Tag Archives: St. Louis Attorney

St. Louis Eviction Lawyer Discusses Missouri Landlord-Tenant Law

Gavel Smashing House

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.

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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.  Landlord Tenant Lease Contract

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.

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Notice to Quit/Vacate

If your lease ends, your landlord does not need to provide notice.

The required notice by the landlord wholly depends on the type of eviction and the terms of the lease.

The notice laws for each type of proceeding are discussed below their respective sections.

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Landlord-Tenant Rent

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.

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Service of the Eviction Action

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.

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Gavel Crushing a House

Discovery and Motion Work during the Eviction

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.

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Trial of the Eviction Action

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).

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Keys to Real Estate

Security Deposits in the Landlord-Tenant Context

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

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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).

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What laws govern Evictions in St. Louis?

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.

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Scales of Justice in the Boardroom

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.

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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:

Service and Posting at Same Address $56.00
Service and Posting at Different Address $62.00
Posting Only $36.00

Source: https://www.stlouisco.com/Portals/8/docs/document%20library/circuit%20court/circuit%20court%20pages/CirClerkFees2015.pdf

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.

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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.

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Gavel, Scales of Justice, Books

Does my Rental Agreement have to be in Writing?

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.

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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).

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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.

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Can a Tenant Sublet the Property?

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).

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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).

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Courthouse Columns

How is a Year to Year Tenancy Terminated?

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).

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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).

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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).

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Real Estate

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).

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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.

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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.

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Library

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.

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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).

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No Deduction of Rent if Issues Caused by Tenant

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).

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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).

Do not enter

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.

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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)

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Warranty of Habitability

What is 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.

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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.

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What is the Implied Covenant of Quiet Enjoyment?

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)(citing Dolph v. Barry, 165 Mo.App. 659, 148 S.W. 196, 198 (1912))(emphasis added).

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Constructive Eviction by Landlord

What is a Constructive Eviction in Missouri?

“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).

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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).

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How much can my Landlord Charge me for Late Fees?

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.

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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).

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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).

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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.  MRI Northwest 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).

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What are 3 Types of Evictions in St. Louis, MO?

  1. Unlawful Detainer (Chapter 534 of Missouri Revised Statutes)
  2. Rent/Possession (Chapter 535 of Missouri Revised Statutes)
  3. Expedited Evictions (Chapter 441 of Missouri Revised Statutes)

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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:

  1. 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

  2. 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

  3. when premises are occupied incident to the terms of employment and the employee holds over after the termination of such employment; or

  4. 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.

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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)(quoting Walker v. Anderson, 182 S.W.3d 266, 269 (Mo. App. W.D. 2006) (quoting S.L. Motel Enters., Inc. v. E. Ocean, Inc., 751 S.W.2d 114, 117 (Mo. App. E.D. 1988)).

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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 proof of 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).

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How Long Does an Action in Unlawful Detainer usually take to Resolve in St. Louis?

An unlawful detainer action can take anywhere from 2 to 8 months depending on the docket load and any various nuances in your particular set of facts.

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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).

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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).

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When is a Demand for Rent deemed “Good?”

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).

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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).

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Who can bring a Rent and Possession Claim?

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).

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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.”

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Expedited Evictions

What is an Expedited Eviction in Missouri?

The court will order an immediate eviction if it finds any of the following:

(1) An emergency situation that could imminently result (with a reasonable certainty):

(a) Physical injury to other tenants or the lessor; or

(b) Physical damage to lessor’s property and the reasonable cost to repair such damage exceeds an amount equal to twelve months of rent.

(2) Drug-related activity occurred on the leased premises;

(3) Lease premises promoted, aided or assisted drug-related criminal activity;

(4) Drug-related criminal activity was engaged in on or in the immediate vicinity of the leased premises;

(5) Tenant invites a guest who is banned from the property; or

(6) Tenant does not promptly notify Plaintiff of the banned guest’s presence on the property. R.S.Mo. § 441.740 (2016).

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Who can bring an Expedited Eviction Action in Missouri?

The following parties have the right to initiate expedited eviction proceedings:

  • a landlord, or
  • a prosecuting attorney located in the jurisdiction where the leased property is situated. S.Mo. § 441.710 (2016).

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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).

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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).

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Landlord & Tenant Responsibilities

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)(quoting Meadows v. Friedman R.R. Salvage Warehouse, 655 S.W.2d 718, 721 (Mo.App.1983))(spacing added).

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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).

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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).

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Construction Accident Attorney

Workers at duskSt. Louis Construction Accidents

In 2015, 114 (work related) injuries that resulted in fatalities were reported to the Missouri Division of Workers Compensation.

(See http://labor.mo.gov/sites/default/files/pubs_forms/DWC2015AnnualReport.pdf)

Accidents are a part of life…But the consequences can be incredibly serious in certain situations.

If it happens on a construction site, the consequences can be catastrophic.

We understand the gravity of these cases, and we litigate them with the vigor and persistence that each requires.

If you’ve suffered an injury from a construction accident, we have lawyers who can help you recover.

Compensation for Accidents

When an individual is seriously injured on a construction project, someone has to pay for it.

Our lawyers aggressively litigate against insurance companies, commercial entities and any other responsible parties to get you the recovery that you deserve.

Many times construction accidents are ripe for a worker’s compensation claim, and additionally, there may be recovery potential from third parties who caused the injury or created the situation that resulted in the injury.

We will guide you through the process of making a workers’ compensation claim and zealously defend your rights in the process.

The litigation process can be arduous and sometimes difficult, but we will be there beside you, aggressively representing you the whole way.

We pride ourselves in helping workers and their families put their lives back together after an accident.

Workers’ Compensation for Construction Accident Claims

Under ordinary circumstances, you should be entitled to pursue a workers’ compensation claim against your employer if you are injured in an accident on a construction project.

In Missouri, it’s critical for employers to know their legal duties as it pertains to accidents on the job.

For example, employers in Missouri have a legal duty to report the injury within 30 days after having knowledge of the injury. See http://labor.mo.gov/sites/default/files/pubs_forms/DWC2015AnnualReport.pdf

Additionally, the employer is responsible for reporting any injuries to its insurance carrier within five days of the date of the injury or within five days of the date on which the injury was reported to the employer by the employee, whichever is later. See http://labor.mo.gov/sites/default/files/pubs_forms/DWC2015AnnualReport.pdf

These are obligations of the employer, and the failure of the employer to take such necessary action may go to show a continuing course of negligent conduct.

