At common law, absent agreement, the landlord had no duty to repair or maintain leased premises. Over the years, this rule has been modified by a number of exceptions, making the landlord liable for repair and maintenance in many, but not all, situations.
Still, however, with limited exceptions, the tenant cannot withhold rent because of the landlord’s failure to repair or maintain.
The common law rules and the exceptions engrafted upon them over the years are outlined below.Top of Page
A good summary of the main common law rules relating to repair/maintenance of leased premises appears in King v. Moorehead, 495 S.W.2d 65, 68-69 (Mo.App., K.C. 1973):
“At early common law, a lease was considered a conveyance of an estate in land and was equivalent to a sale of the premises for the term of the demise. Warner v. Fry, 360 Mo. 496, 228 S.W.2d 729, 730(1) (1950); 2 Powell, The Law of Real Property, §221(1) at 178. As a purchaser of an estate in land, the tenant was subject to the strict property rule of caveat emptor – let the buyer beware. The lessee’s eyes were his bargain. He had the duty to inspect the property for defects and took the land as he found it. ‘(F)raud apart, there (was) no law against letting a tumble-down house.’ Robbins v. Jones, 15 CBNS 221, 143 Eng.Rep. 768, 776 (1863). There was no implied warranty by the lessor that the leased premises were habitable or fit. The common law traditionally assumed that the landlord and tenant were of equal bargaining power. So, if the tenant wished to protect himself as to the fitness of the premises, he could exact an express covenant from the landlord for that purpose. Burnes v. Fuchs, 28 Mo.App. 279, 281 (1887); Griffin v. Freeborn, 181 Mo.App. 203, 168 S.W. 219, 220 (1914); See also, “Landlord and Tenant – Implied Warranty of Habitability – Demise of the Traditional Doctrine of Caveat Emptor,” 20 DePaul L.Rev. 955 (1970-1971).
“The law of leasehold originated in an era of agrarian economy which assumed that the land was the most important feature of the conveyance. The tenant was only the conduit for the rent which was conceived to issue from the land itself ‘without reference to the condition of the buildings or structures on it.’ Hart v. Windsor, 12 M & W 68, 152 Eng.Rep. 1114, 1119. If the buildings were not habitable, the rent – which was the quid pro quo of the tenant’s possession – was still due from him. Thus, even where the tenant was successful in exacting a covenant that the lessor make repairs, this covenant was considered only incidental to the land and independent of the tenant’s covenant to pay rent. Hence a breach by the landlord did not suspend the obligation of rent; the tenant’s only remedy was to sue for damages arising from the breach. For all practical purposes, the obligation to pay rent was absolute.”
The common law not only did not require the landlord to maintain leased premises, but also prohibited the landlord from entering the premises to make repairs absent agreement with the tenant. Bert v. Rhodes, 258 S.W. 40 (Mo.App., St.L. 1924); Forsythe v. Shryack-Thom Grocery Co., 223 S.W. 39 (Mo. 1920); and McKinley v. Alliance Trust Co., 66 S.W. 153 (Mo. 1901).
The rule that a tenant may not withhold rent because of the landlord’s failure to repair or maintain remains alive and well today, with certain exceptions noted in subsequent sections of these materials. See, e.g., Broken Heart Venture, L.P. v. A&F Restaurant, 859 S.W.2d 282 (Mo.App., E.D. 1993), and C&J Deliver v. Vineyard & Lee & Partners, 647 S.W.2d 563 (Mo.App., E.D. 1983), both holding that payment of rent is an independent covenant of the tenant which is not excused if the landlord breaches an essential term of the lease. In O’Neil v. Flanagan, 64 Mo.App. 87 (1895), the tenant was not discharged from his obligation to pay rent although the building was destroyed by fire. In Burnes v. Fuchs, 28 Mo.App. 279 (1887), the obligation to pay rent was not discharged although the premises were in such deplorable condition as to be condemned by municipal authorities. (For a case showing perhaps slight movement away from this rule, see Hiatt Inv. Co. v. Buehler, 16 S.W.2d 219 (Mo.App., K.C. 1929)). Of course, a lease agreement can give the tenant the right to withhold rent to compensate the tenant for repairs the landlord was contractually obligated to make. Edith Investment Company, Inc. v. Fair Drug, Inc., 617 S.W.2d 567 (Mo.App., W.D. 1981).
