EVICTIONS IN GENERAL

This section contains information on the three different procedures used for

evictions in Missouri. The three procedures are: (1) rent and possession, (2) unlawful

detainer, and (3) “immediate eviction.” They are used for entirely different purposes but

have a few similarities. .A lease is both a conveyance and a contract. Premier Golf

Missouri, LLC v. Staley, 282 S.W.3d 866, 873 (Mo. App. W.D. 2009). The landlord-

tenant relationship consists of four elements: (1) a contract, express or implied, (2) the

creation of an estate in the tenant either at will or for a term less than that which the

landlord holds, (3) a reversion to the landlord, and (4) the transfer of exclusive

possession and control to the tenant. Letsinger v. Drury College, 68 S.W. 3d 408, 411

(Mo. banc 2002), Robert Newcomb v. St. Louis Office for Mental Retardation, 871

S.W.2d 71, 73 (Mo. App. 1994); Thompson v. Tuggle, 183 S.W. 3d 611, 617 (Mo. App.

W.D. 2006); Santa Fe Trail Neighborhood Redevelopment Corp. v. W.F. Coen &

Company, 154 S.W.3d 432, 440 (Mo. App. W.D. 2005). Marro v. Daniels, 914 S.W.2d

16, 18 (Mo. App. 1995), Kimack v. Adams, 930 S.W. 2d 505, 507 (Mo. App. 1996).

These four elements are what distinguish a landlord-tenant relationship from that of a

hotel guest or other residential situations.

The question of whether a person was a “tenant” in a “transitional shelter” arose

in Thomas v. Cohen, 304 F. 3d 563 (6th Cir. 2002). August House in Louisville, KY was

a “transitional shelter” for women. The women paid $140 per month to live there and

had a room in a house shared with other women. No alcohol or drugs were allowed.

The Director phoned the police to remove several women (the plaintiffs in this case)

who violated the rules. The police cooperated with the director and removed the

women. The women brought a suit against the police officers that removed them for

deprivation of their civil rights. The federal court of appeals held that the women were

tenants and were entitled to due process under the eviction laws before being removed

from the property.

Unlike many other states, Missouri does not have a “Residential Landlord Tenant

Act.” You cannot find all statutes pertaining to landlord-tenant law in one convenient

place in the statute books. Rent and possession actions are governed by chapter 535 of

Materials Provided by Robert J. Wise

the Missouri statutes, unlawful detainers are in chapter 534, and “immediate evictions”

are in §§441.710 to 441.880. Chapter 441, RSMo., pertaining to conveyances, also

contains sections governing landlord-tenant relations. The reader should also be aware

that the statutes and cases contained in this book apply generally to both residential

and commercial rental property. (There are occasional exceptions such as the security

deposit law (§535.300) that refers only to “dwelling units.”)

In order to know which type of eviction to file, you must determine whether you

simply want to collect the rent or if your goal is to remove the tenant from the property.

In the former case, you should file an action for rent and possession; for the latter, you

should sue for unlawful detainer. The remedies are cumulative and not inconsistent so

they can be pled alternatively in the same petition. Ellsworth Breihan Building

Company v. Teha Incorporated, 48 S.W. 3d 80, 83 (Mo. App. 2001). However, a

decision must be made in court as to which remedy to pursue because a judgment

cannot be obtained for both simultaneously. In addition, the landlord (or his attorney)

may want to determine if there are grounds for an expedited procedure under the

“immediate eviction” statutes.

By statute, all three procedures require verified (i.e., notarized) petitions.

(§535.020 for rent and possession, §534.070 for unlawful detainer, and §441.720.1 for

immediate evictions.) Verification is "jurisdictional," meaning "no final judgment can be

entered on an unverified petition in proceedings in which verification is required." Drury

Displays v. Board of Adjustment, 760 S.W.2d 112, 114 (Mo. banc 1988). An

amended petition adding the required verification is sufficient and relates back to the

date of filing of the original (unverified) petition, so long as the petition is verified before

the final judgment is entered. Drury Displays, supra. It also appears that the

verification requirement can be waived. When the defendant did not raise the issue,

and the case was tried before an associate circuit judge, it was held that the court had

jurisdiction and that the case had been tried by consent. Federated Mortgage and

Investment Company v. Jones, 798 S.W.2d 719 (Mo. 1991).

In all three actions, if the tenant is not personally served with process, in rem

jurisdiction can be obtained by posting the summons and petition on the premises.

(§534.090, §535.130; and §441.720 incorporate the posting provisions of §535.030.)

Service by posting is not sufficient for a money judgment but is adequate for a judgment

for possession. Of course, if the tenant appears in court or “otherwise enters an

appearance,” a money judgment can then be obtained. §535.040.

“Self help” evictions are not allowed. §535.010 provides that a landlord may

dispossess a tenant for non-payment only "in the manner herein provided." Phillips v.

Ockel, 609 S.W.2d 228 (Mo. App. 1980). A landlord is guilty of a forcible entry and

detainer (§534.020) if he “removes or excludes a tenant or the tenant’s personal

property from the premises without judicial process and court order, or causes such

removal or exclusion, or causes the removal of the doors or locks to such premises,” or

if he “willfully diminishes services to a tenant by interrupting or causing the interruption

of essential services, including but not limited to electric, gas, water, or sewer service. .

