Rent and Possession vs. Unlawful Detainer: What’s the Difference?

Rent and Possession vs. Unlawful Detainer:  What’s the Difference?

By:  Brittany E. O’Brien and Heather Rooney McBride

 

In Missouri, there are two different methods a property owner can utilize to evict a tenant from his or her property; namely, filing a rent and possession action or an unlawful detainer action.  In determining which is the appropriate method to use, there are several questions that need to be asked:

 

• Are you looking to get past due rent or just to evict the person from your property?
• Is there a lease agreement?; and
• How quickly do you want to get the tenant(s) out of the property?

 

Chapter 535 of the Revised Missouri Statutes provides for actions that arise because a person has failed to pay rent to the property owner.  In order for the property owner or landlord to prevail, he or she must show the following: 1) that there is an agreement for a regular payment of rent; 2) that there is rent owed; 3) that the landlord has made a demand for rent; and 4) that the tenant has failed to pay after the demand.   The demand required under Chapter 535 can be shown solely by the filing and service of the Rent and Possession petition so that no advance notice is required.  Edwards v. Tolbert, 849 S.W.2d 717 (Mo. App. 1993) citing §535.020 and §535.060.  Also, under Chapter 535 a landlord can sue to regain possession of the property against anyone residing in the property, even if the resident is not on the lease; the landlord also has the ability to sue for back rent owed (only as to people on the lease), late fees, and attorney fees if the lease agreement provides for them.  Rent and Possession cases are calendared very quickly as required by the statute, and if the tenant admits that rent is owed, courts will often award the landlord possession of the property at the first court appearance.  However, if the tenant comes to court and pays the full rent that is owed, plus all additional fees that are due and owing as of the court date, then the landlord no longer has the ability to get possession of the property, and the case may be dismissed.

 

Unlawful Detainer actions are governed by Chapter 534 of the Revised Missouri Statutes, and they are different from rent and possession cases in that the landlord does not have to show that rent is owed.  Indeed, the crux of an Unlawful Detainer action is usually that there is no lease agreement or that the lease agreement has expired, and the tenant simply does not leave when the property following receipt of a demand for possession.  A property owner must provide proper notice to prevail in an Unlawful Detainer action, which includes at least 10 days for the tenant to leave the property.  If the tenant remains after that 10 days, the property owner can sue for possession.  As in rent and possession actions, the landowner can seek a judgment for rent, late fees, and attorney fees if there is an agreement that provides for them.  There is no provision that requires the court to set unlawful detainer cases quickly and, importantly, any party can request a jury trial, where traditionally they could not under Chapter 535[1].  Also, courts are less likely to grant possession of the property until other issues are taken up, which means cases under this Chapter can take significantly longer than Rent and Possession actions.

 

With these things in mind, landlords who have a written lease with a tenant, and the tenant is behind on rent, will likely obtain swifter relief if they file for Rent and Possession under Chapter 535.  However, if a landlord never really had a lease with the tenant, the landlord should file under Chapter 534 for Unlawful Detainer.  It is possible to file a petition that has claims for both rent and possession and for unlawful detainer, by pleading in the alternative.  However, doing so is more complicated than filing either individually and will require the assistance of an attorney.  Also, landlords need to be aware that if the property they own is actually owned by a limited liability company (LLC) or corporation, businesses cannot be represented in court by an individual in the State of Missouri; they must be represented by an attorney.  Sutherland v. Sutherland, 348 S.W.3d 84, 92 (Mo, App. 2011).

 

If you are a property owner and you would like to discuss the best methods for evicting a problem tenant, would like a review and advice concerning your lease agreement, or would like to become more educated on what you can and cannot do pro se in landlord-tenant matters, please call and make an appointment with one of our experienced attorneys.

[1] Traditionally Courts have held that Rent and Possession cases are not entitled to be heard by a jury.  However, recently, Brainchild Holdings, LLC v. Cameron, 2017 WL 1483332 (April 25, 2017), was heard by the Missouri Court of Appeals Eastern District and transferred to the Missouri Supreme Court, which is looking at whether the damages portion of a rent and possession action should be entitled to a jury trial.