Unlawful detainer is a type of eviction case that a landlord can file when a lease has been terminated one way or another, or there is no lease at all, and the tenant or occupant remains in the property. These cases are filed under the provisions of Chapter 534 of the Missouri Revised Statutes.
In unlawful detainer cases, the tenant does not have a right to “pay and stay.”
Also, the law imposes a penalty of twice the fair rental value of the property for every day the tenant or occupant remains in the unit after the termination date (or the date a demand for posssession was served on a squatter).
On this page:
- Types of unlawful detainer cases
- Written Lease Expired
- Month-to-month lease terminated
- Lease termination for cause
- Employee Tenant’s Employment Terminated
- Tenancy at sufferance terminated
- Squatter Eviction
- Defenses
- Counterclaims Not Allowed
Types of unlawful detainer cases
There are six common types of unlawful detainer cases that can be filed:
- Written lease expired
- Month-to-month lease terminated
- Lease termination for cause
- Employee tenant’s employment terminated
- Tenancy at sufferance terminated
- Squatter eviction
Each type of unlawful detainer case is discussed below.
Written lease expired
If a tenant remains in a rental unit after the termination date specified in a written lease, the landlord is not required to give any pre-suit notice to the tenant and can immediately file for unlawful detainer.
Month-to-month lease terminated
Under Missouri law, an oral lease is a month-to-month lease. A written lease can also be set up as a month-to-month lease, or can become a month-to-month lease under certain circumstances. Both the landlord and the tenant have a right to terminate a month-to-month lease upon giving proper written notice. If the tenant remains in the rental unit after the termination date, the landlord can file for unlawful detainer.
See the topic Improper termination of month-to-month lease under Defenses below for the rules governing notices to terminate a month-to-month lease
Lease termination for cause
A landlord can terminate a lease for cause by giving a written 10-day termination notice if the tenant violates the terms of the lease or engages in activities prohibited by statute. If the tenant fails to vacate within 10 days after notice is given, the landlord can pursue unlawful detainer.
The termination notice must specify how the tenant has violated the the lease or statutes.
Employee tenant’s employment terminated
Sometimes a landlord’s employee, such as a maintenance worker, will receive free or reduced-rent housing as partial compensation for work. If the employee is terminated and fails to vacate after notice of employment termination, the landlord can file for unlawful detainer.
Tenancy at sufferance terminated
A tenancy at sufferance is not a true lease, but rather a situation in which a property owner or tenant has permitted someone to occupy the owner’s property or the tenant’s rental unit without any obligation to pay rent. A classic example is a person who allows a boyfriend or girlfriend to move in, and then they have a falling out.
In this situation, the owner or actual tenant of the property can give a 30-day written notice to the permissive occupant to terminate the tenancy at sufferance. If the permissive occupant fails to vacate within 30 days after the notice was given, the owner or actual tenant of the property can file an unlawful detainer case against the permissive occupant.
Squatter eviction
If a person occupies real property without a lease or permission of the owner or legitimate tenant of the property, the person is a squatter who has no legal right to be there. In this situation, the owner or legitimate tenant can serve a “demand for possession” on the squatter and then immediately file an unlawful detainer case against the squatter.
Defenses
This section discusses potential defenses that a tenant/occupant may be able to assert to avoid eviction in an unlawful detainer case.
In general, defenses in an unlawful detainer case must negate the landlord’s or owner’s right to possession of the rental unit. A tenant has the burden of proving the truth of any defense asserted. On the other hand, the landlord or owner has the burden of proving the right to possess the property, and the tenant or occupant can present evidence to the contrary.
Caution: Defenses must be put in writing, filed with the court, and served on the landlord’s attorney (or the landlord if not represented by an attorney). Read more.
Note: By statute, a tenant is deemed to deny the statements in the landlord’s lawsuit, and the landlord has the burden of proving those statements. The tenant can present evidence showing the falsity of the landlord’s statements, and if the judge believes the tenant’s evidence, the judge will rule against the landlord unless a disproved statement is not essential to the landlord’s case.
