MOBar CLE Residential Landlord/Tenant Law Part 2 Page 1

Prepared by Michael T. Carney, Mid-Missouri Legal Services, Corp. I. The Eviction Process a. Rent and Possession i. What is Rent and Possession 1. RSMO 535.010 a. Tenant fails to make a payment of rent at the time set by the landlord and tenant ii. Conditions 1. Rent Due and Payable 2. Demand 3. File Verified Petition a. Terms b. Amount of rent due c. Rent payment Demanded 4. Summons Issued 5. Other unpaid sums iii. Proper Party 1. Owner or Agent iv. Relief Available 1. Late Fees** 2. Attorney Fees** 3. Possession 4. Service Costs 5. Court Costs 6. Interest v. Relief NOT Available 1. Damages a. See, Kavanaugh v Ealy, ED96974 (Missouri Court of Appeals, Eastern District, Division 3, April 17, 2012) i. Trial court awarded past due rent and damages to a door ii. Appealed Rent upheld, damages reversed iii. The landlord or age may, in such and action for unpaid rent, joint a claim for any other unpaid sums, other than property damages. Thus, but the clear terms of this statute, Kavanaugh was not permitted to join a claim for damages to the property. b. Likely able to file a 2-Count Petition i. Rent and Possession ii. Negligence/Damage to Property vi. Termination of Possession v. Termination of Lease 1. See RSMO 535.170 a. Obligations of tenant continue without right of possession vii. Service of Summons 1. Service can be perfected up to 4 days before the return date (See RSMO 535.030) MOBar CLE Residential Landlord/Tenant Law Part 2 Page 1

Prepared by Michael T. Carney, Mid-Missouri Legal Services, Corp. 2. Personal Service v. Service by Posting a. Service of summons by posting is allowed by: i. Posting of one copy on property in question ii. Posting in a public place in county where defendant is believed to live iii. Certified Mail, Return Receipt Requested, to last known address iv. Must be completed 10 days before return v. See, RSMO 535.030 b. If posting, no money judgment for default viii. Court Date (Return) 1. RSMO 534.040 calls for priority setting for Rent and Possession cases ix. Trial 1. If it appears that rent is due and has been demanded and has not been paid, judge shall render judgment against tenant and for landlord for possession of property 2. Tenant may pay rent and court costs and remain in possession 3. Trial de Novo a. If rent paid pay into court stay in possession b. If rent not paid, still has to move, but may proceed with Trial de Novo 4. No jury trials b. Unlawful Detainer i. Unlawful Detainer Chapter 534: Under VAMS 534.030, a tenant who refuses to leave leased premises after the landlord has made written demand or possession is guilty of an unlawful detainer. 1. Exclusive & special code 2. Must have a lease that has been terminated ii. Types: 1. hold-over tenant a. No demand for possession necessary, but may be necessary for double damages b. Landlord/tenant relationship must have existed 2. intruder class (wrongful possession without force) a. Landlord/Tenant relationship NOT required b. Written demand for possession is required iii. Counter-claims are prohibited in actions for unlawful detainer 1. Equitable defenses cannot be raised, including: a. Issues relating to title or mistake, estoppel, and waiver by acceptance of rent b. Retaliatory Eviction c. Wrongful Foreclosure 2. Right of possession is the only issue 3. Wells Fargo v. Smith, SC92649 (2013) MOBar CLE Residential Landlord/Tenant Law Part 2 Page 2

