Legal Tips
These legal tips have been written by
Attorney Katharyn B. Davis, a graduate of the Washington University School
of Law and a member of the law firm Katharyn B. Davis L.L.C. She
practices in the area of landlord representation, foreclosure, real estate
and creditor’s rights. Her office is located in Richmond Heights, Missouri.
Click anywhere in the Table of Contents to go directly to a section.
Table of
Contents
INTRODUCTION
AVOIDING
PROBLEMS
Screening
Tenant Information
Security Deposits
RENT AND POSSESSION
The Rent Must be Due
Demand Must be Made
A Landlord Tenant
Relationship Must Exist
Tenant May Pay and Stay
IN COURT
Affidavit Type Suit
Post and Serve
Court Date
Trials, Trials de Novo and
Appeals
Counterclaims and
Affirmative Defenses
UNLAWFUL DETAINER
Landlord/Tenant Relationship
Termination of Said
Relationship
Suit-Service
Court Dates
Counterclaims
Double Rent/Double Damages
EXECUTING ON JUDGMENTS
Landlord Execution
Abandonment
COLLECTING
Early Screening
Security Deposit Resolution
Tracing
Garnishments
Conclusion
INTRODUCTION
Sometimes I feel like answering questions about what I do for a living is in the nature of a confession. My name is Kathie Davis and I represent landlords for a living. When did providing housing for other humans become such a reviled occupation? Maybe about the same time being a lawyer did.
I see being a lawyer as helping people. Landlords see renting property as helping people too. Despite the Snidely Whiplash stereotype, most landlords I know genuinely want to give people a place to live. They are honestly disturbed by having to evict someone, and the number two reason why a landlord will evict someone is because that someone is disturbing the neighbors or other tenants. The number one reason, of course, is failure to pay the rent, which impinges on the landlord’s financial ability to continue providing housing for people.
Enforcing the rights of landlords is, for me, a helping occupation. I do see humor in what I do - often very black humor. I enjoy my clients. I enjoy the thrill of battle in the courts and the satisfaction of a job well done, and most of all I enjoy making a living doing something I (most of the time anyway) love.
Here again is an updated version of my handbook for landlords. I hope you enjoy it. Of course, the topics discussed here are general in nature and you should consult an attorney about any specific situation.
AVOIDING PROBLEMS
Screening
Before you get in the position where you have to call your lawyer and get the bad news about how long it takes to evict someone, consider how you got in this position. Did you screen the tenant effectively before renting to him? Did you take an application; run a credit check get a copy of his driver’s license and Social Security card? Did you call his last two landlords? The most recent landlord might tell you anything to get rid of the guy, but the one before might give you the real story. Screening tenants is very important. First, you are handing over your apartment, or house, or office space, an asset worth potentially thousands or tens of thousands of dollars. You need to know something about the person you are handing this asset to. Would you give thousands of dollars in cash to a complete stranger? Of course not.
I know many landlords don’t do a good screening because I evict the same tenants over and over again for different properties. Someone is not checking with the courts to see if prior eviction suits have been filed.
What information should you get from a prospective tenant? Well, we live in an information age, where there are many databases available on the Internet. Most require some basic information like a Social Security number, date of birth, and the exact spelling of the name to start. IF you are considering renting to a tenant who does not have their SSN on their driver’s license, get it anyway. Ask for a copy of their tax return. Get something with their SSN on it.
If you are buying a building make it a condition of the sale that you get tenant information in addition to the rent roll. The value of the rents just went way down if you have no information on them. Every year that you retain a tenant, whether or not you operate on yearly lease renewals, get updated emergency information form them including job information. You need this information anyway in case there is an emergency. Plus, if they move out and leave damages, you will be able to track them down and collect from them.
Tenants are crafty and get craftier as landlords get more careful. If you don’t screen well you will end up with the tenants the other landlords rejected through an effective screening. Don’t just accept their word they have a job. Look up the employer the Yellow Pages or dive by to make sure it really exists, and is not just their cousin Joe waiting by the phone answering “Joe’s Garage” for any reference checkers. If you have any doubts, ask to see their tax returns.
Prior landlords are key here. If you have someone over the age of twenty-five who says they have been living with their parents their whole lives, don’t believe it unless that can recite the plot lines from all the original Star Trek episodes. Run a credit check. Use a screening service. Call the past two landlords, at least. And if you still have any doubts, require guarantees and larger security deposits.
