Rent-and-possession evictions are filed by landlords under the provisions of Chapter 535 of the Missouri statutes. These eviction cases are based on the tenant’s failure to pay rent. In such cases, the tenant has a right to “pay and stay” as explained below.
On this page:
- Petition Requirements
- Tenant’s Right to “Pay and Stay”
- Defenses to Rent-and-Possession Cases
- Counterclaims
Petition Requirements
A valid rent-and-possession petition must include the following allegations:
- The leased premises must be accurately identified by street address (and apartment or lot number if applicable.
- The terms of the lease must be set out, either by quoting the lease in its entirety or by attaching a copy of the lease to the lawsuit.
- The amount of rent actually due must be stated and supported by setting out an accounting of all accrued rent and payments of rent or by attaching a copy of the accounting to the lawsuit.
- The petition must allege that the landlord has demanded (asked for) payment of unpaid rent and that the tenant has not paid the rent. However, by statute, no demand is necessary if the tenant owes at least one full month’s rent or more; in this situation, the statute deems the lawsuit itself to be a sufficient demand.
If the landlord’s petition does not include all of the foregoing elements, the petition is subject to dismissal for failure to state a valid legal claim. In this situation, the tenant should file a motion to dismiss the petition for failure to include one or more required elements, and the missing element(s) should be specified in the motion.
Note: The requirement to incorporate lease terms and rent accounting in the petition derives from Rule 55.22(a) of the Missouri Rules of Civil Procedure, which should be mentioned if a motion to dismiss is based on this deficiency in the landlord’s petition.
Tenant’s Right to “Pay and Stay”
In rent-and-possession cases, the tenant has the right to “pay and stay” as follows:
Before a judgment is entered, the tenant is entitled to stay if the tenant pays all rent owed plus court costs.
After a judgment is entered, the tenant is entitled to stay upon payment of the full amount of the judgment, which can include amounts in addition to rent and court costs, so long as the full payment is made on or before the date the court set for issuance of a writ of execution for possession of the premises.
Because of a tenant’s right to pay and stay, a landlord cannot legally refuse to accept such payments. If the landlord does refuse such payments, the court will treat the tenant’s attempt to pay as the legal equivalent of a payment already made and refuse to evict the tenant so long as the tenant is still ready, willing and able to make the payment and does in fact make the payment.
Caution: If payment is being made after entry of judgment and the landlord is still proceeding with the eviction process, the tenant will need to ask the court to issue a “stay” of the eviction.
When the tenant pays rent due plus court costs before a judgment is entered, even though the landlord cannot get an eviction judgment, the landlord may choose to continue the lawsuit to seek a money judgment against the tenant for other charges due, such as late payment fees, bad check charges, utilities, and attorney fees. A judgment for these other charges will not allow the landlord to evict the tenant, but the landlord can use judgment collection techniques – see Enforcement of Monetary Judgments on the Court Cases page – to try to collect the money owed from the tenant.
Defenses to Rent-and-Possession Cases
There are a number of defenses a tenant can raise when the landlord files a rent-and-possession lawsuit against the tenant. As noted in the Pre-Trial Procedures section on the Court Cases page, defenses must be asserted in writing, filed with the court by giving a copy to the court clerk, and served on the landlord or the landlord’s attorney. This must be done by the time of the first court appearance unless the judge grants an extension of time.
Available defenses in rent-and-possession cases include:
Failure to state a cause of action – This means that the landlord’s petition fails to include one or more of the required elements in the petition, as set out in the Petition Requirements section at the top of this page.
Landlord refused rent payment(s) – As noted above, because of a tenant’s right to pay and stay, a landlord cannot legally refuse to accept rent payments. If the landlord does refuse rent payments, the court will treat the tenant’s attempt to pay as the legal equivalent of a payment already made and refuse to evict the tenant so long as the tenant is still ready, willing and able to make the payment and does in fact make the payment. See also “Claimed rent includes non-rent amounts” below.
All rent has been paid – This defense can be asserted if the tenant has already paid all rent due, either before the lawsuit was filed or after it was filed and before the first court appearance. See also “Claimed rent includes non-rent amounts” below.
The amount of rent claimed is wrong – If the tenant believes the landlord’s statement of rent due is incorrect, this defense should be asserted. See also “Claimed rent includes non-rent amounts” below.