Prepared by Michael T. Carney, Mid-Missouri Legal Services, Corp. a. Upheld No Counterclaim/Equitable Defenses in Unlawful Detainer b. Only issue is right to possession iv. Procedure: 1. Person having legal right to possession of property must bring suit 2. Filed in associate circuit court where the property is located (VAMS 534.060) 3. Issuance of summons by judge or clerk of the court a. VAMS 534.080 sets forth language to include in summons b. Summons served as in other civil cases, BUT i. may be served up to four days before the return date 4. If summons cannot be served personally, posting of the complaint on the property and in one public place in the county where the defendant resides is authorized a. A copy of the summons must be delivered to the defendant s last known address by certified mail, return receipt requested, delivered to addressee only. b. In this case, only a judgment for possession may be rendered, if defaults i. No dollar judgment may be ordered (including court costs) 5. Unlike Rent and Possession Jury Trials Authorized a. RSMO 534.160 v. Court may order: 1. Double damages (usually determined by rent amount) a. Damages are allowed from the time of demand for possession until tenants vacate. b. Landlord is not entitled to rent paid during a period of unlawful detainer in addition to statutory damages for double rental value 2. Daily damages from the date of the judgment for rents and profits 3. Restitution (possession of the premises) 4. Attorney s fees, if agreed to by the parties 5. Special process server fees; and 6. Court costs vi. Court may NOT order: 1. Punitive damages vii. Execution of order for removal 1. In most cases, judgment is effective for removal, but in some cases a request for restitution of premises must be made. 2. The proper format is a writ of execution 3. Per RSMO 534.350 a. The judge rendering judgment in any such cause may issue execution at any time after judgment, but such execution MOBar CLE Residential Landlord/Tenant Law Part 2 Page 3

Prepared by Michael T. Carney, Mid-Missouri Legal Services, Corp. shall not be levied until after the expiration of the time allowed for the taking of an appeal, except as in the next succeeding section is provided. b. RSMO 534.060 i. If it shall appear to the officer having charge of the execution that the defendant therein is about to remove, conceal or dispose of his property, so as to hinder or delay the levy, the rents and profits, damages and costs may be levied before the expiration of the time allowed for taking an appeal. c. MO Supreme Court Rule 81.05(a)(1) i. A judgment becomes final at the expiration of 30 days after it s entry if no timely authorized aftertrial motion is filed d. RSMO 512.050 i. No such appeal shall be effective unless the notice of appeal shall be filed not later than 10 days after the judgment/order appeal from becomes final e. Therefore per RSMO 534.350 i. No execution in unlawful detainer until 40 days post judgment viii. Appeal 1. No more Trial De Novo 2. Appeals handled as in all other civil actions 3. Must post bond to stay execution (eviction) a. RSMO 534.380 i. Amount of judgment ii. Stay waste iii. Pay future rent into court w/in 10 days of becoming due c. Expedited Evictions i. The landlord or prosecutor may bring an immediate action to evict if: 1. More lengthy method would imminently cause physical injury to other tenants or landlord; or 2. Would cause physical damage to the lessor s property and the cost to repair exceeds 12 months rent; or 3. Drug-related activity; or 4. Allowing someone previously removed to return 5. See RSMO 441.740 ii. Where criminal activity is alleged to be done by someone other than the tenant, an expedited eviction may be ordered when: 1. Five day written notice 2. Tenant fails to take measures such as: a. Protective Order b. Restraining Order MOBar CLE Residential Landlord/Tenant Law Part 2 Page 4

