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. Probst 922 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 RP 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
Cant 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 cant 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 Clients 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.

51
However

• Some of these clients are also victims.
• They have less-than-perfect credit.
• Could not afford better housing
• Were taken advantage of by their landlord
• And have suffered as a result.
• These cases must be investigated by going to the
  property and investigating the premises.

52
Rent and Possession Actions

• My approach
• First, have a real nuts-and-bolts conversation
  with the client.
• Do they really want to stay?
• Do they really want to fight the change of
  possession?
• If they do, then the first approach is to see if
  they can come up with the rent, tender the rent,
  and dismiss the action.

53
Most of the Time

• The client doesnt want to stay.
• They are willing to move, but are worried about
  their deposit or
• They are willing to move but dont want to give
  the landlord the satisfaction or
• They have already found somewhere else to go.

54
Dont Fight A Battle

• If you do not have to.
• Sometimes you can negotiate with the landlord to
  forfeit the deposit to cover the last months
  rent.
• You can tender partial payment in exchange for
  leaving the premises early.

55
On The Other Side

• Landlord sees a problem client.
• Either the rent is late, or other renters are
  complaining about your client.
• They just want peace they dont want to fight a
  pitched battle with an attorney.
• Often you can help both landlord and tenant
  simply by finding a way to make the problem go
  away.

56
Legitimate Dispute

• Sometimes there is a legitimate dispute over
  whether rent was paid.
• Sometimes clients pay in cash and dont get a
  receipt.
• There are a variety of situations where your
  client may have a legitimate claim that they are
  in lawful possession.
• These cases you just have to try.

57
Other times

• The landlord has engaged in conduct that violates
  the law, like forcing your client to split the
  electric bill for a duplex with the other renter
  so they dont have to put in a second service.
• They have increased the rent without following
  the procedure set out in the lease.

58
Defenses

• You can defend under the lease by showing that
  the landlord has breached a term of the lease or
  one of the implied covenants.
• You can show a legitimate dispute exists as to
  the amount of rent due.

59
But Generally

• The best approach is to help your client make the
  decision to vacate the premises and find other
  housing.
• Sometimes you may have to send the client to
  churches or other agencies to obtain help with
  finances, etc.

60
Constructive Eviction

• Cutting off utilities.
• Cutting off heat.
• Removing appliances.
• Not fixing plumbing issues
• Any material change in the condition of the
  premises that would make a reasonable person want
  to move out.

61
Discrimination

• Racial, sexual, gender, and religious
  discrimination are alive and well.
• Although our country has come far, it has not
  come far enough.
• Always consider a claim under the MHRA if the
  client is being treated differently that clients
  of another race, creed or gender.

62
Habitability Issues

• In every lease of residential premises there is
  an implied covenant of habitability.
• The covenant essentially requires the landlord to
  keep the premises habitable.
• If the landlord breaches the covenant, the tenant
  has remedies under the covenant.

63
Typical Habitability Issues

• Plumbing
• Sewage
• Heat
• Air Conditioning
• Electrical Service
• Water
• Vermin
• Other Tenants

64
Key Issues

• Your client cant have created the problem (the
  rental property must be clean and well-kept).
• Your client must be adversely affected by the
  change in condition of the property.
• You must show that the change in condition of the
  property has the effect of making the premises
  unfit for habitation or that they have been
  constructively evicted.

65
Approaches

• Repair and deduct.
• Cost of remedies
• Sue for breach of contract under the lease or
  rental agreement.
• Sue under Chapter 407
• Goal trigger Landlord Protector insurance
  policy if one exists.

66
May Have To Explain

• You may have to explain to the landlord that they
  have insurance coverage.
• This will often get you an opposing lawyer, with
  whom you can negotiate a better resolution.
• If landlord defends action personally make sure
  to issue discovery including request for
  admissions.
• Make sure defendant identifies any insurance
  coverage, and if so, that you put the insurer on
  notice if the landlord has not.