.” §441.233.

All three procedures must be filed before an associate circuit judge in the county

where the real estate is located. §§534.060, 535.020, 441.720. Neither the circuit judge

nor the small claims court has jurisdiction to hear eviction cases or to render judgments

for possession of property.

For all three procedures, in determining venue of actions within the sixteenth

judicial circuit, venue shall be in either the western portion or the eastern portion of the

circuit. §478.461. Proper venue shall be in that portion of the circuit in which the

property is located.

In a suit brought under either chapter 534 (unlawful detainer) or chapter 535 (rent

and possession), if the court finds that the tenant allowed another person to have sole

possession of the premises (such as an illegal sublease) it may award double the

amount of damages due. §534.347.

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Robert J. Wise

Julie A. Anderson

P. O. Box 480187

Kansas City, MO. 64148-0187

(816) 942-5925

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RENT & POSSESSION

The rent and possession action arises simply from the non-payment of rent. The

landlord need only allege and prove that there is rent due and payable, that demand

has been made for payment, and that the tenant has failed to pay. §535.020, RSMo.

There is no requirement in Missouri as to how long a landlord must wait to demand rent,

nor is there a waiting period between the demand and filing of a suit. The "demand"

does not have to be in writing. Edward v. Tolbert, 849 S.W.2d 717, 719 (Mo. App.

1993).

Romea v. Heibegger & Associates, 163 F. 3d 111 (2nd Cir. 1998) held that

delinquent rent is a “debt” and a demand letter for delinquent rent from a debt collector

or attorney must comply with the Fair Debt Collection Practices Act.

Only one demand need be made for rent. No additional demand is necessary for

any intervening month(s) between the demand and the judgment date. Gaines v.

Corning, 672 S.W.2d 699, 701 (Mo. App. 1984).

The suit may be brought against tenants, lessees, and "all persons occupying the

premises." §535.020. Thus an individual who has been invited by the lessee to live

with him after taking possession may be a defendant even if such person did not sign

the lease. This is particularly useful since Missouri law includes roommates as "family"

for the purposes of service of summons. Midwest Acceptance Corporation v. Blount,

777 S.W.2d 645, 646 (Mo. App. 1989). One case involving an “occupant” rather than a

“lessee” was Real Estate Investors Four, Inc. v. American Design Group, Inc., 46

S.W.3d 51 (Mo. App. 2001). In that case, family members formed a shell corporation to

rent commercial property. The property was then occupied by a different corporation

formed by the same family members. The landlord was allowed to sue the occupant-

corporation for breach of the lease.

The Missouri Supreme Court has held that there is no right to a jury trial under

§535.040 in an action for rent and possession and that the statute's provision for trial by

judge is constitutionally valid. Rice v. Lucas, 560 S.W.2d 850, 857 (Mo. 1978).

Unlike the procedure for unlawful detainer, a counterclaim may be asserted in

rent and possession actions. In Rahman v. Matador Villa Associates, 821 S.W.2d 102

(Mo. banc 1991), the Court held that chapter 517 permits, but does not require,

counterclaims. Rent and possession cases are not subject to the compulsory

counterclaim rule of Civil Rule 55.32 (a). Becker Glove International Inc. v. Jack

Dubinsky & Sons, 41 S.W. 3d 885 (Mo. banc 2001) specifically held that the

compulsory counterclaim rule does not apply to cases brought under chapter 517.

To avoid delaying the summary action for possession, the court may sever the

issues of possession and damages and hold separate trials on these issues. B-W

Acceptance Corporation v. Benack, 423 S.W.2d 215 (Mo. App. 1967).

If the tenant makes an unconditional tender of all accrued rent and costs on or

before the judgment date, the rent and possession action is ended. §535.160. The

landlord is not required, at any time, to accept a tender of less than the full amount of

rent and costs owed. A landlord may accept or refuse a tender of partial payment

without waiving any rights to pursue the rent and possession suit. Gaines v. Corning,

672 S.W.2d 699, 701 (Mo. App. 1984). A tender of full payment may even be made

after the judgment is entered, if it is on the same day as the judgment or while an

appeal is pending. Mannion v. K. Khan, Inc., 992 S.W.2d 198 (Mo. App. 1999). After

judgment is entered, the tenant may still stop the action if he files an appeal and tenders

all rent and costs while the appeal is pending.

§535.160 limits the required tender to rent and costs. "Rent" is defined as “a

stated payment for the temporary possession or use of a house, land or other real

property, made at fixed intervals by a tenant to a landlord.” §441.005, RSMo. (“Costs”

are the filing fees charged by the court and the fees for service of process--not your

attorney fees or other expenses.) A lease may require that the tenant pay other money

to the landlord, such as late fees. Such additional items may be included in a suit for

rent, and judgment may be obtained, but a rent and possession case cannot be brought

solely for non-payment of late fees. §535.020 provides that these “other [unpaid] sums

shall not be considered rent for purposes of this chapter.”