Prepared by Michael T. Carney, Mid-Missouri Legal Services, Corp. II. c. Order to Vacate d. Report Activity to Police 3. Tenant fails to provide written proof of actions taken iii. Hearing 1. The court must set a hearing within 15 days of service of the summons 2. No continuances or stays except for compelling and extraordinary reasons iv. Removal 1. The court may order the immediate eviction by ordering the sheriff to remove the specified person(s) within a specific number of days 2. Could be same day v. Stay of Execution 1. If the tenant is able to establish the following, the court shall stay execution: 2. The person is a drug user/dependent and will promptly enter a court-approved drug treatment program or the tenant did not aid the drug-related criminal activity 3. The activity did not occur within 1000 feet of a school/did not involve the sale of drugs to minors 4. No weapon used 5. No protective order issued 6. No previous stays issued to this tenant 7. The stay will not endanger surrounding community/landlord d. Contract Actions i. If landlord is already in possession of property or if seeks to recover unpaid rent, but not possession, can bring a Breach of Contract action Enforcement of Judgments a. Unlawful Detainer i. Form of Judgment 1. RSMO 534.330 provides that if verdict is for plaintiff, the Judgment shall be in the following form: a. If the verdict of the jury or the finding of the judge is for the complainant, the judge shall record the verdict or finding, and the judgment shall be that the complainant have restitution of the premises found to have been forcibly or unlawfully detained, and recover from the defendant the sum of...... dollars, double the sum assessed by the jury, or found for his damages; and also at the rate of..... dollars, double the sum found per month, for rents and profits, from the...... day of...., 20..., the day of judgment, until restitution be made, together with costs. The court, upon issuing judgment in favor of the plaintiff pursuant to subsection 1 of this section, shall, within two MOBar CLE Residential Landlord/Tenant Law Part 2 Page 5

Prepared by Michael T. Carney, Mid-Missouri Legal Services, Corp. business days following the date the judgment becomes final, transmit a copy of such judgment to the law enforcement agency with jurisdiction to enforce such judgment. ii. Default 1. If tenant defaults, court shall send notice to tenant that a Judgment has been entered for possession of the premises and must vacate when judgment is final (See RSMO 534.345) iii. Final Judgment 1. Judgment Becomes Final 10 days after expiration of time allowed for filing of application of trial de novo or the taking of appeal, except as provided in RSMO 534.355 iv. Request for Execution 1. A request of prevailing party, court may order the Sheriff or appropriate officer to deliver possession of the premises to prevailing party within 15 days of judgment becoming final b. Rent and Possession i. Judgment 1. Possession 2. Amount of Rent Due 3. Costs 4. Other fees (attorney fees, etc) ii. Default 1. No money judgment if service by posting 2. Court shall mail notice of default to last known address, by certified mail, return receipt requested a. Date of judgment b. 10 days to request trial de novo c. See RSMO 535.030(4) iii. Writ of Execution 1. RSMO 535.040 a. Judge may issue execution commanding the Sheriff to put landlord in possession b. Not liable for loss/damage to goods/chattels left behind i. Except for willful, wanton or malicious acts/omissions iv. Appeal 1. As in all other civil actions 2. Unlike Unlawful Detainer, no guidance on time-line 3. Most courts follow old 10 day rule from Trial De Novo period v. Right to Cure 1. RSMO 535.160 states defendant may, on the date any money judgment is given in rent and possession case, either: a. Tenders judgment to landlord or MOBar CLE Residential Landlord/Tenant Law Part 2 Page 6

Prepared by Michael T. Carney, Mid-Missouri Legal Services, Corp. b. Pays into court c. All further actions shall cease and be stayed 2. Further if on any date after trial but before appeal, any execution for possession of premises shall cease and be stayed 3. If no money judgment a. No stay of execution, except as provided in RSMO 535.110 i. Bond, pay rent into court, condition to stay waste c. Garnishment i. Landlord s responsibility to provide sheriff with tenant s employment/bank account information ii. Limits 1. Head of Household 10% of net wages 2. Non Head-of-household 25% of net wages iii. May run for 90 days, after which the garnishee employer must answer interrogatories declaring the amount of wages withheld pursuant to garnishment 1. Employer must pay withheld amount into court 2. Clerk will distribute to Landlord s Attorney d. Execution/Levy i. If sheriff fails to deliver possession within 7 days of writ of execution, RSMO 441.060 provides remedy 1. If after the rendition of a judgment and a request for an execution on any judgment rendered in an action pursuant to chapter 524, chapter 534, chapter 535, or this chapter and there is no stay of execution, the service officer fails to deliver possession of the premises to the landlord within seven days of the delivery of the writ to such officer, the landlord may, within sixty days of the date of the judgment, in the presence of a municipal or county law enforcement officer of the jurisdiction in which the premises are located, without breach of the peace, break and remove locks, enter and take possession of the premises and remove any household goods, furnishings, fixtures or any other personal property left in or at the premises, provided the law enforcement officer is first presented a true copy of the judgment and order of execution, and the law enforcement officer acknowledges in writing such presentation, and such acknowledgment is filed in court by the plaintiff within five days following taking possession of the premises. e. Post Judgment Discovery i. Judgment Debtor Examination See RSMO 513.380 1. Must obtain return on a request for execution indicating no assets have been found 2. Order must be signed by judge and personally served 3. Debtor must appear in court or judge may issue warrant to compel a. If debtor has attorney, likely advised to not answer MOBar CLE Residential Landlord/Tenant Law Part 2 Page 7

