Representing Tenants

1. Representing Tenants Anthony L. DeWitt

2. Overview • Typical Problems for Tenants • Sources of Landlord Tenant Law • Typical Fixes for Typical Problems • Your mileage may vary and some restrictions do apply.

3. Suggestion • Many judges know very little about this area. • A good trial brief that highlights the applicable law and is served a day before the trial of the matter is often very effective in helping the judge prepare and may be the most effective weapon you have.

4. Typical Problems

5. Sources of Law In Landlord Tenant Issues

6. Sources of Law • Common Law • Chapters 441, 524, 534, and 535 RSMo.

7. Landlord Tenant Relationship • (1) a reversion in the landlord; • (2) the creation of an estate in the tenant either at will or for a term less than that which the landlord holds; • (3) the transfer of exclusive possession and control of the premises or a portion thereof to the tenant; and • (4) a contract, either express or implied, between the parties. • Santa Fe Trail Neighborhood Redevelopment Corp. v. W.F. Coehn & Co., 154 S.W.3d 432, 439 (Mo. Ct. App. W.D. 2005); Letsinger v. Drury College, 68 S.W.3d 408, 411, 162 Ed. Law Rep. 998 (Mo. 2002).

8. Chapter 441 Landlord Tenant

9. Chapter 441 • 441.005 – Definitions • Lease: A written or oral agreement for the use or possession of premises • Rent: A stated payment for the temporary possession or use of a house, land or other real property, made at fixed intervals by a tenant to a landlord.

10. Illegal Use • 441.020 Whenever any lessee … permits any prohibited gaming table, … or allowing the illegal possession, sale or distribution of controlled substances upon the premises, the lease or agreement for letting such house or building shall become void, and the lessor may enter on the premises so let, and shall have the same remedies for the recovery of the premises as in the case of a tenant holding over the tenant's term.

11. Termination of Tenancy • 441.050. Either party may terminate a tenancy from year to year by giving notice, in writing, of his intention to terminate the same, not less than sixty days next before the end of the year.

12. Lease Controls • Fact that tenant held over eleven days after expiration of written lease did not of itself create a new tenancy from year to year, and tenant had no interest in premises condemned under action filed on 12th day. Millhouse v. Drainage Dist. No. 48 of Dunklin Co. (A.), 304 S.W.2d 54. (1956) • Absent clause in lease permitting termination for non-payment of rent, a year-to-year lease cannot be terminated for non-payment unless there is fraud. See 18 Mo. Prac. § 32.12

13. In Absence of Lease • Statute controls termination of tenancy. • Tenant or landlord must give sixty days notice. • Written notice to terminate year-to-year tenancy of farmland was sufficient to terminate tenancy at end of calendar year, despite demand for possession on June 1st, instead of the following January 1st; tenants had written notice to terminate more than 60 days before end of calendar year. Jansen v. Probst922 S.W.2d 43, (Mo. App. SD 1996)

14. Statutory Non Assignment • 441.030 prevents assignment of a lease if less than two years in duration or if at will or suffered month to month. • Tenant may not violate any of the conditions of a written lease. • Tenant cannot commit waste.

15. 441.040 Landlord Retakes Possession • If any tenant violates the provisions of section 441.020 [unlawful activity] or 441.030 [assignment, violation of lease rules, or waste], the landlord, … after giving ten days' notice to vacate the premises, shall have a right to reenter the premises and take possession of the premises, or to oust the tenant,…by the procedure specified by law.

16. 441.040 Safe Harbor • The landlord shall have the burden to prove that the premises were being used for the illegal possession, sale or distribution of controlled substances under a petition filed for that reason, but the landlord shall not be liable for any damages resulting from the landlord's reliance on written notification to the landlord by a law enforcement authority that the premises are being used for the illegal conduct described in section 441.020.

17. Eviction under Chapter 441 • For unlawful use of property • For violation of rules contained in a written lease. • No eviction for violation of rules communicated orally. • No eviction for violation of rules not incorporated into the lease. • No case law dealing with this issue in Missouri.

18. 441.060 • 1. A tenancy at will or by sufferance, or for less than one year, may be terminated by the person entitled to the possession by giving one month's notice, in writing, to the person in possession, requiring the person in possession to vacate the premises.

19. Hold-over Tenants • Lease usually controls. • Lease will usually have an automatic renewal clause that renews the lease for another year if notice is not given by a set date. • If no such clause, then on termination of lease, tenant is at will or month-to-month.

20. No Written Lease • Leases, not in writing, operate as estates at will, RSMo 432.050 • Thus every oral lease, even if the client is told that it is for a term of years, is in effect an at-will tenancy.

21. Occupancy Limitations • 441.060.2 An occupancy limitation of two persons per bedroom residing in a dwelling unit shall be presumed reasonable for this state. The two-person limitation shall not apply to a child or children born to the tenants during the course of the lease.

22. 441.060.4 • 4. (1) Except as provided in subdivision (2) [dealing with mobile homes], the landlord or the tenant may terminate a month-to-month tenancy by a written notice given to the other party stating that the tenancy shall terminate upon a periodic rent-paying date not less than one month after the receipt of the notice.

