An understanding of the basics of Missouri landlord-tenant law will help landlords and property managers avoid future problems. Unfortunately, unlike some other states, Missouri does not have a comprehensive, codified Landlord-Tenant Act. Therefore, these materials were prepared for landlords' study and future reference. However, these materials cover only the most common situations and problems. Landlord who have questions or encounter situations not covered here should consult with Scott Law Firm. The following topics are covered on this page:
- Preliminary Matters
- Sources of Missouri Landlord-Tenant Law
- Self-Help Eviction Illegal in Missouri
- Service of Notices
- Beware of Waiver
- Disclosures to Tenants
- Written Leases
- Oral Leases
- Overview of Lawsuits Landlords Can File Against Tenants
- Rent-and-Possession Lawsuits
- Unlawful Detainer Lawsuits
- Expedited Evictions
- Contract Actions
- Information Needed for All Landlord-Tenant Lawsuits
- General Procedure in Landlord-Tenant Lawsuits
- Time Frames for Landlord-Tenant Lawsuits
- Enforcement of Judgments
- Security Deposits
- Trespassers, Squatters and Tenancy at Sufferance
- Removal of Property from Abandoned Premises
- Property Damage by Tenants
- Fair Debt Collection Practices Act
- Prohibited Discrimination
It is strongly recommended that landlords attend an eviction hearing. It is a great way to prepare for your day in court. If you see what others are doing right and wrong, it will help you when it is your turn. In Boone County, most eviction hearings take place at 9:30 a.m. on Mondays and 9:00 a.m. on Fridays in Circuit Court Division 5, and at 2:30 p.m. every other Tuesday and 2:30 p.m. every Thursday in Circuit Court Division 10.
It is also recommended that you use an attorney who has experience with landlord-tenant issues. When eviction cases are lost, it is usually because of a legal technicality that an experienced attorney would be able to avoid, so the cost of an attorney can save money down the road. If a tenant retains an attorney, and the tenant's attorney sees that everything has been and is being handled properly, they are less likely to fight an eviction. However, if a tenant's attorney sees that a landlord made mistakes in the process, the tenant and tenant's attorney are more likely to fight an eviction and possibly win.
Before moving on, an important concept to understand about landlord-tenant law is that the courts view a lease both as a contract and as a real estate conveyance for a specified term. Because of the conveyance aspect of leases, the courts usually require strict compliance with landlord-tenant law and lease clauses in order to evict a tenant.
Missouri landlord-tenant law literally has its roots in medieval English law and the ensuing centuries worth of cases decided by the courts. There are also a number of Missouri statutes dealing with landlord-tenant issues, primarily concentrated in three chapters.
Chapter 441 of the Revised Statutes of Missouri (RSMo.), titled "Landlord and Tenant," contains sections dealing with the following matters:
- General provisions relating to leases
- Double rent after tenancy expires
- Abandoned personal property (new in 1997)
- Tenant's right to repair and deduct from rent (new in 1997)
- Inadequate and deficient housing
- Maintenance of heat-related utility services
- Expedited evictions (new in 1997)
Chapter 534 RSMo., titled "Forcible Entry and Unlawful Detainer," deals with eviction of tenants who breach their leases or hold over after their leases end (called "unlawful detainer") and with "wrongful eviction" cases filed by tenants against landlords (called "forcible entry and detainer.")
Chapter 535 RSMo., titled "Landlord-Tenant Actions," includes provisions dealing with:
- Procedures for rent-and-possession cases
- Disclosures landlords must make to tenants
- Security deposits
Additional federal and state regulations apply to leases subsidized under "Section 8." In particular, special eviction notices and procedures are required which are beyond the scope of this document, and you should consult with a knowledgeable attorney to ensure proper procedures are followed.
WARNING: In Missouri, the only legal way to evict a tenant is through court action. Unless the tenant voluntarily vacates, the landlord must have a judgment entered by the court for eviction and must have that judgment enforced by a sheriff's deputy.
So-called "self-help" evictions, where the landlord physically removes a tenant and/or the tenant's property without a court order, or attempts to exclude the tenant by changing locks, removing doors, or turning off utilities, are illegal. (The only exception is when you temporarily shut off utilities for health or safety reasons, such as a gas or water leak.)
If a landlord uses such self-help eviction techniques, the tenant can sue for wrongful eviction (technically, "forcible entry and detainer"). The tenant can recover any actual damages proved by the tenant and can also claim punitive damages.
Throughout these materials, mention is made of "serving" notices on tenants.
As interpreted by Missouri courts, service of a notice generally requires personal delivery of a notice to the tenant. This simply means handing or at least offering to hand the notice to the tenant so that the person serving the notice can testify, if necessary, that the tenant received the notice, or at least had the opportunity to receive it. The tenant does not have to sign the notice, or even touch it. If the tenant sees you, puts his hands in his pockets and says, "I'm not taking that," you only need to say, "You're served," and place the notice where the tenant can retrieve it if he chooses. If a tenant jumps into her car and locks the doors, you can place the notice on the windshield under the wipers and tell her she is served. The same would apply if a tenant won't open the screen door to his unit, or if he looks out a window. The point is, there needs to be some personal contact with the tenant. You must make the tenant aware you are serving the notice and make it available to her in some fashion.
If you do not make personal contact with the tenant, it is not sufficient service of a notice to simply tape the notice somewhere you think the tenant will see it.
Note that if more than one tenant signed the lease for the particular unit, a separate copy of any notice should be served on each such tenant. It is not sufficient to serve one tenant and hope that tenant will also give the notice to the other tenants.
When a landlord files an eviction lawsuit, it is often necessary to state in the lawsuit that a notice was served on the tenant. As a practical matter, tenants often do not dispute in court that the notice was served, which has the effect of "curing" any defective notice. However, if the tenant does dispute proper service of a required notice, the landlord must be prepared to prove service. This is typically done by having the person who served the notice testify when and how he or she did so.
Sometimes landlords try to serve notices by certified mail. The courts usually accept notices served this way only if the landlord can present a certified mail receipt signed by the tenant. A receipt signed by someone other than the tenant will not suffice.
Here are some guidelines for record-keeping for notices: Fill out the original of the notice form to fit the particular situation. If there is more than one tenant to be served, make copies for the additional tenants. Also make two more copies – one for your office file and one for your attorney if it becomes necessary to file suit. The service information at the bottom of the notice does not have to be completed for the copy or copies served on the tenant(s); however, the service information should be completed on your office copy and attorney's copy.
By statute, certain notices can be served by either handing a copy to the tenant, handing a copy to someone else at least 15 years old who resides at the leased premises, or posting (taping) the notice on the door if no one comes to the door. When this statute applies, the recommended notice forms on this web site include those options in the "certificate of service" area.
NOTE: Do not confuse the service of notices discussed in this section with the ability to have a court summons in an eviction lawsuit served by the sheriff by posting the summons on the rental unit. Landlords should follow the guidelines in this section for serving any required pre-lawsuit notices.
