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Representing Tenants Anthony L. DeWitt.

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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 Rent problems Habitability problems Eviction problems
Deposit 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 – 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 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
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
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 [unlawful activity] or [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 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

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 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 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
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 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 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. ( ) 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.

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 doesn’t want to stay.
They are willing to move, but are worried about their deposit; or They are willing to move but don’t want to give the landlord the satisfaction; or They have already found somewhere else to go.

54 Don’t Fight A Battle If you do not have to.
Sometimes you can negotiate with the landlord to forfeit the deposit to cover the last month’s 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 don’t 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 don’t 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 don’t 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 can’t 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 client’s “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 what’s 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 attorney’s 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, don’t pick fights you don’t 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 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 can’t 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 Don’t 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 doesn’t 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. Comm’n 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

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