Anthony L. DeWitt Slide 2 Typical Problems for Tenants Sources
of Landlord Tenant Law Typical Fixes for Typical Problems Your
mileage may vary and some restrictions do apply. Slide 3 Many
judges know very little about this area. A good trial brief that
highlights the applicable law and is served a day before the trial
of the matter is often very effective in helping the judge prepare
and may be the most effective weapon you have. Slide 4 Rent
problemsHabitability problemsEviction problemsDeposit Problems
Slide 5 In Landlord Tenant Issues Slide 6 Common Law Chapters 441,
524, 534, and 535 RSMo. Slide 7 (1) a reversion in the landlord;
(2) the creation of an estate in the tenant either at will or for a
term less than that which the landlord holds; (3) the transfer of
exclusive possession and control of the premises or a portion
thereof to the tenant; and (4) a contract, either express or
implied, between the parties. Santa Fe Trail Neighborhood
Redevelopment Corp. v. W.F. Coehn & Co., 154 S.W.3d 432, 439
(Mo. Ct. App. W.D. 2005); Letsinger v. Drury College, 68 S.W.3d
408, 411, 162 Ed. Law Rep. 998 (Mo. 2002). Santa Fe Trail
Neighborhood Redevelopment Corp. v. W.F. Coehn & Co., 154
S.W.3d 432, 439 (Mo. Ct. App. W.D. 2005)Letsinger v. Drury College,
68 S.W.3d 408, 411, 162 Ed. Law Rep. 998 (Mo. 2002) Slide 8
Landlord Tenant Slide 9 441.005 Definitions Lease: A written or
oral agreement for the use or possession of premises Rent: 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. Slide 10 441.020 Whenever any lessee permits any
prohibited gaming table, or allowing the illegal possession, sale
or distribution of controlled substances upon the premises, the
lease or agreement for letting such house or building shall become
void, and the lessor may enter on the premises so let, and shall
have the same remedies for the recovery of the premises as in the
case of a tenant holding over the tenant's term. Slide 11 441.050.
Either party may terminate a tenancy from year to year by giving
notice, in writing, of his intention to terminate the same, not
less than sixty days next before the end of the year. Slide 12 Fact
that tenant held over eleven days after expiration of written lease
did not of itself create a new tenancy from year to year, and
tenant had no interest in premises condemned under action filed on
12th day. Millhouse v. Drainage Dist. No. 48 of Dunklin Co. (A.),
304 S.W.2d 54. (1956) Absent clause in lease permitting termination
for non-payment of rent, a year-to-year lease cannot be terminated
for non-payment unless there is fraud. See 18 Mo. Prac. 32.12 Slide
13 Statute controls termination of tenancy. Tenant or landlord must
give sixty days notice. Written notice to terminate year-to-year
tenancy of farmland was sufficient to terminate tenancy at end of
calendar year, despite demand for possession on June 1st, instead
of the following January 1st; tenants had written notice to
terminate more than 60 days before end of calendar year. Jansen v.
Probst 922 S.W.2d 43, (Mo. App. SD 1996) Slide 14 441.030 prevents
assignment of a lease if less than two years in duration or if at
will or suffered month to month. Tenant may not violate any of the
conditions of a written lease. Tenant cannot commit waste. Slide 15
If any tenant violates the provisions of section 441.020 [unlawful
activity] or 441.030 [assignment, violation of lease rules, or
waste], the landlord, after giving ten days' notice to vacate the
premises, shall have a right to reenter the premises and take
possession of the premises, or to oust the tenant,by the procedure
specified by law. Slide 16 The landlord shall have the burden to
prove that the premises were being used for the illegal possession,
sale or distribution of controlled substances under a petition
filed for that reason, but the landlord shall not be liable for any
damages resulting from the landlord's reliance on written
notification to the landlord by a law enforcement authority that
the premises are being used for the illegal conduct described in
section 441.020. Slide 17 For unlawful use of property For
violation of rules contained in a written lease. No eviction for
violation of rules communicated orally. No eviction for violation
of rules not incorporated into the lease. No case law dealing with
this issue in Missouri. Slide 18 1. A tenancy at will or by
sufferance, or for less than one year, may be terminated by the
person entitled to the possession by giving one month's notice, in
writing, to the person in possession, requiring the person in
possession to vacate the premises. Slide 19 Lease usually controls.
