In Missouri, Landlord & Tenant law usually refers to one of two types of eviction cases: (1) Rent & Possession and (2) Unlawful Detainer.
(1) Rent & Possession and (2) Unlawful Detainer.
To be sure, many other types of lawsuits or causes of action exist, including also for the landlord Breach of Lease, basically a Breach of Contract, as well as actions for Ejectment and Abandonment. The two numbered above tend to be the most common. On the Tenant’s side of things, suit can be brought for a myriad of reasons, though it is far less common. This may be in part because Tenants are on the average less able to handle the financial cost of bringing suit, but also because, in the cold harsh light of day, properties full of problems tend to be concentrated in areas where lower-income tenants tend to live. Problem properties and problem landlords, often “slumlords”, operate where Tenants often have neither the money to hire counsel, nor the time to file suit on their own (which is referred to as pro se).
Landlord brings suit for Rent & Possession or Unlawful Detainer.
A Rent & Possession action is quite simple. The Landlord is saying: “I want my rent you owe, and I want my property back.” The Landlord can file suit pro se, or hire an attorney. The Chase Law Firm PC handles many such cases for landlords, in St. Louis City, St. Louis County, St. Charles and Jefferson County. These cases are rather simple ones, and generally follow a format that makes them all look rather similar:
- I am the Landlord.
- He is the Tenant.
- We have a Lease (attached as exhibit) [do not worry if lease is lost or there was no lease]
- The Lease calls for rent of $100 per month.
- Tenant failed to pay for the last 2 months and owes $200 plus late fees for a total of $220.
- The Lease has a provision for Tenant to pay Landlord’s legal fees.
- Landlord asks the court to award $220 plus legal fees, filing fees and possession of the premises. Other items that may be asked for include things like penalties for overstaying the expiration of a lease, which Missouri law permits double rent, and more.
An Unlawful Detainer action is even more simple (though can prove more time consuming in court).
The Landlord or Owner simply says: “I want you out and I want my property back.” The Landlord or a new Owner subsequent to a sale (in certain cases) or foreclosure (with proper notice) can file suit pro se, or hire an attorney, as above. These cases are similar to Rent & Possession, stating:
- I am the Landlord (or Owner, etc.)
- He is the Tenant (or Squatter, etc.)
- We have one of the following:
- Tenant/Landlord relationship, which has been violated by Tenant in such-and-such myriad ways; or
- A Tenant/Landlord relationship, which ended upon expiration of the lease, and Tenant has not left as required; or
- A relationship created when I foreclosed upon the property with proper notice; or
- Several other possible scenarios – you get the picture, likely.
- I want Tenant out.
- The Lease has a provision for Tenant to pay Landlord’s legal fees.
- Landlord asks the court to award legal fees, filing fees and possession of the premises.
In an Unlawful Detainer action, one can certainly demand rent, late fees, and the like, but there are reasons to file Rent & Possession and reasons to file Unlawful Detainer, and often they do not overlap.
Primarily, the one reason a Landlord or his attorney might shy away from a Rent & Possession action is the following: Tenants can win a Rent & Possession lawsuit quite simply and it is a guarantee, he merely needs to come to court either on the day of trial or on a call docket date prior (see below for explanations of these dates) with the full amount owed to landlord on the date he is paying. Note that this may be a higher amount that the amount pled in the original petition, since we may be into the next month’s rent, owe additional late fees, etc.
On the plus side for Rent & Possession, though, is that Missouri law requires the case to be heard at the first available date. (This can vary, as described below.) In contrast, an Unlawful Detainer suit is one in which the Landlord is asking the Court to evict the Tenant, regardless of whether money is owed or not. The Landlord is stating: “I want him gone. Period.” Rent can be asked for but the rent can be paid in full and on time and the suit for Unlawful Detainer can still go forward.
What is the timeline for the usual eviction suit?
The time frame for the process can differ from county to county, and even from judge to judge within each county, however the steps required to be taken are the same: Filing, then Service of Process, prior to the first Call Docket in court, then finally Trial. Once that is done you can proceed with the physical eviction by Execution of the Judgment from Trial. Filing of Petition: Landlord files suit with the Clerk of the Court. This can also mean your attorney filing suit for you. Many courts, including St. Charles, St. Louis City and Jefferson County, but not yet St. Louis County, have fully implemented electronic filing through CaseNet, which many Missourians are passingly familiar with. In St. Louis County and certain other counties, lawyers or parties must still bring paperwork physically in to the court clerk and get them stamped in.