Many notice-service problems can be avoided by including an appropriate clause in a written lease. For example, Scott Law Firm recommends this clause: "Lessee agrees that any notice given by lessor relating to this lease may be given by any one or more of the following methods, each of which shall be equally sufficient: (a) by personal delivery of the notice to any one or more of the persons signing this lease as lessee or any person residing in the premises who is at least 16 years old; (b) by posting the notice on the main entrance door of the premises; or (c) by mailing the notice to lessee at lessee's last-known address by certified mail, return receipt requested. Notices which are personally delivered or posted shall be deemed given on the date of delivery or posting; notices which are mailed shall be deemed given on the next mail delivery date after the date of mailing, whether or not the return receipt is signed and returned. Any notice given as stated in this paragraph shall be binding on all lessees under this lease and all other persons occupying the premises with lessee's permission."
A problem that sometimes arises after you have served a notice on a tenant – for example, a notice to terminate an oral lease – is that the tenant comes in and wants to pay rent or do something else to cure whatever default he has been notified about. If you are not careful, accepting rent or other lease performance from the tenant might be seen by a court as a waiver of your right to pursue eviction, if that is what you want to do.
The notices provided on the Forms page of this web site include language excluding waiver when applicable and should be sufficient to avoid a waiver defense by a tenant.
However, if you use other notices that do not include such language, you will need to make sure the tenant understands that if you accept rent or other performance under the lease, you are not waiving your right to pursue eviction. This is best done in writing, and it would be good to get the tenant's signature if possible.
Chapter 535 RSMo. sets out certain information that landlords are required to disclose to tenants. There are two main things to be disclosed, which the statute allows you to include in the lease:
- Name and address of manager
- Name and address of owner or agent authorized to receive lawsuits
The statute goes on to say that if this information changes, the updated information must be provided to tenants.
If these disclosures are not made, the person signing the lease for the landlord is deemed the landlord's agent to receive lawsuits and to fulfill all the landlord's obligations under the lease.
The first line of defense in dealing with problem tenants is having a good written lease. While it is possible to have oral leases of residential units, written leases almost always provide superior protections for landlords. See the Leases page of this web site for more information.
Warning about hold-over tenants: Absent language to the contrary in a written lease, if the lease states a definite termination date, the tenant stays beyond that date and pays rent for any period beyond that date, and the landlord accepts that rent, Missouri law provides that the lease is renewed with all the same provisions of the prior written lease, except that the term of the lease is now month-to-month. If a landlord wishes to avoid this result, the landlord should not accept rent from a tenant for any period after the lease ends. If the landlord has accepted rent for a period after the lease ending date and thereby created a month-to-month tenancy, such a tenancy can be terminated by giving written notice of termination as discussed in the next section on "Oral Leases."
Oral leases can be year-to-year on crop land, but are month-to-month for other types of property including residential property. An oral lease can be terminated by written notice given by either the landlord or the tenant. No reason needs to be given for termination, but a landlord cannot terminate an oral lease for a discriminatory reason that violates federal or state fair housing laws (see the "Prohibited Discrimination" section below.
A termination notice for a year-to-year lease on crop land must be given not less than 60 days before the end of the year.
In most situations, a termination notice for a month-to-month lease must be given at least one month before the termination date (see details below). In the special case of a month-to-month lease of a mobile home lot where the mobile home is owned by the tenant, notice must be given at least 60 days before the termination date.
Notices to terminate oral leases must be in writing. The landlord must be able to prove the notice was served on the tenant and should follow the guidelines in the "Service of Notices" section above.
For month-to-month leases other than mobile home lots where the mobile home is owned by the tenant, a notice served before the next rent-paying date will terminate the lease at the end of the month following the next rent-paying date.
EXAMPLE: Assume the rent-paying date is the first of the month. A notice served before March 1 will terminate the lease at the end of March. However, a notice given after March 1 but before April 1 could only terminate the tenancy at the end of April.
CAUTION: The termination notice must state the correct termination date. In the above example, if the notice specified a termination at the end of March but was served on or after March 1, the notice would be ineffective. In this situation, the notice would have to be served again before April 1 specifying the termination date as the end of April.
See Form 19 on the Forms page for a sample notice to terminate a month-to-month lease.
A notice to terminate a mobile home lot lease where the mobile home is owned by the tenant must specify a termination date at least 60 days after the next rent-paying date. Otherwise, the same example and caution above will apply. See Form 20 on the Forms page for a sample notice.
In general, there are four types of lawsuits landlords can file against tenants, which are discussed in more detail in the following sections. They are:
- Rent-and-possession (the most-often-used remedy when tenants do not pay rent)
- Unlawful detainer (eviction cases when tenants breach leases or stay after their leases expire)
- Expedited evictions (for illegal drugs, or threatened injury or property damage)
- Contract actions (filed against tenants who are no longer in possession of the leased premises, either because they have abandoned the premises or their leases expired, for damages such as unpaid rent or repair costs)
Before discussing these four types of lawsuits, there is an important distinction to be made between rent-and-possession lawsuits and unlawful detainer cases.
If the tenant's only breach of the lease is non-payment of rent, and you do not mind if the tenant stays so long as the rent is paid, then a rent-and-possession case will be appropriate. This is because under the rent-and-possession statutes, the tenant has the right to continued possession of the leased premises if he or she pays the rent and court costs at any time up to and including midnight on the the date judgment is entered.
On the other hand, if you want to evict the tenant even if the rent is paid, then an unlawful detainer action would be the appropriate type of eviction lawsuit. Subject to proper notice being given and having appropriate language in your written lease, most breaches of a lease by a tenant, including non-payment of rent, will give rise to an unlawful detainer action.
Rent-and-possession actions arise simply from the non-payment of rent and are governed by Chapter 535 RSMo. To prevail in such a case, the only three things you need to prove are: (1) There is rent due and payable, (2) demand was made for payment, and (3) the tenant has failed to pay.
Actually, while Chapter 535 requires a demand for payment, a specific section in the chapter states that the service of a rent-and-possession lawsuit itself constitutes a sufficient demand if at least one month's rent is owed at the time suit is filed. However, as a practical matter, if you think the tenant might pay after receiving a pre-suit demand, it may be wise to make a pre-suit demand to avoid the expense of a lawsuit. If you do serve a pre-suit demand, there is no waiting period necessary between the service of the demand and the filing of a rent-and-possession lawsuit – you can make the demand and then immediately file suit. However, again, if you think the tenant might pay after receiving the demand, it may be wise to wait a few days after making demand before filing suit to avoid incurring the lawsuit expense unnecessarily.
While a pre-suit demand for rent need not necessarily be in writing, it is usually easier to prove the demand was made if you serve a written notice, particularly if the tenant disputes that demand was made. Most landlords use a written notice to make demand for rent before filing a rent-and-possession case. See Form 13 on the Forms page for a sample demand.
