vehicles which are used or intended for use primarily as a dwelling or as a place for commercial or industrial operations or storage. Mo. Rev. Stat. § 441.005 (4).
A stated payment for the temporary possession or use of a house, land or other real property, made at fixed intervals by a tenant or lessee to a landlord. Mo. Rev. Stat. § 441.005 (5).
Any deposit of money or property, however denominated, which is furnished by a tenant to a landlord to secure the performance of any part of the rental agreement, including damages to the dwelling unit, but not including any money or property denominated as a deposit for a pet on the premises. Mo. Rev. Stat. § 535.300 (8).
A person who occupies the premises with the landlord’s consent. Mo. Rev. Stat. § 441.005 (6).