One must file several documents
When filing suit for Rent & Possession or Unlawful Detainer one must file several documents: Affidavit and Petition – this is the actual “lawsuit” itself, sometimes called in other states a “complaint.” In Missouri this is always referred to as a Petition, and there will be at the bottom an affidavit for the Landlord or his agent to sign with a notary. (Do not forget the notarization, or else this can be fatal to your case.) Exhibit A is normally the Lease Other Exhibits may be relevant letters, evidence, spreadsheets showing amounts owed, etc. Civil Information Cover Sheet – these tend to differ a bit from county to county, though some use a state-wide form. It has all the pertinent case information and is available from the Clerk. In some counties, including notably St. Louis City, a separate filing titled Non-Military Affidavit must be submitted, swearing that – to the best of Landlord’s knowledge, Tenant is not a member of the US Armed Forces. Contact counsel if you are evicting an active-duty member, but it tends to be rare.
Serving the Petition on the Tenant
If you are concerned about the difficulty of serving the Petition on the Tenant, you should consider a private Special Process Server, in which case you will need a Motion for Appointment of Special Process Server. Each county seems to have their own form for this, and St. Louis County still requires one fill out a 3-page NCR (carbonless) form by hand, though once electronic filing is implemented that is likely to change. Preparation of Notice and Summons by Clerk: Once you have filed the paperwork, you will then have to wait for the Court Clerk to prepare the Notice and Summons, which will indicate the first court date for the Call Docket, as well as which Division at that Circuit Court, and the judge assigned. In St. Louis County one normally waits some days – even a week or more – before this comes back with a case number, court date and division.
In courts with electronic filing, the paperwork is often processed within a day or two and everything is uploaded to CaseNet for the filing attorney to download. Delivery to Sheriff or Server: The full file from Landlord, along with the Notice and Summons prepared by the Clerk, must be delivered either by the Clerk to the Sheriff for Service of Process, or if you’ve filed a Motion for Appointment of Special Process Server, by the Clerk to you, then from you to the Special Process Server for Service of Process.
Service of Process: No later than four days before the Call Docket Date the Process Server or Sheriff must serve the Defendant Tenant personally, or any person at his residence over 15 years old, or he can serve Defendant at his workplace. It is important to successfully get such personal Service, or else Landlord cannot obtain a Judgment from the court for money damages. If personal service is not possible, the Sheriff or Special Process Server may Post the Notice and Summons and the rest of the file. If the case is in Unlawful Detainer, there is an additional filing required, indicating that they first tried personal service and failed, then posted, but for Rent & Possession either one is fine. Posting is sufficient to get eviction, but to reiterate: for a money judgment you must get personal service. Certainty on this is often worth the slight additional cost of Special Process. The Sheriff or Server’s Return of Service must be filed with the Court.
The Call Docket Date is required by law to be “the first available court date,”
The Call Docket Date is, as indicated above, required by law to be “the first available court date,” but that can be anywhere from 3-6 weeks from the date of filing, depending on how busy the Associate Circuit Court Docket is. On this date, the Landlord need not appear if he is represented by counsel. The cases on that morning’s docket are all called, and parties indicate whether or not they are in court.
For a Landlord, there are two possibilities: either Tenant fails to appear, or he or his attorney appears. (If he sends a friend or relative, who is not an attorney, it is the same as if he simply fails to appear.) If Tenant fails to appear: This is the easier outcome of course for Landlord. Landlord or his attorney will ask the Court to rule Tenant in Default, and Order a Default Judgment. Usually, this will mean the Court will order pretty much everything that Landlord has demanded in his Petition, though the judge will certainly go through the Petition and the Lease (if attached,) and confirm that things are copacetic. The judge will also confirm that the Return of Service is timely and filed. Once Default Judgment is Ordered, the next step is Wait before Execution in Paragraph 7 below.
If Tenant or his attorney appears: Sometimes at this point a settlement can be reached. It is often and correctly said that an overwhelming majority of lawsuits are settled without trial, but that is not quite the case in eviction suits. Many – perhaps most – are default judgments, and of those that go to trial, most actually go through a full trial, which is often a quick and predictable process. Some do, of course, settle, and for a Consent Judgment in Tenant/Landlord Case, there is usually a form available at the Court, where one plugs in the agreed-upon dollar amount of judgment, often with the ‘total’ amount owed as the judgment, but a lesser -negotiated- amount and payment terms as a contingent deal, whereby the judgment is not executed if the terms of the negotiated settlement is adhered to by the parties. A date for Tenant to vacate the premises is also usually part of such a Consent Judgment.
If a settlement is not reached between the parties, they can set the matter for Trial Date. Depending upon the judge and the division, this can be as soon as one week after the Call Docket, but sometimes as much as an additional month later! For the Landlord, eager to get back possession of the property, this is now becoming a two-month process from filing to trial. Irritating but sometimes unavoidable. However, a diligent attorney can sometimes shave days or weeks off this time frame, but only sometimes.