The negligent conduct by the employer, depending on how egregious it is, could be your road to recovering for the pain and suffering that you or a loved one have experienced.

As each factual situation is different, you should always consult a St. Louis workers’ compensation attorney to determine your rights. 

Who else is liable for the damages suffered in a Construction Accident?

While workers’ compensation may cover a portion of your claim, many times a construction worker’s injuries will not be fully compensated by workers’ comp coverage alone.

Thus, the worker can often bring a claim against the party who caused or who may be responsible for the accident.

Some of these claims may arise out of defectively manufactured equipment, failure to supervise, or negligent acts in the process, or some other conduct that falls below the standard of care that is owed by a company on a construction project.

These avenues may allow for greater recovery if you have an accident on a project, even if that accident is work-related, there may be additional coverage outside of the workers’ comp coverage.

What are Recoverable Damages from a Construction Injury?

These are damages that you would seek against the party responsible for your injury.  Any recovery from a third party would be in addition to the recovery that you receive through workers’ compensation.

There may be some nuances in the law and set off depending on the facts of your case, so be sure to seek counsel from a lawyer before handling a worker’s comp claim yourself.

Obviously, whether you have the ability to obtain judgment from a third party is dependent upon the factual circumstances, but our lawyers will scrutinize the facts of your case to make a competent determination as to whether you are eligible.

Some of the damages that you can recover after an injury on a construction project are:

  • Lost wages—these can be lost wages in the past as well as those that you lose as a result of the injury
  • Lost earning potential or ability
  • Pain & Suffering—this is a broad category but includes both physical and mental suffering from the aftermath of the accident
  • Medical Bills (including hospital bills as well as costs to go through rehab, i.e., physical therapy)
  • Punitive damages or treble damages

Injuries on a Construction Project

Construction projects are fraught with potential safety hazards that can harm or seriously injure the workers.

If the employer does not take proper measures to ensure the safety of its workers, then it often falls below the standard of care. Consequently, the employer subjects itself to liability.

Taking shortcuts or failing to implement proper safety procedure on a construction project runs the risk of OSHA violations as well as claims of negligence. Depending on the injuries, you could be dealing with significant amounts of damages.

As such, construction companies should pay close attention to the safety of its workers to not only prevent accidents and protect the safety of their workers, but also to preserve their company’s assets.

For those persons who have been injured on a construction site, please tell use about your accident–we can help you!

St. Louis, MO Mechanic’s Lien Law

Cracked Sidewalk & Bulldozer

Missouri Mechanic’s Lien Law Questions

What is a Mechanic’s Lien?

A mechanic’s lien is a means, created by statute, for suppliers of labor and/or materials to put a security interest onto real property in order to ensure payment of the work performed or materials provided.

A mechanic’s lien is a hammer for general contractors and subcontractors that need to collect payment on a construction project.

In Missouri, a lien is a way for the unpaid contractor or supplier to put an encumbrance on the real property without having to request an order from the court.

The contractor or supplier can simply file a mechanic’s lien statement with the Circuit Court in the county in which the property is located.

The interesting part about a mechanic’s lien is that the owner may have paid the general contractor, but an unpaid subcontractor or supplier can still encumber the property.

This means that the owner may ultimately pay twice for the work performed on the project.

Because there are strict requirements for filing a mechanic’s lien, contractors should contact an experienced construction law lawyer to assist them in preparing the same.

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How does a Mechanic’s Lien Work?

A mechanic’s lien is a statutorily created means for a contractor to take a security interest in property upon which the contractor has performed work.

This is a safeguard chiseled out by the legislature for the benefit of contractors and subcontractors performing on construction projects.

Once a mechanic’s lien is properly filed in the Circuit Court of the county in which the subject property is located, the lien sits idly on the property.

Look under the: “How does filing a mechanic’s lien get me paid” section for an explanation as to how an idle mechanic’s lien may still be working for you (at least from a practical standpoint).

After six months of sitting idly, the mechanic’s lien can be vitiated and cleared from the title.  However, during the six months, a good construction law attorney will fully utilize the power of the lien and foreclose on the same.

The foreclosure of the lien is effectuated by the attorney’s filing of a petition.  This will institute the lawsuit that forecloses on the property (sells the property) in order to pay the lien off as well as any other encumbrances that exist at the time of the sale of the property.

As far as pecking order on the payout after the foreclosure sale, the encumbrances that have priority will be paid first. The remaining funds left over after the most senior encumbrance is paid off would then trickle down to the next party in line.

Because a mechanic’s lien can be rendered invalid if too much time passes, you should immediately consult with a construction lawyer to find out your timeline and how to best proceed in collecting for work performed on the construction project.

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How does filing a Mechanic’s Lien get me Paid?

A mechanic’s lien is a hammer in the construction law realm.  It attaches to an owner’s property, and if properly filed, cannot be vitiated unless 6 months pass without the contractor foreclosing upon the lien.

Often times property is not paid off by the owner and rather there is a mortgage & note on the property which is given by some lender, whether that be a financial institution, bank, or credit union.  The property and structures thereon are typically used as collateral to secure the note.  The mortgage, or in Missouri, more properly termed deed of trust, reflect the fact that the lender has a security interest in the property.

A mechanic’s lien is also a form of security interest in the property.  Thus, when a mechanic’s lien is filed, and a lender has a security interest in the property in question, there may be some issues as to who has priority in the collateral (property/buildings).

Because property is usually not paid off and is subject to the note that was used to purchase the same, the lender includes a provision in the deed of trust (or mortgage), which allows acceleration of the note in the event that there is a competing security interest.  The mechanic’s lien, in this case, would be the competing security interest.

Therefore, from a practical standpoint, the owner faces incredible pressure from a few things: (1) there is an encumbrance on his/her property, (2) the note, which may be an exorbitant amount (and was originally intended to be paid over the course of 30 years or some other term), may be immediately due in full upon the filing of the mechanic’s lien–this is a result of the lender invoking the acceleration clause.

As soon as the lender invokes the acceleration clause, there is extreme pressure on the owner of the property to either get the lien off the property (which usually means payment), or to pay the note in full, which is often impossible or impracticable for the owner. This may force the owner to simply pay off the lien.

For the foregoing reasons, a mechanic’s lien is a very powerful tool for a contractor to force payment on a project where he has not yet received payment.

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What are the costs to file a Mechanic’s Lien in St. Louis?

A mechanic’s lien in St. Louis can be a relatively costly endeavor (depending on the project size).