Lease will usually have an automatic renewal clause that renews the
lease for another year if notice is not given by a set date. If no
such clause, then on termination of lease, tenant is at will or
month-to-month. Slide 20 Leases, not in writing, operate as estates
at will, RSMo 432.050 Thus every oral lease, even if the client is
told that it is for a term of years, is in effect an at- will
tenancy. Slide 21 441.060.2 An occupancy limitation of two persons
per bedroom residing in a dwelling unit shall be presumed
reasonable for this state. The two-person limitation shall not
apply to a child or children born to the tenants during the course
of the lease. Slide 22 4. (1) Except as provided in subdivision (2)
[dealing with mobile homes], the landlord or the tenant may
terminate a month-to-month tenancy by a written notice given to the
other party stating that the tenancy shall terminate upon a
periodic rent-paying date not less than one month after the receipt
of the notice. Slide 23 Statute speaks in terms of months. Rent due
on 15 th of month. Notice given on 15 February to vacate on 15
March is valid on 15 March. Notice given on 16 February is not
effective Slide 24 441.060.5. If no stay is granted; and If a writ
of execution is delivered to the sheriff; and If the sheriff does
not deliver possession within seven days; then Landlord may resort
to self help within 60 days of judgment by: Delivering copy of
judgment to law enforcement officer Entering the premises by
breaking the locks; but Only if this can be done without a breach
of the peace. Slide 25 Slide 26 Ejectment Designed to restore
possession of land to person with superior right to possession.
Used more commonly in agricultural situations. Slide 27 Unlawful
Detainer Designed to remove holdover tenant Statutory process
defined in 534.010 to 050 Written demand required. Jury trial
permitted Three years of possession is a bar to the action Slide 28
Slide 29 Action for Rent and Possession Designed to eject tenant
for failure to pay rent and give judgment for rent in one
proceeding. Tried in Associate Circuit Court under summary rules.
Lease controls re timing, but written lease not required. Slide 30
Petition must be verified by affidavit. Must state by whom the
premises were leased or rented, and the terms of such lease or
renting, and how such person claims title to the lands or
tenements; Loser has right to trial de novo Loser must post bond to
get stay of execution. Slide 31 If defendant brings into court full
payment and costs, court must by statute stay the action. Slide 32
As with much of life, in landlord tenant law the golden rule really
means that the guy who has the gold, makes the rules. Slide 33
Slide 34 Issue: what is causing the landlord to evict? Problems:
Drugs Failure to pay rent Discrimination issues Biggest Problem:
Landlord tends to get the benefit of the doubt in Associate Court.
Slide 35 In most cases that there is a valid landlord- tenant
relationship. Assume the landlord has counsel. If landlord is
corporate, in most cases the procedural rules will have been
followed. Slide 36 Not every rental has a lease. Some landlords
still rent on handshakes. This can often complicate things. If
there is no lease in writing, then according to statute, the term
is month-to-month. Slide 37 Do not assume that all parts of the
lease are valid. Restrictions on the number of children or on what
family members may occupy the property are often void as in
violation of the Human Rights Act and Equal Housing Act. Note that
2 adult rule per bedroom is deemed reasonable by statute. Slide 38
Approach depends on whether there is a court action pending or
whether the client has just received a notice posted on their home
or apartment door. If there is already a court action pending, then
some avenues of help may already be foreclosed. Slide 39 In your
first meeting, if the issue is the failure to pay rent, you have to
determine if the client can or will be able to pay the rent. If
they cannot pay the rent, no matter how successful you are, over
the long term, they are going to be evicted. Slide 40 Even if you
are able to defeat an eviction on technical grounds, you are likely
not solving the long-term problem for the client. In many cases the
best practical advice you can give the client is to move out and
save himself trouble down the road. I always advise that there is
no guarantee that I will be successful. Slide 41 Landlord has
option of bringing a rent and possession action if rent is due If a
R&P is filed, then the tenant can get a dismissal on the date
of the hearing by bringing the rent up to date. (535.160) In
Unlawful Detainer, notice is different. Must be personally served
on defendant or posted on property, and if so, can get double
damages. Slide 42 If a tenant complies with a 10 day notice to
quit, and leaves, the landlord may occupy and relet. If the tenant
does not comply, the landlord may not simply throw his goods on the
lawn and re-enter. Landlord must get a court order. Same applies
under Chapter 441 Slide 43 Some landlords try to get around the
re-entry by changing the locks and locking out the tenant. Landlord
has to get judgment first! This also cant be done without a court
order. If the landlord locks out the tenant in order to force him
to move out, your client may have a conversion claim. Slide 44 If
you are contacted after the matter is heard in the associate
circuit court, you should immediately file for trial de novo.