23. Timing of Notice Important • Statute speaks in terms of months. • Rent due on 15th of month. • Notice given on 15 February to vacate on 15 March is valid on 15 March. • Notice given on 16 February is not effective

24. Right to Re-enter • 441.060.5. • If no stay is granted; and • If a writ of execution is delivered to the sheriff; and • If the sheriff does not deliver possession within seven days; then • Landlord may resort to self help within 60 days of judgment by: • Delivering copy of judgment to law enforcement officer • Entering the premises by breaking the locks; but • Only if this can be done without a breach of the peace.

25. Chapters 524 & 534

26. Chapter 524 • Ejectment • Designed to restore possession of land to person with superior right to possession. • Used more commonly in agricultural situations.

27. Chapter 534 • Unlawful Detainer • Designed to remove holdover tenant • Statutory process defined in 534.010 to 050 • Written demand required. • Jury trial permitted • Three years of possession is a bar to the action

28. Chapter 535

29. Chapter 535 • Action for Rent and Possession • Designed to eject tenant for failure to pay rent and give judgment for rent in one proceeding. • Tried in Associate Circuit Court under summary rules. • Lease controls re timing, but written lease not required.

30. Petition • Petition must be verified by affidavit. • Must state by whom the premises were leased or rented, and the terms of such lease or renting, and how such person claims title to the lands or tenements; • Loser has right to trial de novo • Loser must post bond to get stay of execution.

31. Full Payment Stops Action • If defendant brings into court full payment and costs, court must by statute stay the action.

32. The Golden Rule • As with much of life, in landlord tenant law the golden rule really means that the guy who has the gold, makes the rules.

33. Eviction

34. Eviction • Issue: what is causing the landlord to evict? • Problems: • Drugs • Failure to pay rent • Discrimination issues • Biggest Problem: Landlord tends to get the benefit of the doubt in Associate Court.

35. Assume • In most cases that there is a valid landlord-tenant relationship. • Assume the landlord has counsel. • If landlord is corporate, in most cases the procedural rules will have been followed.

36. Lease • Not every rental has a lease. Some landlords still rent on handshakes. • This can often complicate things. • If there is no lease in writing, then according to statute, the term is month-to-month.

37. If There Is A Lease • Do not assume that all parts of the lease are valid. • Restrictions on the number of children or on what family members may occupy the property are often void as in violation of the Human Rights Act and Equal Housing Act. • Note that 2 adult rule per bedroom is deemed reasonable by statute.

38. Eviction • Approach depends on whether there is a court action pending or whether the client has just received a notice posted on their home or apartment door. • If there is already a court action pending, then some avenues of help may already be foreclosed.

39. Get to the Heart of the Matter • In your first meeting, if the issue is the failure to pay rent, you have to determine if the client can or will be able to pay the rent. • If they cannot pay the rent, no matter how successful you are, over the long term, they are going to be evicted.

40. Short Term v Long Term • Even if you are able to defeat an eviction on technical grounds, you are likely not solving the long-term problem for the client. • In many cases the best practical advice you can give the client is to move out and save himself trouble down the road. • I always advise that there is no guarantee that I will be successful.

41. Rent & Poss v. Unlawful Det. • Landlord has option of bringing a rent and possession action if rent is due • If a R&P is filed, then the tenant can get a dismissal on the date of the hearing by bringing the rent up to date. (535.160) • In Unlawful Detainer, notice is different. Must be personally served on defendant or posted on property, and if so, can get double damages.

42. Eviction Requires Court Order • If a tenant complies with a 10 day notice to quit, and leaves, the landlord may occupy and relet. • If the tenant does not comply, the landlord may not simply throw his goods on the lawn and re-enter. • Landlord must get a court order. • Same applies under Chapter 441

43. Can’t change locks • Some landlords try to get around the re-entry by changing the locks and locking out the tenant. • Landlord has to get judgment first! • This also can’t be done without a court order. • If the landlord locks out the tenant in order to force him to move out, your client may have a conversion claim.

44. Trial De Novo • If you are contacted after the matter is heard in the associate circuit court, you should immediately file for trial de novo. • Tenant may have to post a bond to stay execution.

45. Lease controls • Many of the leases written and used in Cole County are form leases. • Some are annual leases that create a one year lease that fixes rent in a yearly amount and makes payments acceptable over 12 months. • Purpose of such a lease is to permit expanded damages for breach of lease.

46. Defending Tenants

47. Standard Contract Defenses • Unconscionability • Public policy • Chapter 407 • Mitigation of Damages

48. Handling the Client’s Problems • Meet with the client • Discern what the problem is. • Help the client identify the cause of the problem if possible. • Help the client work through the problem.

49. Client Interview • When working with clients who have landlord tenant issues, the client interview is the single most important thing you will do in the case. • Ask to see the lease. • Ask about people who know the facts; others you can talk to in order to verify the facts. • Get photos of conditions. • This is sad to say, but do not trust the client on the facts until you verify them.

50. Clients • Frequently do not have the money. • Frequently have not been blameless in getting themselves brought into court. • May have learned early on that telling you only half the story is likely to get you energized to do the right thing. • Some of these clients are manipulative.