Missouri Real Estate Lawyer

Jamerson v. Boone, a recent Missouri appeals court case, could have serious consequences for landlords who fail to obtain an occupancy permit or who violate certain ordinances.

Property Condemned for Failure to Obtain Occupancy Permit

In Jamerson, the landlord and tenant entered in to an oral month to month lease. The tenant fell behind in rent, and the landlord filed a lawsuit for rent and possession. The tenant asserted no rent was owed, because the city condemned the house due to the landlord’s failure to obtain an occupancy permit. The landlord admitted at the trial that the property was condemned for the failure to obtain an occupancy permit and that the property had certain health code violations. Nonetheless, the trial court awarded both rent and possession to the landlord.

Lease May be Void Due to Housing Code Violations

On appeal, the tenant argued that an agreement to pay rent on a condemned property is a void and illegal agreement. Because the lease was illegal, the tenant argued, he was not obligated to pay rent. The appeals court agreed that “[c]ontract provisions that violate the law, including municipal ordinances, are illegal and unenforceable.” However, the defense of illegal contract must be pled as an affirmative defense. Although the tenant pled an affirmative defense that the property was condemned due to the failure to obtain an occupancy permit and that the lease was therefore illegal, the tenant failed to plead that the lease was therefore unenforceable. The tenant also failed to cite the ordinance that was allegedly violated by the landlord, and the tenant failed at trial to offer the ordinance into evidence.  Because of these failures, the appeals court upheld the trial court’s judgment in favor of the landlord.

No Duty to Pay Rent

Although this case went against the tenant, landlords are on notice that if a tenant properly pleads and proves that a landlord has violated a health or safety ordinance, including those related to an occupancy permit, then the tenant might on such grounds succeed in a defense that the landlord violated the implied warranty of habitability. Such a finding might relieve the tenant of the duty to pay rent for the period during which the violation persisted.

Pay Rent into Court

The Jamerson court also made it easier, in another way, for tenants to escape the duty to pay rent. The longstanding rule is that a tenant asserting inhabitability of the premises must pay rent into the court, or otherwise escrow the rent owed. The Jamerson court held that no such requirement exists, and each trial judge may “exercise discretion in a case-by-case basis” in determining whether the tenant must deposit rent with the court. As such, landlords faced with a defense that the premises is uninhabitable might file a motion for an order requiring the tenant to deposit rent with the court. If the judge enters such order, and if the landlord wins the suit, then the court should pay to the landlord the funds deposited with the court. A tenant may likewise file such motion as a way to strengthen the tenant’s defense. However, the tenant will likely lose the funds deposited into the court if the tenant loses the case.

Plead All Rent Owed

Finally, Jamerson reiterated the rule that a party can recover only what the party pleads. In Jamerson, the landlord pled that rent for March was past due. At trial, the landlord testified that the tenant owed rent for both February and March. The trial court entered a judgment for landlord for both months. However, the Jamerson court held that this was in error, as the landlord did not plead that February rent was owed, and the landlord did not make a motion at trial to amend her pleading to include February rent. Although a landlord may recover rent that becomes due from the date on which the lawsuit for rent is filed to the date of judgment, a landlord is entitled to recover rent for the period prior to the date of filing the lawsuit only to the extent such is pled in the lawsuit.

While Jamerson upheld the trial court judgment for the landlord, the case has important implications for landlords who fail to obtain an occupancy permit or who permit health or building code violations to persist. As Jamerson intimates, if properly pled and proven, a tenant might escape the duty to pay rent for the period during which such violation remains unabated. However, even if properly litigated, whether a tenant prevails might depend on the severity of the violation. Judges will be mindful that a tenant could obtain a windfall for violations that do not put at risk the health or safety of the tenant. Accordingly, when faced with such a defense, landlords should plead unjust enrichment and other equitable defenses asserting that it would be unfair for the tenant to not have to pay all, or at least some, of the rent owed.

This article is for general informational purposes only, and it is not intended as legal advice. You should not rely on this article to determine whether you might succeed in litigation, nor should you rely on this article as a full explanation of the law related to the matters discussed in this article. Rather, you should retain legal counsel experienced in these matters to advise you as to the circumstances and merits of your situation.

Michael Sewell has successfully litigated numerous Missouri civil lawsuits since 2005. Prior to forming Sewell Law in 2015, Michael was a full-time litigator with the Clayton, Missouri law firm of Berger, Cohen, and Brandt. Please contact Michael at (314) 942-3232 or at michael@sewelllaw.net to discuss your litigation or other legal matters.

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