At common law, the tenant had the right, but not the duty, to make repairs and maintain the demised premises; however, the tenant also had to refrain from committing waste, which in some situations might give rise to a duty to perform some repairs or maintenance. Rumiche Corp. v. Eisenreich, 40 NY2d 174, 386 NYS2d 208, 352 N.E.2d 125 (NY). Waste recently was defined as “the failure of a lessee to exercise ordinary care in the use of the leased premises or property that causes material and permanent injury thereto over and above ordinary wear and tear.” McLane v. Wal-Mart Stores, Inc., 10 S.W.3d 602, 605 (Mo.App., E.D. 2000). Even when the tenant voluntarily repaired or maintained the leased premises, there was no right to be reimbursed by the landlord absent agreement. Wilson v. Watt, 327 S.W.2d 841 (Mo. 1959). In any event, the tenant is liable at common law for the repair of conditions caused by the tenant’s neglect or intentional act. King v. Moorehead, supra, at 76.Top of Page
The doctrine of constructive eviction can be seen as an early step toward holding the landlord liable for repairs under some circumstances. King v. Moorehead, supra, at 69-70, explains the development of the constructive eviction doctrine as follows:
“. . . even the earliest common law lease was understood to be ‘a contract for title to the estate’ and thus to imply a covenant of quiet enjoyment of the demised premises. If the landlord evicts a tenant by physically depriving him of possession, he breaches the implied covenant of quiet enjoyment and the obligation of the tenant to pay rent is suspended. Dolph v. Barry, 165 Mo.App. 659, 148 S.W. 196, 198 (1912). The covenant of quiet enjoyment is not only an exception to caveat emptor but also to the doctrine that the covenants of a lease are independent.
“Upon this exception was built another exception, the doctrine of constructive eviction. The courts soon came to realize that a tenant’s possession and quiet enjoyment could be molested by something less than physical extrusion by the landlord. A constructive eviction arises when the lessor, by wrongful conduct or by the omission of a duty placed upon him in the lease, substantially interferes with the lessee’s beneficial enjoyment of the demised premises. Under this doctrine the tenant is allowed to abandon the lease and excuse himself from the obligations of rent because the landlord’s conduct, or omission, not only substantially breaches the implied covenant of quiet enjoyment but also ‘operates to impair the consideration for the lease.’ Dolph v. Barry, 165 Mo.App. 659, 148 S.W. 196, 198 (1912). Thus, the first remedy created by the courts to insure habitability, and to exonerate the tenant’s obligation for rent under a lease for lack of it, was ‘designed to operate as though there were a substantial breach of a material covenant in a bilateral contract.’ Lemle v. Breeden, 51 Haw. 426, 462 P.2d 470, 475(5) (1969).”
A Missouri case often cited for the constructive eviction doctrine is Yaffe v. American Fixture, Inc., 345 S.W.2d 195 (Mo. 1961), in which the landlord was slow performing a contractual obligation in the lease to repair the roof of a warehouse damaged by a windstorm. The tenant retained possession for a period of time after the roof was damaged but then abandoned the premises, claiming constructive eviction. The key issue in the case was whether the tenant waived constructive eviction by remaining in possession as long as it did. The Missouri Supreme Court held that under the circumstances, the issue of waiver was a jury question and remanded the case for a new trial.
Under constructive eviction, the tenant treats the lease as materially breached by the landlord and moves out. If the landlord later sues for rent accruing after the material breach, the tenant must raise constructive eviction as an affirmative defense. The possibility that a constructive eviction defense may be valid can have the effect of impelling a landlord to make necessary repairs.
