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.
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
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.
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.
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).
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 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:
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.
“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).
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  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 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).