Overview of Key Lease Provisions

Transcription

1 Prepared by Michael T. Carney, Mid-Missouri Legal Services, Corp. Overview of Key Lease Provisions I. Interpretation a. General rules of contracts apply to interpret leases b. A lease is a contract and a conveyance. King v. Morehead, 495 S.W. 2d, 65, 75 (Mo. App 1973) II. Implied Rights and Other Legal Presumptions a. Warranty of Habitability i. Missouri law recognizes the Implied Warranty of Habitability into every single residential lease whether written in or not. Detling v. Edelbrock, 671 S.W.2d 265 (Mo. 1984). ii. High standard to meet 1. Likely to meet standard a. Lack of windows b. No heat in winter c. No working plumbing 2. May meet standard a. Broken toilet b. Mold 3. Likely to not meet standard a. Drafty windows b. Leaky faucet b. Disclosures i. Missouri law requires disclosures for residential rentals previously used for meth labs (RSMO ) ii. Lead paint disclosure iii. Owner s Name/Agent iv. Realtor Disclosure (RSMO ) III. Provisions to Deal with Constantly Contested Issues a. Attorney Fees b. Rental Concessions c. Property Condition d. Utilities e. Use f. Unauthorized Guests/Trespass Lists g. Renewal Period h. Default Provisions i. Repairs/Pest Control IV. Liquidated Damages a. Late Fees b. Pet Deposits Page 1 B--1

2 Obligations of Tenants I. Duty to Occupy II. Abandonment a. RSMO III. Holdover Tenant a. RSMO IV. Pay Rent a. RSMO V. Ordinary Care (Lustig v. UMC Industries, INC, 637 SW2d 55 (Mo. App 1982)) (RSMO ) Security Deposits I. Amount a. May not be in excess of two months rent (RSMO ) b. Does not include pet deposits, fees, etc II. Return a. Within 30 days after termination and vacating b. Must provide full amount or i. Written, itemized list of damages and balance ii. Only may withhold reasonably necessary amounts III. Reasons to Withhold a. Default in payment of rent b. Restore unit to condition at the commencement of tenancy, ordinary wear and tear excepted c. Actual damages due to tenant s failure to provide adequate notice to terminate provided landlord makes reasonable efforts to mitigate IV. Inspection a. Landlord must give notice in writing, or in person, of date and time the landlord will inspect the unit and shall be at reasonable time. Tenant has right to be present. V. Wrongful Withholding a. If landlord wrongfully withholds, tenant shall recover damages not more than twice the amount wrongfully held Page 2 B--2

3 IN THE CIRCUIT COURT OF XXXXX COUNTY, MISSOURI XXXXXXXXX, ) Plaintiff, ) Case No. XXXXXXXXX v. ) XXXXXXXXX, ) Defendants. ) ANSWER COMES NOW Defendants XXXXXX, by and through their attorneys, and for their Answer states as follows: 1. Defendants ADMIT the allegations of Paragraphs 1, 2, and Defendants DENY the allegations of Paragraphs 4, 5, 6, 7, and 8. WHEREFORE, defendants respectfully request that plaintiff's petition be dismissed with prejudice at its cost. AFFIRMATIVE DEFENSE: BREACH OF IMPLIED WARRANTY OF HABITABILITY 1. Defendant s lease contains an implied warranty of habitability that Plaintiff shall maintain the premises in a safe, sanitary, and habitable condition, and in compliance with state and local laws, including municipal and county Building, Housing Maintenance, and Fire Protection codes (hereinafter referred to as the Codes). 2. The implied warranty that the premises shall be delivered and maintained in a safe, sanitary, and habitable condition was a crucial element of the consideration for the rental agreement between the Defendant and the Plaintiff. 3. Throughout the Defendant s tenancy at the premises, the Defendant has notified the Plaintiff of the following conditions, which the Plaintiff has failed to adequately remedy: a. Water: the premises have had problems maintaining running water and hot water. There have been multiple times where water has had to be shut-off to the premises Page 3 B--3

4 for an extended period of time. Plaintiff s agents have told the Defendants to, go to the store to use the bathroom, when this has occurred. b. Sewage: the premises have had problems with sewage either backing up into the residence or leaking under the premises and into the yard of the premises. c. Structural Integrity: the premises have multiple holes, gaps, and spaces where the physical structure is open to the elements. An example of this would be the hole in the wall behind and under the kitchen sink Plaintiff s remedy for this was to have Defendant nail the cabinet shut. d. Plaintiff or Plaintiff s agents have removed key components (fuse) to the air conditioning unit for the premises rendering the internal temperature of the residence at approximately 90 degrees Fahrenheit during the summer months. 4. Defendant has complained to the Plaintiff regarding the defective conditions and has repeatedly requested that the Plaintiff make repairs. 5. Although Defendant has notified Plaintiff of the conditions, Plaintiff has failed to make any adequate repairs. 6. The existence of defective conditions and Code violations constitute a breach of the implied warranty of habitability, rendering Defendant s unit uninhabitable. Detling v. Edelbrock, 671 S.W.2d 265 (Mo. 1984). 7. The uninhabitable conditions of the Defendant s unit amounts to a breach of Defendant s lease agreement with Plaintiff, and renders the value of Defendant s unit at zero dollars ($0.00) per month. 8. For the above-stated reasons, Plaintiff s action should be dismissed. Page 4 B--4