Claimed rent includes non-rent amounts – Some landlords will file a rent-and-possession case claiming a rent amount that includes non-rent amounts, such as late payment charges. Also, some leases provide that all payments are applied first to non-rent charges before any portion of a payment is applied to rent, which can result in a claim that rent is still owed even though the tenant believes all rent has been paid. Scott Law Firm’s position is that the public policy of Missouri does not allow rent payments tendered by a tenant as rent to somehow be transmuted into payments for other charges owed under a lease and thereby result in a rent balance being owed. Read more.
Landlord is claiming rent owed by subsidizing entity – If the tenant’s rent is subsidized and the tenant has paid the tenant’s portion of rent owed, the landlord may try to claim that rent actually owed by the Housing Authority, Department of Housing and Urban Development, or other subsidizing agency is owed by the tenant. If this defense is asserted, the tenant also should ask the subsidizing agency to contact the landlord and resolve any unpaid subsidy issues.
Property damage claims are improperly included – §535.020 RSMo. prohibits inclusion of property damage claims in rent-and-possession cases as follows: “The landlord or agent may, in such an action for unpaid rent, join a claim for any other unpaid sums, other than property damages….” [emphasis added]. Further, a property damage claim only accrues in favor of a landlord when the tenant vacates the rental unit and the unit is found to be damaged beyond ordinary wear and tear; therefore, a property damage claim asserted before a tenant vacates is premature.
The landlord is a corporation or LLC not represented by an attorney – Missouri law requires that corporations, limited liability companies and other non-individual entities be represented in court by an attorney-at-law. This defense can be asserted if a corporation, LLC or other entity filed the case without an attorney.
The landlord purchased the property from the original landlord and failed to give notice – By statute (§§ 535.070, 535.081 and 535.090 RSMo.) a landlord who purchases property subject to an existing lease must give notice to the tenant that the landlord now owns the property before the landlord can file a rent-and-possession case.
Late charges are an illegal penalty – Many rent-and-possession eviction cases will claim late charges as additional amounts owed by a tenant. Scott Law Firm’s position is that unless a lease properly defines late charges as “liquidated damages,” the late charges are an illegal penalty under Missouri law.
A proper clause defining a late charge as liquidated damages would include language similar to the following: “Because late payment of rent may cause landlord to incur economic damages and losses of types and in amounts that are difficult to ascertain with any certainty as a basis for recovery of actual damages, such damages and loss including but not limited to landlord’s administrative expenses incurred to collect late rent, lost interest, and costs incurred by landlord as a result of not being able to timely pay financial obligations, tenant agrees to pay as liquidated damages a late charge of $5 for every day rent remains unpaid after the 5th day of the month, retroactive to the 1st day of the month, such liquidated damages being intended by landlord and tenant to represent estimated actual damages as contemplated at the time of entering into this lease and not being intended as a penalty.”
Landlord is not entitled to attorney fees – Landlords cannot claim attorney fees unless there is a clause in a written lease that allows such a claim. Even if the lease contains such a clause, it is Scott Law Firm’s position that a landlord is not entitled to recover attorney fees unless the landlord prevails in the lawsuit. Attorney fees also cannot be awarded against a tenant who is represented by or under the auspices of a legal aid organization.
Breach of warranty of habitability – Missouri law provides that all leases include an implied warranty by the landlord that the rental unit is suitable for human habitation. If there are conditions that render the rental unit partially or fully uninhabitable, the tenant can pursue a defense on this basis if (1) the tenant has made the landlord aware of the problem, and (2) the landlord has failed to remedy the problem in a reasonable period of time. A habitability problem reduces the rental value of the unit, so the tenant should ask the court for a credit in the amount of excess rent paid to be applied against any amount awarded to the landlord for unpaid rent.
Constructive eviction – Rarely, a landlord may file a rent-and-possession case against a tenant who has already vacated the rental unit before the case was filed or before the first court appearance. If the tenant vacated because of a condition making the unit uninhabitable, the condition is serious, the tenant complained to the landlord about the condition, and the landlord did not remedy the problem within a reasonable time, the tenant can defend on the basis that the landlord “constructively evicted” the tenant by failing to remedy the condition. If this defense is successful, no rent would be owed beyond the time the tenant vacated.
Depending on circumstances, there may be other defenses that can be asserted by a tenant. Consultation with an attorney is recommended.
Counterclaims
A tenant being sued for rent and possession has the right to file a counterclaim against the landlord in the same lawsuit if the tenant has one or more valid legal claims against the landlord.
The same as defenses, a counterclaim must be asserted in writing, filed with the court by giving a copy to the court clerk, and served on the landlord or the landlord’s attorney. This must be done by the time of the first court appearance unless the judge grants an extension of time.
See the Counterclaims page for more information.
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