Tenant may have to post a bond to stay execution. Slide 45 Many of
the leases written and used in Cole County are form leases. Some
are annual leases that create a one year lease that fixes rent in a
yearly amount and makes payments acceptable over 12 months. Purpose
of such a lease is to permit expanded damages for breach of lease.
Slide 46 Slide 47 Unconscionability Public policy Chapter 407
Mitigation of Damages Slide 48 Meet with the client Discern what
the problem is. Help the client identify the cause of the problem
if possible. Help the client work through the problem. Slide 49
When working with clients who have landlord tenant issues, the
client interview is the single most important thing you will do in
the case. Ask to see the lease. Ask about people who know the
facts; others you can talk to in order to verify the facts. Get
photos of conditions. This is sad to say, but do not trust the
client on the facts until you verify them. Slide 50 Frequently do
not have the money. Frequently have not been blameless in getting
themselves brought into court. May have learned early on that
telling you only half the story is likely to get you energized to
do the right thing. Some of these clients are manipulative. Slide
51 Some of these clients are also victims. They have
less-than-perfect credit. Could not afford better housing Were
taken advantage of by their landlord And have suffered as a result.
These cases must be investigated by going to the property and
investigating the premises. Slide 52 My approach: First, have a
real nuts-and-bolts conversation with the client. Do they really
want to stay? Do they really want to fight the change of
possession? If they do, then the first approach is to see if they
can come up with the rent, tender the rent, and dismiss the action.
Slide 53 The client doesnt want to stay. They are willing to move,
but are worried about their deposit; or They are willing to move
but dont want to give the landlord the satisfaction; or They have
already found somewhere else to go. Slide 54 If you do not have to.
Sometimes you can negotiate with the landlord to forfeit the
deposit to cover the last months rent. You can tender partial
payment in exchange for leaving the premises early. Slide 55
Landlord sees a problem client. Either the rent is late, or other
renters are complaining about your client. They just want peace;
they dont want to fight a pitched battle with an attorney. Often
you can help both landlord and tenant simply by finding a way to
make the problem go away. Slide 56 Sometimes there is a legitimate
dispute over whether rent was paid. Sometimes clients pay in cash
and dont get a receipt. There are a variety of situations where
your client may have a legitimate claim that they are in lawful
possession. These cases you just have to try. Slide 57 The landlord
has engaged in conduct that violates the law, like forcing your
client to split the electric bill for a duplex with the other
renter so they dont have to put in a second service. They have
increased the rent without following the procedure set out in the
lease. Slide 58 You can defend under the lease by showing that the
landlord has breached a term of the lease or one of the implied
covenants. You can show a legitimate dispute exists as to the
amount of rent due. Slide 59 The best approach is to help your
client make the decision to vacate the premises and find other
housing. Sometimes you may have to send the client to churches or
other agencies to obtain help with finances, etc. Slide 60 Cutting
off utilities. Cutting off heat. Removing appliances. Not fixing
plumbing issues Any material change in the condition of the
premises that would make a reasonable person want to move out.
Slide 61 Racial, sexual, gender, and religious discrimination are
alive and well. Although our country has come far, it has not come
far enough. Always consider a claim under the MHRA if the client is
being treated differently that clients of another race, creed or
gender. Slide 62 In every lease of residential premises there is an
implied covenant of habitability. The covenant essentially requires
the landlord to keep the premises habitable. If the landlord
breaches the covenant, the tenant has remedies under the covenant.