5 WHEREFORE, Defendant prays this Court to dismiss with prejudice the above-styled cause at Plaintiff s cost. COUNTERCLAIM: BREACH OF IMPLIED WARRANTY OF HABITABILITY 9. Defendant reincorporates paragraphs 1 through 8 by reference. 10. Defendant has paid rent from the months of March 2011 through May 2011 in the amount of XXXXXXXXX ($XXXXX) a month. 11. As a result of the aforementioned conditions, the value of the premises from March 2011 through May 2011 was zero dollars ($0.00). Therefore, Defendant has overpaid rent for the months of March 2011 through May 2011 in the amount of XXXXXXXXXXXXXXXXXXXXXXX ($XXX). 12. Defendant has spent in excess of XXXXXXXX ($XXX) in miscellaneous expenses as a consequence of having no air conditioning and combating the unsanitary conditions. WHEREFORE, Defendant prays this Court issue compensatory damages for the breach of the implied warranty of habitability and the associated costs in favor of the Defendant against the Plaintiff in the amount of XXXXXXXX dollars ($XXXX.00). Respectfully Submitted; MID-MISSOURI LEGAL SERVICES CORP. Michael T. Carney, Mo. Bar # Mid-Missouri Legal Services 205 E. Forest Avenue Columbia, Missouri Phone: (573) Fax: (573) Attorney for Defendant Page 5 B--5

6 DATE: April 12, 2012 ADDRESS: 932 Stadium, Columbia, MO TRESSPASSER: Terry Trespasser LANDLORD: Larry D. Landlord Landlord s Address: 400 Providence, Columbia, MO TRESPASS NOTICE Pursuant to Missouri law, you are hereby notified as follows: 1) You are permanently prohibited from entering 932 Stadium, Columbia, MO ) If you further enter 932 Stadium, Columbia, MO 65201, you will be subject to arrest for Trespass in the First Degree pursuant to Missouri law. 3. Landlord/Agent certifies this notice was delivered in person or posted at 932 Stadium, Columbia, MO on April 12, Larry D. Landlord Page 6 B--6

7 DATE: April 12, 2012 LEASED ADDRESS: 101 Broadway, Columbia, MO TENANT: John B. Tenant LANDLORD: Larry D. Landlord Landlord s Address: 400 Providence, Columbia, MO NOTICE OF ABANDONMENT OF LEASED PREMISES The rent on this property has been due and unpaid for 30 consecutive days, and the landlord believes that you have moved out and abandoned the property. The landlord may declare this property abandoned and remove your possessions from this unit and dispose of them unless: 1. You write to the landlord stating that you have not abandoned this unit within ten days of the landlord having both posted this notice on your door and mailing this notice to you or; 2. Paying rent in full You should mail your statement by regular first class mail and, if you so choose, by certified mail, return receipt requested, to this address: Larry D. Landlord 400 Providence Columbia, MO POSTED/MAILED ON: APRIL 12, 2012 Larry D. Landlord Page 7 B--7

8 Thursday, April 12, 2012 John B. Tenant 101 Broadway Columbia, Missouri Re: Notice of Inspection Dear John B. Tenant: The purpose of this letter is to notify you, pursuant to Missouri law (V.A.M.S ), of an inspection of the rental property located at 101 Broadway, Columbia, MO The date, time, and location of the inspection are as follows: Date: April 19, 2012 Time: 1:00 p.m. Location: 101 Broadway, Columbia, MO You have the right to be present at the inspection of the dwelling unit (property) on the date and at the time set forth in this letter. Your prompt attention to this letter is necessary. Please contact me at to alert me if you have any questions regarding this inspection. Very truly yours, Larry D. Landlord Page 8 B--8

9 IN THE CIRCUIT COURT OF XXXXXX COUNTY STATE OF MISSOURI XXXXXXXXX, ) Plaintiff, ) v. ) Case No. XXXXXXXXX, ) Defendant. ) Petition for Return of Security Deposit and Damages COMES NOW, XXXXXXXXXX, Plaintiff, by undersigned counsel Michael T. Carney, Mid-Missouri Legal Services Corp, and for her Petition for Return of Security Deposit and Damages state: 1. Plaintiff entered into a written lease, effective June 1, 2009, for the rental property located at XXXXXXXXXXXXXXXXXXXXXXXXXX with XXXXXXXXXX. 2. The lease was to expire on March 31, 2010, but was renewed in 2010 and was to expire on June 01, On XXXXXXXX, Plaintiff vacated the property located at XXXXXXXXXXXXXXXX. 4. On XXXXXXX, Defendant s agent XXXXXXX contacted Plaintiff to inquire about the return of the keys to the trailer and to obtain forwarding address. Plaintiff informed Defendant the keys were on the kitchen counter and of her forwarding address. 5. Plaintiff paid to the Defendant $XXX for security deposit on or about June 1, As of XXXXXXX, defendant has failed to provide a written, itemized list of damages or a return of the deposit, as required under RSMO All rent was paid in full upon termination of the written lease. WHEREFORE, XXXXXXXXX, plaintiff, pray for the court to order defendant XXXXXX, to pay $XXX for security deposit and $XXX for double damages as specified in RSMO Page 9 B--9

10 , court costs and all other orders that are just and equitable in this matter. Respectfully Submitted; MID-MISSOURI LEGAL SERVICES CORP. BY: BY: XXXXXXXXX, Plaintiff Michael T. Carney, Mo. Bar # 205 E. Forest Ave. Columbia, MO Phone: (573) Fax: (573) Address: carney@mmls.org Attorney for Plaintiff STATE OF MISSOURI ) ) ss County of XXXX ) XXXXXXX, being of lawful age and duly sworn on her oath states that she is the Petitioner named above in the Petition and that the facts contained in the foregoing Petition are true and correct according to her best information, knowledge and belief. XXXXXXXX Subscribed and sworn to before me, a Notary Public, on XXXXXXXX. Notary Public My commission expires: Page 10 B--10