You can actually sue everyone occupying the premises for rent and possession, even if not all of them signed the lease. This can make it easier to serve the lawsuit in some cases because Missouri law includes roommates as "family members" upon whom service can be made in lieu of direct service upon all defendants. However, if you want to sue more than one occupant of leased premises, be sure to make pre-lawsuit demand for payment of rent upon all those you wish to sue.
It is now clear under 1997 changes to Missouri statutes that you can include other matters besides non-payment of rent in a rent-and-possession case. For example, you can claim late fees, damages to the premises, and even attorney's fees (if you have an appropriate attorney fee clause in your lease). However, if the tenant pays the rent and court costs on or before the date of judgment, the tenant will be entitled to retain possession of the premises; in such a case, you would still be able to get a monetary judgment against the tenant for the other items claimed in the lawsuit.
It is fairly clear that jury trials are not available in rent-and-possession cases. A 1978 court case held that there is no right to a jury trial in rent-and-possession cases; however, since then, the General Assembly has amended the relevant statutes multiple times. In general, landlords will not want a jury trial because of the additional time and expense involved. Therefore, in view of the slight uncertainty about the availability of jury trials in rent-and-possession cases, it is strongly recommended that landlords include a clause in their leases whereby both the landlord and the tenant waive the right to a jury trial in any litigation involving the lease. (Note: Jury waiver clauses are not permitted in Section 8 leases, however, and if included, they will not be deemed applicable.)
A statutory provision adopted in 1997 provides that if the tenant has allowed someone else to have sole possession of the leased premises without the landlord's permission, the court can award, in addition to rent due, damages not to exceed twice the rent due.
There is a special requirement to be aware of if you have purchased (or acquired through foreclosure or tax sale) rental property subject to pre-existing leases. In such a situation, you must give written notice to the tenants that you own the property before you will be entitled to sue for rent and possession. This notice should be given as soon as possible after you obtain title to the property. See Form 14 on the Forms page for a sample notice.
An unlawful detainer lawsuit should be filed if you want to evict the tenant no matter what – even if the rent is paid. Unlawful detainer is appropriate in any situation where the tenant retains possession of the leased premises after the lease terminates, including:
- The tenant retains possession after the date specified in a written lease for termination of the lease, or the tenant under an oral lease gives written notice that he intends to vacate the premises on a specified date and then fails to do so (no pre-lawsuit notice is required in these cases).
- The tenant retains possession beyond the date specified in a landlord's properly served notice to terminate an oral lease (see the "Oral Leases" section above for notice requirements to terminate oral leases).
- The tenant retains possession beyond 10 days after you have served a proper notice to terminate a written lease for breach of the lease. (The breach can include non-payment of rent, but see the caution below.)
You can give a notice to terminate a lease after 10 days if the tenant does any of the following:
- Breaches (violates) any of the provisions of the lease
- Assigns or transfers his interest in the lease without your written consent
- Causes damage to the premises beyond ordinary wear and tear
- Allows the possession, sale or distribution of illegal drugs on the premises
- Permits the premises to be used for gambling or prostitution
CAUTION: If you wish to pursue an unlawful detainer action for breaching the lease by failing to pay rent, absent an appropriate lease clause, you must make written demand for payment of rent on the exact day when the rent becomes due and for the precise amount due. This is a common law requirement which is a manifestation of the courts' view of leases as both a conveyance and a contract and their reluctance to allow forfeitures of leases unless strict procedures are followed. To avoid this problem, it is strongly recommended that your leases include a clause waiving common law notice of default and termination procedures and substituting a contractual method of giving notice. The following language should suffice: "Upon lessee's default or breach in the performance of any condition or covenant of this lease, including tenant's obligation to pay rent, lessor shall be entitled to terminate this lease by giving written notice to lessee specifying lessee's default or breach and stating that the lease will terminate 10 days after lessee's receipt of the notice without further notice if lessee fails to cure the default or breach within said 10-day period. Lessee agrees that such notice shall constitute sufficient notice to terminate the lease and for lessor to initiate an unlawful detainer action if the default or breach is not cured within said 10-day period, and lessee waives all other common law or statutory notices. Lessor shall be entitled to double rent for each day lessee retains possession of the premises after termination of the lease pursuant to this paragraph." If you do not have such a clause in your lease, Form 18 on the Forms page can be used to make written demand for payment of rent on the exact day when the rent becomes due and for the precise amount due.
If you want to evict a tenant even if the tenant cures the breach or breaches of the lease, Form 21 on the Forms page is a sample notice for situations where the tenant (1) assigns or transfers his interest in the lease without your written consent, (2) causes damage to the premises beyond ordinary wear and tear, (3) allows the possession, sale or distribution of illegal drugs on the premises, or (4) permits the premises to be used for gambling or prostitution.
If you are willing for the tenant to stay if the tenant cures the breach or breaches of the lease, Form 22 on the Forms page is a sample notice that can be used. Note that you may be required to use this form if the lease itself grants the tenant a right to cure breaches.
There is clearly a right to a jury trial in an unlawful detainer action. Therefore, to avoid the substantial additional time and expense involved in a jury trial, it is strongly recommended that your leases include a clause whereby both you and the tenant waive the right to a jury trial in any litigation involving the lease. (Note: Jury waiver clauses are not permitted in Section 8 leases.)
In an unlawful detainer case, you can seek the following remedies: (1) Possession of the leased premises, (2) rent that was unpaid before the termination date of the lease, (3) double rent for the period after termination of the lease during which the tenant remains in possession, (4) reimbursement for damages to the premises in excess of ordinary wear and tear, (5) attorney's fees and litigation expenses if you have a clause in your lease authorizing them, and (6) court costs.
A statutory provision adopted in 1997 provides that if the tenant has allowed someone else to have sole possession of the leased premises without the landlord's permission, the court can award, in addition to rent due, damages not to exceed twice the rent due.
Expedited evictions are a new type of eviction case created by statute in 1997. They are covered in §§ 441.710 - 441.880 RSMo. The procedure is unique in that it can be used to exclude non-tenants as well as tenants from leased property.
It is important to note that if there are grounds for expedited eviction and the landlord does not take action to evict the tenant within 30 days after being asked to do so, the prosecuting attorney or a neighborhood association can file the eviction action in the landlord's place. If this happens, the costs of the eviction including attorney's fees can be assessed against the landlord. It is also possible for the prosecuting attorney to have the leased premises declared a public nuisance and prevent re-rental for an extended period of time. Therefore, it behooves you to act promptly, particularly if you are asked to do so by the police or the prosecuting attorney's office.
You can seek expedited eviction on any one or more of the following grounds:
An emergency situation exists whereby eviction by other means would, with reasonable certainty, result in imminent physical injury to other tenants or the landlord, or physical damage to the landlord's property costing more than 12 months rent. (However, this ground cannot be used unless you first make a reasonable effort to abate the emergency situation through public law enforcement authorities or through local mental health services personnel authorized to take action pursuant to §632.300 RSMo. et seq., which allow civil detention of persons likely to cause physical harm to others or themselves.)
