23 Oct Ep. 47 Attorney Julie Ostrom-Investment Properties and Evictions
SUBSCRIBE ON APPLE PODCASTS
In this episode, Realtor Adam Kruse had Attorney Julie Ostrom of Beck Ostram Sweet, LLC come into the Hermann London offices to give a presentation on investment properties and evictions. Find out about the new rule regarding security deposits and how landlords and property managers can protect themselves by having more thorough lease agreements.
Email questions to PODCAST@HermannLondon.com
0:30 Adam and Shannon give a disclaimer explaining that this was an educational presentation held in the Hermann London conference room that they decided to record for the podcast.
3:41 Adam thanks Julie Ostrom of Beck Ostram Sweet for coming to Hermann London to share her knowledge
3:58 Julie introduces herself. She has been licensed to practice law since 2009 and her specialty is investment properties.
4:20 Why is it important to have a lease agreement?
4:30 Can you collect late fees without a written lease agreement?
4:40 Can you be reimbursed for attorney and court fees with a lease agreement?
4:56 Can you waive the right to a jury trial with a lease agreement?
5:19 How long should a lease be for?
6:03 What is a month to month tenancy?
6:40 What is a good termination clause?
7:23 Identify the monthly rent, the day that it is due, and the grace period in your lease agreement
8:10 What is rent abatement?
8:50 Use a lease agreement to identify who pays the utilities
10:14 There is a new rule as of August 28th, 2018 that says security deposits have to be kept in a separate account that is FDIC insured
14:24 Can you collect more than 3 months rent for a security deposit?
16:01 How soon must a security deposit be returned to the tenant?
17:53 What are the two types of evictions in Missouri?
17:56 What is rent and possession?
18:03 What is an unlawful detainer?
19:40 How much does it cost to file for a rent and possession eviction?
20:15 What are the two types of servers in an eviction? What is posting service?
26:18 All landlords have an obligation to mitigate damages. A landlord is not allowed to double collect.
27:00 What can a court order tenants pay to a landlord
27:28 Execution on your judgement. What is a writ for execution?
28:48 What should a landlord do with their tenants’ stuff after the eviction? What is conversion?
31:21 Unlawful detainer. The three classes of holdover tenants. Tenant/employee/intruder
33:00 30 day notice of termination are better off served and not mailed and is based on the rent payment period
34:36 What do you do if your tenant has unauthorized occupants? What is an obligor?
37:30 Default judgement/ consent judgement/ judgment after trial
38:18 Kohner Properties, Inc v. Johnson-Do tenants have an obligation to escrow their rent when they are claiming they are holding rent as a result of failing to make repairs?
40:30 Are heat and air conditioning a right? What if an air conditioning unit can’t be repaired for 3 weeks?
42:14 Brainchild Holdings LLC v. Stephanie Cameron-Do tenants have a right to a jury trial? What is a Trial de novo?
43:58 Tenants think they don’t have to pay rent when the property has a building code violation with the word condemned on it
45:00 What is Project 87 in the city and how do they help with lead paint removal?
46:23 Will insurance companies defend a lead paint lawsuit?
47:20 What if a tenant finds bed bugs?
51:17 Do you have the right to trim anything that is encroaching on your property? What if you kill your neighbor’s tree?
52:08 Can you file a lawsuit to enter your neighbor’s property to fix your property? What is easement by necessity?
54:17 Do you have to take someone to court if they claim a survey is wrong?
55:20 How often are the surveys wrong?
56:29 Call the Beck Ostrom Sweet Law Firm at 314-772-2889 and email Julie at firstname.lastname@example.org
Adam: live on the rooftop of the Hermann London real estate group in beautiful downtown Maplewood it’s the st. Louis realtor podcast with your host Adam Kruse welcome (2) everybody to the st. Louis realtor podcast live from the rooftop of the Hermann London real estate group beautiful downtown make wood Missouri I’m here with my co-host Shannon st. Pierre.
Shannon: [???] you believe how warhead is out today still in October
Adam: beautiful out today out here on the rooftop
Shannon: cool sunny
Adam: and we are super excited because Shannon is bringing in her friend is this your friend
Shannon: I know them because of the tax sales
Adam: you want to be friends Shannon is bringing in her friend who she wants to be friends with Julie Ostrom
Adam: attorney law
Shannon: from Beck Ostrom sweet the law firm right into our Covey’s right around the corner for me so I will deliver wine to them occasionally which is why they because Dale actually we converse and I bounce off ideas and regrets in the tax sale
Adam: okay and we’re opposed to game awarding this pre intro here because we’ve already recorded the podcast and we just wanted to say to anyone who’s listening a we did this podcast in an unusual format we did it in a big group setting in the conference room so the sound isn’t up to our normal stuff right
Shannon: right but I’d like to say in our defense it was just a last minute idea to go ahead and record the meeting we invited Julian not necessarily to do the podcast but to do have a roundtable conversation about tenant-landlord law and real estate law in general
Shannon: and it was just I knew how valuable the information was so it was just kind of an idea to go ahead and record it
Adam: well right and she had a great presentation and we kind of sprinkled in a few questions and so what we had in the room was a bunch of people not necessarily property managers with their company agents with our company who maybe don’t always listen or don’t always deal with investments and stuff
Shannon: yeah I’d say we only had really one or two property managers actual property managers in the room so then the remainder six seven eight people here don’t deal with tenant landlord law
Adam: and the reason why we’re wanting to say that is because they asked maybe more elementary questions and we don’t want people to think that her middle of the property management didn’t know this stuff right
Adam: [???] property management perspective as I found I felt relieved and [???]