67
Covenant of Quiet Enjoyment

• Some landlords are busybodies.
• They make frequent inspections at unreasonable
  times.
• They interfere with the clients quiet
  enjoyment of the premises.
• Like a breach of the Warranty of Habitability,
  the breach of the covenant of quiet enjoyment can
  bring a damages remedy.

68
Corp v. Individual

• Corporate landlords tend to be very reasonable.
• Individual landlords often do not have any
  knowledge of the law other than whats contained
  in their lease.
• If you have to bring a lawsuit, make sure you
  name any property management agency that is
  involved.

69
Evictions

• An Eviction differs from rent and possession in
  that usually the eviction relates to a rule
  violation as opposed to a failure to pay rent.
• Normally this is a situation where the renter has
  caused problems, or a family member has caused
  problems.
• Clients with a family member arrested for drug
  sales or possession may often be legally evicted
  even if this is a mask for racism.

70
Approach

• Is the rule, regulation, or lease provision
  clear.
• If not clear, ambiguity is construed against the
  drafter.
• If the rule is clear, is it lawful? Look for
  limitations on family size, number of children,
  etc.
• Keep in mind that a landlord cannot violate the
  Fair Housing Statutes or discriminate on the
  basis of sex, age, race, national origin, etc.

71
Standard Contract Defenses

• Waiver?
• Unconscionability? (components of procedural and
  substantive unconscionability must be present).
• Detrimental reliance?
• Discriminatory enforcement (enforcing against
  only persons of color, women, Hispanics, etc.)

72
An Observation

• Most landlords just want a paying tenant in their
  property.
• This is especially true in this economic client.
• They do no want to have to pay a lawyer.
• The more vigorously you defend, the more likely
  the landlord is to be willing to negotiate.
• But beware if the landlord has an attorneys
  fee provision in the lease, you could cost your
  client money that they likely do not have.

73
What Does the Client Want?

• Key at the beginning will be to figure out if
  your client really wants to stay there.
• Again, dont pick fights you dont need to pick.

74
Getting Back The Deposit

• When the Landlord steals from the Tenant

75
Deposit Problems

• Lots of times a landlord will keep a deposit that
  they really should not keep.
• Many have never read the statute that requires
  them to send a notice to the client regarding the
  deposit.

76
535.300 RSMo.

• 2. Within thirty days after the date of
  termination of the tenancy, the landlord shall
• (1) Return the full amount of the security
  deposit or
• (2) Furnish to the tenant a written itemized list
  of the damages for which the security deposit or
  any portion thereof is withheld, along with the
  balance of the security deposit. The landlord
  shall have complied with this subsection by
  mailing such statement and any payment to the
  last known address of the tenant.

77
May Withhold

• 3. The landlord may withhold from the security
  deposit only such amounts as are reasonably
  necessary for the following reasons
• (1) To remedy a tenant's default in the payment
  of rent due to the landlord, pursuant to the
  rental agreement
• (2) To restore the dwelling unit to its condition
  at the commencement of the tenancy, ordinary wear
  and tear excepted or
• (3) To compensate the landlord for actual damages
  sustained as a result of the tenant's failure to
  give adequate notice to terminate the tenancy
  pursuant to law or the rental agreement provided
  that the landlord makes reasonable efforts to
  mitigate damages.

78
Right to Inspect

• 4. The landlord shall give the tenant or his
  representative reasonable notice in writing at
  his last known address or in person of the date
  and time when the landlord will inspect the
  dwelling unit following the termination of the
  rental agreement to determine the amount of the
  security deposit to be withheld, and the
  inspection shall be held at a reasonable time.
  The tenant shall have the right to be present at
  the inspection of the dwelling unit at the time
  and date scheduled by the landlord.

79
Remedy

• 5. If the landlord wrongfully withholds all or
  any portion of the security deposit in violation
  of this section, the tenant shall recover as
  damages not more than twice the amount wrongfully
  withheld.