- Drug-related criminal activity has occurred on or within the property leased to the tenant.
- The property leased to the tenant was used in any way to further, promote, aid or assist in drug-related criminal activity.
- The tenant, 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.
- The tenant has given permission to or invited a person to enter onto or remain on any portion of the leased property knowing that the person had been removed or barred from the leased property pursuant to the provisions of the expedited eviction statutes.
- The tenant has failed to promptly notify the landlord that a person whom the landlord previously had removed from the property has returned to, entered onto or remained on the property leased by the tenant with the tenant's knowledge.
No advance notice is necessary to file for expedited eviction unless the perpetrator of the illegal activity is someone other than the actual tenant. If the perpetrator is someone other than the tenant, then you must give 5 days written notice to the tenant setting out the provisions of §441.750 RSMo. and specifying the grounds for expedited eviction. You can then file for expedited eviction against the tenant after 5 days unless the tenant delivers written notice to you within the 5-day period that the tenant has either: (1) sought a protective order, restraining order, order to vacate the premises, or other similar relief against the perpetrator, or (2) reported the illegal activity to a law enforcement agency or county prosecuting attorney in an effort to initiate a criminal proceeding against the perpetrator. See Form 24 on the Forms page for a sample notice.
If you prove that the tenant was personally responsible for one or more of the grounds for expedited eviction, the court will order the tenant evicted.
If someone other than the tenant was the perpetrator and you prove one or more of the grounds for expedited eviction, but the tenant proves that he or she in no way furthered, promoted, aided or assisted in the illegal activity, and that he or she did not know or have reason to know the activity was occurring or was unable to prevent the activity because of verbal or physical coercion by the perpetrator, then the court can order the perpetrator excluded from the property but cannot evict the tenant. If the tenant cannot prove these defenses, however, then the tenant can also be evicted.
The court can order the expedited eviction enforced by a law enforcement agency within a number of days specified by the court.
Expedited eviction can be pursued even if criminal prosecution has not been commenced, will not be commenced, has not been concluded, or has been concluded without a conviction. In any event, relevant evidence obtained in good faith by a law enforcement officer is admissible in an expedited eviction proceeding. If a criminal proceeding involving the drug-related criminal activity has resulted in the conviction of the tenant or another defendant in the expedited eviction case, the conviction can be introduced in evidence in the expedited eviction.
If you are pursuing an expedited eviction, you must give the defendants a reasonable opportunity before trial to examine all documents or records in your possession that relate to the case.
The court can enter orders in expedited eviction cases to protect persons who may be called as witnesses. An order can be issued if a witness has been threatened, intimidated or otherwise has reason to fear for his or her safety. Orders can include nondisclosure of names and addresses of witnesses and questioning of witnesses in the judge's chambers.
Before entering a final order in an expedited eviction case, the court can issue restraining orders and other preliminary relief to prevent further commission of drug-related crimes at or near the leased premises or to protect the rights of the parties or nearby residents.
You are entitled to continue collecting rent from a tenant while an expedited eviction case is proceeding. It appears you can ask the court to award unpaid rent in the case.
If the court finds that the tenant or another person should be evicted or excluded from the leased premises, the court must postpone the eviction or exclusion if the tenant or other person asks for a postponement and proves six points to the court's satisfaction: (1) the person is a drug user and drug-dependent and will promptly enter a court-approved drug treatment program, or the tenant did not aid or assist in the drug-related criminal activity; (2) the drug-related activity did not occur within 1,000 feet of a school and did not involve the sale or distribution of drugs to minors; (3) a weapon or firearm was not used or possessed in connection with the drug-related activity; (4) the court has not issued and will not issue an order to protect witnesses in the case; (5) the person has not previously received a postponement of eviction or exclusion in an expedited eviction case; and (6) the postponement will not endanger the safety, health or well-being of the surrounding community or the landlord. If you submit an appropriate written request to the court, the court will notify you if a request for postponement is filed and give you the opportunity to participate in any hearings on the postponement. If the court decides to grant the postponement, the tenant will be placed on "probationary tenancy" for 6 months or the remaining lease term, whichever is shorter. The court can specify conditions for the probationary tenancy to protect the landlord and those living nearby and to further the purposes of the expedited eviction law. Conditions that can be imposed include periodic drug testing, community service, and participation in a treatment program.
There does not appear to be a right to a jury trial in expedited eviction cases.
Finally, it is important to note that if you act in good faith in pursuing an expedited eviction based on information you received, you are immune from civil liability to the tenant and other persons against whom allegations may be made.
If possession is not at issue (in other words, the tenant no longer occupies the leased premises), then any claims you may have against the departed tenant may be pursued as ordinary contract claims.
Typical claims that are pursued in such cases include:
- Unpaid rent and other charges called for in the lease such as late-payment fees and utilities.
- Reimbursement for damages to the premises in excess of ordinary wear and tear
- Attorney's fees and litigation expenses if you have a clause in your lease authorizing them
- Court costs
When you want to take legal action against a problem tenant, your attorney is going to need certain information. Scott Law Firm provides a questionnaire for you to complete which gives us all the information needed - see the Lawsuits/Evictions page for a link to the form.
If you use another attorney, here is a checklist of the information your attorney will need in most cases:
- Name of owner of leased premises, or authorized agent for owner (landlord)
- Name(s) of tenant(s) and addresses where they can be served (home and work), their phone numbers, birth dates and Social Security Numbers if known.
- Address of leased premises, including apartment number
- Terms of lease
- Copy of written lease if any
- Essential terms of oral lease – rent amount, rent-paying date
- Amounts of unpaid rent (and late charges, if applicable), itemized by month and totaled (with a copy of your tenant ledger if you maintain such a ledger)
- Itemized and totaled list of damages to premises, if known
- Specification of other breaches (violations) of lease, such as noise, trash, illegal activities, etc.
Your understanding of the procedures involved in landlord-tenant lawsuits will help you be a more effective landlord and enable more efficient action against problem tenants. Some of the information in this section is specific to Boone County, but the procedures should be substantially similar or even identical in other Missouri counties.
The first step in any legal action is to file a document known as a "petition" with the court. Almost all landlord-tenant cases are filed in the Associate Division of the Circuit Court, which has statutory jurisdiction over rent-and-possession, unlawful detainer and expedited eviction cases. You or a staff member will be required to sign a "verification" on the petition, which is a sworn statement under oath that the allegations made in the petition are true to the best of your knowledge.
A filing fee must be paid when the petition is filed. The filing fee is actually an advance deposit toward anticipated court costs. When the case is over, if you win a judgment against the defendant and can collect the judgment, you will also be entitled to recover the actual court costs.