Prepared by Michael T. Carney, Mid-Missouri Legal Services, Corp. i. Self-Incrimination privilege 1. State ex rel Long v. Asken, 874 S.W.2d 466 (Mo. App. W.D. 1994) MOBar CLE Residential Landlord/Tenant Law Part 2 Page 8

Demand for Rent and Possession DATE: May 2, 2012 PREMISES: 123 E. Broadway, Columbia, MO TENANT: Terry Tenant LANDLORD: Larry Landlord Landlord's Address: 400 W. Ash, Columbia, MO You are hereby notified that you have breached your lease of the abovereferenced premises by failing to pay rent (and late charges, if applicable and noted below) as follows: March 2012 - $600 rent unpaid - $150 late charges total of $750. April 2012 - $600 rent unpaid - $150 late charges total of $750. Current Total - $1,500 as of May 1, 2012 late fees continuing to accrue daily at $5 per day LANDLORD hereby demands that you immediately pay the total of the aboveitemized rent (and late charges, if itemized above). You are further hereby notified that if you fail to immediately pay said total, LANDLORD will take legal action against you for recovery of possession of the above-referenced PREMISES and collection of said rent (and late charges, if itemized above), together with rent (and late charges, if applicable) accruing after the date of this notice and through the date of judgment. Acceptance by LANDLORD of any partial payments you may make shall not waive LANDLORD's right to pursue legal action. LANDLORD: Larry Landlord The undersigned certifies that a true copy of the foregoing Demand for Rent and Possession was delivered to TENANT on the 2 nd day of May, 2012. Signature

IN THE CIRCUIT COURT OF BOONE COUNTY, STATE OF MISSOURI ASSOCIATE CIRCUIT Larry Landlord, ) Plaintiff, ) v. ) Case No. 12BA-CV00000 Terry Tenant, ) Defendant. ) VERIFIED PETITION OF LANDLORD FOR RENT AND POSSESSION Comes now Plaintiff and, for this Petition for Rent and Possession, states as follows: 1. Plaintiff is the owner of real estate located in Columbia, Boone County, Missouri. The address of the property is 123 E. Broadway, Columbia, Missouri 65201. 2. Defendants rent this property from Plaintiff under a month-to-month tenancy, and the agreed monthly rental amount is $600, payable on the 1st day of each month. 3. There is now unpaid rent due and owing in the amount of $ 1,200. 4. The written lease calls for late fees in the amount of $5 per day. Late fees are due in the amount of $300 and continue to accrue. 5. Plaintiff demanded from Defendant payment of the unpaid rent, but Defendant has failed and refused to pay all or part of the rent. 6. Rent continues to become due each new month after this filing, and Plaintiff requests continuing rent due. 7. Plaintiff has incurred attorney's fees and costs in connection with this action. The written lease calls for the award of attorney s fees and costs in the event of non-payment of rent. WHEREFORE, Plaintiff prays for judgment for the rent due and owing from each Defendant; for the immediate possession of the property set forth above; for late fees,

attorney's fees, special process server fees, and Plaintiff's costs; and for such other relief deemed just and proper under the circumstances. Respectfully Submitted: Lenny Lawyer, Mo. Bar. 95555 Attorney at Law Columbia, MO 65201 573-867-5309 State of Missouri County Of Boone Larry Landlord, plaintiff herein (or an agent of plaintiff who is duly authorized to make this affidavit and file this statement), being first duly sworn, deposes and states that Plaintiff has read the foregoing Petition, and the facts stated therein are true. Subscribed and sworn to before me this 2nd day May, 2012. Larry Landlord Notary Public

