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. Landlords and property managers who have questions or encounter situations not covered here should consult with Scott Law Firm.
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 10 a.m. on Mondays and sometimes at 1:30 p.m. on Thursdays in Circuit Court Division 11.
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 actually save money. 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.
Sources of Missouri Landlord-Tenant Law
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 that are beyond the scope of these materials, and you should consult with a knowledgeable attorney to ensure proper procedures are followed.
Self-Help Eviction Illegal in Missouri
WARNING: In Missouri, the only legal way to evict a tenant is through court action. Unless the tenant voluntarily vacates, the landlord must have an eviction judgment entered by the court 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.
Service of Notices
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 (unless you have provided for this method of service in a written lease).
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 unless you have a lease clause saying that service on one tenant is service on all.
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 the Forms page 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 first-class mail. 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. 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.”
Service instructions are provided on the Forms page for each pre-suit notice.
Beware of Waiver
A problem that sometimes arises after you have served a notice on a tenant – for example, a notice to terminate an month-to-month lease – is that the tenant shows up 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.
Disclosures to Tenants
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 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 Prohibited Discrimination below).
Note: A written lease also can be month-to-month if so specified in the lease. Also, if a written lease for a longer term expires, it will become a month-to-month lease if the tenant stays after the expiration date and continues paying rent, and the landlord accepts the rent. In either of these situations, the principles mentioned in this section for terminating a month-to-month lease will apply.
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 month-to-month 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 due date will terminate the lease 30 days after the next rent due date.
EXAMPLE: Assume the rent due 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 the appropriate notice to terminate a month-to-month lease plus service instructions.
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 due date. Otherwise, the same example and caution above will apply. See Form 20 on the Forms page for the appropriate notice and service instructions.
Overview of Lawsuits Landlords Can File against Tenants
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 or are terminated
- 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 before judgment is entered or the entire amount of the judgment within 10 days after the 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 because there is no right to “pay and stay” in unlawful detainer cases. 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:
- There is rent due and payable
- Demand was made for payment*, and
- 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 full month’s rent is owed at the time suit is filed.
As a practical matter, even if at least one full month’s rent is owed, 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, you should 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. Form 13 on the Forms page is a Demand for Rent and Possession.
You should actually sue everyone occupying the premises (except minors) for rent and possession, even if not all of them signed the lease – with the understanding that those who did not sign the lease will not be legally liable for monetary obligations. This is very important because you can only get a judgment for possession against the named defendants, and the sheriff will only evict the defendants named in the judgment. Naming all occupants also 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.
It is 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, other amounts owed under the lease, 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.
Note: While the statutes say a claim for property damage cannot be included in a rent-and-possession case, you have the right under court rules to plead more than one legal claim in the same lawsuit, so our local judges have held that you can ask seek compensation for property damage so long as you do so in a separate count of your lawsuit.
There is no right to a jury trial in the original trial of rent-and-possession cases, but if a new trial is requested, either side can request that the new trial be heard by a jury. Also, because jury trials are available in unlawful detainer cases, it is strongly recommended that landlords include a prominent clause in their leases whereby both the landlord and the tenant waive the right to a jury trial in any litigation involving the lease. To be clearly enforceable, attention must be drawn to a jury waiver clause in larger bold type immediately adjacent to the signature area on a lease. (Note: Jury waiver clauses are not permitted in Section 8 leases, however, and if included, they will not be deemed enforceable.)
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 become the new landlord under the existing lease, but 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 does not need to be given, however, until and unless you need to sue for rent-and-possession. Form 14 on the Forms page is the appropriate notice for this purpose. Be aware that a copy of your deed to the property must be attached to the notice.
Unlawful Detainer Lawsuits
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 for cause 10 days after the notice is served 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. Lessee agrees that such notice shall constitute sufficient notice to terminate the lease and for lessor to initiate an unlawful detainer action. Lessee waives all other common law or statutory notices.
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 the appropriate notice for situations in which the tenant:
- 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, or
- 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 the appropriate notice to be used. Note that you may be required to use this form if the lease itself grants the tenant a right to cure breaches.
NOTE: On both Form 21 and Form 22, it is necessary to state the reasons for termination at the end of the first full paragraph. If this is not done, the notice will be invalid.
There is clearly a right to a jury trial in an unlawful detainer action. 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. To be clearly enforceable, attention must be drawn to a jury waiver clause in larger bold type immediately adjacent to the signature area on a lease. (Note: Jury waiver clauses are not permitted in Section 8 leases, and if included, they will not be deemed enforceable.)