After the petition is filed and the filing fee is paid, the next step is "service" of the lawsuit on the defendant(s). It is a fundamental principle in our system of justice that you cannot obtain legal action against another person through the courts unless that person is aware of the case and has an opportunity to respond. The "summons" served on the defendant along with a copy of the petition will notify the defendant of the initial court date. Usually service of the lawsuit is accomplished by a sheriff's deputy who personally delivers the summons and petition to the defendant or a member of the defendant's family at the residence. If you want faster service, you can ask your attorney to have the court appoint a private process server to serve the lawsuit.
Both rent-and-possession and unlawful detainer cases can also be served by "posting" and mail – that is, by taping a copy of the summons and petition on the door of the leased premises and mailing a copy to the defendant by certified mail. The posting must be done by a sheriff's deputy or special process server, and the mailing must be accomplished by the court clerk. The downside to posting is that you cannot obtain a monetary judgment against the defendant – only a judgment for eviction – unless the defendant personally appears in court in response to receipt of the lawsuit by posting and/or mail.
A rent-and-possession, unlawful detainer or expedited eviction lawsuit must be served on the defendant at least four days before the initial court date (called the "return date") specified in the summons. A contract action must be served at least 10 days before the initial court date. Your attorney (or you, if you filed the case on your own) must appear on the initial court date or risk dismissal of the case. You or your attorney will receive notice of the court date. In Boone County, these court dates are generally at 1:30 p.m. on Tuesday or Wednesday. Assuming that someone appears on your behalf, there are three possible results of the initial court appearance:
- If the defendant does not appear, the court will enter a default judgment against the defendant
- If the defendant appears and does not dispute the allegations in the petition, the court will enter a consent judgment against the defendant
- If the defendant appears and disputes the allegations in the petition, the case will be set for trial
In eviction cases, if the defendant disputes the petition at the initial court appearance and is still in possession of the leased premises, the court usually sets a trial date one to two weeks later and informs the parties on the spot. However, if the defendant has vacated the premises by the time of the initial court appearance, the court will set the trial at a later time and notify the parties by mail; in this event, the trial typically takes place three to six weeks after the initial court date.
If the case must be tried, you and your witnesses will need to meet at least briefly with your attorney before the trial to prepare. At the trial, you and your witnesses will present testimony and exhibits first. Your attorney will ask questions to bring out the necessary points (direct examination). Then the tenant or the tenant's attorney will have an opportunity to ask questions (cross-examination). After all of your evidence has been presented, the tenant and his or her witnesses will have the opportunity to present testimony and witnesses. Your attorney will be able to cross-examine them. When both sides have finished presenting evidence, the court makes its decision and enters a judgment based on the evidence presented. The court usually announces its judgment at the conclusion of the trial. Most landlord-tenant trials are relatively short in duration – usually no more than 30 minutes, and often as little as 5 or 10 minutes.
In rent-and-possession, unlawful detainer and expedited eviction cases, the statutes require service of the summons and petition on the defendant at least 4 days and no more than 10 days before the initial court date. Typically the initial court date is set approximately 3 weeks after the filing of the suit to allow sufficient time for service. The initial court date will have to be delayed if the lawsuit cannot be served at least 4 days before that date.
Summonses are only good for 30 days. If they cannot be served within that time frame, a new summons will have to be issued, leading to further delay. Assuming reasonably prompt service of the lawsuit on the defendant and no unusual delays, the following are typical time frames for landlord-tenant cases in Boone County:
- Uncontested case (default or consent judgment) – 3-4 weeks average
- Contested case (trial required): Possession at issue: 5-7 weeks average
- Possession not at issue (only monetary damages sought ): 6-10 weeks average
The moral is: Don't let bad situations fester. Take prompt action because they will only get worse while awaiting judgment.
This topic is covered on the Enforcing Judgments page.
It is crucial for landlords to be fully informed about the Missouri law on security deposits because the courts enforce them rather strictly. More than a few landlords have gotten in trouble for not scrupulously following the statute. See the Security Deposits page for the law relating to security deposits, along with appropriate forms.
Landlords occasionally encounter a situation in which trespassers or other unauthorized persons are living in or frequenting the landlord's property. If a trespasser has not been given permission by anyone (including other tenants) to live on the property, the police likely will assist in removing the person without the landlord having to sue for eviction, but the police may require that the person first be given a trespass notice. Form 16 on the Forms page is designed as the necessary trespass notice. It can either be handed to the trespasser or posted in a location on the premises where the trespasser is likely to see it.
Occasionally situations arise in which a tenant gives permission to a person to live at a landlord's property. Even if the tenant had no legal authority to give such permission (and under most leases the tenant would not have such authority), the police generally would not treat the person as a trespasser and remove him without court action. Another situation that sometimes occurs is that a person living at a landlord's property is really nothing more than a "squatter," but for some reason the police decide not to treat the person as a trespasser. In either of these situations, the landlord must serve a "demand for possession" on the unauthorized person and then can immediately file suit for unlawful detainer if the person fails to vacate. Form 17 on the Forms page is designed to be used in either of these situations.
Occasionally a situation arises in which a person who originally had permission to occupy premises is no longer so authorized. A common scenario is the situation where an owner or tenant of real estate invites a person to live at there and later decides to withdraw the invitation after the person has lived there for a period of time (e.g., woman invites man to live with her, man moves in, they don't get along, woman asks man to leave, and man refuses). The person no longer having permission to occupy the premises is known in the law as a "tenant at sufferance." A Missouri statute requires a 30-day written notice to terminate a tenancy at sufferance. Form 23 on the Forms page is designed to provide such notice. If the person whose permission to occupy has been withdrawn was to pay some rent on a particular day of the month, then the time principles described in the Form 19 Notes on Use would apply. However, if there was no agreement for that person to pay rent, then the termination can take effect 30 days after the notice is served. Care should be taken to insert the correct termination date in the notice; an incorrect date invalidates the notice and requires starting over with a new notice. When the tenancy at sufferance terminates pursuant to the notice, an unlawful detainer case can be filed if the person notified has not vacated.
An occasional scenario is that a tenant will simply abandon leased premises and leave items of his or her personal property behind. When this occurs, the tenant typically cannot be located, so you cannot file a lawsuit to determine your right to remove and dispose of the tenant's personal property.
When this situation arose before 1997, the landlord had to rely solely on the common law theory of "abandonment" when removing and disposing of a tenant's left-behind personal property. This theory requires some evidence that the tenant intended to abandon the property, including such things as:
- Tenant has not been seen at the premises for some time
- Utilities are turned off
- Most other property was taken and what was left does not seem valuable
- Keys were left behind
If the tenant were to sue later for the landlord's action of removing and disposing of the tenant's property, the landlord could raise the common law abandonment theory as a defense. However, the landlord took the risk that the evidence of abandonment might not be found sufficient, in which case a judgment might be entered against the landlord for the value of the tenant's property that was disposed of. Sometimes this risk can be minimized by posting or otherwise serving a notice such as Form 10 on the Forms page.