Trial Date: Assuming the parties all appear, the matter will be heard by the judge.
(If the Tenant misses court, a Default Judgment described above can and likely will be ordered.) In a Rent & Possession, it can normally only be heard by the judge, but a jury may be requested (with a cost to the requesting party) in a de novo of the Rent & Possession or in an Unlawful Detainer case. (This is not often done.)
The details of how a trial works are too numerous to cover here, but suffice it to say that one is generally better served if (a) he is represented by knowledgeable counsel, (b) comes with all evidence in a well-organized binder, (c) has witnesses and others as necessary to present his case, and (d) avoids getting bogged down in irrelevancies. If the suit is in Rent & Possession, the trial is – though hardly perfunctory – generally a sure thing if rent has not been paid and Tenant fails to bring such rent to court. Eviction and judgment for money damages is nearly certain, and there is not much Tenant can do to defend himself. If the suit is for Unlawful Detainer, it will be a bit less cut-and-dried, but the law and courts tend to favor the Landlord. At the conclusion of Trial, the Court will issue its Judgment, which will normally order Possession of the Premises for Landlord, and Money Judgment for past due rent, late fees, filing fees and, if contractually required by the Lease, attorney’s fees.
10-day waiting period before Execution of the Judgment for Possession of the Premises.
Wait before Execution: With Rent & Possession suits, there is a 10-day waiting period before Execution of the Judgment for Possession of the Premises. This used to be the period to file a Trial de Novo application, which many Missourians are familiar with. Trial de Novo is no longer an option for eviction suits, and the way the law was written and took effect in late August of 2014, it is unclear whether Unlawful Detainer suits still have a ten-day wait for filing the Writ of Execution for Possession, or if there is now a 30-day wait to allow for filing a Notice of Intent to Appeal. For now, until the legislature clarifies things, we are operating on the same 10-day assumption, though this may be slapped down by a trial court at some point this year. (Such is what happens when legislators do a sloppy job of amending laws.)
Execution of Judgment for Possession:
Once the ten-day period (or 30-day period if that is the ultimate wait period for Unlawful Detainers) has concluded, Landlord or his attorney can bring a copy of the Judgment from the Trial Court to the Sheriff for Execution of Possession of the Premises. Sheriffs vary from county to county, but one should expect actual physical eviction to happen between one day and as much as a week or more. There may be a small fee associated with this Execution payable to the Sheriff. Also, depending on the County, the Sheriff may require Landlord to send two or three men and a truck to haul the contents away to a dump, etc. There is a law in the City of St. Louis that placing Tenant’s belongings on the curb constitutes littering – be wary of this in the City and elsewhere as time goes on. You now, finally, have possession of your Premises. Bring in your locksmith and change the locks. Now that you have a vacant property, be sure to secure it well and consider the cost of an alarm, because vacant properties attract thieves and vagrants.
Landlords are often under the misconception that they must send a “pay or quit” letter prior to filing suit. Under Missouri law, the Notice and Summons and Petition act as sufficient notice to satisfy such requirements, in a Rent & Possession suit. Landlords who come from other states, particularly states such as New York and California where the law and the courts are enormously biased in favor of tenants, are used to a system where the clear language of the lease may not be enforced and tenants can drag out evictions for months or sometimes years, causing enormous damages to the landlords.
(In an Unlawful Detainer action, notice that they must leave is required, but specifics vary according to the circumstances. For example, if a foreclosure property is bought at auction, the new owner’s suit for Unlawful Detainer can reference the notice given by the foreclosing bank’s attorneys. Speak to your attorney about your case’s specific requirements.) If a landlord believes his tenant has abandoned the property, the courts may be able to be avoided. Such Abandonment action requires posting, mailing and certified mailing of a letter with specific content. If the tenant fails to respond timely and in writing, the landlord may take back the property without going through the time-consuming process of litigation.
Some problems landlords encounter in the eviction process may be avoidable with well-drafted leases and other preparation in advance. Keep in mind also that federal law requires a lead paint pamphlet be delivered by the landlord to every tenant, and that a disclosure must be signed related to that, even on lease renewal. A last important consideration relates to possible litigation with your tenant. It is always advisable to have photos of the condition of the premises throughout, dated the date of move-in or immediately prior. This way, down the road, when the tenant is arguing that x, y & z were defective or damaged prior to move-in, and they have photos alleging that, your photos before, along with photos you would take at the move-out inspection, will greatly assist the Court in coming to the right decision.