According to Wulff v. Washington, 631 S.W.2d 109 (Mo.App., W.D. 1982), the defenses of constructive eviction and breach of warranty habitability are “coterminous” in the sense that the conditions that will trigger a habitability defense generally also will give rise to constructive eviction.Top of Page
In 1973 King v. Moorehead, supra, was the first Missouri case to adopt an implied warranty of habitability in residential leases. The doctrine was later endorsed by the Missouri Supreme Court in Detling v. Edelbrock, 671 S.W.2d 265 (Mo. banc 1984).
Before explaining the habitability theory, it is important to note that later cases have made clear there is no warranty of habitability, suitability or fitness in connection with a lease of commercial property. Mobil Oil Credit Corporation v. DST Realty, Inc., 689 S.W.2d 658 (Mo.App., W.D. 1985); and Kootman v. Kaye, 744 S.W.2d 898 (Mo.App., E.D. 1988).
After a lengthy discussion of cases from other states and certain legislation adopted by the Missouri General Assembly, the King court stated, King v. Moorehead, supra, at 75: “It is consistent with these legislative policies that in every residential lease there be an implied warranty by the landlord that the dwelling is habitable and fit for living at the inception of the term and that it will remain so during the entire term. The warranty of the landlord is that he will provide facilities and services vital to the life, health and safety of the tenant and to the use of the premises for residential purposes. It is an obligation which the landlord fulfills by substantial compliance with the relevant provisions of an applicable housing code.” The King court elaborated the doctrine, id. at 75-77, as follows:
“We adopt the view that a lease is not only a conveyance but also gives rise to a contractual relationship between the landlord and tenant from which the law implies a warranty of habitability and fitness by the landlord. Under contract principles a tenant’s obligation to pay rent is dependent upon the landlord’s performance of his obligation to provide a habitable dwelling during the tenancy. [Citations omitted.] A more responsive set of remedies are thus made available to the tenant, the basic remedies for contract law, including damages, reformation and rescission. [Citations omitted.]
“The materiality of a breach of warranty claimed by a tenant shall be determined by factors, among others, of the nature of the deficiency or defect, its effect on the life, health or safety of the tenant, length of time it has persisted and the age of the structure. Minor housing code violations which do not affect habitability will be considered de minimis. Also, the violation must affect the tenant’s dwelling unit or the common areas which he uses. The tenant is under an obligation to give the landlord notice of the deficiency or defect not known to the landlord and to allow a reasonable time for its correction. The contract principle that a person may not benefit from his own wrong will exonerate a landlord for a defect or deficiency caused by a tenant’s wrongful conduct. [Citations omitted.] . . . .
“. . . A tenant who retains possession, however, shall be required to deposit the rent as it becomes due, in custodia legis pending the litigation. [Citations omitted.] This procedure assures the landlord that those rents adjudicated for distribution to him will be available to correct the defects in habitability, and will also encourage the landlord to minimize the tenant’s damages by making tenantable repairs at the earliest time. Also, for good cause and in a manner consistent with the ultimate right between the parties, a trial court will have discretion to make partial distribution to the landlord before final adjudication when to deny it would result in irreparable loss to him.”
In endorsing the King court’s decision, the Missouri Supreme Court outlined the elements of a habitability claim as follows, Detling v. Edelbrock, supra, at 270:
“. . . a tenant seeking to state a cause of action for breach of the warranty of habitability must allege facts satisfying the following elements: (1) entry into a lease for residential property; (2) the subsequent development of dangerous or unsanitary conditions on the premises materially affecting the life, health and safety of the tenant; (3) reasonable notice of the defects to the landlord; and (4) subsequent failure to restore the premises to habitability.