If the tenant fails to vacate after a judgment is entered and additional rent is

accrued, the landlord may bring a subsequent action for the additional rent. WEA

Crestwood Plaza, LLC v. Flamers Charburgers, Inc., 24 S.W.3d 1, 9-10 (Mo. App.

(2000).

WISE & ANDERSON, LLC

Robert J. Wise

Julie A. Anderson

P. O. Box 480187

Kansas City, MO. 64148-0187

(816) 942-5925

Fax (816) 941-3296

bob@wiseandersonlaw.com

UNLAWFUL DETAINER

There is a difference between “forcible detainer” and “unlawful detainer.” Forcible

detainer usually describes an action taken by a landlord who wrongfully dispossesses a

tenant. §534.020 defines forcible entry and detainer. §441.233 includes additional

misconduct by a landlord which also constitutes forcible detainer. An unlawful detainer

occurs when the tenant holds over beyond the term of the lease.

§534.020 defines forcible entry and detainer:

“If any person shall enter upon or into any lands, tenements or other

possessions, with force or strong hand, or with weapons, or by breaking open the doors

or windows or other parts of a house, whether any person be in it or not, or by

threatening to kill, maim or beat the party in possession, or by such words or actions as

have a natural tendency to excite fear or apprehension of danger, or by putting out of

doors or carrying away the goods of the party in possession, or by entering peaceably

and then turning out by force, or frightening, by threats or other circumstances of terror,

the party out of possession, and detain and hold the same--in every such case, the

person so offending shall be deemed guilty of a ‘forcible entry and detainer’ within the

meaning of this chapter. “

§534.030 defines unlawful detainer:

"When any person willfully and without force holds over any lands, tenements or

other possessions, after the termination of the time for which they were demised or let

to the person, or the person under whom such person claims; or after a mortgage or

deed of trust has been foreclosed and the person has received written notice of a

foreclosure; or at least ten business days have elapsed after the date of the notice

described in subsection 3 of this section; or when premises are occupied incident to the

terms of employment and the employee holds over after the termination of such

employment; or when any person wrongfully and without force, by disseisin, shall obtain

and continue in possession of any lands, tenements or other possessions, and after

demand made, in writing, for the delivery of such possession of the premises by the

person having the legal right to such possession, or the person’s agent or attorney, shall

refuse or neglect to vacate such possession, such person is guilty of an 'unlawful

detainer'."

The purpose of an unlawful detainer action is to recover possession. Although

non-payment of rent may be the reason the landlord terminated the tenancy, the

tenant's tender of rent will not stop an unlawful detainer suit. To terminate a tenancy for

reasons other than non-payment of rent, an unlawful detainer is required. The sole

issue in unlawful detainer is the "immediate right of possession." Phelps v. Phelps, 299

S.W.3d 707 (Mo. App. S.D. 2009), Moser v. Cline, 214 S.W.3d 390 (Mo. App. W.D.

2007), S&P Properties, Inc. v. Bannister, 292 S.W.3d 404, (Mo. App. E.D. 2009),

Broken Heart Venture, L.P. v. A & F Restaurant Corp., 859 S.W.2d 282 (Mo. App.

1993), Davis v. Stewart Title Guar. Co., 695 S.W.2d 164, 165 (Mo. App. 1985),

Mortgage Association v. Wiley, 650 S.W.2d 13, 14 (Mo. App. 1983). If there is timely

notice, in the proper form, properly served, and the landlord has complied with the law

and the lease, there is virtually no defense. The landlord need not give a reason for the

termination of a month-to-month tenancy (in a conventional non-subsidized property) or

a tenancy which has otherwise expired.

The use of unlawful detainer to restore possession is not strictly limited to the

landlord-tenant relationship. Example: The lease of Lessee #1 expires on December

31, 2009 and the landlord has leased the premises to Lessee #2 for a term beginning

on January 1, 2010. Lessee #1 holds over and Lessee #2 cannot move in. The

landlord certainly has an action against Lessee #1 for unlawful detainer but so does

Lessee #2 who has the right of possession as of January 1, 2010. (§534.290.)

Furthermore, if the landlord sues Lessee #1, the latter cannot assert the defense that

Lessee #2, rather than the landlord, has the right of possession.

In Stamatiou v. El Greco Studios, Inc., 898 S.W.2d 571 (Mo. App. 1995) the

court awarded damages in unlawful detainer to an ex-wife who, in the dissolution of

marriage, had been awarded the real property where her ex-husband's restaurant was

located. The plaintiff was awarded damages as of the date of her termination letter,

even though the dissolution decree was pending appeal at the time. The court

reiterated that the sole issue in unlawful detainer is the immediate right of possession.

What Notice must be given to terminate a lease?

Notice must be given to terminate a tenancy, as follows:

1. Sixty days notice to terminate a year-to-year tenancy. §441.050.

2. One month's notice to terminate a month-to-month tenancy, a tenancy at will

or at sufferance, or a tenancy for less than one year. §441.060. Note: The statute

specifies “one month,” not thirty days. Fisher v. Payton, 219 S.W.2d 293, 296 (Mo.

App. 1949), Davidson v. Kenney, 971 S.W. 2d 896, (Mo. App. 1998).