Shannon: how we’re doing bcoz how about board and
Adam: yeah with all the everything she said there was nothing that’s like oh dang we need to be doing that
Shannon: no not really mm-hmm other than me a bed bug thing addendum no apparently
Adam: yes okay so we’ll get started the podcast number
Shannon: yeah but I really do think that this podcast was really is probably really great for beginning investors or invest investors in the earlier stages in regards to buy and holds just because the (2) questions that were asked by some of our other people in attendance and agents were just questions that the investors have all the time
Adam: so thank you for listening and take care [Music] welcome everybody we have Julie Ostrom here from Beck post Jim sweet attorneys-at-law we’re excited to have her here in the office and she’s going to talk to us and then we’re gonna ask some questions so I prepare your questions while Julie tells us a little bit about herself
Julie: hi everybody so – I’m Julie I was licensed to practice law in 2009 so my area of specialty is in real estate specifically investment property buying selling working on it leasing it evicting people so I’ve got a little presentation just talking about leasing and evictions so why is it important to have a lease agreement it provides parameters for the lieutenant relationship you don’t need a lease agreement there’s such a thing as a verbal lease you can evict a tenant on a verbal lease but there’s a couple of things that you can’t get if you don’t have a written agreement so one late fees there’s no automatic right to collect late fees unless you have a lease agreement that allows you to have it being reimbursed for your attorneys fees in court costs that has to be a provision in the lease there’s no remedy for that under common law or by statute in Missouri being able to recoup your attorneys fees is either by statute or by agreement and then waiver of the right to a jury trial so one of the things that can really stretch out an eviction is a tenant asking for a jury because it just takes the court months to be able to impanel a jury for a small civil case like that mostly the juries are impaneled for big criminal cases but you can actually waive the right to a jury trial in the lease agreement so how long should at least be for standard is one year but there’s also a month-to-month as an option and so as the landlord it’s really up to you based on how you want to lease to people based on how you’re going to manage the property so if you have a month to month tenancy you can terminate the tenancy at any time with one month’s notice but so can the tenant which means the tenant can vacate one year gives you at least some hope of a steady income stream and maybe even for longer so both parties really benefit from a term and then at the time of the tart with a lease that we call when the lease terms is at the end of the lease period the terms of the lease stay in place however it turned it turns into what’s called a month to month tenancy so if you have a lease from January 1 2018 to December 31st 2018 and the tenant stays on January 1 2019 and pays rent and you accept red they are still your tenant and all the terms of the lease including the attorney’s fees provisions or the late fees still apply but they’re a month-to-month tenant
Shannon: so [???] or is that anyways [???]
Julie: that’s just how it works yeah that’s by operation of law but yes in the residential lease agreement that Missouri real lenders have access to I mean it reads exactly the same the start date end date but if the tenant stays and you don’t have them signed a new lease with a new term they just automatically convert to a month-to-month the other thing is is you can include a termination clause so if a tenant wants to vacate early rather than there being of fussing and fighting over well you have a one-year lease and you’re still six more months add a termination clause that says pay me two months rent and I’m gonna forfeit your security deposit and you can move up right to offer an option for people to be able to terminate without having to fuss and fight over it which I mean any anyone in here who’s a landlord knows you periodically you have tenants that just want to they want to move in the middle of their lease so they get a different job or they get they relocate or they want to move in with a partner so another thing that’s important about lease is you identify your monthly rent and the day that it’s due right so tenants sometimes have a tendency to trickle in their rent pay on a weekly basis right so having a identified due date and the monthly rental amount but if there’s a grace period you can add that in late fees also under common law need to be what’s considered reasonable so if the rent is foreigner dollars a month and the tenant has it paid for 30 days and their late fees total more than their rent those do not be considered reasonable late fees I’m opposed to daily late fees mostly because they’re just really too hard to track it’s a lot of admin time and one thing that I will suggest based on a case I just recently tried in the city there are a lot of my landlords now that are doing what’s called a rent abatement so rents say is $600 but if you pay on the first it’s 550 right there’s no late fee then so judges have discretion in court just to forgive late fees and it’s one thing that they do to try to split the baby when we have a trial you know they wouldn’t give the tenant a little something because they’re booting them out of the place right so judges don’t consider a renovate minute late fee actually it’s an incentive to pay on time but at this because I said that’s a little late fee it’s also an incentive to pay on time but it seems to work better so it’s something new that might be a thing to suggest to clients or for any of you that actually do have your own rental property the other thing is you can identify who pays what utilities and when they have to put the utilities in their name I have a lot of clients that end up chasing around Ameren bills because the tenant never transfers the utilities into their name and it’s still in the landlord’s name but they they owe Ameren now six seven hundred dollars
Shannon: okay I have a question so I have a property and my tenant didn’t pay his Ameren bill they’re not gonna come back after me for that right they’ll put him into collections as an attendance [???]
