Chapter 535 of Missouri’s Revised Statutes provide landlord’s with a means of recovering their leased property when rent is due and owing, and demand for rent has been made by the landlord. In this article, I discuss the basics of bringing a rent and possession case.
Initiating a Case
Missouri’s rent and possession claim is a low-cost and expedient means of litigation to recover possession of the premises or coerce payment of overdue rents. In addition to being brought when rent goes unpaid, a Chapter 535 action may be brought when there is a material breach of a lease provision. The action is filed by the landlord or the landlord’s attorney in the county in which the property is situated. In a verified affidavit, the landlord must set forth the terms under which the property was rented, the amount of rent actually due to the landlord, the fact that demand was made from the tenant or other occupants and payment was not made, and a description of the property rented or leased.
After the case is filed, a summons will be issued by the court clerk and will be served by the sheriff or sheriff’s deputy. Alternatively, a special process server may be appointed by the court to serve process. If the tenant cannot be served, then the court may allow the landlord to serve process by posting. In addition to posting, the landlord should send a copy of process by certified mail to the tenant’s last known address. See Greene v. Lindsey, 456 U.S. 444 (1982) (holding that posted service accompanied by mail service is constitutionally preferable to posted service alone). Process must be served at least at least four days before the return date.
The Court Process
Once served, the tenant must appear at the return date on the summons or file an answer by that time. If no answer is filed and the tenant does not appear, the court may enter a default judgment against the tenant. In addition, where the tenant defaults and the summons was served by posting and mailing, the court cannot order a money judgment. If the tenant files and answer or appears, then the judge will set the matter for hearing at the court’s first available date.
A successful landlord may recover rent due up to the court date; late fees, if agreed to by the parties; attorney’s fees, if agreed to by the parties; possession of the premises; special process serve fees; and costs of suit. In addition, and if circumstance permit, a court may also order interest be paid on any back rent as well as damage or waste to the property beyond reasonable wear and tear. Finally, the landlord may be entitled to rent for the duration of and pursuant to the leasehold even after he recovers possession and consistent with her/his duty to mitigate such damages.
Which Method of Eviction Should a Landlord Choose?
Landlords have four methods to remove a tenant or trespasser: rent and possession, unlawful detainer, ejection, and expedited eviction proceedings. Many landlords opt for a rent and possession action because it is often the fastest and easiest form of eviction. In addition, a rent and possession action does not require a landlord’s strict compliance with the statutes as an unlawful detainer action would require. Landlords who are more concerned with receiving a money judgment may prefer a different method. In some cases, landlords may be able to proceed under multiple theories for recovery if those theories do not disprove each other. See Moser v. Cline, 214 S.W.3d 390 (Mo. Ct. App. 2007).
Speak with an attorney to explore your options.
Authored by Andrew Lipscomb