Subsequent cases confirm that the habitability doctrine requires that the landlord be given notice of defects and reasonable time for repairs. Proffer v. Randall, 755 S.W.2d 655 (Mo.App., E.D. 1988); and Loven v. Davis, 783 S.W.2d 152 (Mo.App., S.D. 1990). Further, the landlord cannot be liable under the habitability doctrine for a latent defect absent the landlord’s actual knowledge or constructive notice of the defect. Henderson v. W.C. Haas Realty Management, Inc., 561 S.W.2d 382 (Mo.App., K.C. 1977).
For almost five decades, the King court’s holding that tenants claiming uninhabitability must deposit ongoing rent with the court while a case is pending was not clarified, and some cases questioned whether there was such a requirement. Clarification finally came on July 3, 2018 when the Missouri Supreme Court decided Kohner Properties, Inc. v. Johnson, No. SC95944. The court held:
“. . . the circuit courts have the discretion to institute a suitable protective procedure upon either party’s request and after notice and an opportunity to be heard by the opposing party. See Unif. Residential Landlord & Tenant Act § 408(b) & cmt. (expanding upon § 4.105 and stating, ‘[i]f a tenant is in possession of the dwelling unit when the landlord files an action based on nonpayment of rent, either party may seek a court order directing the tenant to pay all or part of the unpaid rent and all additional rent as it accrues into an escrow account with the court’).”Top of Page
Many cities and some counties have adopted ordinances embodying housing, fire and/or safety codes which place affirmative duties on landlords to maintain rental properties in compliance with the ordinances. Most such ordinances make it illegal to rent properties which do not comply with the codes and for which a certificate of compliance has not been issued.
Because these codes, and enforcement practices, vary from place to place, a landlord should make careful inquiry in his or her locale and be prepared to perform whatever repairs and maintenance are required.
From a tenant’s perspective, often the best way to compel a landlord perform a repair is to complain to the local government’s code enforcement agency.Top of Page
A statute enacted in 1997, §441.234 RSMo., gives tenants the right, under limited conditions, to deduct repair costs from rent. This new right cannot be waived by a written lease clause. To be eligible, the tenant must have lived in the leased premises for six consecutive months, have paid all rent and charges, and not have received any written notice from the landlord of any lease violation which was not subsequently cured.
The condition to be repaired must detrimentally affect the habitability, sanitation or security of the premises, must constitute a violation of a local municipal housing or building code, and must not have been caused by the deliberate or negligent act or omission of the tenant, a member of the tenant’s family, or another person on the premises with the tenant’s consent.
The reasonable cost to correct the condition must be less than the greater of $300 or one-half of the monthly rent, provided that the cost may not exceed one month’s rent and that a tenant may not deduct more than one month’s rent during any 12-month period.
Before proceeding, the tenant must give written notice to the landlord of the tenant’s intention to correct the condition at the landlord’s expense. If the landlord fails to correct the condition within 14 days after receiving written notice, or as promptly as required in case of an emergency, the tenant may cause the work to be done in a workmanlike manner. If the tenant has the work done, the tenant may deduct from rent the actual and reasonable cost of the work, not exceeding the amount specified above, upon giving the landlord an itemized statement including receipts.
However, if the landlord provides to the tenant within the 14-day period a written notice disputing the necessity of the repair, then the tenant may not deduct the repair cost from rent without securing, before the repairs are performed, a written certification from a local governmental body that the condition to be repaired constitutes a violation of a housing or building code. If this certification is issued, the tenant may have the work done as described above only if the landlord fails to correct the condition within 14 days after receiving notice of the certification, or as promptly as required in case of an emergency.Top of Page
Landlord liability to repair and maintain also can arise under §§ 441.500 – 441. 643 RSMo., which provide remedies to tenants of housing facilities that do not comply with applicable housing or building codes. A civil action may be commenced in the circuit court of the circuit where the property is located on the ground that a nuisance exists with respect to such property. Such an action may be filed by: (1) The municipality where the property is located through its code enforcement agency, (2) by the occupants of one-third or more of the dwelling units within the affected building, (3) by a non-profit organization organized to enhance housing opportunities, or (4) by any owner or tenant of real property within 1,200 feet in any direction of the property in question who can show a substantial effect by the alleged nuisance. §441.510 RSMo.