Julie: yep that will follow him around
Shannon: so the average should let my new tenant start a new service
Julie: as long as I don’t have a balance yeah so my clients at on single-family homes in the city the tenants pay the water sewer trash I mean right well MSP will not allow you to put the tenants name water I get it I get it you said water sewer trash so sewers MSD water trash is a different story that’s the city of st. Louis right yeah that’s where I use that house division yeah that also stays in the landlord’s name so if you want to collect those you need to add that into the rent and then you pay the bill so security deposits is also a great thing that we need to talk about it produces so much litigation I get involved in so many of these failure to return security deposit cases I tell all people they should just kiss their security deposit goodbye when they pay it but a lot of tenants don’t feel okay so there has been some recent changes to the Missouri that just went into effect on August 28 and you guys will all be familiar with this that our managers because the MRA C has rules related to segregation of security deposits so there is now a new rule that just went into effect that’s actually codified in Missouri 535 that says security deposits have to be kept in a separate account that’s insured by the FDIC and there was a recent Supreme Court decision here in Missouri that said if you’ve owned rental property and all of your tenants moved out on the same day and all of them were owed their full security deposit back you better have an account that has that much money in it right security deposits are not landlords money they’re the tenants money until the tenant vacates and the landlord completes their inspection for damages so you’re holding someone else’s money as a fiduciary you (2) cannot spend it you cannot commingle it so having some pretty clear rules about security deposits and inspections in the lease is really important because one it defines what your tenant should expect but you have 30 days from the date the tenant vacates to do an inspection and send notice and even though the court has some discretion to determine like if notices six days late how egregious is it you don’t want to send it in two weeks because if the tenant has any little bit of an in I place that I’m seeing I’m litigating these security deposit cases all over the place and it is just it’s a mess and ultimately the judges don’t feel great about the cases so they end up giving the tenant some money back
Shannon: so is it potentially an issue later if I haven’t kept the security deposit separate
Julie: no could win it if you’ve already if you collected it before August 28 2018 that law does not apply
Shannon: but now moving forward so even if I felt like I should get to keep a security deposit a judge would look at the fact that I didn’t account and take that into account when making their decision or not do you get what I’m asking
Julie: yeah but okay so if you move someone in now right yeah put it in the separate account I’m telling all my clients just go to the bank that you already banquette where you deposit your rents and open a security deposit account right they’ll put that on you put on your checks you know but know if you were litigating that right now in this tenant moved in (2) 2016 you know the judge will not look at that now but they will movie very well
Adam: and here in urban London we do keep from separate accounts and that’s looks like we make a huge deal about them giving us separate checks actually to tenant 70 whatever checks would keep it in jeopardy Thompson we’ve been audited and everything so we know how important it is
Julie: well you guys are bound by the rules of the Missouri real estate Commission which has required that for years that’s been part of their policy and procedure for years for any real tour that has a license so you know the does property management but this now applies to just the lay landlord and it used to be lay landlords didn’t have to follow those rules they were that’s their own property that they’re running you guys as an agent for another person I mean that’s why you have the licensure so you know what you’re doing you know but the Missouri real estate Commission’s always required two guys to do that
Shannon: so should we not be because now we have some owners that do keep the security deposit should we be now telling
Julie: no man that’s out of your hands Oh the owner maintains a security deposit you’re fine
Julie: then I have I have a lot of property management company clients that do that now it also means that if the owner fails to return the security deposit within the time period management company is getting sued too
Adam: that’s why we have the security deposit disclosure form which I hope you think protects us but we make the tenants sign it and the owner sign and we sign it which tells the tenant who’s holding the security deposit when it’s the owner holding
Julie: and there’s probably an indemnification clause in there too so generally what I the first thing I do is file dismissed on behalf of the management company and try to get the management company pulled out of the case because if the landlord is holding the security deposit and the tenants fully aware there’s no reason to sue the management company um okay I think we covered everything on this slide okay well I guess let’s so you can’t collect more than two months rent in a security deposit so equivalent to two months rent so if rent is $600 you can’t take more than three months rent from attendant at the time of move-in however you choose to categorize that is up to you it can be first and last month’s rent and security deposit double security deposit and first month’s rent but you can’t take more than the equivalent of three months
Adam: what so you think you couldn’t take oh you just said three months so you can’t take two months security deposit and last month’s rent and first month’s rent man okay three months total three
Julie: yeah so whatever the so if Brent is four hundred dollars a month you can’t take more than twelve
Adam: so you can say we’re taking 1200 two month security deposit last month’s rent so I hear you give us four twelve hundred oh and now it’s your first day begins
Julie: nope (2) can’t take more than three and that equivalent to three months rent that’s four
Adam: can’t take it when
Julie: you went that the time of moving
Adam: okay so you really can only take too much security deposit and first ones right
Julie: correct or you can take one one security deposit first and last month’s right although I highly suggest not taking last month’s rent because the other thing is is you what are you gonna do where’s that money gonna go you know where’s that you’re gonna go just you either if you if you collect first and last month’s rent just immediately apply it to the ledger because this will always cause problems if you have to evict a tenant they’re gonna come back and say wait I put my last month’s rent I don’t owe you anything and so it’s if you if you collect it just put it on the ledger right off the bat give them a credit for it they should then run a credit throughout the term of their tenancy it until their last month right they don’t do that ever but I just like that I highly suggest it cuz just causes more problems than than not and then so the process basically for returning the security deposit is 30 days from the date the tenant vacates and sometimes you don’t know so really look at it from the date you find out that the tenant vacates when done and abandons it kind of it might sneak up on you like oh my god this person isn’t living here but as soon as you can you need to go in and do that inspection the statute indicates that the landlord should provide notice to the tenant of when the security deposit inspection will happen and I can say the big property management companies do send a letter out that has a date in time like next Tuesday at 10 am and we’re gonna do the security deposit especially redbrick does that for example they have a whole move out packet that they send out I haven’t yet had anyone successfully make that argument and then get their security deposit back as a result of it though that somehow the tenant not being given an opportunity to be present at the inspection hasn’t ever prevented a judge from ruling that the landlord properly withheld from the security deposit but it is the proper way to handle it so it should be that when a tenant gives you notice that you send a letter or some sort of packet out saying we’re gonna do the inspection on the state you’re welcome to present but you don’t have to be all right so now for the fun stuff so in fictions right so this is my I was a property manager for a long time my parents I was in rental property and I was a property manager the entire time I was in law school so I’ve done that job like I know what that’s like uh-huh so I I always tell me what RIT is doing the first it’s late on the second and it’s delinquent on the sixth I have clients that will let people go ten eleven months past due and then you know they’re so frustrated because they were behind the eight ball and making mortgage payments and things like that so it’s really about being on top of it whether or not you make phone calls or send letters or messages or emails you gotta be right on top of it when you haven’t gotten your rent payment on time so there’s two types of evictions in Missouri one’s called a red in possession and the other is called an unlawful detainer rent session is simple they haven’t paid their rent you want the money you want possession of the property unlawful detainer is a little more complicated essentially what it means is the tenant had a right to possession of the property and they no longer do whether it’s because the lease terms because they gave notice or because you gave them notice to vacate
Adam: can i ask question [???]