IN THE CIRCUIT COURT OF BOONE COUNTY, STATE OF MISSOURI ASSOCIATE CIRCUIT Larry Landlord, ) Plaintiff, ) v. ) Case No. 12BA-CV00000 Terry Tenant, ) Defendant. ) VERIFIED PETITION OF LANDLORD FOR UNLAWFUL DETAINER Comes now Plaintiff and, for this Petition for Unlawful Detainer, states as follows: 1. Plaintiff is the owner of real estate located in Columbia, Boone County, Missouri. The address of the property is 123 E. Broadway, Columbia, Missouri 65201. 2. Defendant is a resident of Boone County, Missouri. 3. Defendant has willfully and without force held over after termination of the time for which the premises were let to Defendant. 4. Defendant's non-compliance with the Lease Agreement and tenant rules and regulations is material and good cause for termination of Defendant's tenancy at the demised premises. 5. Despite having received notice of the termination of this tenancy and a written demand for possession of the premises, Defendant has refused to vacate the premises and surrender and deliver possession to Plaintiff, and has unlawfully and willfully detained the premises to which Plaintiff has been entitled to possession since May 1, 2012.. 6. The reasonable rental value of the premises is $600.00 per month, and, because of Defendant's unlawful detention as aforesaid, Plaintiff has suffered and will suffer damages in at least the amount of $1,200 per month. 7. Plaintiff has incurred attorney's fees and costs in connection with this action. WHEREFORE, Plaintiff prays for judgment for double the value of the monthly rents that are due and may accrue during the pendency of this action; for late fees and attorney's fees; for immediate possession of the property set forth above; for Plaintiff's costs and special process server fees; and for such other relief deemed just and proper under the circumstances.

Respectfully Submitted: Lenny Lawyer, Mo. Bar. 95555 Attorney at Law Columbia, MO 65201 573-867-5309 State of Missouri County Of Boone Larry Landlord, plaintiff herein (or an agent of plaintiff who is duly authorized to make this affidavit and file this statement), being first duly sworn, deposes and states that Plaintiff has read the foregoing Petition, and the facts stated therein are true. Subscribed and sworn to before me this 2nd day May, 2012. Larry Landlord Notary Public

IN THE CIRCUIT COURT OF BOONE COUNTY, STATE OF MISSOURI ASSOCIATE CIRCUIT Larry Landlord, ) Plaintiff, ) v. ) Case No. 12BA-CV00000 Terry Tenant, ) Defendant. ) VERIFIED PETITION FOR EXPEDITED EVICTION Comes now Plaintiff, and requests this Court to enter its expedited eviction order removing Defendant from the property located at 123 E. Broadway, Columbia, MO. In support thereof, Plaintiff states as follows: 1. Plaintiff is the owner of property located at 123 E. Broadway, Columbia, Boone County Missouri. 2. Plaintiff and Defendant entered into a lease agreement whereby Plaintiff agreed to rent and Defendant agreed to lease the property for $600 per month. 3. Defendant failed to make the monthly rental payments, and currently there is $600 due and owing from Defendant to Plaintiff in rent and such rent as shall accrue from the filing of the Petition. 4. Defendant also agreed to pay late fees and attorney's fees, and there is currently due $600 in late fees and $300 in attorney's fees. 5. Plaintiff further alleges the following [SELECT ONE OR MORE:] a. There is an emergency situation where dispossession of the tenant by other less expeditious means would, because of the passage of time, imminently cause with a reasonable certainty either physical injury to other tenants, or physical damage to lessor's property, and the reasonable cost to repair the damage exceeds an amount equal to 12 months' rent; [AND/OR] b. Drug-related criminal activity has occurred on or within the property leased to the tenant; [AND/OR] c. The property leased to the tenant was used in any way to further, promote, aid, or assist in drug-related criminal activity; [AND/OR]