3. Ten days' notice is sufficient for an unlawful detainer if the tenant (a) assigns

or transfers his interest without written consent, (b) violates the "conditions" of a written

lease, (c) commits waste, (d) allows the illegal possession, sale or distribution of

controlled substances upon the premises, (e) permits the premises to be used for

gambling or prostitution. §§ 441.020 and 441.040. (Non-payment of rent is generally

not a violation of a condition of a lease but only a violation of a "covenant." See

Edwards v. Collins, 199 S.W. 580 (Mo. App. 1917) for a discussion of the difference

between covenants and conditions.)

4. Sixty days’ notice must be given “when a person occupies and has an

ownership interest in a mobile home and is leasing the land or the lot upon which the

mobile home is located,” even if the tenancy is for less than a year. §441.060.4 (2).

The plaintiff must prove that he has complied with §441.060 regarding notice,

unless such notice is unnecessary. Fisher v. Payton, 219 S.W.2d 293, 296 (Mo. App.

1949)

It is not sufficient to inform the tenant that he is in default or in violation. The

notice must specifically state that the lease is terminated. Josephson v. National

Screen Service Group, Inc., 810 S.W.2d 708 (Mo. App. 1991).

The termination of the lease and the demand for possession must be served on

the tenant or posted on the premises. §534.050. Ordinary mail is not sufficient.

There are two exceptions to the rule that an unlawful detainer action must be

preceded by the landlord’s demand for possession:

1. If the tenant gives written notice that he intends to quit the premises at a

specified time and fails to do so. §441.100.

2. If the tenant holds over at the end of a fixed term lease. §441.070. Jim

Medve Investment Company v. Bailous, 740 S.W.2d 678, 680 (Mo. App. 1987),

Cusumano v. Outdoors Today, Inc., 608 S.W.2d 136, 139 (Mo. App. 1980).

Note: The required notice may be waived by the lease. The language which was

upheld in Gordon v. Williams, 986 S.W. 2d 470 (Mo. App. 1998) stated,” [Tenants]

hereby waive any notice which may be required by statute or otherwise prior to the

commencement of an action to obtain possession of the premises by summary

proceedings or otherwise.”

Other Unlawful Detainer Issues

In an unlawful detainer case, what is the effect of the landlord accepting rent from

the tenant after the termination date? The acceptance of rent after the termination or

expiration of a lease creates a rebuttable presumption of a waiver. Haack v. Great

Atlantic and Pacific Tea Co., 603 S.W.2d 645 (Mo. App. 1980). "Generally speaking,

the acceptance by a landlord of rent which accrues after the breach of condition

contained in a lease implies a waiver of the right to declare a forfeiture for that breach

unless there are circumstances arising from such acceptance which negative the

presumption of the lessor's affirmance of the lease. …Of course, the acceptance of rent,

which accrues after the breach of covenant or condition does not establish waiver as a

matter of law; the question whether waiver occurred is primarily an issue of intent."

Rietsch v. T.W.H. Co. Inc., 702 S.W.2d 108 (Mo. App. 1985).

Because unlawful detainer is intended to be a summary action, certain issues

may not be heard in an unlawful detainer case. For example, questions of title cannot

be tried. §534.210, RSMo. Peoples Finance Corporation v. Lincoln, 131 S.W.2d 520

(Mo. 1939), McNeill v. McNeill, 456 S.W. 2d 800, 805 (Mo. App. 1970).

Absolutely no counterclaims are allowed in unlawful detainer suits and no

equitable defenses (such as mistake, estoppel, or waiver) are available. Moser v.

Cline, 214 S.W. 3d 390 (Mo. App., 2007), V.F.W. Post #7222 v. Summerville Saddle

Club, 788 S.W.2d 796 (Mo. App. 1990), S.L. Motel Enterprises, Inc. v. East Ocean,

Inc. 751 S.W.2d 114 (Mo. App. 1988), and Lake in the Woods Apartments v.

Carson, 651 S.W.2d 556 (Mo. App. 1983). In Bach v. McGrath, 982 S.W. 2d 734 (Mo.

App., E.D. 1998), the court rejected the defendant’s argument that he was in

possession under an oral contract to purchase the real estate. The court ruled that even

if the defendant could avoid the Statute of Frauds, he would have, at best, an equitable

defense. He may be able to prevail in a suit for specific performance, but he had no

defense to the unlawful detainer action.

The Missouri Supreme Court has rejected an attempt to allow an affirmative

defense of estoppel in unlawful detainer. Mosher v. Levering Investments, Inc., 806

S.W.2d 675, 677 (Mo. banc, 1991). In Broken Heart Venture L.P. v. A & F Restaurant

Corp., 859 S.W.2d 282 (Mo. App. 1993) the tenant was not allowed to set-off

improvements to the property against rent. The defendant's claim, that it owed no rent

because it was entitled to a set-off for improvements, was not legally sufficient to defeat

summary judgment.

In Central Bank of Kansas City v. Mika, 36 S.W. 3d 772 (Mo. App. 2001) a

bank brought an unlawful detainer action against persons who failed to vacate a

property after their mortgage was foreclosed. The defendants claimed that the bank was

guilty of fraud and had wrongfully foreclosed. The court held that the defendants could

not use such a defense in an unlawful detainer suit and affirmed summary judgment for

the bank.