Failure to state a cause of action
If the landlord’s petition fails to state one or more facts that are crucial to the landlord’s claim, this defense should be asserted.
Rent payment tendered and accepted without reservation
In two different situations, if a tenant offers a payment to the landlord and the landlord accepts the payment without reservation, the landlord may be deemed by the court to have waived the right to pursue eviction. The two situations are:
Pre-lawsuit – If a landlord or owner has served a pre-suit notice and then the tenant makes a payment that is accepted without reservation, the landlord may be deemed by the judge to have waived the right to pursue eviction, and the judge should dismiss the case after it is filed.
Lawsuit pending – If a tenant being sued for unlawful detainer tenders a rent payment that is accepted without reservation, again the landlord may be deemed by the judge to have waived the right to pursue eviction.
Holdover creating month-to-month lease
When an unlawful detainer case is based on the tenant holding over after the expiration date of a written lease, the landlord’s acceptance of a rent payment covering any period of time after the lease expiration date will create a new month-to-month tenancy.
In this situation, the tenant can move to dismiss the case on the ground that the newly created month-to-month lease has not been terminated by proper notice – see the next defense for details about termination of month-to-month leases.
Improper termination of month-to-month lease
Under Missouri law, oral leases are considered to be month-to-month leases. A written lease can also be month-to-month if so described in the lease. Also, a written lease can become a month-to-month lease if the tenant pays rent covering any period of time after the lease termination date and the landlord accepts the payment.
Both the landlord and the tenant have the right to terminate a month-to-month lease by giving a proper written notice. A landlord’s notice to terminate a month-to-month lease must give the tenant one full month’s notice after the next rent due date – unless the tenant owns a mobile home and rents the lot the home sits on, in which case a 60-day notice is required.
EXAMPLE 1: 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. Assume the agreed rent-paying date is the first of each month. A notice served before July 1 will terminate the lease at the end of July. However, a notice given after July 1 but before August 1 could only terminate the tenancy at the end of August.
EXAMPLE 2: If the tenant owns a mobile home situated on a leased lot under a month-to-month lease, a notice served before the next rent-paying date will terminate the lease at the end of the second month following the next rent-paying date. Assume the agreed rent-paying date is the first of each month. A notice served before July 1 would terminate the lease at the end of August.
Missouri law requires a notice to terminate a month-to-month lease to state the correct termination date. If the termination date in the notice is incorrect, the tenant can raise this issue as a defense.
Month-to-month and for-cause lease terminations for discriminatory reason
The law does not require a landlord who seeks to terminate a month-to-month lease by written notice to state a reason for the termination. However, a landlord cannot terminate a month-to-month lease for a discriminatory reason that violates federal or state fair housing laws – see the Prohibited Discrimination section on the Tenant Issues Overview page.
Also, if a landlord seeks to terminate a written lease with a 10-day notice to terminate for cause – that is, for violation of the lease or statutes – the landlord must state the violation in the notice. If the tenant can show that the alleged violation is a pretext and the termination is being undertaken for a discriminatory reason in violation of fair housing laws, this potential defense can be asserted.
A tenant who believes a termination is based on unlawful discrimination and asserts that as a defense should be aware that the landlord’s attorney may argue that discrimination claims must be filed with the federal Department of Housing and Urban Development (HUD) and/or the Missouri Commission on Human Rights (MCHR); if this argument is accepted by the judge, the discrimination defense will not be allowed. In this situation, the tenant would still have the right to pursue the discrimination complaint with HUD and/or MCHR and possibly in a later separate lawsuit.
Termination notice not served or not properly served
A landlord has the burden of proving that a pre-suit notice to a tenant was actually “served” on the tenant – meaning that the tenant actually received the notice and had an opportunity to read the notice. Unless there is an exception noted below, service of a notice requires that the notice actually be handed to the tenant or that the tenant sign a receipt showing that the tenant received the notice. Pre-suit notices are required for all unlawful detainer cases except those involving a tenant staying in a rental unit after the termination date of a written lease.
