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Representing Tenants

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Anthony L. DeWitt 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 ... – PowerPoint PPT presentation

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Title: 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
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