EVICTION


When good tenant screening and management techniques are practiced, landlords frequently do not have to consider eviction suits even when problems arise. That is to say that when there is a good understanding between the tenant and the landlord regarding payment of rent and appropriate day-to-day conduct on the part of the tenant and their farnily, frequenily the problem can be resolved. There are instances, however, when an eviction suit is appropriate, i.e., delinquent rent payment, a breach in the terrns or conditions of the lease, and/or behavior that poses a nuisance or threat to other residents.

In order to initiate procedures to evict a tenant from the leased premises when the tenant is delinquent in the payment of rent, two causes of action are available:
    1. Suit for Rent and Possession

    2. Unlawful Detainer Lawsuit

1. SUIT FOR RENT AND POSSESSION

This is the easiest, simplest and fastest method of getting the rent owed to the landlord. There is no need to give the tenant any notice prior to initiating this action unless the lease entitles the tenant to such notice; then one must follow the directions of the lease. If the lease is silent regarding notice, or there is no lease, then no notice is necessary. This suit may be filed as early as one day after the rent is due.

Commencing Suit
Suit is commenced by the preparation and filing of the Affidavit and Statement in Landlord Case and Cover Sheet. In the City of St. Louis, both forms are available at the office of the CIRCUIT CLERK, CIVIL COURTS BUILDING, FIRST FLOOR. These forms are filed with the Cashier in the Circuit Clerk's Office together with the filing fee, which is presently $122.00. The rent and possession lawsuit should be a statement verified by affidavit, which means either the landlord or his/her attorney must sign and have the signature notarized. The rent and possession affidavit must include the terms on which the property was rented, the amount of rent actually due, a description of the property and an allegation that payment has been demanded. Rent and possession actions are covered in Chapter 535 of the Missouri Revised Statutes.

Getting the Papers Served
At the time of filing, it is necessary to elect the manner by which the tenant is to be served with the papers. Your options are either Personal Service or Post and Serve.
    Personal Service
    In this instance, the sheriff must serve the papers personally upon the tenant or leave them with a member of the household over the age of fifteen years. If the landlord requests personal service and the Sheriff is unable to fmd anyone at home, then he/she must order a new summons at the time of the first court date. This will cause a delay of approximately one month until the second court date, while the Sheuff is attempting to serve the second paper on the tenant.


    Post and Serve
    If this option is selected, the Sheriff will not only attempt personal service, but he will also post the papers on the door if he cannot find anyone at home.. Additionally, the papers are mailed to the tenant by certified mail, return receipt requested, at the last known address. The post and serve option is preferred by many landlords because if the Sheriff finds no one at home, he will at least be able to post the papers. It also insures posting service on the first court setting.

    If ONLY posting service is obtained, the landlord is not entitled to a default judgment against a tenant for rents. The property owner is, however, entitled to a judgment for possession of the premises. It is all the better should the tenant appear in court, because then a judgment for both rent and possession is available.

    If the landlord has a default judgment for possession of the premises only and posting service is obtained, he/she may proceed immediately with eviction upon rendition of the judgment. The landlord may wish later to file a second suit for the rents.
About the Court Date
At the time suit is filed, the clerk will advise of the court date. If the landlord does not have an attorney, the case will be set on a Friday, approximately one month after the suit is filed. In the City of St. Louis, the docket is called commencing at 9:30 AM in Division 27, on the fourth floor of the Civil Courts Building. If the landlord, however, is represented by an attorney, cases may be scheduled for any day of the week the court is sitting. Records necessary for the court appearance consist of the tenant's rent payment record since the only issue in this type case is whether or not rent is due.

What if the Tenant Alleges Poor Conditions
Sometimes the tenant raises the defense that the rent was not paid because of the condition of the premises. Unless the tenant files a responsive pleading alleging poor condition of the premises and proves that the delinquent rent has been paid into an escrow account, the issue of condition of the premises should not be considered. Nevertheless, the judge may choose to hear the tenant with regard to the condition of premises. If so, both sides will tell their story and the judge will decide whether or not the tenant is entitled to a discount. In any event, under such circumstances the landlord should be granted a judgment for possession of the premises and, at least, some rents.

When a Judgment is Obtained
On the same day a judgment is obtained, the landlord may go to the Execution Departrnent, located on the fourth floor, across from Division 27 in the Civil Courts Building. Here, he/she completes the eviction order (also known as the landlords execution). There is no charge for filing this document. Arrangements must then be made with the Sheriff's Office for the time when the Sheriff is to come to the premises to perform the eviction. It generally takes about three weeks from the date of filing of the landlords execution until the papers get to the Sheriff's Office and the eviction is accomplished. Don't be surprised if the three weeks stretches to four. At the time of the actual eviction, the landlord must pay the mover, who accompanies the Sheriff.