Julie: those are just my words delinquent to me is when they’re six days past due you know that because you could you could on day two when you haven’t gotten your rent you can pick up the phone and say new tenant you know I don’t know what’s going on but haven’t gotten your rent payment is on its way is it in the mail but (2) the time it’s delinquent it’s time to like send a letter send the file to the attorney do something because it takes 21 days from the date of filing to get an eviction in court and that means you’re probably gonna roll the next month so by the time you file you’re already gonna have a tenant that’s gonna owe you two months and if you if you get them served with the fiction of paperwork they’re probably not going to pay unless they’re just gonna pay the whole balance
Adam: so you have people that file on day three
Julie: yes you can file in day two technically
Adam: but people me do you have clients who do that
Julie: some do
Adam: is that more on single families or on big multi families it really depends on that
Julie: yeah some clients are just on top of it and some I said some are like well I’m gonna give them a chance and they do a lot of
Adam: if they file and then the person pays on day four then who pays like [???]
Julie: depends on with leases so if they have a written lease then the landlord can ask this tenant to reimburse them for their court costs and attorneys fees
Adam: do you see the people getting that very much
Julie: oh yeah um a renter possession I charge a flat fee of 325 for rent possession that includes the process server fee and the filing fee so written possession little more details here so basically as I said it’s tenants has a paid rent you can file it at any point there’s a balance due it’s filed in the associate Circuit Court in the county in which the real estate is located so we file what’s called a verified petition which essentially says that the tenant rented the apartment under the terms of a written lease here’s the amount of rent that’s owed and you know demand for payment was made so then there is two types of service in an eviction and this is actually one of very few lawsuits that exists that you can get what’s called posting service so we send a process server out if the tenants have vacated or know the system and our hiding the process server is allowed to post the property they actually post the summons and the petition on the property itself if you get posting service you cannot get a money judgment you can only get judgment for possession so this is what we call in rem so it’s essentially the action is against the real estate itself for possession of real estate and I have a lot of clients have a really hard time grasping this because some tenants have been evicted before or they’ve had collection actions filed against them they know what a process server is they know why the sheriff is there and they know how to avoid it and it still gets you possession of your property back so a Retton possession or an unlawful detainer or summary proceedings the landlord has a right to the speediest process that the legal system in my experience gives you if we go to court on the 15th the following week we’ll have a trial they don’t have a right to discovery or depositions it’s a summary proceeding it’s very (2) simple so a lot of times you know I tell them that my clients like if you want to go after them for the money later put them into collections or we can do a collection action that’s separate but the most important thing is getting possession of your property back so you’re not believing and you get your cash flow started
Shannon: and do you really see that landlords are getting their money if they’re evicting a tenant so I mean
Julie: yeah really yeah
Shannon: I mean if there are money to pay the rent and where the getting the money to pay them after they’re already you know or in the eviction after the eviction
Julie: [???] after the ability to rent in the future so if they payment plan with their landlord who’s evicted then they sign a consent judgment and they start making payments then when the next landlord calls for a landlord reference this landlord can say well they got behind but they’re making payments and they end up with a good landlord reference
Adam: and sometimes they’re nothing maybe not because they don’t have the money but because they think the landlord should have fixed the back porch or something right I mean so they might have the money but Court tells them no you did still have to pay is there any given [???]
Shannon: I mean I yeah so you mean tenants holding out their rent because something needs to be repaired or fixed which causes the eviction process
Julie: so so yes I mean I will say I hear that a hundred times a week that’s generally not the real reason why the rent not being paid but because the few times I have encountered someone who had a legitimate beef with the property and stuff needed to be fixed they have the money and they have no problem proving that they have the money they’ll bring us a bank statement showing I have rent and they can deposit that right in the court registry but a lot of times people based on their Google searches think that if they come to court when they’re being evicted and say well it’s because the landlord isn’t fixing things that somehow that frees them of their obligation to pay rent the property has to literally be uninhabitable to abate the requirement of paying rent
Shannon: but I also heard after the city like save you before you could withhold it you’ve got a court hold your breath
Julie: well actually that’s not a requirement it’s it has to be requested so if I have a tenant that makes those arguments like they let’s say they want a month before we have a trial date and they’re talking to the judge they’re saying I need more time any more time I’ll say okay fine I’ll consent to a month but they have to deposit the rent in the court registry by next Friday otherwise I want to trial in a week and so you do have to actually make a motion to request that the funds get deposited in the court registry but you absolutely can’t do that and that is something that I’ve done on a number of occasions because if the landlord wins court cuts you check your made whole
Shannon: right but I’m talking about from the tenants side if something really was wrong and it was uninhabitable
Julie: then they could request better put their money on that registry too
Shannon: and we did have that happen we evicted somebody and got a judgment they said they do a payment plan they didn’t make any payments and I told the landlord you know you can go after blood out of a turnip but then like a year later the girl calls me and goes oh I didn’t know my husband never paid that you know one of those things she was trying to rent something and couldn’t I said you got to make the payment for the judgment and she did they got their money it took over a year but
Julie: I probably have ten or fifteen people call me a year from judgments that are two-three years old that are like well now I’m trying to buy a house or a car and I have all these judgments and a lot of times it’s like let’s say the judgments 1700 bucks they might say I’ll give you 12 and my clients are usually like done I’ll take it will satisfy the judgment just settle it out so I do get a lot of those types of phone calls every year and it’s uh people like way on the blue all right so in an arm he tenants can file affirmative defenses and counterclaims and so that’s what we’re talking about a counterclaim would be the breach of implied warranty of habitability right this (2) place is uninhabitable however if they don’t file something by paper when we show back up at trial and they start to these types of arguments I object and they’re inadmissible they have to provide a written response to you because I need to be myself and my client need to be able to prepare for whatever they’re gonna whatever their arguments are gonna make right just like we gave them our petition we told them that we’re suing them because they’re not paying rent they need to tell us what why they’re they believe that there shouldn’t have to pay rent right so they are allowed to file those there are some port forms there are some savvy tenants out there that have been able to do that but at the same time it also doesn’t extend the process it just gives them the right to produce to you know give their evidence with regard to whatever damage occurred to the building yeah and the main ones are waiver implied warranty of habitability failure to mitigate damages so all landlords have an obligation the mitigate damages in the residential context like just because a tenant signs that one-year lease and moves out after two months you can’t sue them for the remainder of the lease you haven’t been damaged yet you don’t know when you’re gonna regret and the landlord’s not allowed to double collect in a commercial sense though that’s true so in any commercial lease there should be an acceleration clause that says that the tenant default cellular can collect the full term of the lease and that absolutely is enforceable but in the residential context it is not and then you know sometimes Senate’s claim that the landlord breached you know some obligation that’s in the lease whether it’s quiet enjoyment or you know I mean I have a lot of neighbor disputes and it’s usually just better or like let one person move because they don’t like each other they’re not going to right