The one factor that may significantly delay an unlawful detainer is the right to a

jury trial under §534.160. (There is no right to a jury trial in the other two types of

evictions.) However, the landlord may be able to obtain summary judgment because,

by statute, the plaintiff need only prove that he was lawfully possessed of the premises

and that the defendant unlawfully entered into or unlawfully detained the premises.

§534.200, RSMo. It is also valid for a lease to contain a provision waiving the right of

jury trial. The Missouri Supreme Court upheld such a waiver provision in Malan Realty

Investors, Inc. v. Harris, 953 S.W. 2d 624 (Mo. banc, 1997).

On occasion, a defendant in an unlawful detainer action, who has been a tenant

for more than three years, will assert §534.300 as a defense. This statute states that

chapter 534 “shall not extend to any person who has had the uninterrupted occupation

or been in quiet possession of any lands or tenements for the space of three whole

years together. . . “Case law, however, consistently holds that §534.300 does not

apply to landlord-tenant situations. Kohnen v. Hameed, 894 S.W. 2d 196 (Mo. App.

1995), Phelps v. Phelps, 299 S.W.3d 707, 710 (Mo. App. S.D. 2009) (citing F. A.

Sanders Real Estate & Investment Co. v. Becker, 202 S.W. 2d 549 (Mo. App. 1947)).

In P.M. Construction Services, Inc. v. Lewis, 26 S.W.3d 284 (Mo.App.2000) an owner

stayed in possession of a property after a foreclosure and an unlawful detainer was filed

against him. The owner attempted to rely on the three-year limitation in §534.300. The

court held that the three-year period did not begin until the foreclosure and did not

include the time he occupied the premises prior to the foreclosure.

The landlord in an unlawful detainer suit may recover possession and money

damages “for waste and injury committed upon the premises . . . as for all rents and

profits due and owing up to the time of the rendering of the verdict or finding of the

judge.” §534.310. §534.330 provides for a judgment of double the damages found by

the judge or jury. Massey v. Goforth, 305 S.W.2d 894 (Mo. App. 1957) states that the

double damages provision is mandatory and not subject to court discretion. The

damages are measured from the time of the demand for possession up to the date the

tenants vacate the premises. Moser v. Cline, 214 S.W. 3d 390 (Mo. App., 2007).

Cases on Constitutional Validity & Related Issues

A series of decisions has arisen from the recent wave of foreclosures. Several

cases have challenged the unlawful detainer post-foreclosure process.

“The requirements to assert an action for unlawful detainer following foreclosure

are clear. The plaintiff must demonstrate that the deed of trust has been foreclosed

upon, the defendant received notice of the foreclosure, and that the defendant refused

to surrender possession of the property.” JP Morgan Chase Bank v. Tate, 279 S.W. 3d

236, 239 (Mo. App.., E.D. 2009).

In State ex rel. Deutsche Bank National Trust v. Chamberlain, 372 S.W. 3d

24 (Mo. App. W.D. 2012) the defendants tried to argue that they were not raising issues

of title but rather issues of standing. They argued that due to improper procedures, the

plaintiff lacked standing to bring an unlawful detainer action. The Court held that in an

unlawful detainer action, “standing” is defined by Sec. 534.200 which states that a

plaintiff must prove only that he is lawfully possessed of the premises and that the

defendant is wrongfully in possession. A grantee under a trustee’s deed has “statutorily

conferred standing.” State ex rel. Kansas City Power & Light Co. v. McBeth, 322

S.W. 3d 525, 530, (Mo. banc 2010). (Deutsche Bank actually came to the appellate

court on a writ of prohibition. The defendants requested discovery regarding the deed of

trust and the pre-foreclosure process. The trial court compelled discovery and the Court

of Appeals granted a writ of prohibition stating that the trial court abused its discretion

by compelling discovery on issues “that have no connection to Deutsche Bank’s

standing to sue.”)

In a 6-1 vote, the Missouri Supreme Court in Wells Fargo Bank v. Smith, 392

S.W. 3d 446, (Mo banc 2013) upheld the constitutionality of the unlawful detainer

statutes which were challenged as violations of due process and equal protection. This

decision gives a history of and the reasoning for the current unlawful detainer process.

The statutes were challenged as unconstitutional because, allegedly, they do not

provide a means of challenging the title of the party bring the unlawful detainer action.

The court stated that the unlawful detainer statutes “do not, cannot, and never were

intended to resolve question of ownership or the validity of title.” The court relied on

Lindsey v. Normet, 405 U.S. 56 (1972) on the constitutional issues. The court found

that the defendants’ rights could be protected through one of the following procedures

(1) sue to enjoin the foreclosure sale before it occurs (which the Smiths never

attempted) or (2) “if the sale has occurred and the buyer has sued for unlawful detainer,

bring a separate action challenging the foreclosure purchaser’s title and seek a stay of

the unlawful detainer action in that separate case.”

