What is the best way to remove non-paying tenants? A recent decision of the Missouri Supreme Court may change the answer.
Far too often, especially in the context of residential rentals, tenants fail to pay rent and/or move out. When this happens every landlord is faced with the question of what to do. In addressing this question, it is essential to know your options as a landlord, and, maybe more importantly, the consequences of each potential option.
One of the standard options is to have an attorney file a lawsuit, but even that choice has options within it; file an action for unlawful detainer or an action for rent and possession. The basic features of an unlawful detainer action are: (1) the action only applies if the lease has been terminated; (2) the tenant may request a jury trial; (3) no counterclaims are permitted; and (4) the landlord is entitled to double damages for the period of unlawful detainer. The basic features of a rent and possession action are: (1) the action only applies if the tenant fails to pay rent; (2) the tenant may request a jury trial; (3) the tenant is entitled to file a counterclaim; and (4) the tenant can stay the proceedings by paying all rent then due, plus court costs, to the landlord.
Reviewing these basic features, you may ask: why do landlords typically file rent and possession actions when an unlawful detainer action appears more attractive? One of the answers is that prior to December 5, 2017, a tenant was not entitled to request a jury trial in a rent and possession action. Rent and possession actions are filed in the associate division of the circuit court, and prior to 2014 if the tenant or landlord did not agree with the decision of the Judge they could appeal to the circuit court. Once before the circuit court either party could request a trial by jury. Missouri’s Constitution grants citizens the right to a trial by jury, and past decisions of the Missouri Supreme Court held that in rent and possession actions, since a jury trial was available at some point in the process (the appeal to the circuit court) the constitutional right to a jury trial was satisfied.
This conclusion recently changed as a result of a revision to a Missouri Statute. In 2014, §535.110, RSMo. was amended and the provision allowing an appeal to the circuit court in rent and possession actions was removed. In the case of Brainchild Holdings, LLC v. Cameron, 534 S.W.3d 243 (Mo. banc 2017), the Missouri Supreme Court addressed the impact of this statutory revision. The Court found that due to the elimination of the right to appeal to the circuit court, and the resulting elimination of the right to request a jury trial at the circuit court level, that tenants and/or landlords are now permitted to request a jury trial in a rent and possession action in the associate division of the circuit court.
The reason this change is so important to landlords is that a request by a tenant for a jury trial will drag out the legal process, and allow the tenant to remain on the property, presumably without paying rent. Courts are required to give rent and possession trials priority in scheduling, and in the past judges would often schedule the trial within a few weeks of the initial hearing, but jury trials are a different story. This change is new and the courts are still adapting, but if a tenant requests a jury the trial may not be scheduled for 30 to 60 days, or potentially longer.
To avoid such an unwanted scenario, landlords need to ensure that their lease agreements contain language that effectively waves a tenant’s right to a jury trial, and they may wish to revisit their procedure with respect to tenants that are past due on rent so as to know the answer to the following questions. Is it better to terminate the lease and file an unlawful detainer action or file a rent and possession action? Does my lease allow for immediate termination if rent is past due? What is the process for terminating a lease? How quickly can and/or should I act if a tenant is past due on rent?
Unfortunately, every landlord, big or small, will likely be faced with a nonpaying tenant. When this occurs you want to be sure that you know the most effective, fastest, and cheapest means to remove the non-paying tenant, and that your lease agreement provides you with the best tools for ridding yourself of a nonpaying tenant. Often, an upfront investment of time and effort on your lease and eviction procedures will result in significant savings when you are faced with the inevitable, a nonpaying tenant.