Shannon: so what can the court order court can order rent they can order late fees at their new lease agreement attorneys fees possession of the premises service fees and court costs
Julie: in other types of actions there’s a lot of different types of damages you guys might have heard about punitive damages here this summary proceeding is limited to just these particular types of damages which is why you get to court so fast so then execution on your judgement so a judgments become final ten days after they’re entered if they’re a default or a trial judgment consent judgments are final whatever you agree to so if it says the 10 s to vacate in 15 days if they don’t vacate then you can file what’s called writ for execution that gets filed with the court report processes it and then we deliver it to the sheriff the sheriff schedules a date and time to appear on the property and supervise the landlord changing the locks so they do an inspection of the property and remove all living creatures humans and pets and from the property and then they supervise the landlord changing
Adam: and I wish they removed the fleas too
Julie: yeah we had we had a property where the flea infestation was so bad that it was audible when you walked up to the building you can hear it when there’s that many they took like 40 dogs out of the property and then but yes so that they came and took all those dogs out and I said you walked up to the door and you could literally hear it (2) was a tax sale property do your due diligence
Adam: so are you saying with this when the sheriff comes are you going to talk about what we’re supposed to do with all the people’s stuff
Julie: that is that’s absolutely the next thing I was going to talk about so you cannot sell it you can’t you just get a dumpster and throw it away right so in st. Louis County there’s no ordinance against putting it on the street a lot of landlords will just put it out on the curb in the tenant will come and get it what people don’t steal but in the city there’s an ordinance that prevents you from doing that so if there is a lot of stuff left be cautious about what you put in the dumpsters in the alleys in the city because you don’t want to get hit for illegal dumping there’s only so much you can put out right I mean maybe you get lucky and it’s big bulk day you could put that couch out there but I tell most people just gonna roll away and get rid of it yeah don’ts right don’t you two put on Craigslist because that’s conversion that’s the landlord’s stealing from the tenant but and it is an extra cost to a landlord it’s cost to do business
okay the house and they’ve been gone for a month what do you mean I mean they moved out of the house without telling you and they left all their stuff in there you need to throw it away right but I can’t put it on Craigslist no nope and what about giving it to Goodwill
Julie: I think that is probably that’s a safe way to go um but again I mean I’ve had I’ve defended it quite a few conversion claims even claim even conversion where we’ve had the sheriff there supervising the whole thing and then they subsequently throw it away they literally send it off to the dump and tenants have still come back and sued I always called this grandma’s ring so if if you if you sell stuff if you go through stuff then you have an idea of its value if you just get rid of it then you don’t have any idea of its value so people because people will say well you took all that stuff out of there that my grandma’s thirty thousand dollar ring was in there well of course it was right of course there’s some piece of property that was so valuable that now they have a claim against you so but no I mean if there’s any evidence that you’ve sold it that’s why I tell people don’t put it on Craigslist don’t put it up on eBay because then your tenant can screenshot and you can get you can get sued for that
Adam: yeah we’ve had to throw away some like you know an entire shoe collection it’s something like that before it (2) kind of sucks
Julie: yeah anyway but I and I have a lot of clients that take stuff to the goodwill and it’s like said I I don’t think you would get in trouble for that I know you’re gonna get a tax receipt for that but I’ve never had anyone challenge it under those circumstances so I can’t say I know for sure what a judge would do maybe I’ll ask the judge tomorrow what he thinks about that I’m always asking for advisory opinions so then the other type of evictions an unlawful detainer so this is where the tenant had a right to possession but they no longer do if they’re a month-to-month tenant and you deliver 30 days notice and they fail to move out that’s when your lawsuit actually accrues that’s when you can file you can’t serve someone with an notice to terminate so there’s but there’s three sweet classes essentially a holdover tenants so you have a whole two pretend in which is someone who stayed past their termination date a holdover employee holdover employees are always I don’t know if anyone represents any apartment communities but that’s always where I have these situations so you hide you have a superintendent or a maintenance person that also gets a free apartment when they’re when their employment is terminated their right to possession is terminated so if you have a holdover employee an unlawful detainer is the proper way to evict them and then an intruder is wrongful possession without force so that would be like I move in sign a lease pay my rent and then I move my mom in but my landlord never approves my mom moving in my mom never pay his rent so there’s actually a recent case on this that says you can give an immediate eviction you could you can give notice of termination and immediately file you don’t have to wait a 30-day period before firing the eviction
Adam: just against the intruder or against whole lease
Julie: just see the intruder if the other party is still there then you’re convicting your tenant again these are file in the county in which the real estate is located and it requires personal service it actually if I if I think the tenants vacated on the unlawful detainer I have to go back to court and get a separate order for posting from the judge so 30-day notice requirements I have my 30-day notices when my when clients hire me to do that I have a process server service as opposed to you don’t mail it certified mail they never pick up the green card and you want to make sure you know the exact date that the notice has been served so I usually have it served by a process server and posted uh-huh so notice has to be given honor before the rent payment new due date so that means you give notice on the 1st of October to vacate by the 31st October you can’t give notice on the 5th of October to vacate on the 5th of November it’s based on the rent payment period so if rents due on the 15th its 15th to the 14th
Adam: can I go you said that you have the process server (2) means a person goes and gives them the paper you said you have it posted too I’m confused because I thought you said if they posted that means the only get possession [???]