WISE & ANDERSON, LLC

Robert J. Wise

Julie A. Anderson

P. O. Box 480187

Kansas City, MO. 64148-0187

(816) 942-5925

Fax (816) 941-3296

bob@wiseandersonlaw.com

“IMMEDIATE EVICTION”

The procedures of §441.710 through §441.880 differ from unlawful detainer in

that: (1) The remedies apply only to certain limited circumstances involving drug activity

or dangers to persons or property; (2) In most cases, no notice is necessary to initiate

an action; (3) The landlord has the right to collect rent while the suit is pending

(§441.840); (4) New remedies of “partial eviction” and “probationary tenancy” are

created; (5) Certain persons other than the property owner may have standing to evict a

tenant; (6) Restraining orders may be granted in certain circumstances.

The new procedures are similar to rent and possession and unlawful detainer in

that (1) the suit must be brought in the associate circuit court in the county where the

premises are located, (2) the petition must be verified, and (3) service may be obtained

by posting. (§441.720.1.)

§441.720.1 also provides that a hearing shall be set “as soon as practicable but

in no event shall such hearing be held later than fifteen days following the service of the

summons.” In reality, the courts set their own dockets and such an expedited setting

may not be available.

§441.740 provides for “immediate eviction” or a restraining order if:

1. There is an emergency situation which would “imminently cause with a

reasonable certainty either” (a) physical injury to other tenants or to the lessor or (b)

property damage in excess of twelve months’ rent. (The lessor must first make a

reasonable attempt to abate the emergency situation through law enforcement

authorities or mental health services before he may bring this action.)

2. “Drug-related criminal activity has occurred on or within the property

leased to the tenant.” This provision does not require any degree of culpability on the

part of the tenant, merely that the activity has occurred in his unit.

3. “The property leased to the tenant was used in any way to further, promote,

aid or assist in drug-related criminal activity” (Emphasis added). As in the previous

provision, there is no specific nexus between the tenant and the activity.

4. “The tenant, a member of the tenant’s household or a guest has

engaged in drug-related criminal activity either within, on or in the immediate vicinity of

the leased property.” (Emphasis added.)

5. “The tenant has given permission to or invited a person to enter onto or remain

on any portion of the leased property, and the tenant did so knowing that the person

had been removed or barred from the leased property pursuant to the provisions of

§§441.710 to 441.880” or

6. “The tenant has failed to promptly notify the plaintiff that a person whom the

plaintiff previously had removed from the property leased by the tenant, with the

knowledge of the tenant, has returned to, entered onto or remained on the property

leased by the tenant.”

Actions under these provisions may be brought by the landlord or by the

prosecuting attorney of the jurisdiction where the leased property is located. §441.710.

If neither initiates the action, or if they fail to pursue the matter with “reasonable

diligence,” an “interested party” may be substituted as a plaintiff. §441.730. An

“interested party” is “any incorporated, not-for-profit neighborhood association or

community-based organization which represents the well-being and interests of the

community where the leased property is located.” §441.730. If the prosecutor or an

“interested party” notifies the landlord of such a problem and he takes no action within

thirty days, the prosecutor or “interested party” may bring the suit and recover their

costs and attorney’s fees from the landlord. §441.850.

The expedited procedure may be used regardless of the status of any criminal

procedure or even if there is no criminal action instituted and even if the defendant has

been acquitted in a criminal court of the related offense. §441.800.1. However, a

criminal conviction may be used as collateral estoppel in the civil action. §441.800.2.

There is some inconsistency in the provisions dealing with continuances and

discovery. §441.720.2 states that the court shall not continue or stay an action “except

for compelling and extraordinary reasons.” On the other hand, the court may allow

discovery “if further discovery would not unduly delay the action and would ensure fair

disposition of the action.” §441.810.

If any of the conduct described in §441.740 is alleged to be the act of a person

other than the tenant, the plaintiff must give the tenant five days’ notice and must

specify the conduct on which the suit will be based. §441.750. In such cases, when

someone other than the tenant is the alleged perpetrator, the tenant may avoid the suit

by using the five-day period to report the criminal activity to the police or prosecutor or

by seeking a protective order or restraining order against such person or activity.

§441.750.2.

If the tenant is himself the subject of the allegations, as is usually the case, no

notice whatsoever is needed prior to filing the suit. §441.780.

Some of the grounds set forth in §441.740 do not require culpability on the part of

the tenant, but the lack of culpability can be an affirmative defense. The tenant can

prevent his eviction by proving (1) he “in no way furthered, promoted, aided or assisted

in” the described activity, and (2) he “did not know or have reason to know that such

activity was occurring on or within the property, or (3) he “was unable to take action to

prevent the activity because of verbal or physical coercion by the person conducting the

activity.” §441.750.1. These affirmative defenses will prevent the tenant from being

evicted, but the plaintiff can still obtain an order for the “immediate removal” and barring

of the person who was engaged in the activity. §441.760.