Any construction lawyer that is diligently performing his/her work will most likely, prior to preparing the lien, run a title report, or what we call an O&E report (Ownership & Encumbrance report), that traces the chain of title.  This is important because it also locates all parties that have an interest in the real property upon which the lien is to be filed.

Because one of the requirements of filing a mechanic’s lien includes notice to all parties with an interest in the property, it is critical to know who has an interest in such property. These title reports range from $100 to $500 or more depending on the complexity of the property, legal description, and depending on the title company that is preparing the O&E report.

In addition to the O&E report, there will be a small cost of filing a mechanic’s lien in the Circuit Court of St. Louis County.

The website of the 21st Judicial Circuit Court of St. Louis County, Missouri has a filing fee listed as $5.00. See https://www.stlouisco.com/Portals/8/docs/document%20library/circuit%20court/circuit%20court%20pages/CirClerkFees2015.pdf for other filing fees at the St. Louis County Circuit Court.

Further, each mechanic’s lien must be served in a specific manner that is in accordance with the statutes of Missouri.  Thus, there will also be service fees depending on whether the sheriff or a special process server is used.

On top of the foregoing costs, a construction lawyer will be preparing the mechanic’s lien and depending on the lien, could spend several hours preparing the same. Accordingly, you will also incur a fair amount of attorney’s fees.

Keep in mind that some construction lawyers are flexible and will agree to a non-hourly fee  arrangement. For example, the lawyer may be willing to take the case on a contingency basis.

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What are the Costs to File a Mechanic’s Lien in St. Charles County Circuit Court?

The filing fees for a mechanic’s lien in St. Charles County Circuit Court, or what is sometimes referred to as the 11th Judicial Circuit Court, are $5. The filing fees for other cases in St. Charles can be found here.

Keep in mind that the total fees will not only be $5.  You will have service fees and attorneys fees as well.

Any time you are filing a mechanic’s liens, you need to be sure to serve the proper parties. This requires a title search to ensure that you are informing all parties with an interest in the property. A title search may be another expense incurred in the mechanic’s lien filing process.

Additionally, if you hire an attorney, you will incur attorney’s fees.

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What are the 4 Mechanic’s Lien Requirements in St. Louis?

In addition to any notice required, the applicable statute, Section 429.080 of the Missouri Revised Statutes, generally sets out four requirements to properly file a mechanic’s lien statement:

(a) a just and true account of the demand;

(b) a true description of the property, or so near as to identify the same;

(c) the name of the owner or contractor, or both if known to the person filing the lien; and

(d) verification by the oath of himself or some credible person for him

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Who Must be Made a Party in the Mechanic’s Lien Lawsuit?

Missouri Revised Statutes section 429.190 states

  • all persons who were parties to the contract must be parties
  • all persons who are “interested in the matter in controversy” or in the property charged with the lien may be parties
    • If the interested persons are not made parties, however, then the Court will not be able to bind them with the rulings in the proceeding

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Do I have to have a written agreement to file a Missouri Mechanic’s Lien?

No. However, there are certain notice requirements that have to be provided to the owner prior to the filing of a lien.  If these notices are not provided, the lien could have deficiencies and ultimately be rendered invalid (vitiated).

The FAQs throughout this website discuss the importance of the various lien notices that need to be given on construction projects.

The notice of intent to file a mechanic’s lien statement as well as the 429 notice that needs to be provided to the owner (warning of the danger of double payment if lien waivers are not secured) are two examples of required notice that subcontractors and contractors have to give, respectively.

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What is a general contractor’s duty when a mechanic’s lien is filed in Missouri?

R.S.Mo. section 429.140 states the following, generally:

If anyone other than the general contractor files a lien, the general contractor has the duty of defending any action brought to foreclose on the lien.  The general contractor shall defend such suit, at his own expense.

The owner has the right to withhold the amount of money that the lien was filed for and in the event that the plaintiff foreclosing on the lien takes judgment, the owner is allowed to deduct the amount of the judgment and costs from any amount owed to the contractor.

The owner then has rights to indemnification from the general contractor for amounts for which the general contractor was originally liable.

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What Statute Creates Missouri Mechanic’s Liens?

Chapter 429 of the Missouri Revised Statutes governs mechanic’s liens.  Specifically, section 429.010 of the Revised Missouri Statutes sets forth the rights of persons providing work, labor or supplies on a building, erection, or improvement, and grants them lien rights.

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How Long Do you Have to File a Mechanic’s Lien in Missouri?

Section 429.080 of the Missouri Revised Statutes governs the amount of time that a claimant has to file a mechanic’s lien.  The specific language of the statute says the mechanic’s lien must be filed “within six months after the indebtedness shall have accrued.” The indebtedness is typically deemed to be accrued on the last day the work is performed.

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I know I have 6 months to file a Mechanic’s Lien, but when does the clock start ticking?

Generally, a contractor has 6 months from the date the work was last performed on the project or from the date that materials were last supplied to the project. The actual language is: the lien must be filed: “[w]ithin six months after the indebtedness shall have accrued …” R.S.Mo. § 429.080.

“The date the ‘indebtedness has accrued’ is the last day work was performed or material incorporated.” Midwest Floor Co. v. Miceli Dev. Co., 304 S.W.3d 247.

This makes the last day work performed or material incorporated an important date for contractors to pay attention to when performing construction work.

This date is strictly measured by work performed pursuant to the contract.

After the owner accepts the work as substantially complete on the project, any further labor provided by the contractor is not lienable. Brown v. Davis, 249 S.W. 696, 698 (Mo.App.St.L.1923).

The foregoing statement, thus, means that a contractor does not have lien rights for work that is performed pursuant to a warranty or for repairs performed as the result of a callback from the owner.

Here’s an excerpt of applicable case law: “A subcontractor cannot, after the termination of an account, extend the mechanic’s lien filing time by rectifying some fault of his in performing the contract.” S & R Builders & Suppliers, Inc. v. Marler, 610 S.W.2d 690, 693 (Mo. Ct. App. 1980).

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Does my work have to improve the property to be able to file a Mechanic’s Lien?

In the case of Brownstein, the Missouri Supreme Court addressed the issue of improvements in the context of an architect’s lien, stating the following: “To hold that § 429.015.1 allows an architectural lien to attach where the services of an architect are not employed in “erection or repair of any building or other improvement” would fly against the plain meaning of the statute’s terms.” Brownstein v. Rhomberg-Haglin and Associates, Inc., 824 S.W.2d 13, 16 (Mo., 1992).