Slide 63 Plumbing Sewage Heat Air Conditioning Electrical Service
Water Vermin Other Tenants Slide 64 Your client cant have created
the problem (the rental property must be clean and well- kept).
Your client must be adversely affected by the change in condition
of the property. You must show that the change in condition of the
property has the effect of making the premises unfit for habitation
or that they have been constructively evicted. Slide 65 Repair and
deduct. Cost of remedies Sue for breach of contract under the lease
or rental agreement. Sue under Chapter 407 Goal: trigger Landlord
Protector insurance policy if one exists. Slide 66 You may have to
explain to the landlord that they have insurance coverage. This
will often get you an opposing lawyer, with whom you can negotiate
a better resolution. If landlord defends action personally make
sure to issue discovery including request for admissions. Make sure
defendant identifies any insurance coverage, and if so, that you
put the insurer on notice if the landlord has not. Slide 67 Some
landlords are busybodies. They make frequent inspections at
unreasonable times. They interfere with the clients quiet enjoyment
of the premises. Like a breach of the Warranty of Habitability, the
breach of the covenant of quiet enjoyment can bring a damages
remedy. Slide 68 Corporate landlords tend to be very reasonable.
Individual landlords often do not have any knowledge of the law
other than whats contained in their lease. If you have to bring a
lawsuit, make sure you name any property management agency that is
involved. Slide 69 An Eviction differs from rent and possession in
that usually the eviction relates to a rule violation as opposed to
a failure to pay rent. Normally this is a situation where the
renter has caused problems, or a family member has caused problems.
Clients with a family member arrested for drug sales or possession
may often be legally evicted even if this is a mask for racism.
Slide 70 Is the rule, regulation, or lease provision clear. If not
clear, ambiguity is construed against the drafter. If the rule is
clear, is it lawful? Look for limitations on family size, number of
children, etc. Keep in mind that a landlord cannot violate the Fair
Housing Statutes or discriminate on the basis of sex, age, race,
national origin, etc. Slide 71 Waiver? Unconscionability?
(components of procedural and substantive unconscionability must be
present). Detrimental reliance? Discriminatory enforcement
(enforcing against only persons of color, women, Hispanics, etc.)
Slide 72 Most landlords just want a paying tenant in their
property. This is especially true in this economic client. They do
no want to have to pay a lawyer. The more vigorously you defend,
the more likely the landlord is to be willing to negotiate. But
beware: if the landlord has an attorneys fee provision in the
lease, you could cost your client money that they likely do not
have. Slide 73 Key at the beginning will be to figure out if your
client really wants to stay there. Again, dont pick fights you dont
need to pick. Slide 74 When the Landlord steals from the Tenant
Slide 75 Lots of times a landlord will keep a deposit that they
really should not keep. Many have never read the statute that
requires them to send a notice to the client regarding the deposit.
Slide 76 2. Within thirty days after the date of termination of the
tenancy, the landlord shall: (1) Return the full amount of the
security deposit; or (2) Furnish to the tenant a written itemized
list of the damages for which the security deposit or any portion
thereof is withheld, along with the balance of the security
deposit. The landlord shall have complied with this subsection by
mailing such statement and any payment to the last known address of
the tenant. Slide 77 3. The landlord may withhold from the security
deposit only such amounts as are reasonably necessary for the
following reasons: (1) To remedy a tenant's default in the payment
of rent due to the landlord, pursuant to the rental agreement; (2)
To restore the dwelling unit to its condition at the commencement
of the tenancy, ordinary wear and tear excepted; or (3) To
compensate the landlord for actual damages sustained as a result of
the tenant's failure to give adequate notice to terminate the
tenancy pursuant to law or the rental agreement; provided that the
landlord makes reasonable efforts to mitigate damages. Slide 78 4.