d. The tenant, a member of the tenant's household, or a guest has engaged in drugrelated criminal activity either within, on, or in the immediate vicinity of the leased property; [AND/OR] e. The tenant has given permission to or invited a person to enter onto or remain on any portion of the leased property, and the tenant did so knowing that the person had been removed or barred from the leased property pursuant to the provisions of V.A.M.S. 441.710 to 441.880; [AND/OR] f. The tenant has failed to promptly notify Plaintiff that a person whom Plaintiff previously had removed from the property leased by the tenant, with the knowledge of the tenant, has returned to, entered onto, or remained on the property leased by the tenant. WHEREFORE, Plaintiff prays this Court to issue its Order of expedited eviction, granting possession to Plaintiff, plus rent due, attorney's fees, special process server fees, and costs, and for such other relief deemed just and proper under the circumstances. Respectfully Submitted: Lenny Lawyer, Mo. Bar. 95555 Attorney at Law Columbia, MO 65201 573-867-5309 State of Missouri County Of Boone Larry Landlord, plaintiff herein (or an agent of plaintiff who is duly authorized to make this affidavit and file this statement), being first duly sworn, deposes and states that Plaintiff has read the foregoing Petition, and the facts stated therein are true. Subscribed and sworn to before me this 2nd day May, 2012. Larry Landlord Notary Public

Notice of Non-Renewal of Lease DATE: May 2, 2012 PREMISES: 123 E. Broadway, Columbia, MO TENANT: Terry Tenant LANDLORD: Larry Landlord Landlord's Address: 400 W. Ash, Columbia, MO As TENANT of the above-referenced PREMISES, you are hereby notified that LANDLORD has elected not to renew the lease of the PREMISES which will expire on the 30 th day of June, 2012. Accordingly, TENANT is further notified that: 1. TENANT must vacate the PREMISES on or before said lease expiration date. 2. If TENANT does not vacate the premises on or before said lease expiration date, under Missouri law TENANT will be liable for double rent for each day tenant stays beyond said expiration date. 3. All rent must be timely paid. The security deposit is not a substitute for the last month's rent or any other month's rent. LANDLORD: Signature of landlord or authorized representative

DATE: May 2, 2012 Notice to Terminate Month-to-Month Lease PREMISES: 123 E. Broadway, Columbia, MO TENANT: Terry Tenant LANDLORD: Larry Landlord Landlord's Address: 400 W. Ash, Columbia, MO As TENANT of the above-described PREMISES, you are hereby notified that LANDLORD has elected to terminate your tenancy of the PREMISES effective one month from the 1st day of June, 2012 which is your next rent payment due date, and LANDLORD hereby demands that you remove from the PREMISES and surrender peaceful possession of the PREMISES to LANDLORD by said termination date. You are further hereby notified that acceptance by LANDLORD of any future rent payments or other lease performance by TENANT shall not constitute a waiver or withdrawal of this notice and that if you do not vacate by said termination date, LANDLORD intends to take legal action against you for recovery of possession of the PREMISES, double damages (twice the fair rental value) for each day you remain in the PREMISES after said termination date, and other applicable legal remedies. LANDLORD: Signature of landlord or authorized representative The undersigned certifies that a true copy of the foregoing notice was served on the 2nd day of May, 2012 as follows by personal delivery to TENANT. Signature The foregoing certificate of service was subscribed and sworn to before me this 2nd day of May, 2012. My commission expires:. Notary Public