Julie: this is a notice of termination not a there’s it’s not a summons – yeah this is this is the initial part of it so we’re terminating the tenancy right and so I mean I have property managers though that’s that serve their own there’s absolutely no reason why a landlord can’t serve their own notice sometimes when the situation though is a little uncomfortable or the landlord you know it has has been in disagreements with the tenant it’s nice to have a third party because the tenant will inevitably say well I didn’t get that
Adam: you know what should the landlord do to prove that they posted it
Julie: take a picture
Adam: just take a picture [???]
Julie: and then we was attach an affidavit to the petition that says on this date the landlord posted or personally served the notice of termination
Shannon: I had a ton of doubles on a lease they moved a couple of people in illegally I didn’t know it but I went over there to do an inspection and obviously there were people there and you kind of mention this but I’m confused so what are my rights to tell them you’ve you got to get these people out of here or can I get the people out of there right away and I like him I just want his friends out
Julie: no you can’t pick and choose so here’s what (2) I would do if I was in that as I would send a letter or communicate in what in one way whatever is the normal communication between you and your tenant if you pick up the phone and call them or send them an email that says look I’m it’s my understanding that you’ve got unauthorized occupants in the property I want them out in ten days if you don’t I’m going to terminate your lease and institute an eviction action against you
Adam: and there’s a great area I think because our police and our lease it gives them like they can have a visitor for two weeks like that right so could they just say that’s our visitor or is that what you said you have ten days to get them out of it
Julie: I mean there’s a different you know what if you go in and do an inspection there’s a visitor as a suitcase someone who’s living there has a chest of drawers
Shannon: and a whole bed and not a bedroom set in the base
Julie: yeah so there’s a so yeah you I mean you can you can kind of figure that out
Shannon: and they’re sleeping and
Julie: I recommend in your lease that you list all the occupants at our table bores so the people that actually sign the lease that are gonna be obligated to pay read if they have at a 19 year old son that lives with them put the 19 year old son’s name on the lease like in a separate section for authorized occupants and then any occupant who’s not even or may not go through a credit check but you probably should still put him through criminal background check they’re an adult
Adam: I know you were just giving an example but with that person being 19 we would make him do a background check and why wouldn’t we make him be an obligor
Julie: sometimes is because like if it’s parents you know they’re (2) like this kid is living with us but he’s gonna go away to college in six months and he’s not going to be residing here so that to me is a circumstance where mom and dad would be the obligor is on the lease because they’re the ones that are intending to reside there for a period of time all right so unlawful detainer what the court may order the coordinate ordered double damages which is twice the monthly rental amount that said the courts discretion but so any period that the tenant stays over after you’ve terminated their tenancy you have a right to request double the amount of monthly rent you can get attorneys fees if it’s in the lease possession of the premises service fees and court costs execution for an unlawful detainer works the same way there’s a writ to issue and then we schedule with the sheriff so then we I can kind of briefly touched on this judgment time so a judgment isn’t just mediate there’s an appeal period for all judgments so a default judgment means we served you (2) didn’t show up to court I took a judgment against you that judgments final 10 days so on the 11th day you can file for a writ a consent judgment is essentially a settlement the tenant shows up and says look I can get all paid off in two weeks okay well we’re gonna sign a judgment that says you’re gonna pay all this off in two weeks if you do that then you get to stay and you need to continue paying rent if you don’t do that we’re pulling yet right um and then a judgment after trial is the a forced judgment made by the judge is also final ten days after the trial date
Adam: so the general from the day we call you it sounds like it’s maybe a month and a half or so before the sheriff’s showing up there
Julie: yeah about 45 days so then a couple of the big cases that we’ve had recently some of you guys might have heard about this one is Kona properties V Johnson so this was a case related to the breach of the implied warranty of habitability right so any went all the way up to the Supreme Court it took forever for them to give us our order so the question is do tenants have an obligation to escrow their rent when they’re claiming they’re withholding rent as a result of failure to make repairs right so basically what this case said I mean in the situation with this woman is if she’s running an apartment from Kona properties and the ceiling falls down on her and she has this disabled child and you know and so she’s in it she’s in a tough way it’s hard for her to move and you know also school districts moving mid school year all of these things that are taken in to consider so the argument was made is that well this woman does it she can’t just pick up and move because the place is uninhabitable because she doesn’t have the funds for it and she also it she can’t be transitory in that way right but so what are we supposed to be doing here are we supposed to be giving these tenants the right to just hold tight in the apartment for as long as they want until and without paying rent so the Supreme Court ultimately said no (2) they (2) either need to move out or they need to escrow their rent and now though they’ve sort of clarified it which is what (2) I talked about earlier is that we have to ask for it that’s something the judges won’t just order that automatically landlords lawyer has to say okay fine they’re making this allegation that there’s a breach in the implied warranty of habitability we’re gonna ask that their rent has to be paid into the court registry
Adam: and in the cases that we see it’s like somebody’s air conditioner goes out on a Friday and they call us and then you know we can’t maybe get someone there to fix it until Monday or something like that and they say they’re freaking out right they want us to pay for a hotel or pay for all this stuff is that does it apply here
Julie: well you don’t you don’t have to do that first of all air conditioning is not a right I mean 50 years ago did everybody have air conditioning [???] so it’s like are you I mean my grandmother didn’t have air conditioning
Adam: so it’s good enough and you’re in your opinion that we get it fixed within a few days
Julie: okay yeah and it’s completely that’s responsive especially for something like that no he is a right don’t let heat go out for too long in the middle of the winter okay that could be a problem but (2) ya know like I think I think if you can get an AC condenser unit replaced in three days
Adam: can you need to find too long on the heat we said don’t let the heat go out for too long
Shannon: could you could you get the some heater [???]