The tenant may stay execution if he can prove “by clear and convincing

evidence” that his immediate removal would pose a serious danger to him which

“outweighs the safety, health and well-being of the surrounding community and of the

plaintiff.” §441.770.4. However, §441.880.1 provides that the court shall order a stay of

execution only if the court finds the following: (1) The tenant did not aid or assist in the

drug-related criminal activity or, if the tenant is a drug user or is drug dependent, he will

enter a court-approved drug treatment program; (2) The drug-related activity must not

have occurred within one thousand feet of a school or have involved the sale or

distribution of drugs to minors; (3) There were no weapons possessed in connection

with the drug activity; (4) There was no protective order issued to protect witnesses

pursuant to §441.820; (5) The tenant has not previously received a stay in a case

brought under these provisions; and (6) “The stay of execution will not endanger the

safety, health or well-being of the surrounding community or the plaintiff.” During the

period of the stay, the tenant is on a “probationary tenancy” for six months or the

duration of the lease, whichever is shorter. The court may impose conditions on the

probationary tenancy which include drug testing, community service, drug treatment, or

such terms “as are necessary to further the purposes of §§441.710 to 441.880 or to

protect the safety, health or well-being of the surrounding community or the parties.”

§441.880.3.

Unlike unlawful detainer, a landlord is entitled to collect rent during the pendency

of an action under these procedures. §441.840

If a witness has been “threatened, intimidated or otherwise has reason to fear for

their safety” the court may issue an order protecting the safety of the witness by

appropriate means including but not limited to “the nondisclosure of names, addresses

or the in camera examination of witnesses.” §441.820. In addition, “relevant evidence

obtained in good faith by a law enforcement officer of agency shall be admissible in a

civil action brought pursuant to these sections.” §441.790.

Some issues raised by these procedures were addressed by the United States

Supreme Court in HUD v. Rucker, 535 U.S. 125 (2002) which involved a federal law

requiring public housing tenants to be evicted for one instance of drug use by the

tenant, a member of his family, or a guest. The Court held that the lease could lawfully

require the tenant to be responsible for drug use by his family or guests even if it

requires eviction for conduct off the premises or conduct of which the tenant was

unaware.

WISE & ANDERSON, LLC

Robert J. Wise

Julie A. Anderson

P. O. Box 480187

Kansas City, MO. 64148-0187

(816) 942-5925

Fax (816) 941-3296

bob@wiseandersonlaw.com

TENANT’S DEFENSES

The most common complaints made by tenants deal with the condition of the

property. Major problems that affect the habitability of the premises are covered by the

related doctrines of constructive eviction and warranty of habitability. The “repair and

deduct” statute addresses minor problems. In extreme cases, a court can appoint a

receiver to take charge of the property.

Constructive Eviction / Warranty of Habitability

The principles of constructive eviction can be found in Detling v. Edelbrock, 671

S.W.2d 265 (Mo. banc, 1984), King v. Moorehead, 495 S.W.2d 65 (Mo. App. 1973)

and Yaffe v. American Fixture, 345 S.W.2d 195 (Mo. 1961). “Constructive eviction”

occurs when the lessor interferes with lessee’s beneficial possession or enjoyment of

the property. Shop ‘N Save Warehouse Foods v. Soffer, 918 S.W.2d 851 (Mo. App.

E.D. 1996). Ridley v. Newsome, 754 S.W.2d 912, 915 (Mo. App., 1988) defines

constructive eviction as occurring “when the lessor, by wrongful conduct or by the

omission of a duty placed upon him in the lease, substantially interferes with the

lessee’s beneficial enjoyment of the demised premises.” 754 S.W. 2d at 915. To

maintain the defense of constructive eviction, the tenant must give the landlord notice of

any defect not known to the landlord and must allow reasonable time for repair. Proffer

v. Randall, 755 S.W.2d 655 (Mo. App. 1988).

The elements of a defense or a cause of action for breach of warranty of

habitability are (1) entry into a lease, (2) the subsequent development of dangerous or

unsanitary conditions on the premises materially affecting the life, health and safety of

the tenant, (3) reasonable notice of the defects to the landlord, and (4) the landlord’s

subsequent failure to restore habitability. Moser v. Cline, 214 S.W. 3d 390 (Mo. App.,

2007), Detling v. Edelbrock, 671 S.W.2d 265 (Mo. banc, 1984), Loven v. Davis, 783

S.W.2d 152 (Mo. App., 1990). A tenant who wishes to assert breach of implied

warranty of habitability while maintaining possession of the premises must pay the rent,

as it becomes due in custodia legis, i.e. paid into the court. King v. Moorehead, 495

S.W.2d 65 (Mo. App., 1973).

A defendant cannot rely on constructive eviction if he has not left the premises.

“A tenant’s liability for rent is suspended if a constructive eviction by the landlord causes

an abandonment of the premises.” O’Bar v. Nickels, 698 S.W.2d 950 (Mo. App., 1985)

states that a wrongful act, neglect, or default by landlord which renders the premises

“unsafe, unfit, or unsuitable for occupancy and a tenant is thereby deprived of the

beneficial enjoyment of the premises, amounts to a constructive eviction if the tenant

abandons the premises within a reasonable time.” There is nothing in Missouri law that

gives the tenant free rent in the event of the landlord’s breach. If a breach of warranty

of habitability is proven, the tenant is entitled to pursue traditional contract remedies.

King v. Moorehead, 495 S.W.2d at 75-76. Traditional contract remedies would provide

recovery for actual damages that are proved; they would not allow the tenant to occupy

the premises indefinitely without paying rent.