In an unlawful detainer case, you can seek the following remedies:
- Possession of the leased premises
- Rent that was unpaid before the termination date of the lease
- Twice the fair rental value for the period after termination of the lease during which the tenant remains in possession
- Reimbursement for damages to the premises in excess of ordinary wear and tear
- Late fees and other charges owed under the lease
- Attorney’s fees and litigation expenses if you have a clause in your lease authorizing them
- 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. Form 24 on the Forms page is the appropriate notice in this situation.
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, 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
Information Needed for All Landlord-Tenant Lawsuits
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 Evictions page for 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), as well as 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.
General Procedure in Landlord-Tenant Lawsuits
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 member of your staff will be required to sign a “verification” to be attached to the petition, which is a sworn statement 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 relief 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. Service of the lawsuit can be done 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. The posting must be done by a sheriff’s deputy or special process server, and the mailing must be accomplished by you or your attorney. 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 the lawsuit.
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. 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 defendant 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. You or 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.
Time Frames for Landlord-Tenant Lawsuits
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 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 valid for 30 days after issuance. 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 to obtain a judgment in 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.
Enforcement of Judgments
This topic is covered on the Enforcement of 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.
Trespassers, Squatters and Tenancy at Sufferance
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.” (This must be distinguished from a scenario in which two parties agree that a person moving in will pay a definite amount of rent each month, which would create an oral month-to-month tenancy.) 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. The termination will 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.
Removal of Property from Abandoned Premises
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 the appropriate notice to use this statutory procedure. Form 12 on the Forms page provides detailed instructions for using Form 11.
Questions often arise about the landlord’s liability for maintenance and repair of leased premises. This topic is covered in detail in our blawg post Landlord’s Maintenance and Repair Liability.
Property Damage by Tenants
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 may not be 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 Property Damage page.
Fair Debt Collection Practices Act
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 have decided that the act applies to attorneys representing landlords in 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. The required statutory warnings dilute the effect of notices.
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. See “Reasonable Accommodations – Modification of Premises” below for information about when a landlord may be required to make physical modifications of leased premises for a disabled tenant.
If you decide to reject an applicant, evict an existing tenant, or decline to renew a lease in a situation where the person might claim illegal discrimination, be sure to retain documentation of all your non-discriminatory reasons for your decision in case a discrimination claim is filed.
Be sure to keep good records on all your tenants, and don’t throw away files for former tenants too soon. You may be able to defend against discrimination claims by showing that you rent to or have a history of renting to people of various races, religions, national origins, etc. and that you rent to or have rented to people with children or disabilities in the past. Such records will go along way toward defeating discrimination claims.
Reasonable Accommodations – Modification of Premises
Landlords are sometimes faced with the question whether they are required to make physical modifications of leased premises for a disabled tenant – for example, a wheelchair-bound tenant, who might need a ramp and larger doorways.
There are three federal statutes that may affect what is considered physical modification “reasonable accommodation” in privately owned rental housing.
- The Fair Housing Act (FHA) is clearly applicable to all privately owned rental housing. The FHA prohibits a housing provider from refusing to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises.
- Section 504 of the Rehabilitation Act only applies if the housing provider receives federal assistance, such as housing vouchers under the Section 8 program. Under Section 504, reasonable accommodations must be provided and paid for by the housing provider unless providing them would be an undue financial and administrative burden or a fundamental alteration of the program. In such cases, the provider is still required to provide any other reasonable accommodation up to the point that would not result in an undue financial and administrative burden on the particular recipient and/or constitute a fundamental alteration of the program.
- The Americans with Disabilities Act (ADA) does not generally apply to individual units in privately owned rental housing, but does require reasonable accommodations in common areas of residential complexes at the owner’s expense.
Landlords and property managers increasingly are confronted with requests from tenants to keep an “emotional support animal” even when the lease prohibits pets. In the law, animals that provide emotional support are called “assistance animals,” and it is considered unlawful discrimination to deny a request to keep such an animal if the person has a properly documented disability that necessitates having the animal. There is no requirement that an assistance animal have any special training.
“Service animals” are a different category in the law. Such animals undergo specialized training to help persons with specific disabilities. The most common example of a service animal is a “seeing eye” dog for a person with limited or no vision. It is also considered unlawful discrimination to deny a tenant the right to have a service animal if the tenant needs one.
If you are confronted with a request to allow an assistance animal or service animal, you should carefully follow the guidelines in our blawg post Assistance and Service Animals.
Using Criminal Records to Screen Rental Applicants
On April 4, 2016, the Department of Housing and Urban Development (HUD) issued new guidelines titled “Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions.”
The essence of the guidelines is that rejection of housing applicants based on criminal records may constitute illegal discrimination on the basis of race, color or national origin under the legal theories of “discriminatory effect” and “disparate treatment.”
We recommend that you carefully study our blawg post Using Criminal Records to Screen Housing Applicants to find out how to avoid discrimination complaints when you obtain criminal records as part of your background checks on prospective tenants.
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