Julie: oh sure so well I mean listen if your tenant calls you and says the furnace went out the first thing you’re gonna do is pick up the phone and call somebody right and if that person says I can’t make it for a week then yeah that’s exactly what you do say here let me give you some cash to go buy some space heaters or here let me drop some space heaters off but you can show them that you it’s being unresponsive as the progress
Shannon: at least worth doing action to take care of
Julie: yeah I mean I have a pending case where tornado came through fell tree destroyed part of the deck and part of the air conditioner and the tenant thinks he deserves all of his rent back for the whole time that he lived there and it was like it was an act of God I mean my client didn’t go over there and knock down the tree and destroy the deck great and but because it was there was a tornado in this particular area in Jefferson County it took three weeks because all the contractors were busy is he because everybody needed a contractor for these types of things so we can show that my client called immediately and got on the schedule but he got on the schedule I mean what is he supposed to you know you can’t so the other case that was recent which now we just had since the law change it took us right back to where we were so brainchild Holdings was the case about whether or not tenants had a right to a jury trial which is why I say you need a jury waiver clause in your leases and it should be right about the signature line you should make them initial it – but brainchild said yes tenants have a right to due process so they have a right to a jury trial well so now the statute that just went into effect on August 28th gives tenants the right to what’s called a trial de novo so they get to have a real short summary proceeding initially for their eviction if they want to appeal it they have ten days to file for trial de novo which requires them to post a bond and the amount of the judgment so think about it like this your landlord you hire me we go to poor tenant disputes we come back a week later we have a 15-minute trial the judge rules in favor of landlord for $2,000 in rent and possession of the property the 10-day period they have a right to come in and request what’s called the trial de novo but they have to deposit rent into the court registry in order to get that de novo there they can ask for a jury trial so that’s how the legislature has given them their right to due process so back to a real fast eviction process and if they do anything to sort of stretch that out the landlord has the assurance that they’re gonna get their rent so it’s actually it’s great we’re back we’re back to that that was how it wasn’t I first wonder practicing and then it was like oh my god I mean doing jury trials like six times a month
Shannon: what are some reasons that a an eviction would go in the way of the tenant like aren’t most people not filing an eviction unless they feel like they
Julie: make this case maintenance is really the only thing that
Julie: yeah I mean it’s a and then a lot of times it’ll happen is they’ll call the city or the municipality and they’ll issue building code violations and one of the things that’s the letter that comes from the city of st. Louis so let’s say they come out though if you need to talk about your building here’s a violation notice if you don’t do it within that first 30 days they send you a notice that says the building is condemned for occupancy right well it’s not condemned people hear that word and there is actually real condemnation a building that is unlivable doesn’t have a wall doesn’t have a roof this is an it’s a legal word but it o it (2) in senses tenant say all of a sudden they don’t want to pay their rent
Adam: yeah and that letter says uninhabitable to [???]
Julie: yeah the definition section at the bottom it does I mean it’s (2) I was actually talking to an alderman about this last week in court I said can you guys change that I mean there were literally issue letters for tuck pointing in February and they give the landlord until July to get it done because you can’t tuck point in February and that also doesn’t affect the tenant it’s not common space
Shannon: [???] trying to argue
Julie: that they don’t know rent because of building [???]
Shannon: but the judge usually
Julie: they yeah they can see through it (2) just stretches the time out and it’s two more weeks before you get your property back
Adam: we had a tenant whose son was eating the wall and the tenant was claiming that the wall was lead paint and so he didn’t want to pay rent until we got rid of that
Julie: well sue in the city there’s something called Project 87 I don’t know familiar with that but they’ll come in and abate lead paint if there’s a child that’s living in that six years or younger and that’s been subsidized you know they pay the cost for that so that’s project at 87
Julie: yeah well that’s the only reason why you would do it right is because someone makes an allegation of lead poisoning so then yeah then they’ll actually send an inspector in who will do a full land inspection and determine what parts of the property it’s always the window sills or the doorways I mean that’s consistently been my experience um but also one thing to keep in mind with LED first of all everybody needs to make sure they’re signed in their lead based paint disclosures you guys should be doing that on all of your contracts but then also there’s an exception in rental insurance policies for lead so if brown and crouppen sues landlord because there’s a five-year-old child lead poisoning right they can’t get the insurance company will not defend that landlord which I’ve come to find out how what happens as brown and crouppen then withdraws because they don’t there’s no money there for that so I’ve had cuz I’ve got a client supposed to pay all this extra money to make sure I have LED coverage and it’s like no personal injury lawyer is gonna come after you if there’s no insurance company that would require them to like prosecute a case go to trial we and then foreclose on your real estate and sell it no no that’s not what they do they talk to insurance adjusters so probably like I’m always like you here’s how it really works like yes there’s a fear there but you should know that there’s also a mold exception in all rental property insurance policies so when people molds been a big thing recently I suggest a molded [???] and an addendum
Shannon: that said same with bedbugs
Julie: Oh bedbugs are everywhere
Adam: so the addendum should say hey bedbugs aren’t our problem or what are you saying it should say
Julie: well so and there’s been several bills that have been introduced that have not passed so here’s the way of the legislature essentially if a tenant moves into a property and within the first week or so notify the landlord that there’s bedbugs chances are they were there when the tenant moved in but if it happens when they’ve been living there for six months you know they got a piece of furniture from Craigslist or from an alley or something that was infested with but you know maybe so there’s so that’s essentially what it is that it’s but it’s always gonna fall on the landlord
Julie: but most tenants can’t afford it and so the landlord still has to do it because you if you before flat one unit with bedbugs in three weeks all four units will have bedbugs
