Missouri Constructive Eviction Law for Tenants to use as Affirmative Defense


The most common complaints made by tenants deal with the condition of the
property. Major problems that affect the habitability of the premises are covered by therelated doctrines of constructive eviction and warranty of habitability. The 鈥渞epair anddeduct鈥 statute addresses minor problems. In extreme cases, a court can appoint a receiver to take charge of the property.

Constructive Eviction / Warranty of Habitability

The principles of constructive eviction can be found in Detling v. Edelbrock, 671
S.W.2d 265 (Mo. banc, 1984), King v. Moorehead, 495 S.W.2d 65 (Mo. App. 1973)
and Yaffe v. American Fixture, 345 S.W.2d 195 (Mo. 1961). 鈥淐onstructive eviction鈥
occurs when the lessor interferes with lessee鈥檚 beneficial possession or enjoyment of
the property. Shop 鈥楴 Save Warehouse Foods v. Soffer, 918 S.W.2d 851 (Mo. App.
E.D. 1996). Ridley v. Newsome, 754 S.W.2d 912, 915 (Mo. App., 1988) defines
constructive eviction as occurring 鈥渨hen the lessor, by wrongful conduct or by the
omission of a duty placed upon him in the lease, substantially interferes with the
lessee鈥檚 beneficial enjoyment of the demised premises.鈥 754 S.W. 2d at 915. To
maintain the defense of constructive eviction, the tenant must give the landlord notice of any defect not known to the landlord and must allow reasonable time for repair. Proffer v. Randall, 755 S.W.2d 655 (Mo. App. 1988).

The elements of a defense or a cause of action for breach of warranty of
habitability are (1) entry into a lease, (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) the landlord鈥檚 subsequent failure to restore habitability. Moser v. Cline, 214 S.W. 3d 390 (Mo. App., 2007), Detling v. Edelbrock, 671 S.W.2d 265 (Mo. banc, 1984), Loven v. Davis, 783 S.W.2d 152 (Mo. App., 1990). A tenant who wishes to assert breach of implied warranty of habitability while maintaining possession of the premises must pay the rent, as it becomes due in custodia legis, i.e. paid into the court. King v. Moorehead, 495 S.W.2d 65 (Mo. App., 1973).

A defendant cannot rely on constructive eviction if he has not left the premises.
鈥淎 tenant鈥檚 liability for rent is suspended if a constructive eviction by the landlord causes an abandonment of the premises.鈥 O鈥橞ar v. Nickels, 698 S.W.2d 950 (Mo. App., 1985) states that a wrongful act, neglect, or default by landlord which renders the premises 鈥渦nsafe, unfit, or unsuitable for occupancy and a tenant is thereby deprived of the beneficial enjoyment of the premises, amounts to a constructive eviction if the tenant abandons the premises within a reasonable time.鈥 There is nothing in Missouri law that gives the tenant free rent in the event of the landlord鈥檚 breach. If a breach of warranty of habitability is proven, the tenant is entitled to pursue traditional contract remedies.King v. Moorehead, 495 S.W.2d at 75-76. Traditional contract remedies would provide recovery for actual damages that are proved; they would not allow the tenant to occupy the premises indefinitely without paying rent. The landlord鈥檚 failure to perform maintenance would not constitute a defense unless the lack of maintenance reaches the point of constructive eviction or breach of warranty of habitability, as previously discussed. The implied warranty of habitability does not require that the landlord provide a 鈥減erfect, aesthetically pleasing condition.鈥 Detling v. Edelbrock, supra.Wetherbee, Ltd. v. Allred, 969 S.W. 2d 756 (Mo. App. 1998) held that the tenant may enforce lease provisions and require the landlord to maintain the premises even if the conditions are not so bad as to constitute constructive eviction. In this case, the landlord failed to repair the roof as required by the lease. The court allowed the tenant, while still residing on the premises, to bring suit against the landlord to require him to perform the maintenance. 鈥淐onstructive eviction鈥 occurs when the lessor, through act or omission,
interferes with the tenant鈥檚 possession or enjoyment of the property. 鈥淐ommercial
frustration鈥 occurs when the happening of an event, not foreseen by the parties and not caused by or under control of either party, has destroyed or nearly destroyed the value of the performance or purpose of the contract. Shop 鈥楴 Save Warehouse Foods v.
Soffer, supra.


If the landlord fails to perform minor repairs, the tenant may have a remedy under
搂441.234, RSMo. which gives the tenant the right, under limited conditions, to make
repairs and deduct the cost of repair from the rent.

Several conditions must be met, and several step taken, before the tenant may
make any deductions from the rent. (1) The tenant must have legally resided on the
premises and paid all rent and charges for six consecutive months before he is eligible to use this procedure. (2) The problem in question must be a code violation which affects the 鈥渉abitability, sanitation, or security鈥 of the premises. Of course, the code violation must not have been caused by the tenant, his family, or guests. (3) The reasonable cost of repair is less than $300.00 or half a month鈥檚 rent; whichever is greater, but not more than one month鈥檚 rent. (4) The tenant must give the landlord written notice of the problem. The landlord then has fourteen days to respond. (5) The landlord may request written certification of the code violation from the local government. The landlord then must repair the problem within fourteen days after receiving such written certification. (6) If the landlord still fails to make the repairs, the tenant may do so and deduct the amounts 鈥渁s documented by receipts鈥 which are submitted to the landlord. (7) The tenant may not deduct more than one month鈥檚 rent in any one year.