If the tenant believes that a required notice was not properly served, the tenant can raise improper service – or no service at all – as a defense. However, explicitly raising this defense may not be necessary because by statute a tenant is deemed to deny the statements in the landlord’s lawsuit, so the tenant can dispute a statement in the lawsuit that proper notice was given in any event.
One exception to the general rule for serving notices is that leases will often specify ways in which tenants can be given notices, such as by posting on the door or sending the notice by mail, email, or text message. If the landlord can prove a notice was served by a method authorized in the lease, a defense of no service or improper service will not be accepted by the judge.
If the landlord attempts to prove proper service of a notice in reliance on a written statement by the person who served the notice – even a statement made under oath or subject to penalty of perjury – the tenant should object that the statement is hearsay and insist that the person who purportedly served the notice must testify in person.
A major exception to the foregoing discussion is the “demand for possession” notice required before a property owner or legitimate tenant can file an unlawful detainer case against a squatter. In this situation, a statute allows the notice to be given to the squatter(s) or any person at the property who is at least 15 years old, or posted on the door if no one answers the door. Also, the written statement under oath of the person who served the notice is deemed sufficient proof of service, so a hearsay objection will be overruled.
Landlord’s reliance on eviction grounds not stated in termination notice
If the landlord has served a 10-day termination-for-cause notice on the tenant that states particular grounds for termination, the landlord cannot rely on or present evidence of other grounds for eviction at trial. If the landlord tries to present evidence of grounds for eviction that were not included in the notice, the tenant should object and ask the judge to reject such evidence.
Landlord’s reliance on non-payment of rent to evict for cause
Sometimes a landlord will attempt to pursue an unlawful detainer eviction after serving a 10-day termination notice stating the lease violation as non-payment of rent. In general, this is improper, and the landlord should instead file a rent-and-possession lawsuit.
It is possible, though, for a landlord to pursue an unlawful detainer for non-payment of rent in two situations:
1. The landlord can serve a demand for the exact amount of rent then due on the exact day that rent is due under the lease, and if the rent is not paid that day, an unlawful detainer eviction can be filed.
2. The landlord can include language in a written lease to the effect that the tenant’s non-payment of rent will justify an unlawful detainer eviction and that the tenant waives the demand described in the previous paragraph.
Landlord’s failure to follow required procedures for public or subsidized housing
For public housing or subsidized housing such as Section 8, federal regulations impose procedural requirements beyond those imposed by Missouri law. A tenant can defend an unlawful detainer eviction by showing that the procedural requirements were not followed, either partially or in their entirety.
In general, tenants in such housing may be terminated only for:
(a) material non-compliance with the lease, including non-payment of rent
(b) material failure to carry out obligations under state landlord-tenant law; or
(c) “other good cause.”
The regulations also require that the termination notice state:
(1) The specific date of termination
(2) The reasons for termination with enough specificity to enable the tenant to prepare a defense
(3) Notice that if suit is filed, it will be based on the reasons given in the termination notice and that the tenant has the right to present a defense.
Termination notices for public or subsidized housing must be sent by first-class mail and personally served on the tenant (if personal service cannot be obtained, the notice may be handed to any adult who answers the door or the notice may be placed under or through the door).
Further, the tenant must be given an opportunity for a hearing before the public housing or subsidizing agency or the landlord to dispute the notice before the agency or landlord can pursue unlawful eviction.
Plaintiff is corporation or LLC and suit not filed by 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.
Depending on circumstances, there may be additional defenses to unlawful detainer cases. Consultation with an attorney is recommended.
Counterclaims Not Permitted
No counterclaims are not permitted in unlawful detainer cases. If a tenant being sued for unlawful detainer has a claim against the landlord, it must be filed as a separate lawsuit against the landlord. The unlawful detainer case cannot be delayed by the filing of such a separate lawsuit.
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