There are two types of tenancies for the rental of property – written and oral. Oral agreements to rent property or a lease for the rental of property that does not specify a term is considered a month-to-month lease. In the event a tenant fails to pay rent when due or otherwise violates the provisions of a written lease, there are two types of actions that may be brought to regain possession of the property, Rent & Possession and Unlawful Detainer.
Rent & Possession
In the event the tenant defaults in the payment of rent, the landlord may sue for the rent due and possession of the property. The first requirement for bringing a Rent & Possession action is sending a notice and demand for the rent due to the tenant, however, no demand is necessary when rent is behind by six (6) months or more.
The next step is filing a Petition for Rent & Possession in the County in which the property is located. In the event the property is owned in the name of a company, an attorney is required to file the petition. The petition must describe the premises by address, set out the terms of the rental agreement, state the amount of rent that is actually due, allege that a demand for the rent has been made, and that the tenant failed to pay. The petition must be verified and sworn to in front of a Notary Public.
Once the petition is filed, the court sets a date for the initial hearing. This date is typically about a month from the date of filing. Service must then be made on the tenant, either personally or by posting a notice on the tenant’s door. Personal Service may be made by the Sheriff delivering a copy of the summons and petition to the defendant or person at defendant’s home over age 15. If the Sheriff is unable to find the tenant, service may be made by posting. However, in the event service is posted and the tenant does not show up in court, the landlord is entitled to possession of the property only on the court date, and will have to maintain a separate or further action to get a judgment for the rent due.
On or before the day of court, if the tenant pays the rent due, plus court costs, the action will be dismissed. If the Landlord accepts any of the rent due after the time the action was filed, his claim for possession is waived, but he can still go to court for his action for rent due at the time the action was brought.
There are several reasons a landlord’s case may be continued by the defense or dismissed all together. First, if the landlord asks for more rent than is actually due. Second, if the landlord asks for any damages in the petition besides the rent due and any late fees or charges set out in the written lease, except damage to the property. Additionally, the case may be dismissed if it is not brought in the correct name of the owner of the property, or if there are more than one owner and each owner is not named in the petition. Furthermore, a landlord cannot refuse to accept rent from the tenant when it is due, and then sue for rent & possession.
On the hearing date, if the tenant does not show up, the landlord can get a default judgment for possession of the property and the rent amounts due (if the tenant was personally served). In the event the tenant shows up, but is unable to pay the total judgment or otherwise wishes to make arrangements, the landlord may agree to enter into a Consent Judgment with the tenant. A consent judgment may provide that the tenant has additional time to move, additional time to pay or institute a payment plan. If the tenant keeps the agreements in the consent judgment, then the judgment of the court will not be entered against the tenant and will not be reported as a judgment on the tenant’s credit report. If the tenant fails to keep their agreement, then the landlord is entitled to an immediate judgment without having to go back to court. In the event the tenant shows up with no defense or the judge rules in the landlord’s favor, the tenant is granted 10 days to appeal the judgment in favor of the landlord. After this time period, arrangement may be made with the Sheriff to oversee the tenant’s eviction.
Unlawful Detainer
The basis for an Unlawful Detainer action is that the tenant remains in the property after the tenancy is terminated. This applies to tenants who “hold-over” or stay beyond the term of their rental agreement, whether because the agreement has ended by its terms, or the landlord has terminated the lease early for breach. A month-to-month lease may be ended by either party upon 30 days notice from the next rent due date. This notice is not required for a written lease with a set term.
If Tenant has breached the lease for non-payment of rent or any other reason, the lease may be cancelled and the tenancy terminated. In order to terminate the lease for breach, the landlord is required to give 10 days notice of the termination. Breach may be caused by the tenant assigning or transferring his interest in the lease without the written consent of landlord or violating any condition of the lease (including payment of rent) or committing waste (damages). The notice of the lease termination must be personally served on the tenant. If the tenant avoids personal service of the termination notice, notice can be posted on the residence or served on another adult member of the household (over 15).
There are specific requirements for the termination notice, so careful preparation and form must be followed for the termination to be valid. The notice must be by all owners of the property. The notice must be definite in its terms, and cannot be contingent on an event (using language like “the lease is terminated, unless…” can negate the termination). The termination must state the exact or precise amount due if it is for failure to pay rent. If the tenant rent is paid under the housing assistance payment contract, the termination must state the exact lease provision that has been breached, and given an opportunity to discuss.
If a proper termination notice has been made, the landlord may accept rent prior to the court date without forfeiting his action, however, if rent is accepted after the breach of the lease but before the termination notice is given, the right to cancel the lease is waived. Keep in mind that if the lease is terminated, there is no lease from that date forward, and any special lease provisions may not apply, such as late fees from the termination date forward.
The filing of the petition (and its contents), the service of process for filing an Unlawful Detainer action and the court process are very similar to the Rent & Possession action. One difference is that the landlord is entitled to double the rent amount for any time the tenant remains in the property after the lease termination date.
Security Deposits
A security deposit charged to a tenant may not exceed two months rent. The tenant must be given notice of a final inspection of the property within a reasonable amount of time. Within thirty (30) days of the lease termination (or tenant move-out if they are a hold over), the landlord must return the security deposit or furnish the tenant a written itemized list of the items being charged to the deposit, along with the balance of the deposit, if any. Items that may be held from the security deposit include unpaid rent, damage to the property (except ordinary wear and tear), and any costs for the tenant terminating the lease early, although the landlord is required to mitigate these damages. In the event the landlord fails to return the proper amount of the deposit, the landlord is liable to the tenant for double the deposit amount improperly withheld.
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Jennifer A. Coke, Attorney at Law, at The Coke Law Firm in St. Louis, MO, serves clients throughout St. Louis City and St. Louis County including Tower Grove, the Central West End, the Loop, and cities of Chesterfield, Creve Coeur, West Port, Ballwin, Kirkwood, Shrewsbury, Glendale, Clayton, Brentwood, University City, Sunset Hills, Webster Groves, Town & Country and many other local municipalities in Missouri.
The Coke Law Firm
Jennifer A. Coke, Attorney at Law