Under Missouri law you may demand up to two months rent in advance as a security deposit. You may also demand additional amounts as a pet deposit. I can tell you that pet damage and pet problems are big hassles for landlords, so do not hesitate to demand money for pets, or refuse them altogether.
Security deposits do not need to be held in escrow in Missouri. They do have to be accounted for after the tenant moves. We will discuss that in a later part of this handbook.
Even if you do a good job of screening you will still have problem tenants. A good job screening will eliminate some of the obvious problems and help you immensely in collecting from the others. You will eventually need to avail yourself of the services of the court for an eviction or collection action.
RENT AND POSSESSION
The most common
sort of eviction action is called a rent and possession. This arises when
the tenant has failed to pay rent. In our consumer-oriented society
failure to pay rent is very common, even from people who are gainfully
employed. Many people have no idea how to budget and prioritize their
spending. They buy consumer goods and run up their credit cards without
paying for their basic necessities, like housing. When a tenant has
failed to pay rent the landlord should act swiftly in pursuing a rent and
possession action, lest the tenant get so far behind he will never catch
up. The requirements to bring a rent and possession action are simple.
There is no specified period of time by law the landlord must wait. The rent just must be due. Some leases, particularly commercial ones, have clauses that require notice and cure periods. Once your lease has been complied with and the rent is due you may begin rent and possession. I recommend my clients wait no longer than thirty days before beginning.
The rent must be demanded from the tenant. Any kind of like notice satisfies this requirement. It is a good idea to get in the habit of sending tenants bills every month. This will satisfy the requirement that demand be made. You do not need to do a “notice to pay the rent or quit” although they do no harm. Do not give the tenant any kind of notice that gives them thirty days to pay, however. This just trains them to be thirty days late all the time.
A Landlord Tenant Relationship Must Exist
You cannot use a
rent and possession action to remove someone who is not a tenant. Tenancy
implies a rent paying relationship or some specific agreement that there
is a tenancy. Giving a friend a place to stay in your empty unit may come
back to haunt you. You will not be able to use a rent and possession
action to evict a non-tenant.
A rent and possession action is defeated by the payment of rent by the tenant. Before you begin this sort of lawsuit ask yourself if you care if the tenant stays and pays. By paying all the rent due plus the court costs prior to an eviction the tenant may stay.
The rent and possession is an affidavit type lawsuit, which means it follows a particular format and must be notarized. Most courts have blank rent and possession forms a landlord may complete and have notarized that follow the required format. Multiple copies must be filed, and some courts will not accept personal checks for filing fees.
There are two basic types of service available in a rent and possession action, posting and personal service. Ask to have both attempted when filing. Posting service means the sheriff or special process server mails the petition by certified mail and posts it on the door of the unit. This confers in rem jurisdiction on the court, a fancy term meaning that with posting service all you can get is a judgment for possession of the premises. We always try for at least this type of service because we like to at least get the landlord’s property back, even if we don’t collect money the first time out. We can always come back and sue for money later.
Personal service is a tag-you’re it service. It means that the sheriff or special process server has personally handed the petition to the tenant or a member of the household over the age of fifteen. There are also certain other ways to get personal service like reading the petition to someone who won’t answer the door, etc. Personal service confers in personam jurisdiction on the court, which means you can get a judgment for rent and costs as well as possession. Many tenants duck service, move without telling you, or otherwise make themselves unavailable for personal service. This is why we ask for post and service.
When a rent and possession is filed in the City of St. Louis a court date is immediately set. Pro se landlords (ones without attorneys) are given dates on Fridays. Attorneys get other days of the week. Most of us have regular days.
Other counties take a little longer. Right now, as I write this in February 2001, St. Louis County is taking a very long time to assign court dates. Rent and possession actions are supposed to get a docket preference, but that is often honored only in the breach.
Ideally the first court date will be about four weeks after filing. If an attorney represents you, you do not need to appear, unless your attorney directs you otherwise. It is good to get to court early. I get there about an hour before court and check to see what kind of service I have - posting or personal - and that all my files are there, and I talk to the defendants who show up.
Some defendants do show up for the court date, and are willing to enter into a consent judgment giving them a period of time (usually ten days) to pay or move. If you only have posting service and defendant shows up, you now have personal jurisdiction and can get a money judgment. Some don’t show up, and a default judgment may be taken. This also gives the tenant ten days to pay or move. A small handful of defendants show up and refuse to enter into any agreement. These are set for trial and that trial is speedy. Usually a rent and possession trial is set one week after the original court date.