The Court goes further to state: “[t]o qualify, the person seeking the lien must have provided in his professional capacity either labor or materials used for improving the land.” Id. This extended to the work performed by the architect, if the contractor generally used the plans to perform improvements on the construction project.

“The legislature did not intend a mechanic’s lien to attach where none of the labor or materials of the builder were used in the improvement of the property. To qualify (for a lien) the person seeking the lien must have provided in his professional capacity either labor or materials used for improving the land.” Space Plan. Arch. v. Frontier Town-Missouri, 107 S.W.3d 398 (Mo. App., 2003).

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When is Machinery Lienable?

“The intention of [Missouri] law is to give a lien where the machinery furnished is intended by the owner to become a part of the building, manufactory, or plant; and it is immaterial whether this occurs when the building was originally constructed, or when the owner converts an existing building into a manufacturing.” plant.  Bush Machinery v. Kansas City Factory, 81 S.W.3d 121 (Mo. App., 2002) (citing Progress Press-Brick Machine Co. v. Gratiot Brick & Quarry Co., 151 Mo. 501, 52 S.W. 401, 402 (1899)).

“The Supreme Court of Missouri held that the meaning behind the mechanic’s lien statute: indicates that that machinery must be such as is used in the erection of a building, and which will, when placed in the building, erection or improvement on the land, become a fixture, and become a part of the realty, or at least such as is necessary in the erection of the improvement to be made.” Bush Machinery v. Kansas City Factory, 81 S.W.3d 121 (Mo. App., 2002)(citing Springfield Foundry & Machine Co. v. Cole, 130 Mo. 1, 31 S.W. 922, 924 (1895)(quoting Graves v. Pierce, 53 Mo. 423, 428-29 (Mo.1873)).

“Further, because the machinery in that case was not placed in the building, it: became no part of the realty, and no improvement thereon; and inasmuch as the machinery placed in said building was not placed therein in the erection of said building or as an improvement thereto, but was placed there solely for mining…, it formed no part of said building, but remained personalty, and plaintiff was not entitled to a mechanic’s lien.” Bush Machinery v. Kansas City Factory, 81 S.W.3d 121 (Mo. App., 2002).

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Does Every Piece of Material have to go into the Structure to have a Valid Missouri Mechanic’s Lien?

“In order to maintain a lien for materials furnished, it is not necessary in all cases that such materials should actually have gone into the structure and form a part thereof. It is sufficient that their use was necessary, and they were, in fact, used or consumed in the building.” Oliver L. Taetz, Inc. v. Groff, 253 S.W.2d 824, 363 Mo. 825 (Mo., 1953)(citing Rapauno Chem. Co. v. Greenfield & N. Ry. Co., 59 Mo.App. 6.

The Court went on to find that heating oil was lienable. It also stated that other minor items which were necessary for use on the construction project like brushes and steel wool were also found to be lienable items. Oliver L. Taetz, Inc. v. Groff, 253 S.W.2d 824, 363 Mo. 825 (Mo., 1953).

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What happens if My Mechanic’s Lien Accounting is Inaccurate? What is a Just and True Account?

A lien statement may be regarded as just and true if it contains mistakes or errors of omission, as long as those inaccuracies are unintentional and are the result of honest inadvertence, accident, or oversight, and do not result from deliberate intention or design. Dave Kolb Grading, Inc. v. Lieberman Corp., 837 S.W.2d 924 (Mo. App. E.D., 1992)(citing Putnam v. Heathman, 367 S.W.2d 823, 829 (Mo.App.1963)).

Another case states: “`A lien statement may be regarded as just and true, so as not to vitiate the entire lien, if the inclusion of a nonlienable item is the result of honest mistake or inadvertence without intent to defraud and if the nonlienable items can be separated from the lienable items.'” Glenstone Block Co. v. Pebworth, 264 S.W.3d 703 (Mo. App., 2008)(citing Am. Prop. Maint. v. Monia, 59 S.W.3d at 643)(quoting Dave Kolb Grading, Inc. v. Lieberman Corp., 837 S.W.2d 924, 941 (Mo. App. E.D., 1992)).

Although there is no precise definition of “just and true,” whether a lien statement meets those requirements depends upon the facts of each particular case. Dave Kolb Grading, Inc. v. Lieberman Corp., 837 S.W.2d 924 (Mo. App. E.D., 1992)(citing Sears, Roebuck & Co. v. Seven Palms Motor Inn, Inc., 530 S.W.2d 695, 698 (Mo. banc 1975)).

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Can General Contractors Include Work Performed by Subcontractors in their Mechanic’s Liens?

Generally yes.  As long as the general contractors are not attempting to “double dip,” Missouri courts, citing the remedial purpose of the mechanic’s liens statutes, will allow a general contractor to include the work of a subcontractor in its lien:

We are to construe the statute “as favorably to the materialman as its terms permit.” Midwest Floor Co. v. Miceli Dev. Co., 304 S.W.3d 243, 248 (Mo. Ct. App. 2009).
“Therefore, we hold that lien claimants may include the work performed by subcontractors in their mechanics’ lien.” Id. 

Missouri Mechanic’s Lien Notice

What is 429 Notice Pursuant to Missouri Mechanic’s Lien Law?

429 Notice is the typical lingo used by construction law lawyers that refers to the notice that contractors need to provide to preserve the right to file a lien on property. R.S.Mo section 429.012 lays out the requirements for 429 lien notice.

The statutory language needs to be given to the owner to preserve the lien rights and requires that the following language be used:

NOTICE TO OWNER

FAILURE OF THIS CONTRACTOR TO PAY THOSE PERSONS SUPPLYING MATERIAL OR SERVICES TO COMPLETE THIS CONTRACT CAN RESULT IN THE FILING OF A MECHANIC’S LIEN ON THE PROPERTY WHICH IS THE SUBJECT OF THIS CONTRACT PURSUANT TO CHAPTER 429, RSMO. TO AVOID THIS RESULT YOU MAY ASK THIS CONTRACTOR FOR “LIEN WAIVERS” FROM ALL PERSONS SUPPLYING MATERIAL OR SERVICES FOR THE WORK DESCRIBED IN THIS CONTRACT. FAILURE TO SECURE LIEN WAIVERS MAY RESULT IN YOUR PAYING FOR LABOR AND MATERIAL TWICE.

A good construction law attorney will ensure that this language is contained in your contract, your invoices, and any estimates provided to the owner.