While the common law abandonment theory remains available, the Missouri General Assembly adopted a new statute in 1997 that provides a "safe harbor" method of establishing abandonment. The statute allows a landlord to remove and dispose of a tenant's property after the tenant has abandoned the leased premises without liability to the tenant if specified procedures are followed. Under the statute, the premises will be deemed abandoned if rent is due and has been unpaid for 30 days, and the landlord has a reasonable belief that the tenant has vacated and intends not to return. To use this procedure, the landlord must post a written notice in specified form on the premises and mail the same notice to the last-known address of the tenant by both first-class and certified mail, return receipt requested. If the tenant then fails within 10 days to either pay rent or respond in writing stating the tenant's intention not to abandon the premises, the landlord can remove and dispose of the tenant's property without liability to the tenant. See Form 11 on the Forms page for a sample notice to use this statutory procedure. Form 12 on the Forms page provides detailed instructions for using Form 11.
Introduction: At early common law, absent agreement, the landlord had no duty to maintain or repair leased premises. Over the years, this rule has been modified by a number of exceptions, making the landlord of residential property liable for repair and maintenance in most, but not all, situations. Still, however, with limited exceptions, the tenant cannot withhold rent because of the landlord's failure to repair or maintain. The common law rules and the exceptions engrafted upon them over the years are outlined below.
Common Law Rules: A Missouri court summarized the main common law rules as follows: "At early common law, a lease was considered a conveyance of an estate in land and was equivalent to a sale of the premises for the term of the demise. As a purchaser of an estate in land, the tenant was subject to the strict property rule of caveat emptor – let the buyer beware. The lessee's eyes were his bargain. He had the duty to inspect the property for defects and took the land as he found it. Fraud apart, there was no law against letting a tumble-down house. There was no implied warranty by the lessor that the leased premises were habitable or fit. The common law traditionally assumed that the landlord and tenant were of equal bargaining power. So, if the tenant wished to protect himself as to the fitness of the premises, he could exact an express covenant from the landlord for that purpose. The law of leasehold originated in an era of agrarian economy which assumed that the land was the most important feature of the conveyance. The tenant was only the conduit for the rent which was conceived to issue from the land itself without reference to the condition of the buildings or structures on it. If the buildings were not habitable, the rent – which was the quid pro quo of the tenant's possession – was still due from him. Thus, even where the tenant was successful in exacting a covenant that the lessor make repairs, this covenant was considered only incidental to the land and independent of the tenant's covenant to pay rent. Hence a breach by the landlord did not suspend the obligation of rent; the tenant's only remedy was to sue for damages arising from the breach. For all practical purposes, the obligation to pay rent was absolute." Other features of the common law rules were as follows:
- The common law not only did not require the landlord to maintain leased premises, but also prohibited the landlord from entering the premises to make repairs absent agreement with the tenant.
- The rule that a tenant may not withhold rent because of the landlord's failure to repair or maintain remains alive and well today, with certain exceptions noted below.
- However, a lease can be written to give the tenant the right to withhold rent to compensate the tenant for repairs the landlord was contractually obligated to make.
- At common law, the tenant had the right, but not the duty, to make repairs and maintain the leased premises; however, the tenant also had to refrain from committing waste, which in some situations might give rise to a duty to perform some repairs or maintenance. Waste is defined as "the failure of a lessee to exercise ordinary care in the use of the leased premises or property that causes material and permanent injury thereto over and above ordinary wear and tear.
- Even when the tenant voluntarily repaired or maintained the
leased premises, there was no right to be reimbursed by the
landlord absent agreement.
In any event, the tenant is liable at common law for the repair of conditions caused by the tenant's neglect or intentional act.
Constructive Eviction: The doctrine of constructive eviction was the first step taken by the courts toward holding the landlord liable for repairs under some circumstances. 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 leased premises, such as by failing to repair a leaky roof in violation of a lease clause placing the roof maintenance responsibility on the landlord. Under the constructive eviction 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 impairs the consideration for the lease. However, before abandoning the premises, the tenant must notify the landlord of the problem and give the landlord a reasonable time to remedy the problem. If the tenant remains in possession of the premises for too long a period after the landlord fails to remedy the problem, the tenant may be held to have waived the constructive eviction theory. In effect, the constructive eviction doctrine may compel the landlord to make repairs to avoid the tenant's moving out and not remaining liable for rent. The constructive eviction doctrine applies to both residential and commercial rental property.
Warranty of Habitability: While there still is no implied warranty of habitability, suitability or fitness in connection with commercial leases, Missouri courts began holding in 1973 that there is an implied warranty of habitability in residential leases. As defined in the first case so holding, "...in every residential lease there [is] an implied warranty by the landlord that the dwelling is habitable and fit for living at the inception of the term and that it will remain so during the entire term. The warranty of the landlord is that he will provide facilities and services vital to the life, health and safety of the tenant and to the use of the premises for residential purposes." Under this theory, a tenant's obligation to pay rent is dependent on the landlord's performance of his obligation to provide a habitable dwelling during the tenancy. However, before withholding rent, the tenant is under an obligation to give the landlord notice of the deficiency or defect not already known to the landlord and to allow a reasonable time for its correction, but the tenant cannot withhold rent if the defect or deficiency was caused by the tenant's wrongful conduct. In theory, tenants who withhold rent from the landlord under the habitability theory are required to deposit the rent with the local circuit court as it becomes due, but the Missouri appellate courts have never clarified how this is to be done.
Local Housing, Fire and Safety Codes: Many Missouri cities and some counties have adopted ordinances embodying housing, fire and/or safety codes which place affirmative duties on landlords to maintain rental properties in compliance with the ordinances. Most such ordinances make it illegal to rent properties which do not comply with the codes and for which a certificate of compliance has not been issued. Because these codes, and enforcement practices, vary from place to place, a landlord should make careful inquiry in his or her locale and be prepared to perform whatever repairs and maintenance are required. From a tenant's perspective, often the best way to compel a landlord perform a repair is to complain to the local government's code enforcement agency.
Limited Statutory Right to Repair and Deduct from Rent: A statute enacted in 1997, Sec. 441.234 RSMo., gives tenants the right, under limited conditions, to deduct repair costs from rent. This new right cannot be waived by a written lease clause. To be eligible, the tenant must have lived in the leased premises for six consecutive months, have paid all rent and charges, and not have received any written notice from the landlord of any lease violation which was not subsequently cured. The following additional requirements apply:
- The condition to be repaired must detrimentally affect the habitability, sanitation or security of the premises, must constitute a violation of a local municipal housing or building code, and must not have been caused by the deliberate or negligent act or omission of the tenant, a member of the tenant's family, or another person on the premises with the tenant's consent.
- The reasonable cost to correct the condition must be less than the greater of $300 or one-half of the monthly rent, provided that the cost may not exceed one month's rent and that a tenant may not deduct more than one month's rent during any 12-month period.