Shannon: so back to the lead thing so can a landlord be held liable if a child living in that property has lead poisoning or shows up or tests positive because in this city of st. Louis all children under the age of five are tested it’s state law and if they show now a positive result over the last year when they were not living in that I mean it’s pretty clear that property Kanon landlord be held liable
Julie: I have never seen it I’ve seen I’ve had lawsuits filed on lead but here’s the thing the landlord didn’t go in there and sprinkle lead dust you know what I mean so generally what happens is the child test you know gets the regular school test (2) positive for lead then they immediately look at everything look at their toys they look at what’s at the daycare they inspect the home that they live in and then the landlord has an opportunity to address that problem whether they pay for their own remediation they go through project 87 whatever it may be that has always consistently been looked at very positively by judges okay that okay well you responded to it I mean who lets their kids sit in a windowsill need paint chips
Julie: aren’t you glad you invited me here so yeah so I mean I’m my little presentation is over what you guys have any do have any questions about anything that’s not necessarily landlord-tenant related
Shannon: so in regards to easements or you know in the city you come against those properties where the eaves of a house like the gutters are almost overlapping how do you even deal with that because that is actually been a concern I’ve had buyers just turn around go okay I don’t want to deal with that like if they don’t take care of the roof it’s all gonna be on my all the waters begin flushing on my roof and
Julie: well so that’s a necessarily an easement you’re talking about in crude encroachment okay
Shannon: yeah but you yeah so you guys in the easements an encroachment
Julie: yes yeah easement is a license to use somebody else’s property encroachment is simply like a some portion of one person’s property like a tree or something
Shannon: like those eaves where the gutters are almost touching and
Julie: there’s nothing you can do about that do you own any like that they don’t want to buy the house like that then steer them their different house not steer sorry wrong I mean show them something else
so that so trees are really interesting they produce a lot of litigation out of our office so you have a right to trim and you have a right to remove anything that’s encroaching onto your property right so if there’s a tree limb I mean technically the gutter I guess although I don’t think that’s a good idea but so you can cut the tree limb right
Shannon: so can you literally get take for all those trees encroaching look cuz it happens and I’ve had lots of complaints but can you literally take the property line and go straight up I mean like group and that tree just
Shannon: looks really funky now
Julie: [???] my liable to the property owner for their tree so technically
Shannon: okay so now see that’s
Julie: so you but you do need to trim with caution but yes you do have you have a right to remove anything that’s encroaching onto your real estate
Shannon: so I have had a situation in the city where we needed to do work on the side of a property and the neighbor wouldn’t let us on their property and we got the older men and somebody’s they may or somebody else involved but nobody even the aldermen couldn’t really find any sort of law or statute or anything that gave us a right to access the property
Julie: well there’s an emergency you can do that for sure but what kind of work was it
Shannon: like there were like bricks facing out that we’re gonna come out could potentially have eventually fallen but there was like tuck pointing issues and there was some hvac work we needed like we needed a vent going out the side and basically we were in a situation where the buyer was requesting these things as a part of their inspection report from their inspector but then we couldn’t get the neighbor to give us access
Shannon: we couldn’t you know it was half way down the side of the house and then there was no way to access it but I never could get the city people that I was talking to I mean it seemed to me like their only solution was to call for them to call the polite to meet the police out there and to talk to neighbors there’s not any sort of like law about being able to
Julie: know I mean you have an inalienable right to protect your property so that’s unfortunate I don’t know why somebody would need to be like that that’s just nothing that’s bad manners right
Adam: well you’re saying that when she bought the house on the property line that’s when the problem became her problem
Julie: it sounds like she did they didn’t even close that this was a some sort of condition of closing
Adam: well she had bought it and was rehabbing it and then it was a condition for her to sell it
Julie: you can file a lawsuit to give you access you could get an order from the court saying I need access to this area of property because I need to it’s a repair that needs to be made we easement the easement by necessity [???]
?: but it to me like two or three feet but I guess we would have needed to start with a survey to confirm where the if we needed to continue forward
?: here’s a question we just had a deal where we had the sellers and the buyers had a survey done and it showed that the neighbor on the one side their fence was encroaching by six inches okay she wanted to put up a front the new buyer wonderful up a privacy fence so the seller the buyer’s agent wanted us to notify that guy that that fence was encroaching and that there was a possibility she didn’t say written in stone whether she was just gonna butt up against her if she was gonna make him move it over six inches but she wanted to let him know
?: and he wouldn’t accept it because I went over there to give him a courtesy call in person and say look I just want to let you know I’m the selling agent but this guy’s like I’m a police officer I’ve guy this is my dog my police dog and he was gonna be a pain (2) the butt was she gonna have to take him to court over this cuz he said that survey was wrong
okay how are the surveys long
Julie: uh the surveys are really wrong okay it’s really it’s what you see is that’s wrong I mean I I we had a case where half of the house like was on one parcel and I mean just because of the way the lines have been read aren’t drawn over the years I mean it’s maybe it’s a mess yeah so the survey itself I mean is based on the legal description right you know like four degrees west to the metal pool you guys have read legal attractions right I mean that’s very either I mean they’re hilarious to me but I’m a lawyer and a nerd so but that that’s essentially what the surveyor is doing is they’re following the directions of the legal description to tell you what that boundary is but yeah no it’s never surprising to me that I mean almost everybody has encroachments in the city of some sort and it’s you know and to me it’s like if you’re gonna live like that there’s a part of you that probably just needs to accept that you guys said I’m friendly with your neighbor right if my neighbor needed to get in my yard there’s no way I would say known about my own liens get the work done you know yeah fix that fence that’s fine right
Adam: do we say Julie you’ve been amazing
Adam: fellas tell Hudson tell the listeners how can they get a hold of you if they want to call you
Julie: uh you can reach my law firm at 314-772-2889 or you can email me at email@example.com
Shannon: and what’s the website
Adam: okay thank you very much