The verified petition must name as defendants the last owner of record of the property and the last holder of record of any mortgage, deed of trust, or other lien of record against the property. §441.520 RSMo. The verified petition must state the facts constituting the nuisance and allege that violations of the housing code exist as determined by a notice of deficiency, that the owner of the property has failed within a reasonable time to remove the nuisance, and that the relief sought is authorized by §§ 441.570 and 441.590 RSMo. If the action is brought by the occupants of a building, the number of dwelling units occupied by the plaintiffs and the number of dwelling units in the building also must be alleged. §441.530 RSMo.
The term “nuisance” means a violation of provisions of the housing code applying to the maintenance of the building or dwelling unit which, if not promptly corrected, will constitute a fire hazard or substantial threat to the life, health or safety of the occupants and/or the general public. thereof. §441.500(10) RSMo.
If the court finds that the dwelling unit or building constitutes a nuisance as defined, the court may appoint a receiver and direct that present and future rents be deposited with the receiver, who may use the rent monies to remedy the deficiencies. §§ 441.570 and 441.590 RSMo. A court order directing payment of rent to a receiver is a valid defense to any eviction lawsuit by the landlord based on non-payment of rent. §441.580 RSMo.Top of Page
In general, if there are latent defects in leased premises which are known to the landlord but not to the tenant, and which the tenant cannot discover in the exercise of ordinary care, the landlord is under a duty to disclose the defect, and the landlord’s failure to disclose the defect, or concealment of the defect, renders the landlord liable for injuries to the tenant, the tenant’s family, and the tenant’s invitees resulting from the defect. Horstman v. Glatt, 436 S.W.2d 639 (Mo. 1969); Janis v. Jost, 412 S.W.2d 498 (Mo. 1967); Knox v. Sands, 421 S.W.2d 497 (Mo. 1967); and Caples v. Earthgrains Company, 43 S.W.3d 444 (Mo.App., E.D. 2001).
However, assuming the latent defect is not required to be repaired by the landlord under some other theory, the landlord is not liable to the tenant or others if the defect is disclosed. Mitchell v. O’Hearne, 795 S.W.2d 603 (Mo.App., E.D. 1990).Top of Page
It has long been the rule in Missouri that landlords must keep common areas of leased buildings in a safe condition and must use reasonable diligence in doing so. McKinley v. Alliance Trust Co., 66 S.W. 153 (Mo. 1901). See also Lemm v. Gould, 425 S.W.2d 190 (Mo. 1968). Common areas include hallways, stairs, lobbies, walkways, porches, yards, etc. which are maintained for the use of multiple tenants. In contrast, any portion of a leased building which is exclusively within the tenant’s control is not a common area, and the landlord generally has no duty to maintain such tenant-controlled areas (except under other theories mentioned in these materials). Pate v. Reeves, 719 S.W.2d 956 (Mo.App., S.D. 1986).
Sometimes there is a dispute whether a particular location is a common area or not. Such disputes are resolved under the facts in the particular case. Caples v. Earthgrains Company, 43 S.W.3d 444 (Mo.App., E.D. 2001).Top of Page
A landlord can assume the duty to make repairs within the demised premises (as opposed to common areas) by contractual agreement. Janis v. Jost, 412 S.W.2d 498 (Mo. 1967); Hornbeck v. All American Indoor Sports, Inc., 898 S.W.2d 717 (Mo.App. W.D. 1995). If the landlord makes such an agreement, he must maintain the areas of the demised premises over which he assumes the duty of repair in reasonably safe condition for the intended uses. Green v. Kahn, 391 S.W.2d 269 (Mo. 1965).