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When does 429 Mechanic’s Lien Notice Need to Be Given by the Contractor?

R.S.Mo Section 429.012 requires that the lien claimant provide notice to the owner or to the person with whom the contractor has a contract, “prior to receiving payment in any form of any kind from such person.”

The applicable statute continues by enumerating several times when the notice should be provided:

(a) at the time of the execution of the contract

(b) when the materials are delivered

(c) when the work is commenced, or

(d) delivered with the first invoice

A good construction law lawyer will insert the above language into most of your documentation, including the construction contract, the invoices, estimates, and any correspondence that you send to the owner.  This will remove all doubt as to whether the proper notice was required.  For that reason, it is important to contact a construction law attorney to make sure that you are in compliance with not only the 429 mechanic’s lien notice, but all statutory requirements.

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Who needs to give 429 Mechanic’s Lien Notice and to whom does it need to be given?

Every original contractor has to give the notice. The notice needs to be given to the person with whom the contract is made, or if there is no contract, then notice needs to be given to the owner.

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What Happens if You Fail to Provide the 429 Mechanic’s Lien Notice?

The lien will be invalid and the owner’s title will be free of any such liens.  The applicable statutory section is R.S.Mo. section 429.012.2, which states “[c]ompliance with [429 mechanic’s lien notice] shall be a condition precedent to the creation, existence or validity of any mechanic’s lien in favor of such original contractor.”

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What Notice Does a Subcontractor Have to Provide Before Filing a Missouri Mechanic’s Lien?

The notice depends on whether the subcontractor is performing work on a residential or commercial project.  It also depends on whether the project is owner-occupied and whether the property contains four units or less. R.S.Mo. § 429.013.1. The definitions of owner-occupied, residential property, and other terms that are relevant to subcontractors’ lien notice requirements are set forth throughout these FAQs.  R.S.Mo. § 429.013.1.

If the subcontractor is filing on residential property of four units or less that is owner-occupied, then the subcontractor must have a consent of owner, which states the following:

CONSENT OF OWNER

CONSENT IS HEREBY GIVEN FOR FILING OF MECHANIC’S LIENS BY ANY PERSON WHO SUPPLIES MATERIALS OR SERVICES FOR THE WORK DESCRIBED IN THIS CONTRACT ON THE PROPERTY ON WHICH IT IS LOCATED IF HE IS NOT PAID. R.S.Mo. § 429.013.2.

The owner must also sign a document containing the above notice, and such notice and signature must be attached to the lien.  If there are multiple owners, the signature of one of the owners will be satisfactory to represent that of all of the owners. R.S.Mo. § 429.013.3.

If the subcontractor does not have the above-described notice signed by the owner of residential property of four units or less and said residential property is owner-occupied, then the subcontractor does not have lien rights on the property, despite providing notice of intent to lien or any other notice.

In any case, if the subcontractor complies with the rigorous standards of 429.013 or does not fall within the purview of said statute, the subcontractor will still have to provide the Notice of Intent to file a Mechanic’s Lien, regardless of whether the project is residential or commercial.

A fuller description of the notice of intent requirements are set forth below.

What does “Owner” mean under Missouri’s Subcontractor Lien Statutes?

Owner means “the owner of record at the time any contractor, laborer or materialman agrees or is requested to furnish any work, labor, material, fixture, engine, boiler or machinery.” R.S.Mo. § 429.013.1

What does Owner-Occupied Mean in the context of a Subcontractor Lien Filing on Residential Property?

Owner-occupied is the “property which the owner currently occupies, or intends to occupy and does occupy as a residence within a reasonable time after the completion of the repair, remodeling or addition which is the basis for the lien sought, pursuant to this section.” R.S.Mo. § 429.013.1.

What is considered Residential Property in the context of a Subcontractor’s Lien Filing in Missouri?

“[P]roperty consisting of four or less existing units to which repairs, remodeling or additions are undertaken. This section shall not apply to the building, construction or erection of any improvements constituting the initial or original residential unit or units or other improvements or appurtenances forming a part of the original development of the property.” R.S.Mo. § 429.013.1.

What is a Notice of Intent to File a Mechanic’s Lien?

Section 429.100 of the Missouri Revised Statutes states that all persons except the original contractor, who wish to file a mechanic’s lien, must provide 10 days’ written notice before filing the lien.  Lawyers in the construction law industry call this 10 day notice the “notice of intent” to file a mechanic’s lien statement.

If you need help filing a notice of intent to file a mechanic’s lien contact one of our lawyers here.

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What language is required in the Notice of Intent to File a Mechanic’s Lien?

Pursuant to R.S.Mo. section 429.100, the notice of intent to file a mechanic’s lien must include information regarding the subcontractor and must state that said subcontractor holds a claim against the building or improvement (which will be the subject of the lien), and it must set forth the amount and from whom the same is due.

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How is proper service made regarding the Notice of Intent to File a Mechanic’s Lien?

Pursuant to R.S.Mo. section 429.100, the notice of the intent to file a mechanic’s lien should be served by any police officer authorized by Missouri law to serve process in civil actions, or by anyone who would be a competent witness.

In the event the notice of intent to file a mechanic’s lien is served by a police officer, the official return with an endorsement on it will be sufficient proof. However, when the notice of intent is served by any other person, the proof of service must be verified by affidavit of the person serving the same.

These service rules are an important part of properly serving the notice of intent and thus preserving one’s rights to file a subsequent mechanic’s lien.

However, Missouri courts have taken a more lenient approach on the basis of equitable principles, stating “the manner of service is immaterial where it clearly appears that the owner actually received adequate written notice not less than ten days prior to the filing of the lien claim.” Kingston Elec., Inc. v. Wal-Mart Properties, Inc., 901 S.W.2d 260 (Mo. App. E.D., 1995).

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Missouri Mechanic’s Liens Miscellaneous Laws

Who needs to be a party to a Mechanic’s Lien Foreclosure Action?

In all suits to foreclose on a Missouri Mechanic’s lien, the person foreclosing on such lien shall bring all other persons interested in the matter in controversy or in the property charged with the mechanic’s lien. R.S.Mo. 429.190

If the individuals/persons/entities are not made a party to the lien foreclosure action, then the parties will not be bound by such proceedings. R.S.Mo. 429.190

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When do I need to File a Release of a Mechanic’s Lien?

This is a very fact specific question better left for your attorney.  Your attorney knows the specific facts, dealings between the parties, as well as whether payment has been received from the owner or general contractor on the project.

Typically, a lawyer would be well-advised to instruct his client to refrain from filing a release of mechanic’s lien until payment in full has been received and has cleared the bank.  The release of mechanic’s lien is then filed which clears up the title.

It’s similar to what a bank or financial institution would file after a note is paid off.  The mortgage or deed of trust (in Missouri) is then released by filing a release of deed of trust.

Releases of Mechanic’s liens should be treated similarly.  Please note, however, that releasing a mechanic’s lien constitutes a release of an important substantive right to collect on the project.  It is a big decision to release a lien, so you should always consult with an experienced construction lawyer before taking such drastic measures.

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Can I put a lien on City Hall if the Government fails to pay me on a Project?

No. When the government owns property, Missouri law forbids a lien because Missouri has a strong public policy against liens on public property.  Not only would it be embarrassing for the governmental entity, but it would call into question the sovereignty of the state, city, or respective governmental entity.

The example above is City Hall, but this public policy applies to all buildings and/or property owned by governmental entities, whether that entity be a state, city, municipality, or even some quasi-private actor, who has a public purpose or is progressing the government’s objectives by protecting or serving the public interests.

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What Missouri Law Prevents me from Liening a Building Owned by a Public Entity?

Pursuant to Missouri Revised Statutes section 513.455, buildings owned by a governmental entity are protected from the attachment of a lien.

R.S.Mo. 513.455 states the following: “All courthouses, jails, clerks’ offices and other buildings owned by any county or municipality, and the lots on which they stand, and all burial grounds, shall be exempt from attachment and execution.”

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Can I put a Mechanic’s Lien on Property if Title is Held by Husband and Wife?

In Missouri, there is special protection carved out for a husband and wife who jointly own property.  Typically a co-tenancy between a husband and wife would create a joint tenancy in many states, like Kansas for example.

In Missouri, however, a tenancy by the entirety is created when a husband and wife co-own a property. This type of co-ownership (tenancy by the entirety) creates a protection or shield on the property from creditors’ liens, unless both the husband and wife are debtors of the creditor filing the lien.

From a practical standpoint, this means that one of the spouses acting individually cannot subject the property to a mechanic’s lien.  The contractor would have to have a contract with both the husband and wife.

In some Missouri cases, however, one of the spouses may act on behalf of the other (as their agent) and subject their property to a lien.

In such a case, the issue as to whether the non-participating spouse had sufficient participation in the transaction as to make them a responsible party will determine the validity of the lien.

One Missouri Court generally addresses these circumstances:

[I]t is now definitely established that the husband alone has no such interest in an estate by the entirety as can be subjected to a mechanic’s lien…nor will mere knowledge on the part of the wife that a building or other improvement is being erected on her real estate, and passive acquiescence therein on her part, be sufficient in and of itself to show that the husband acted as her agent in making the contract, so as to bind her personally, or warrant the charging of a lien against her property for the cost of materials entering into the construction of the building or improvement. [Citations omitted] Kurtz v. Field et al., 14 S.W.2d 9, 223 Mo.App. 270 (Mo. App., 1929).

In Boeckeler Lumber Co. v. Wahlbrink, the Court held that because the wife signed the deed of trust, note, and other documents to obtain financing, the Court said the wife was charged with acquiescing in the work.  Consequently the property was lienable despite the tenancy by the entirety.  Boeckeler Lumber Co. v. Wahlbrink, 177 S.W. 741, 191 Mo. App. 334 (Mo. App., 1915).

This is one reason why a contractor should always gather the appropriate information before beginning a project.  Specifically, a contractor should at least ask the marital status of the party with whom the contractor is interacting or some other appropriate questions to determine the true legal owner of the property.  In the event that any questions are raised, the contractor should pull the deed from the county’s recorder of deeds office.

Contractors should always consult with a construction lawyer as the lawyer can properly advise the contractor regarding his/her/its legal rights.

Contact one of our construction law attorneys to ensure that your contract is properly structured and the right parties are joined thereto in order to preserve your mechanic’s lien rights.

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What Happens if You Falsify a Mechanic’s Lien?

First off, a lien has to be notarized, which means you’ve publicly filed a false, sworn statement.

This type of conduct could have criminal ramifications, as the prosecution could try to make a perjury argument.

Additionally, you may face civil claims such as slander of title, which is the malicious publication of false words concerning title which result in damages for the plaintiff.

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What is a Slander of Title Claim in Relation to a Mechanic’s Lien?

The filing of a Mechanic’s lien with the wrong intentions, or abusing the process, can give rise to a slander of title claim.

“Slander of title has three essential elements: (1) false words concerning title to property; (2) malice in the publication of such; and (3) injury to the party whose title was slandered.” Arbors At Sugar Creek Homeowners Ass’n, Inc. v. Jefferson Bank & Trust Co. (Mo. App., 2014) (quoting Tongay v. Franklin Cnty. Mercantile Bank, 735 S.W.2d 766, 770 (Mo.App. E.D. 1987)).

Proof of falsity, alone, is not proof of malice. First Nat. Bank of St. Louis v. Ricon, Inc., 311 S.W.3d 857, 867 (Mo. Ct. App. 2010).

“To support an action for slander of title, there must be false words that are maliciously published, causing the plaintiff to suffer a pecuniary loss or injury.” First Nat. Bank of St. Louis v. Ricon, Inc., 311 S.W.3d 857 (Mo. App., 2010) (quoting V.J.M. Assoc., Inc. v. Gilmore,44 S.W.3d 440, 441 (Mo.App. E.D.2001)).

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What are the Damages Permitted in a Missouri Slander of Title Claim?

Compensatory damages, punitive damages, and attorneys fees may be recovered in a slander of title claim.  See First Nat. Bank of St. Louis v. Ricon, Inc., 311 S.W.3d 857, 868 (Mo. Ct. App. 2010).

“[A]ttorney’s fees and other legal expenses incurred in clearing the disparaged title are recoverable as damages in the common law action of slander of title. Lau v. Pugh, 299 S.W.3d 740, 748 (Mo. Ct. App. 2009)(citing Rorvig v. Douglas, 123 Wash.2d 854, 873 P.2d 492 (1994)).

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Can I file a mechanic’s lien if I don’t have a contract with the owner?

Yes. Subcontractors, suppliers, and other persons or entities who provided labor or supplies on a construction project generally have the right to assert mechanic’s liens in Missouri, even if they do not have a direct contract with the owner.

However, the person or entity asserting the lien has to show a contractual chain or basically contractual privity between all the parties leading from the person or entity asserting the lien to the owner. Additionally, the lien claimant must comply with any remaining statutory requirements such as notice to interested parties, notarizing the lien, stating the amounts due and owing, and other applicable provisions discussed herein.

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What does it mean to be tiered out in the construction law context?

In the construction law context, attorneys refer to being “tiered out” as being too many tiers removed on a construction project.  Each contractual relationship between two parties constitutes the creation of a tier.  Some courts refer to a tier as the amount of contractual separation between the entity and the contractor.

So the example would be a second-tier contractor deals with a party that has a contractual relationship with the contractor.

When a party is too far removed, contractually, on certain projects, depending on the state and/or whether federal law is applicable, that party may not have lien rights on the property.

In Kansas, for example, in order to have valid lien rights, the entity must have at least had a contract with a subcontractor.  If an entity has a contract with a subsubcontractor, then that entity will not have valid lien rights as it will be too far removed, or what is typically termed “tiered out” of its lien rights.

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Can I be tiered out of Mechanic’s Lien rights in Missouri?

In Missouri, a claimant is limited to a limited number of contractual tiers in which the contractor can be removed from the owner and still have valid lien rights.

Essentially this means that if a contractor if further removed than the supplier to a subcontractor, then that lien claimant’s right to file a mechanic’s lien no longer exists.  In addition to falling into the limited tier requirement,  the claimant must also prove that there’s a chain of contracts that leads back to the owner, then assuming all other statutory requirements are met, the claimant will have valid lien rights.

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Missouri Mechanic’s Liens Priority

Priority of Mechanic’s Liens in Missouri

The priority of a mechanic’s lien and a deed of trust in the construction law context is governed by when the document is recorded.  However, there are special rules that are particular to construction that affect which encumbrance is senior to the other.

Let’s look at the specific rules.

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Does a Mechanic’s Lien take Priority over a Deed of Trust (Mortgage) in Missouri?

As noted above, this depends on the timing of the filing in either the recorder of deeds office (deed of trust) or with the circuit court (mechanic’s lien).

However, just because a deed of trust is filed before a mechanic’s lien is filed does not mean that the deed of trust has priority over the lien.

One reason the deed of trust may be junior to the mechanic’s lien is due to a doctrine in construction law called the first spade rule.

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What is the First Spade Rule?

“All mechanics’ liens commence at the date of the first stroke of the axe or spade, and continue in the erection of [a structure] without regard to the time of their being filed, or of the doing of the work or furnishing the materials.” Grau Contracting, Inc. v. Captiva Lake Invs., LLC (Mo App. 2014)(quoting Schroeter Bros. Hardware Co. v. Croatian “Sokol” Gymnastic Ass’n, 58 S.W.2d 995, 1003 (Mo. 1932)).

This benefit to contractors comes from the powers granted in section 429.060 of the Missouri Revised Statutes and states the following, in relevant part:

The lien for work and materials as aforesaid shall be preferred to all other encumbrances which may be attached to or upon such buildings, bridges or other improvements, or the ground, or either of them, subsequent to the commencement of such buildings or improvements.

http://www.moga.mo.gov/mostatutes/stathtml/42900000601.html

This statute gives a mechanic’s lien priority over other encumbrances that attach after the work has begun.

However, there is a distinction between whether deeds of trust or mechanics’ liens have priority over the land and/or building. There is another statute that governs deeds on the building, structure, or improvements.

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Is there a difference in priority if the mechanic’s lien attaches to the structure instead of the land?

Yes.  A different statute governs priority with respect to the structure.

Under section 429.050 of the Missouri Revised Statutes, a mechanic’s lien claimant has better protection when the encumbrance relates to the building or structure:

The lien for the things aforesaid, or work, shall attach to the buildings, erections or improvements for which they were furnished or the work was done, in preference to any prior lien or encumbrance or mortgage upon the land upon which said buildings, erections, improvements or machinery have been erected or put; and any person enforcing such lien may have such buildings, erections or improvements sold under execution, and the purchaser may remove the same within a reasonable time thereafter; provided, that nothing contained in this section shall be so construed as to allow any such sidewalk as is mentioned in sections 429.010 to 429.340 to be so sold under execution or so removed.
http://www.moga.mo.gov/mostatutes/stathtml/42900000501.html
This statute basically says that a mechanic’s lien on a building, structure, or improvements takes priority over any other encumbrance.
That’s a big distinction from the priority a mechanic’s lien has on land (which is only on third party encumbrances that were filed after the construction work started).

For purposes of lien priority, does it matter if I have a purchase money mortgage or just an ordinary mortgage?

Generally it does not (there’s an exception discussed below).  When determining priority between liens and mortgages (deeds of trust), whether it be a purchase money mortgage or otherwise, typically all mortgages are treated the same.
Missouri mechanic’s lien statutes (specifically sections 429.050 & .060) govern the priority of a mechanic’s lien while the recording statutes govern the priority of a purchase money mortgage.
However, as noted regarding the building, structure, or improvements, the mechanic’s lien takes priority regardless of the type of mortgage.
Similarly, regardless of the type of mortgage/deed of trust, whether the work begins first or whether the mortgage is filed first determines which encumbrance takes precedence as to the land.
Below is an exception where the purchase money mortgage actually would take precedence on the real estate.

What is the Common Legal Learning Exception with respect to Lien and Mortgage Priority ?

In rare circumstances, a purchase money mortgage may take priority over the mechanic’s lien based on the common legal learning exception.  This is basically a concept set forth in section 7.2(b) of the Restatement (Third) of Property (Mortgages) and states the following:

A purchase money mortgage, whether or not recorded, has priority over any mortgage, lien, or other claim that attaches to the real estate but is created by or arises against the purchaser-mortgagor prior to the purchaser-mortgagor’s acquisition of title to the real estate.

The policy behind this is to protect the purchase-money mortgage from liens or claims that existed on the property prior to the closing and that would attach at the same time as the purchase-money mortgage.

One common situation where this might happen is if the contractor begins work on the property before the closing.

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Other Missouri Liens

What other liens are there besides Mechanic’s Liens?

As you may be aware, contractors, subcontractors, suppliers, and laborers have the ability to file a mechanic’s lien, which is set forth in section 429.010 of the Missouri Revised Statutes.  Chapter 429, however, does not only define mechanic’s liens but includes numerous other types of liens that may be filed by participants on a construction project in Missouri.