IN SUMMARY, if the tenant does not appear at the docket call, then the landlord will obtain a judgment. If personal service is obtained, the landlord is entitled to a judgment for both rent (including any additional rents which may have accrued since the filing of the suit) and possession of the premises. If posting service is obtained, then the landlord is entitled to a judgment for possession of the premises only.

It must be remembered that in this type suit, if the tenant pays all rent due plus court costs, on or before the court date, then the case must be dismissed. The tenant will be allowed to remain in the premises. The landlord may not refuse to take the rent and court costs, if tendered, assuming that the tender is in cash, or equivalent.



2. UNLAWFUL DETAINER
The second type suit a landlord may consider when suing a tenant because of nonpayment of rent, is Unlawful Detainer. The unlawful detainer lawsuit is covered by Chapter 534 of the Missouri Revised Statutes. This suit is not recommended unless there is a lease and the landlord wishes to be assured that the tenant will not be allowed to remain in the premises even if tenant pays all rents and court costs on or before the court date. For purposes of this discussion, it will be assumed that the lease contains no provision dealing with notice requirements if tenant is delinquent in the payment of rents. If there is a notice provision in the lease, suffice it to say that the provisions of the lease must be followed.

Unlawful Detainer is Appropriate
    1. When the tenant is delinquent paying the rent.
    2. When the tenant is current in the payment of rent under a month to month tenancy and the landlord wishes to terminate the tenancy.
    3. When the term of lease expires and the tenant remains on the premises.
    4. When tenant is in breach of terms or conditions of lease other than non-payment of rent.
When the Tenant is Delinquent Paying the Rent
If the tenant is delinquent and the landlord wishes to be assured of a judgment for possession, the following procedure is required:
    1. Notice must be personally served upon the tenant demanding the precise amount of rents then due and declaring a forfeiture of the lease.

    2. This notice must be served ON THE RENT DAY. That is, if rent is due on the fnst of the month, notice demanding rent and declaring a forfeiture must be served on the first.

    3. If the tenant fails to pay the rent, then the landlord may go to the Civil Courts Building and file an unlawful detainer action. There are forms available for this purpose.

    4. A cover sheet must also be prepared and court costs must be paid.

    5. At this time the clerk will provide the court date.
At the time an unlawful detainer suit is filed, only PERSONAL SERVICE may be requested. If the Sheriff fails to obtain personal service, the landlord may request posting service, and a new court date will be set which will be approximately one month later. If posting service is obtained by the second court date, then the landlord will be granted a judgment for possession of the premises. Of course, if the tenant appears in court, then the landlord may obtain a judgment for both rent and possession. Again, if the tenant appears, the case will be sent to Division 28 for hearing. To repeat, for emphasis, this cause of action should not be used unless there is a lease which the property owner wishes to terminate whether or not the tenant pays the rents due.

When the Tenant is Current and Landlord Wishes To Terminate Tenancy
Another use for the unlawful detainer action arises when the tenant is current in their payment of rent, under a month to month tenancy, and the landlord wishes to terminate the tenancy. The following procedure must be followed:
    1. The landlord must personally serve, or post on the door if the tenant will not answer, NOTICE that the landlord wishes to terminate the month to month tenancy.

    2. This NOTICE must be served prior to the rent day to be effective at the end of the next succeeding month. For example, if the landlord wishes to terminate a month to month tenancy as of August 31, notice must be served before August 1.

    3. If the tenant fails to move by the appointed date, the landlord may file an unlawful detainer action.
No reason need be given for the termination of a month to month tenancy. It should be noted, however, no rent should be accepted for the following month after the termination notice has been personally served or posted. That is, in the above example (2), no rent for the month of September should be accepted.

When the Term of Lease Expires and the Tenant Remains
Yet another use for the unlawful detainer action arises when the term of a lease expires and the tenant remains in the premises. Here, NO NOTICE is necessary. The landlord may file the unlawful detainer action immediately upon expiration of the lease. Again, it is not recommended that the landlord accept rent after expiration of the lease if an unlawful detainer is contemplated.

When the Tenant Breaches the Lease for Reasons Other Than Non-Payment of Rent
If the lease contains notice provision for breach, the directives set forth in the lease should be followed. If there are no such directions, the landlord must serve notice on the tenant (or post the door if the tenant will not respond). The notice should advise the tenant that the landlord is declaring a forfeiture of the lease because...(give detailed reason), and demands that the tenant vacate the premises not more than ten days after the notice is served. If the tenant does not vacate, then the landlord may file an unlawful detainer suit.

HELPFUL TELEPHONE NUMBERS:

Civil Courts Building
10 North Tucker
Infonnation: 622-4367

City Sheriff's Office
10 North Tucker
Information: 622-4851





622-12 (ML95)