- Before proceeding, the tenant must give written notice to the landlord of the tenant's intention to correct the condition at the landlord's expense. If the landlord fails to correct the condition within 14 days after receiving written notice, or as promptly as required in case of an emergency, the tenant may cause the work to be done in a workmanlike manner. If the tenant has the work done, the tenant may deduct from rent the actual and reasonable cost of the work, not exceeding the amount specified above, upon giving the landlord an itemized statement including receipts.
- However, if the landlord provides to the tenant within the 14-day period a written notice disputing the necessity of the repair, then the tenant may not deduct the repair cost from rent without securing, before the repairs are performed, a written certification from a local governmental body that the condition to be repaired constitutes a violation of a housing or building code. If this certification is issued, the tenant may have the work done as described above only if the landlord fails to correct the condition within 14 days after receiving notice of the certification, or as promptly as required in case of an emergency.
Substandard Housing Statute: Landlord liability to repair and maintain also can arise under Sections 441.500 - 441. 643 RSMo., which provide remedies to tenants of housing facilities that do not comply with applicable housing or building codes. A civil action may be commenced in the circuit court of the circuit where the property is located on the ground that a nuisance exists with respect to such property. Such an action may be filed by: (1) The municipality where the property is located through its code enforcement agency, (2) by the occupants of one-third or more of the dwelling units within the affected building, (3) by a non-profit organization organized to enhance housing opportunities, or (4) by any owner or tenant of real property within 1,200 feet in any direction of the property in question who can show a substantial effect by the alleged nuisance. The term "nuisance" means a violation of provisions of the housing code applying to the maintenance of the building or dwelling unit which, if not promptly corrected, will constitute a fire hazard or substantial threat to the life, health or safety of the occupants and/or the general public. If the court finds that the dwelling unit or building constitutes a nuisance as defined, the court may appoint a receiver and direct that present and future rents be deposited with the receiver, who may use the rent monies to remedy the deficiencies. A court order directing payment of rent to a receiver is a valid defense to any eviction lawsuit by the landlord based on non-payment of rent.
Latent Defects: In general, if there are latent defects in leased premises which are known to the landlord but not to the tenant, and which the tenant cannot discover in the exercise of ordinary care, the landlord is under a duty to disclose the defect, and the landlord's failure to disclose the defect, or concealment of the defect, renders the landlord liable for injuries to the tenant, the tenant's family, and the tenant's invitees resulting from the defect. To avoid this liability, the landlord should correct the defect. However, if the latent defect is disclosed to the tenant, the landlord is not liable to the tenant for not repairing the defect, assuming that the defect is not required to be repaired by the landlord under some other theory.
Common Areas: It has long been the rule in Missouri that landlords must keep common areas of leased buildings in a safe condition and must use reasonable diligence in doing so. Common areas include hallways, stairs, lobbies, walkways, porches, yards, laundry rooms, etc. which are maintained for the use of multiple tenants. In contrast, any portion of a leased building which is exclusively within the tenant's control is not a common area, and the landlord generally has no duty to maintain such tenant-controlled areas (except under other theories mentioned in this topic).
Agreement to Repair and Reserved Control: A landlord can assume the duty to make repairs within the leased premises (as opposed to common areas) by contractual agreement in a lease. If the landlord makes such an agreement, he must maintain the areas of the leased premises over which he assumes the duty of repair in reasonably safe condition for the intended uses. It is also possible for the landlord to retain sufficient control over the leased premises for the purpose of inspecting and making repairs such that the landlord will be deemed to have assumed the liability for making repairs and maintaining the portion of the leased premises within his control in reasonably safe condition for its intended uses.
Structural Repairs: Absent an express agreement by a tenant to make structural repairs to a leased commercial building, the tenant has no liability for structural repairs; this is true even if the lease obligates the tenant to make general repairs, unless the lease specifically imposes the duty on the tenant to make structural repairs, and, therefore, where a lease is silent on who must pay for substantial structural repairs, the burden will fall on the landlord. Presumably this same principle would apply with even more force to a residential lease, to the extent the structural repairs did not become the landlord's obligation under another theory such as habitability or violation of housing codes.
Commercial Leases: The general common law principle that neither the landlord nor the tenant need make repairs if the lease is silent on the issue does not comport with the realities of modern commercial leasing. Accordingly, conventional commercial leases ordinarily assign maintenance and repair responsibilities to the landlord and the tenant. A common provision is that the landlord will maintain the exterior of the buildings and the tenant will maintain the interior, fixtures and equipment. This type of provision may be adequate for simple situations, but in leases of larger properties, it frequently will prove to be inadequate. Ordinarily, the parties intend that day-to-day maintenance and minor repairs be made and paid for by the tenant, and that repairs due to obsolescence or old age and more in the nature of a replacement or a capital expenditure be made and paid for by the landlord. The problem becomes acute in view of the cost of making major replacements or repairs to such things as elevators, boilers and large air-conditioning units. There are two common solutions to the drafting problem:
- A provision to the effect that the tenant's expenditures for items such as elevator, boiler or air-conditioning maintenance shall not exceed a specified amount in any one year, and that expenditures exceeding that amount will be paid by the landlord; or
- A provision that the tenant agrees to make ordinary repairs, while the landlord agrees to make repairs and replacements due to obsolescence or old age.
Neither of these clauses is perfect, and it behooves the lawyer to work with a landlord or tenant client to determine the potential costs of performing various maintenance and repair work and to allocate those costs appropriately in the lease.
A common problem that arises in commercial leases relates to doors and windows. Typically, while assigning exterior maintenance to the landlord, a commercial lease also specifies that the tenant must replace glass in doors and windows. A common question that then arises is whether doors and windows are considered part of the interior or the exterior of the premises. The matter can be resolved by providing in the lease that the tenant will take care of glass but that "doors, door frames and sills, windows, window frames and sills and door opening and closing devices will be maintained and repaired by the landlord."
Personal Injury Liability Warning: As a general proposition, if the landlord is liable to repair or maintain under any theory, the landlord will be liable for personal injuries resulting from failure to maintain the premises in a reasonably safe condition.
Summary of Key Points:
A landlord is not required to repair/maintain leased premises except as follows:
- When conditions may prompt the tenant to claim constructive eviction, whereupon the landlord must consider whether to make repairs to forestall the claim.
- When conditions violate the implied warranty of habitability.
- When conditions violate local housing, fire and/or safety codes and the codes place the repair/maintenance obligation on the landlord/owner.
- When the tenant exercises the limited statutory right to deduct rent from repairs under §441.234 RSMo.
- When the landlord is compelled to repair/maintain under the substandard housing statutes, §§ 441.500 - 441.643 RSMo.
- When conditions in common areas are unreasonably dangerous to tenants and invitees.
- When the landlord has reserved the rights to make repairs within the demised premises and to enter the demised premises on his own initiative to do so.
- When the landlord has undertaken a contractual obligation in the lease to make repairs.
- When necessary repairs would be classified as "structural" in nature, absent agreement by the tenant to make structural repairs (but an agreement by a residential tenant to make structural repairs probably is not valid under the warranty of habitability doctrine).
A tenant cannot withhold rent from the landlord because of the landlord's failure to maintain or repair except as follows:
- Pursuant to agreement with the landlord.
- Upon substantial breach of the lease by the landlord which constitutes constructive eviction (but note the tenant will need to plead and prove constructive eviction as a defense if the landlord sues).
- When the premises are wholly or partially uninhabitable, provided that if the tenant remains in possession, rent or partial rent must be deposited with the court or a third-party escrow agent (note again that the tenant will need to plead and prove breach of warranty of habitability as a defense if the landlord sues).
- The tenant may be entitled to withhold a limited amount of
rent for repairs made by the tenant upon compliance with Sec.
In an action pursuant to Sections 441.500 - 441. 643 RSMo., rent may be paid to a receiver instead of the landlord if ordered by the court.
Most leases contain a specific clause requiring tenants to surrender the premises at the end of the lease in the same condition as when the tenant first occupied the premises, ordinary wear and tear excepted. Even if a lease does not contain such a clause, Missouri law imposes a duty on tenants not to "commit waste," which has the same effect because "waste" is defined as "...the failure of a lessee to exercise ordinary care in the use of the leased premises or property that causes material and permanent injury thereto over and above ordinary wear and tear." Intentional damage to property is also covered by this definition. Further, it may also be possible to hold the tenant responsible for property damage done by third parties such as visitors or even burglars, particularly if appropriate language is included in the lease.
While it is possible for a landlord to file a separate lawsuit against a tenant for property damage, such claims are commonly included in eviction lawsuits. In such cases, if the landlord believes there is a possibility of damages exceeding the security deposit, the recommended procedure is to first obtain a preliminary judgment to get possession of the premises so that the damages can be evaluated before returning to court to obtain a final judgment including property damage and other monetary losses such as unpaid rent.
In some cases, depending on the circumstances, it may be possible for a landlord to obtain a judgment against a tenant for triple the amount of property damage.
If there is clear evidence that a particular tenant committed property damage and did so "knowingly," a landlord can ask for a police investigation and possible criminal prosecution. If the prosecutor decides to file a criminal case, there could be an advantage to the landlord in collecting compensation for the damage because a typical resolution of such cases is to place the defendant on probation on condition of making restitution for the damage, with the penalty for not making restitution being incarceration. Another possible advantage is that an obligation to make restitution as part of a criminal case may not be dischargeable in bankruptcy.
However, in at least two respects, the civil remedy is better than possible criminal charges:
- In a criminal case, the prosecutor must prove the crime beyond a reasonable doubt. In contrast, in a civil case, the landlord has the lesser burden of proof of "preponderance of the evidence."
The landlord can rely on the tenant’s legal obligation to return the property at the end of the lease in the same condition as when originally occupied by the tenant, ordinary wear and tear excepted – meaning that it is not necessary to show who actually did the damage.
For a discussion of what constitutes damage beyond ordinary wear and tear, see the discussion of "Meaning of 'Ordinary Wear and Tear' " on the Security Deposits page.
For guidelines on how to gather the evidence necessary to prove property damages, see the Premises Damage page.
Landlords should note that the notice forms provided on the Forms page have been set up to be signed by the landlord rather than an attorney. The reason for this has to do with how the federal courts are interpreting the Fair Debt Collection Practices Act. The courts in several circuits have decided in the past few years that the act applies to landlord-tenant cases. When attorneys at law give notices on behalf of clients, they are required to also give certain warnings required by the FDCPA and must allow the recipient at least 30 days to respond. Most landlords will prefer for action to commence much sooner than 30 days after notices are given. However, when landlords give notices to tenants themselves, they are not required to give the FDCPA warnings, and it is not necessary to allow 30 days for tenants to respond.
Federal and Missouri fair housing laws strictly prohibit discrimination based on a number of factors including:
- National origin
- Sex (gender)
- Familial status
The main federal law is the Fair Housing Act, 42 U.S.C. §§ 3601-3631. Another relevant federal law is the Americans with Disabilities Act, 42 U.S.C. §12101 et seq. The primary Missouri statute is §213.040 RSMo. Most of the prohibited categories of discrimination are self-explanatory. However, "disability" and "familial status" require further explanation.
"Disability" is defined for purposes of housing discrimination as:
- having a physical or mental impairment which substantially limits one or more of a person's major life activities, or
- being regarded as having such an impairment, or
- having a record of having such an impairment,
which, with or without accommodation, does not interfere with occupying the dwelling in question.
"Disability" does not include current illegal use of or addiction to illegal drugs. However, a person may be considered to have a disability if he or she: (1) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of, and is not addicted to, an illegal drug or has otherwise been rehabilitated successfully and is no longer engaging in such use and is not currently addicted; or (2) is participating in a supervised rehabilitation program and is no longer engaging in illegal use of illegal drugs; or (3) is erroneously regarded as currently illegal using, or being addicted to, an illegal drug.
"Familial status" is defined as one or more individuals who have not attained the age of 18 years being domiciled with either:
- a parent or another person having legal custody of such individual, or
- the designee of such parent or other person having such custody, with the written permission of such parent or other person.
The protections against discrimination based on familial status also apply to any person who is pregnant or who is in the process of securing legal custody of any individual who has not yet attained the age of 18 years.
The prohibition of familial status discrimination does not:
- Apply to housing projects which have been specifically designated and legally qualified as "housing for older persons" (typically, 55 years of age and older).
- Affect any local laws limiting the maximum number of occupants permitted to occupy a dwelling. (For example, Columbia defines "family" in §29-2 of the ordinances as either parents and children plus no more than two additional related persons, or a group of not more than 4 persons not related by blood or marriage living together by joint agreement and occupying a single housekeeping unit with single kitchen facilities on a nonprofit cost-sharing basis.)
- Affect a state statute (§441.060.2 RSMo.) which authorizes an occupancy limit of two persons per bedroom in leased housing (except that this occupancy limit does not apply to a child or children born to the tenants during the course of the lease).
Prohibited acts of discrimination against persons in the protected categories include:
- Termination of a lease.
- Refusal to negotiate, rent or renew a lease, or discrimination in the terms, conditions or privileges of rental, or in the provision of services or facilities.
- Denial that any dwelling is available for inspection or rental when it is available.
- Refusal to permit, at the expense of a person with a disability, reasonable modifications of existing premises occupied or to be occupied by such person if the modifications are necessary to afford the person full enjoyment of the premises; however, if reasonable under the circumstances, you can require the tenant to agree to remove the modifications upon termination of the lease.
- Refusal to make reasonable accommodations in rules, policies, practices or services when such accommodations are necessary to afford persons with disabilities equal opportunity to use and enjoy a dwelling.