There is also something called a design professionals lien, which encompasses liens by architects, engineers, landscape architects, and surveyors.

Persons that perform work on railroads such as contractors, subcontractors, fuel and material suppliers, and/or laborers have lien rights on the property that is owned by the railroad company, but the requirements to perfect these liens are much more stringent than a mechanic’s lien.

One example of the stricter requirements lies in the amount of time the entity has to file the lien. Instead of having 6 months to file the lien (amount of time a contractor, subcontractor, or supplier has to file a mechanic’s lien in Missouri), the contractor, subcontractor, or supplier has 90 days.

In addition, commercial real estate brokers who sell commercial real estate may be able to file a lien on the property that was sold.

There are also certain types of liens called equitable liens, but these types of liens have an element that requires that no other remedy be available for the person or entity asserting the lien.

Because Chapter 429 sets forth numerous types of liens and remedies for contractors, subcontractors, suppliers, and laborers, rarely, will you see an equitable lien in the context of a construction project.

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Can Laborers individually file a lien for unpaid wages?

Yes. Section 429.010 grants lien rights to laborers who have unpaid wages on a construction project.  Pursuant to the statutes, laborers that have direct interaction with the owner are supposed to provide 429 notice that general contractors are required to provide for mechanic’s liens.

However, laborers may receive more lenient treatment when attempting to file liens.  For example, in the BCI Corp. v. Charlebois Constr. Co., the Missouri Supreme Court reviewed the case on appeal and held that the laborer did not have to provide the 429 notice required of general contractors, nor did the laborer have to provide the 10 day notice of intent to file a mechanic’s lien, which is required of subcontractors.  See BCI Corp. v. Charlebois Constr. Co., 673 S.W.2d 774 (Mo. Banc 1984).

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Mechanic’s Lien Law Attorney

If you need further information regarding the filing or defense of mechanic’s liens, please contact one of our mechanic’s lien law attorneys today.

St. Louis Construction Defect Lawyer

Demolition of Building

Litigating Construction Defect Claims

The Construction industry has numerous complexities and a lot of moving parts.  After performing hundreds a projects an experienced contractor will inevitably face defects in the work of one of the subcontractors on the project.

When the construction work is defective, someone will have to incur additional expenses.  As we all know, the likelihood that someone will voluntarily assume the expenses is low to non-existent.

Therefore, when a defect occurs on a construction project, the contractor has to immediately think that the dispute may result in litigation.

Consequently, the contractor should prepare the documentation and take any proper steps preparing to litigate the dispute, which usually should include the retention of an attorney.

While this cynical approach was not intended to encourage lawsuits, the reality is that contractors need to be precautious in order to protect themselves if the dispute proceeds to litigation.

One important tip is to maintain organized and thorough documentation. Maintaining proper documentation can greatly reduce attorney’s fees and expedite resolution of the matter.

First, and ideally before a construction defect claim arises, make sure to keep detailed records of the project, including all correspondence.

It is important to document all communications between the parties on a construction project because the contract and ultimately the parties’ intent may be determinative of the outcome in a construction defect case.

The documentation of the parties’ communications may be important because the communications may speak to the intent.

Additionally the communications may be fuel for the construction defect lawyer to use throughout the litigation.

Damaging statements by the opposing side can be your attorney’s sword to leverage you into a favorable settlement or assist you in collecting payment on the project

Even if you are unable to adequately prepare, we have construction lawyers who can help you fight through the process and either get you the compensation to which you are entitled or to require the subcontractor to make any and all necessary repairs to rectify the shoddy work.

Assistance with Your Construction Defect Claim

Construction can often be a complex process, and not all companies are suited to perform construction work.

Other companies are well-equipped to perform the same but still may find themselves dealing with construction defect claims.

Regardless of where your company falls, defect claims will arise in the construction context.

If/When that situation occurs, we have attorneys who are well-versed in handling construction defect claims from start to finish, and we would be glad to review your case.

If you need assistance with a matter, please contact a construction law attorney at our firm.

If you are need of a construction litigation attorney, please contact one of our lawyers.

St. Louis Construction Litigation and Appeals Attorney

Lil Bulldozer

St. Louis Construction Litigation Attorneys

Our St. Louis construction lawyers will take a case as far as it needs to go to get you the results you deserve.  Our attorneys have experience litigating a slew of different construction law cases. We can help you with jury trials, bench trials, or arbitrations.

Our lawyers are confident in our abilities and in our knowledge of construction law, and we’ll fight for you in court.

If you have construction law issues, our lawyers would love to hear about your case.

We will listen, evaluate your case, and advise you as to how you should properly proceed, either to mitigate any potential damages or to enable you to collect money that you are owed on a construction project.

The moment you step into our office, we’ll begin formulating an aggressive litigation strategy to help you achieve your desired outcome.

Part of your case evaluation includes considerations regarding:

  • the venue of the case,
  • whether to opt for a jury trial,
  • whether to take a change of judge,
  • the strategies of the opposing lawyer,
  • what motion to file to keep pressure on the opposing side, and
  • many other strategy decisions that a lawyer needs to make case-by-case when litigating a construction law caseConstruction Tools

Construction Law Appellate Lawyers

Our construction lawyers will take your case from start to finish, which means we are ready and willing to assist you with the appeal process if necessary.

There will be close cases where you win, and the other side will appeal. Your fight should not stop there.

They are attempting to take money to which you are entitled by finding procedural (often is the case) deficiencies in the trial.

What are Grounds for Appeal in Missouri?

“When reviewing a court-tried case, this Court will affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Ta Realty Assocs. Fund V, L.P. v. NCNB 1500, Inc., 144 S.W.3d 343, 346 (Mo.App. E.D.2004).” K.O. Real Estate, LLC. v. O’Toole, 291 S.W.3d 780 (Mo. App., 2009).

It is often incredibly difficult to prove that there is no substantial evidence or the ruling is against the weight of the evidence because even a mediocre lawyer can almost always meet those burdens in the case.

Thus, as a practical reality, most Missouri appeals are made on the basis of the erroneous declaration or application of the law.

If the opposition appeals, regardless of their grounds, you should always consult with an attorney to determine whether it is prudent to continue litigating and fighting. This will be an important decision because there is usually a significant sum of money and substantive rights on the line.

Our lawyers are well-equipped and eager to help you fight the appeal.

If you have a case that is getting appealed or you would like to appeal a case, please contact our St. Louis Construction Lawyers here.