Trials, Trials de Novo and Appeals
Rent and possession trials generally are short and sweet. The only real defense the tenant has is whether they have paid the rent. Some tenants will argue that the condition of the premises has caused them to withhold the rent. A tenant may not ordinarily do this unless the tenant has escrowed rent in custodia legis, or in the registry of the court. Many judges will allow the tenant to argue the condition of the premises anyway. Some judges will knock some money off the rent if the tenant complains enough. In my experience most bad conditions are caused by the tenants – not the landlord’s failure to repair, and it is a shame the judges will often let them out of paying some of their rent with this sort of defense.
Once a judgment has been rendered in rent and possession the landlord may execute. However, the tenant has the right to a trial de novo and may stay execution provided the tenant posts bond. The bond should be in the amount of rent and costs that are due plus additional rent that will become due before the trial de novo (new trial) is heard. The tenant has only ten days from the date of the original trial to file for a trial de novo. If you, the landlord, lose the initial trial, immediately hire an attorney to file the trial de novo.
A trial de novo may be appealed to the court of appeals. This rarely happens and again will involve a bond being posted if the tenant wants to stay in possession. Appeals are highly technical in nature and are best left to attorneys.
Counterclaims and Affirmative Defenses
Counterclaims are claims the tenant files against the landlord either as a defense to the non-payment or as a separate sort of claim, like a slip and fall or a lead paint claim. Notify your insurance company at once if you get one of those sorts of claims. A slip and fall type counterclaim should be severed from the rent claim and the rent and possession claim allowed to proceed immediately.
Affirmative defenses are written reasons filed with the court why the tenant has a defense to the rent and possession. An example of an affirmative defense would be that the tenant has already paid the rent. Or, that the rent is not due for another reason, like work was done in trade. Finally, an affirmative defense can be, as discussed above, the breach of implied warranty of habitability defense, that conditions in the leased premises are so bad they are uninhabitable and therefore no rent should be due. In order to raise this defense the tenant should pay the rent due into the registry of the court, thus demonstrating that the rent is there once the landlord has cured the conditions.
UNLAWFUL DETAINER
Sometimes the
landlord wants the tenant out regardless of whether the tenant pays the
rent or not. The tenant is dealing drugs, or committing other crimes, or
parties all night, or keeps a filthy house so that bugs and vermin have
become a problem. This is when the landlord needs an unlawful detainer
action rather than a rent and possession.
Once again a landlord/tenant relationship is required for an unlawful detainer. An unlawful detainer may also be used to evict after foreclosure and to evict an employee whose tenancy was incidental to their employment and has been terminated (i.e., the ex-maintenance man).
Termination of Said Relationship
The landlord tenant relationship must be terminated properly for the unlawful detainer to begin. If the lease has come to an end and no additional rent has been accepted, the ending of the lease constitutes termination and no additional termination needs to happen. If there is a month-to-month tenancy a month’s notice of termination equivalent to the period of tenancy must be given, but no reason need be given for the termination. If there is a violation of the lease, either a month’s notice or in some cases a ten-day notice must be given, but a reason for the termination must be stated in specific terms. If the tenancy is a Section 8 tenancy two terminations must be given and the tenant must be informed of his rights.
The termination of tenancy must follow a particular form and be served in a certain way. Certified mail does not do it. It is wise to consult an attorney to properly terminate a tenancy.
Unlike with rent and possession, in an unlawful detainer personal service must first be attempted unsuccessfully before posting service may be tried. Posting service in an unlawful detainer is called Service by Order of Publication, but it is really just another form of posting, not publishing in the paper like it sounds.
Court Dates
Because of the requirement for an unsuccessful attempt at personal
service before posting, unlawful detainers often require two court dates.
Other than that, the actual court date is pretty similar. One thing to
watch for in an unlawful detainer is the possibility of the jury trial
request. This is allowed on the initial unlawful detailer trial, not just
the trial de novo like with rent and possession. Some judges will allow
the possession claim to be severed and tried immediately. Sometimes you
can get the unlawful detainer moved to the top of the jury trial docket.
Emphasize that is possession at issue. Absent a jury request, the
unlawful detainer trial will take place in one to two weeks after the
original court date.
Counterclaims are not allowed in unlawful detainers. Any claim the tenant has against the landlord must be brought is a separate action.
In an unlawful detainer the landlord may recover double rent after the tenant has been holding over, and double his damages. Sometimes unlawful detainers can be settled by surrendering possession by tenant and accepting of rent at the single rate by the landlord. A nice big double rent and damages award can be a lot of fun, however, and that is where I hope the landlord did a good job screening!
EXECUTING ON JUDGMENTS
Once the landlord
has gotten a judgment in unlawful detainer or rent and possession he often
needs to enforce the judgment. The enforcement of a rent and possession
judgment is called a landlord execution.
The particular paperwork for the landlord execution usually exists at the courthouse in the form of a preprinted piece of paperwork that must be completed and returned to the execution department, usually accompanied by a fee for the sheriff. The paperwork is filed and processed, and a date set for the eviction. The sheriff oversees the eviction and the landlord provides the muscle – people to remove the tenant’s belongings from the premises and place them outside, usually on the curb.
This ends up being sort of like a free garage sale. While the things removed from the apartment remain the property of the tenant, once they are placed on the curb the good stuff goes quickly. Different municipalities have different rules regarding when to give up waiting for the tenant to claim his things and trash everything. Some municipalities will remove the stuff for you, and others will want the landlord to dispose of it. Some professional eviction movers will care of everything. They charge the tenant to transport them somewhere else. Just know what their fees are up front.
If the landlord has reason to believe that the tenant has abandoned the property and the rent has been due and unpaid for thirty days, the landlord may circumvent the formal eviction process and follow the statutory abandonment procedure. First, the landlord must have the reasonable belief that the tenant has abandoned the premises. This could include utilities being shut off, mail being forwarded, no one having seen the tenant for weeks, no new food in the fridge, no beds left behind, etc. I like to review the reasons with my landlords on a case-by-case basis.
Then, provided the rent is more than thirty days past due, the landlord may post and mail by certified mail, a ten day notice of abandonment. Provided the tenant does not respond the landlord may take possession. I recommend the landlord take pictures of the premises at this point to show the conditions that resulted in the abandonment decision. The landlord may then dispose of any remaining personal property as he sees fit.
COLLECTING
After the tenant
has gone, there is often an overdue rent bill and some damages to boot.
Can you collect this money? Many landlords do collect some of this money.
This is where the screening we talked about at the beginning will pay off. The more information you have about tenants the easier it will be to track them down and collect.
Missouri law gives a landlord thirty days to resolve the tenant’s security deposit after the move out. This means, first, immediately after the move out, notify the tenant that he may be present to walk through the apartment and inspect for damages. Give a written notice giving a day and time and mail it to the tenant’s last known address. Should the tenant fail to leave a forwarding address, mail it to the rented premises. Show up at the time you set for the walk through, even if the tenant doesn’t. Take this opportunity to take pictures of the damages. Actual segments of ruined carpets are nice exhibits at trial later. Keep your receipts for any repairs. Then, within thirty days of the tenant moving, do a written itemization of all charges and credits due the tenant. Include past due rent and other charges, damages to the leased premises in excess of normal wear and tear, attorney’s fees and late charges if you have a lease or until the premises are relent, whichever comes first. Send this written itemization to the tenant at his last known address. If the tenant is receiving a refund of any of his deposit, this refund must be made within thirty days of ending the tenancy.
Now you must find the tenant to collect. If you have been good, you will have his Social Security number on file, along with a recent place of employment and copies of the checks by which he paid his rent (or banking information). Various databases are available on the Internet to track people down. There are also many professional services that do skip tracing for a fee. Do not agree to pay a fee if there are no results.
Once you have found the tenant, you may proceed to try to collect. Employment information is like gold, and if you have a money judgment you can go right to garnishment. If not, you need to file a breach of lease of rent and damages to collect your past due money. If you had a lease but it expired, and the tenant continued month-to-month, you can still collect attorneys fees and other damages and charges allowed under the lease as the tenancy continues under the same terms and conditions as the original lease except as to term.
Employment garnishments generally run for 90 days. Another sheriff’s fee needs to be paid to get the garnishment served on the employer. Advanced landlords can learn how to do other kinds of executions and seize cars, personal belongings, etc. Transcribing judgments can be useful because it will stop the tenant from buying a house in your jurisdiction for three years after the date of transcription. Don’t give up. We have had tenants return many years later to clean up judgments and pay our clients in order to clean up their credit reports.
Conclusion
Providing housing
for people can be very satisfying and profitable but there are many
pitfalls. Protect yourself by screening your tenants well and knowing and
following the law.
E-mail: info@stlmultifamily.com