The landlord shall give the tenant or his representative reasonable
notice in writing at his last known address or in person of the
date and time when the landlord will inspect the dwelling unit
following the termination of the rental agreement to determine the
amount of the security deposit to be withheld, and the inspection
shall be held at a reasonable time. The tenant shall have the right
to be present at the inspection of the dwelling unit at the time
and date scheduled by the landlord. Slide 79 5. If the landlord
wrongfully withholds all or any portion of the security deposit in
violation of this section, the tenant shall recover as damages not
more than twice the amount wrongfully withheld. Slide 80 Must give
notice of right to inspect property in writing. Within 30 days of
the termination of the tenancy, must refund the deposit. If the
notice is not given, or the 30 day rule is violated, the statute
says the deposit cant be withheld. Slide 81 Corporate landlords
have this built into their process. Mom & Pop operations
usually do not. Corporate landlords have standard charges for
standard problems (like holes in walls, etc.) Mom & Pop
operations may just charge outrageous amounts. Slide 82 If notice
and list are provided, key is reasonableness of the charges. If
rent is taken out, mitigation of damages applies. Did landlord
advertise? Did landlord refuse to rent to other prospects? Slide 83
Slide 84 The above tries to cover the most common types of
landlord-tenant issues. If you have a landlord-tenant issue that
doesnt fit neatly into these pigeon-holes, then here is an approach
to use. Slide 85 Meet with the client Figure out what the client
wants. Try to fashion a remedy early on by negotiation if at all
possible. If not possible, and your client has been sued, move to
step 2 Slide 86 Read the petition Determine which RSMO chapter is
being invoked. Go to Missouri Practice or Westlaw and make sure
that the proper procedure has been invoked. Especially check notice
dates. Landlords often never meet these notice dates. If landlord
has not followed procedure, move to dismiss with a fully-briefed
motion and suggestions. Notice it up and argue it. Slide 87 If
necessary, try the case. Landlords have burden of proof and often
have no idea how to get evidence in. Make sure you make a record,
and make sure that you make proper objections. Trial de novo in the
circuit court favors your position. Even if you do not win, you
will have done a wonderful thing for your client. Slide 88 At every
step of the way, be open to negotiation. Be pleasant and
professional with the landlord even if they are jerks to you. It
often pays dividends in the end. Keep in mind that if you have a
conversation with a landlord, that you should make a memo to the
file. In every conversation with an unrepresented landlord, make
sure you explain that you represent the tenant and that you make a
record of this disclaimer for ethical reasons. Slide 89
Counterclaims are effective ways of dealing with the rent and
possession and eviction cases. Sometimes judges do not like them
very much. Seems to be some antagonism toward renters and debtors
in certain courts. Keep in mind that if there is any racial or
gender issues, that you need to get the client to the Mo. Commn on
Human Rights (MCHR) as soon as possible. May require a stay Slide
90 All contract defenses. Chapter 407 Breach of Covenant of Good
Faith and Fair Dealing Slide 91 Corporations need counsel Sometimes
landlords organize their property in an LLC and attempt to bring
their rent and possession actions in the name of the corporation.
If they attempt to represent the corporation, that is the
unauthorized practice of law.Joseph Sansone Co. v. Bay View Golf
Course,97 S.W.3d 531, Mo.App. E.D., February 11, 2003 (NO.
ED81959)Joseph Sansone Co. v. Bay View Golf Course,97 S.W.3d 531,
Mo.App. E.D., February 11, 2003 (NO. ED81959) While such
representation is permitted in Small Claims Court, it should not be
permitted in Assoc. or Circuit. Slide 92 The general rule is that a
corporation may not represent itself in legal matters, and must act
through licensed attorneys. Reed v. Labor and Indus. Relations
Comm'n, 789 S.W.2d 19, 21 (Mo.banc 1990). The normal effect of a
representative's unauthorized practice of law is to dismiss the
cause or treat the particular actions taken by the representative
as a nullity. Strong v. Gilster Mary Lee Corp., 23 S.W.3d 234, 241
(Mo.App. E.D.2000); Joseph Sansone Co. v. Bay View Golf Course, 97
S.W.3d 531, 532 (Mo.App. E.D.2003).Schenberg v. Bitzmart, Inc. 178
S.W.3d 543, 544 (Mo.App. E.D.,2005) Slide 93 The End