The landlord’s failure to perform maintenance would not constitute a defense

unless the lack of maintenance reaches the point of constructive eviction or breach of

warranty of habitability, as previously discussed. The implied warranty of habitability

does not require that the landlord provide a “perfect, aesthetically pleasing condition.”

Detling v. Edelbrock, supra.

Wetherbee, Ltd. v. Allred, 969 S.W. 2d 756 (Mo. App. 1998) held that the

tenant may enforce lease provisions and require the landlord to maintain the premises

even if the conditions are not so bad as to constitute constructive eviction. In this case,

the landlord failed to repair the roof as required by the lease. The court allowed the

tenant, while still residing on the premises, to bring suit against the landlord to require

him to perform the maintenance.

“Constructive eviction” occurs when the lessor, through act or omission,

interferes with the tenant’s possession or enjoyment of the property. “Commercial

frustration” occurs when the happening of an event, not foreseen by the parties and not

caused by or under control of either party, has destroyed or nearly destroyed the value

of the performance or purpose of the contract. Shop ‘N Save Warehouse Foods v.

Soffer, supra.

REPAIR & DEDUCT

If the landlord fails to perform minor repairs, the tenant may have a remedy under

§441.234, RSMo. which gives the tenant the right, under limited conditions, to make

repairs and deduct the cost of repair from the rent.

Several conditions must be met, and several step taken, before the tenant may

make any deductions from the rent. (1) The tenant must have legally resided on the

premises and paid all rent and charges for six consecutive months before he is eligible

to use this procedure. (2) The problem in question must be a code violation which

affects the “habitability, sanitation, or security” of the premises. Of course, the code

violation must not have been caused by the tenant, his family, or guests. (3) The

reasonable cost of repair is less than $300.00 or half a month’s rent; whichever is

greater, but not more than one month’s rent. (4) The tenant must give the landlord

written notice of the problem. The landlord then has fourteen days to respond. (5) The

landlord may request written certification of the code violation from the local

government. The landlord then must repair the problem within fourteen days after

receiving such written certification. (6) If the landlord still fails to make the repairs, the

tenant may do so and deduct the amounts “as documented by receipts” which are

submitted to the landlord. (7) The tenant may not deduct more than one month’s rent in

any one year.

WISE & ANDERSON, LLC 

          Robert J. Wise   

          Julie A. Anderson   

          P. O. Box 480187 

          Kansas City, MO. 64148‐0187 

          (816) 942‐5925 

          Fax (816) 941‐3296 

          bob@wiseandersonlaw.com 

ABANDONMENT

There is one, and only one, situation in which the landlord can remove the

tenant’s belongings from the rental property without a court order. That one situation is if

the landlord can establish that the tenant has abandoned the premise.

Abandonment occurs, per §441.065, when (1) “the landlord has a reasonable

belief that the tenant has vacated the premises and intends not to return,” (2) the rent is

unpaid for 30 days, and (3) the tenant fails to respond to a statutorily prescribed notice

letter.

One very convenient feature of the statute is that the required notice letter is

included in the statute itself. The letter must be posted on the premises and mailed by

both regular and certified mail to the tenant’s last known address. The tenant must

respond in ten days by either regular mail or by paying rent. If the tenant fails to

respond, the landlord may deem the premises abandoned, re-rent the premises, and

remove or dispose of the tenant’s personal property without liability.

We recommend that this procedure be used conservatively. If there is not

sufficient evidence of abandonment, and if the tenant returns to the property, the

landlord may be liable for forcible detainer under §441.233. Certainly the landlord

should take photographs of every room in the rental residence, before moving anything,

in case he should ever need evidence as to why he thought the property was

abandoned.

The text of the statute reads as follows:

441.065. Any property of a tenant remaining in or at the premises, after the tenant

abandons the premises, may be removed or disposed of by the landlord without liability

to the tenant for such removal or disposition. The premises shall be deemed

abandoned if:

1. The landlord has a reasonable belief that the tenant has vacated the premises and

intends not to return;

2. The rent is due and has been unpaid for thirty days; and

3.The landlord posts written notice on the premises and mails to the last known address

of the tenant by both first class mail and certified mail, return receipt requested, a notice

of the landlord's belief of abandonment. The notice shall include the following, where

appropriate: "The rent on this property has been due and unpaid for thirty consecutive

days and the landlord believes that you have moved out and abandoned the property.

The landlord may declare this property abandoned and remove your possessions from

this unit and dispose of them unless you write to the landlord stating that you have not

abandoned this unit within ten days of the landlord having both posted this notice on

your door and mailing this notice to you. You should mail your statement by regular

first-class mail and, if you so choose, by certified mail, return receipt requested, to this

address ........... (here insert landlord's name and street address)"; and

4. The tenant fails to either pay rent or respond in writing to the landlord's notice within

ten days after both the date of the posting and deposit of such notice by either first class

mail or certified mail, return

WISE & ANDERSON, LLC

Robert J. Wise

Julie A. Anderson

P. O. Box 480187

Kansas City, MO. 64148-0187

(816) 942-5925

Fax (816) 941-3296

bob@wiseandersonlaw.com