It is also possible for the landlord to retain sufficient control over the demised premises for the purpose of inspecting and making repairs such that the landlord will be deemed to have assumed the liability for making repairs and maintaining the portion of the demised premises within his control in reasonably safe condition for its intended uses. Lemm v. Gould, 425 S.W.2d 190 (Mo. 1968). However, a mere undertaking by a landlord to make repairs and/or the mere reservation of a right to inspect will not necessarily constitute sufficient control to render the landlord liable. Even a landlord’s reserved right to make repairs at the tenant’s expense if not made by the tenant will not necessarily constitute sufficient control to hold the landlord liable. Horstman v. Glatt, 436 S.W.2d 639 (Mo. 1969). In order to hold the landlord liable, it must be shown that the tenant has given up his right of exclusive possession and control and has yielded to the landlord some degree of control and dominion over the demised premises; it is not necessary for the landlord to have the power to admit or exclude third parties from the premises, but the landlord will have sufficient control to be held liable if he retains general supervision of the premises for a limited purpose such as making repairs and has the right to enter the premises to make repairs on his own initiative and responsibility. Lemm v. Gould, supra. For an illustrative case, see Harrison v. Roberts, 800 S.W.2d 40 (Mo.App. W.D. 1991), in which the landlord was deemed to have retained sufficient control over the exterior porch of a rented single-family home to be liable for an injury suffered by the tenant when the porch guardrail collapsed.Top of Page
As mentioned above, there is no warranty of habitability, suitability or fitness in a lease of commercial premises. Mobil Oil Credit Corporation v. DST Realty, Inc., 689 S.W.2d 658 (Mo.App. W.D. 1985). The same case establishes the proposition that absent an express agreement by a tenant to make structural repairs to a leased building, the tenant has no liability for structural repairs. This is true even if the lease obligates the tenant to make general repairs, unless the lease specifically imposes the duty on the tenant to make structural repairs. Thus, where a lease is silent on who must pay for substantial structural repairs, the burden will fall on the landlord.
Presumably this same principle would apply with even more force to a residential lease, to the extent the structural repairs did not become the landlord’s obligation under another theory such as habitability or violation of housing codes.Top of Page
The general common law principle that neither the landlord nor the lessor need make repairs if the lease is silent on the issue does not comport with the realities of modern commercial leasing. Accordingly, conventional commercial leases ordinarily assign maintenance and repair responsibilities to the landlord and the tenant.
A common provision is that the landlord will maintain the exterior of the buildings and the tenant will maintain the interior, fixtures and equipment. This type of provision may be adequate for simple situations, but in leases of larger properties, it frequently will prove to be inadequate. Ordinarily, the parties intend that day-to-day maintenance and minor repairs be made and paid for by the tenant, and that repairs due to obsolescence or old age and more in the nature of a replacement or a capital expenditure be made and paid for by the landlord. The problem becomes acute in view of the cost of making major replacements or repairs to such things as elevators, boilers and large air-conditioning units. There are two common solutions to the drafting problem:
Neither of these clauses is perfect, and it behooves the lawyer to work with a landlord or tenant client to determine the potential costs of performing various maintenance and repair work and to allocate those costs appropriately in the lease.
A common problem that arises in commercial leases relates to doors and windows. Typically, while assigning exterior maintenance to the landlord, a commercial lease also specifies that the tenant must replace glass in doors and windows. A common question that then arises is whether doors and windows are considered part of the interior or the exterior of the premises. The matter can be resolved by providing in the lease that the tenant will take care of glass but that “doors, door frames and sills, windows, window frames and sills and door opening and closing devices will be maintained and repaired by the landlord.”Top of Page
WARNING: As a general proposition, if the landlord is liable to repair or maintain under any theory, the landlord will be liable for personal injuries resulting from failure to maintain the premises in a reasonably safe condition. Green v. Kahn, 391 S.W.2d 269 (Mo. 1965); Horstman v. Glatt, 436 S.W.2d 639 (Mo. 1969).Top of Page
A landlord is not required to repair/maintain leased premises except as follows:
A tenant cannot withhold rent from the landlord because of the landlord’s failure to maintain or repair except as follows: