Rent / Possession
Every once and a while someone walks into my office or calls me on the phone and asks, “How do I get someone out of my house?” (And he/she is not talking about a 20 something child who does not have a job and is not in college.) This is a summary of the eviction process.
In the BeginningFirst and foremost, it is important to remember that both Landlords and Tenants (owners and renters) have rights. For the most part, a landlord has the right to expect rent to be paid on a timely basis, which usually means at least once a month on an agreed upon date. Tenants have a right to live in that property free from unidentified health and safety concerns and free from unwarranted interruptions by the landlord.
The problem most often boils down to the payment of rent, which will be the first question asked by the judge if this goes to court. If you are not paying rent then you better bring a really good excuse that has something to do with the property because the *economy* will not be enough. On the other side, if your tenant is timely paying rent then you better bring a good reason for trying to remove them because the judge will listen to their side of the story.
Types of Eviction CasesThere are two main types of residential rental cases: Rent and Possession and Unlawful Detainer. More complicated cases may be tried under various case types including breach of contract, eminent domain, declaratory judgment and even trespass. In this post, I will attempt to describe the typical rent and possession case type and touch on unlawful detainer. Stop by my office for a copy of the Missouri Attorney General*s handbook called Landlord-Tenant Law: The Rights and Responsibilities of Landlords and Tenants, or go online to get a copy today.
Contract is KeyLandlords and Tenants have rights described in the contract and often other rights not in the contract that are provided by common law, statutes or case law. The best way to know what is expected is by reviewing your contract and keeping the pathways of communication open between you and the other side.
A typical contract would include when, where, how, and how much to pay, as well as length of the lease. These terms seem to speak to the rights of the landlord more than the tenant when in fact knowing that you must pay $500 a month on the first of each month to the apartment complex office for the next 12 months means that the landlord cannot raise your rent until this portion of the lease is over, under normal circumstances. To avoid future disputes, it is best that both the landlord and the tenant keep track of any agreements that are not in the original contract by putting them in writing and both parties signing it.
The 5 WsMany of you were probably hoping I would come out and tell you whether you can kick out your tenant for letting a girlfriend/boyfriend move in who is not on the lease, or whether you can stop paying rent until the landlord fixes toilet. Unfortunately, specific questions like those require an in-depth analysis of each issue and the facts surrounding them. The best course of action is to consult an attorney before you do it, because the answer could be yes, or no, depending on your specific facts and your action, or failure to act, could get you sued. If you are a landlord and want some *non-legal* advice, you should consider joining a landlord association. In Webster County contact Doris McFarland (417) 839-5759 or in Springfield go to: http://www.springfieldhousing.net/ If you are a tenant, you should make yourself more familiar with the Missouri Attorney General*s website, http://ago.mo.gov or the U.S. Department of Housing and Urban Development (HUD) website, http://portal.hud.gov/hudportal/HUD?src=/states/missouri/renting/tenantrights. Knowing your rights and responsibilities will protect you in the long run.
Whether you are suing your landlord or you are being sued, your case begins with the filing of a petition and some sort of notice to the other party that they are being sued. If you are suing your landlord then you will find a plethora of options you must wade through * which theories of law apply such as breach of contract, unjust enrichment; which remedies apply, for example, do you want out of your contract or do you want to force your landlord to do something you believe is covered, or should have been covered in the contract; and, then how much money is at stake.
Legal CaseIf you are suing for, or being sued for, possession (eviction) specific rules apply, which are set out in detail in chapters 534 & 535 of the Missouri Revised Statutes. These rules provide for an expedited court date but separate out possession and judgment for rent based on type of notice actually given. For example, the court is required to set the initial hearing date within 21 days. To be lawful, service of this petition on the renter must be done at least 4 days prior to the court date. It can also be posted on the door of the rented room or structure and mailed, but this must be done at least 10 days before the court date. If the renter does not appear, or contact the court to reschedule, the court can issue a default judgment against them for possession and/or unpaid rent, plus interest. If the landlord does not appear, or contact the court, but the renter does, the judge can dismiss the action for want of prosecution.
CommunicationYour best avenue to handling a case is to remember, good communication between you and the other party may resolve these issues without going to court, and settlement is always an option.
Before we discuss the end, let us go back to the beginning for a second. The only win-win situation in a lease or purchase agreement is communication. There are no real winners in a rent and possession, or unlawful detainer action. A landlord only truly wins if the property is continually rented and minimal repairs and updates are required. On the other hand, the renter/purchaser, only wins if they can remain in possession of the property with minimal interruption and minimal inflation of the property price. That being said, in the scenario we have been exploring, the landlord and tenant ended up in court and a judgment has been issued because they did not reach a settlement among themselves. I will reiterate that parties can settle at any time, even up to 30 days after a judgment is entered.
The End GameIf you are the tenant, and you won, you now have a dilemma. On the one hand, you could gloat because you really showed that landlord how smart you and/or your attorney are and beat him/her and/or his/her attorney down in court. You can stay on the property and the landlord must comply with the judge*s order. Unfortunately, there is always a next time. Once communications have deteriorated so far that you had to sue the landlord in court future communications might be even more difficult. And, then there is the issue of the renewal of your contract which will no longer be a pleasant experience. On the other hand, you can leave, but do not expect a glowing referral. All of that time making payments on time and being a *good* tenant was just wiped away. It is for these reasons that we strongly recommend both communication up front and if a law suit is initiated. Giving a little (compromise) can go a long way to future happiness.
If you are the landlord, you have similar problems. Obviously, if the tenant is not paying then they serve no purpose to you as a business person. But, if it is a dispute over anything else other than rent payment, then communication and settlement can go a long way to being successful. As you must already know, every time you re-let the property you have to change locks, paint, clean or replace the carpet and even spray for bugs which eats into your pocketbook. And, if you are dispossessing the tenant then you have to worry about the damage they may do either to the property or to the peace among your other tenants in the 10 days they have to move out.