80
Process

• Must give notice of right to inspect property in
  writing.
• Within 30 days of the termination of the tenancy,
  must refund the deposit.
• If the notice is not given, or the 30 day rule is
  violated, the statute says the deposit cant be
  withheld.

81
Usually

• Corporate landlords have this built into their
  process.
• Mom Pop operations usually do not.
• Corporate landlords have standard charges for
  standard problems (like holes in walls, etc.)
• Mom Pop operations may just charge outrageous
  amounts.

82
Key is Reasonable

• If notice and list are provided, key is
  reasonableness of the charges.
• If rent is taken out, mitigation of damages
  applies.
• Did landlord advertise?
• Did landlord refuse to rent to other prospects?

83
When the Pieces Dont Fit
84
Hundreds of Variations

• The above tries to cover the most common types of
  landlord-tenant issues.
• If you have a landlord-tenant issue that doesnt
  fit neatly into these pigeon-holes, then here is
  an approach to use.

85
Step 1

• Meet with the client
• Figure out what the client wants.
• Try to fashion a remedy early on by negotiation
  if at all possible.
• If not possible, and your client has been sued,
  move to step 2

86
Step 2

• Read the petition
• Determine which RSMO chapter is being invoked.
• Go to Missouri Practice or Westlaw and make sure
  that the proper procedure has been invoked.
• Especially check notice dates. Landlords often
  never meet these notice dates.
• If landlord has not followed procedure, move to
  dismiss with a fully-briefed motion and
  suggestions. Notice it up and argue it.

87
Step 3

• If necessary, try the case. Landlords have
  burden of proof and often have no idea how to get
  evidence in.
• Make sure you make a record, and make sure that
  you make proper objections. Trial de novo in the
  circuit court favors your position.
• Even if you do not win, you will have done a
  wonderful thing for your client.

88
Never Fail to Negotiate

• At every step of the way, be open to negotiation.
• Be pleasant and professional with the landlord
  even if they are jerks to you. It often pays
  dividends in the end.
• Keep in mind that if you have a conversation with
  a landlord, that you should make a memo to the
  file. In every conversation with an
  unrepresented landlord, make sure you explain
  that you represent the tenant and that you make a
  record of this disclaimer for ethical reasons.

89
Miscellaneous

• Counterclaims are effective ways of dealing with
  the rent and possession and eviction cases.
• Sometimes judges do not like them very much.
• Seems to be some antagonism toward renters and
  debtors in certain courts.
• Keep in mind that if there is any racial or
  gender issues, that you need to get the client to
  the Mo. Commn on Human Rights (MCHR) as soon as
  possible. May require a stay

90
Remember to Consider

• All contract defenses.
• Chapter 407
• Breach of Covenant of Good Faith and Fair Dealing

91
Another Misc. Fact

• Corporations need counsel
• Sometimes landlords organize their property in an
  LLC and attempt to bring their rent and
  possession actions in the name of the
  corporation.
• If they attempt to represent the corporation,
  that is the unauthorized practice of law.Joseph
  Sansone Co. v. Bay View Golf Course,97 S.W.3d
  531, Mo.App. E.D., February 11, 2003 (NO.
  ED81959)
• While such representation is permitted in Small
  Claims Court, it should not be permitted in
  Assoc. or Circuit.

92
Effect

• The general rule is that a corporation may not
  represent itself in legal matters, and must act
  through licensed attorneys. Reed v. Labor and
  Indus. Relations Comm'n, 789 S.W.2d 19, 21
  (Mo.banc 1990).
• The normal effect of a representative's
  unauthorized practice of law is to dismiss the
  cause or treat the particular actions taken by
  the representative as a nullity. Strong v.
  Gilster Mary Lee Corp., 23 S.W.3d 234, 241
  (Mo.App. E.D.2000) Joseph Sansone Co. v. Bay
  View Golf Course, 97 S.W.3d 531, 532 (Mo.App.
  E.D.2003).Schenberg v. Bitzmart, Inc.  178 S.W.3d
  543, 544 (Mo.App. E.D.,2005)

93
The End