Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of St. Louis County Honorable Judy
B. SULLIVAN, PJ
Johnson (Appellant) appeals from the trial court's
judgment in favor of Kohner Properties, Inc. (Respondent) on
Respondent's suit in rent and possession for unpaid
rent. We transfer to the Missouri Supreme Court
pursuant to Rule 83.02.
and Procedural Background
October 31, 2014, Appellant entered into a lease with
Respondent to rent the premises at 3543 DeHart Place,
Apartment 1. The lease provided for $585.00 per month in rent
and a $200.00 security deposit. Appellant moved into the
apartment that day and immediately noticed problems with the
only bathroom. Appellant wrote on her move-in sheet that the
shower was missing tiles and there were cracks in the
bathroom floor. Appellant testified the stove was also not
working properly and there were some issues with the blinds.
While moving in, Appellant asked the property manager about
the bathroom floor and was told there was "nothing
[they] could do."
November 2014, a water leak appeared in the ceiling above the
shower. The leak began as a drip but developed into a stream.
Shortly thereafter, mold began growing on the ceiling.
Appellant reported the leak and mold via Respondent's
telephone service line and by personally speaking with the
indicate on November 29, 2014, Appellant made a service
request regarding two tiles that had fallen off the shower
wall. The tiles were placed back on the wall by
Respondent's maintenance technician. According to the
property manager, the property was built in the 1950s and
"[t]iles are going to start popping."
indicate that over the course of December 2014, Appellant
reported an issue with a board under the kitchen sink, her
range would not light and the oven was not functioning
properly, and the tiles had fallen off the bathroom wall
again. Respondent's maintenance technician replaced the
board, turned on the gas to the stove, and put the tiles back
up on the bathroom wall. Shortly thereafter, Appellant
reported an electrical shortage in a bedroom.
Respondent's maintenance technician replaced a light
switch in the bedroom and installed some new blinds.
February 10, 2015, Appellant contacted Respondent again about
the mold on the bathroom ceiling and the cracked, unstable
bathroom floor. Appellant testified the condition of the
floor continued to deteriorate during her tenancy.
Respondent's maintenance technician responded the
following day, at which time he "cleaned [the] mold
area" and requested that a supervisor look at the floor.
March 1, 2015, Appellant withheld her rent payment because
her maintenance requests regarding the leak in the bathroom
ceiling, the mold, and the floor were not resolved.
March 17, 2015, at 2:00 a.m., the bathroom ceiling above the
shower collapsed. Appellant placed an emergency service
request. Respondent's maintenance technician responded
later that morning and determined the bathtub above
Appellant's apartment was leaking. After
"repairing" the tub spout in the bathroom upstairs,
Respondent taped a black plastic bag over the hole in the
ceiling. The leak persisted, however, and water collected in
the plastic and pulled at the tape on the ceiling. Appellant
repeatedly asked Respondent to repair the leak and the hole
in her ceiling but Respondent failed to do so. At the time of
trial, in April 2015, both the leak and the ceiling remained
result of the leaking water, Appellant was only getting
"minimum" use of the bathroom. Although Appellant
continued to use the shower to bathe, her young daughter with
cerebral palsy was unable to use the bathtub for bathing and
was only able to be in the bathroom for short periods of
time. Appellant testified the mold and air conditions in the
bathroom aggravated her daughter's allergies and
irritated her daughter's eyes to the extent her eyes were
beginning to droop.
the collapse, Appellant and her daughter have stayed at a
hotel three or four nights at her own expense. Appellant
testified she is still living in the apartment and has not
yet been able to secure other housing due, in part, to a lack
of resources. Appellant testified that while she withheld her
March and April rent, she had to expend some of that money
for hotel rooms. Appellant has applied for other housing in
her daughter's school district, but she has been
repeatedly rejected because she does not meet the minimum
income requirements. Appellant stated she lives in a
low-income area and that it takes time to find housing within
her price range.
March 20, 2015, Respondent filed a lawsuit against Appellant
seeking unpaid rent and possession of the premises. Appellant
filed an answer; affirmative defenses, including a breach of
the implied warranty of habitability; and a two-count
counterclaim for violation of the Missouri Merchandising
Practices Act and a common law breach of lease alleging
violation of the implied warranty of habitability. The case
went to trial on April 21, 2015.
to opening statements, Respondent moved to bar
Appellant's affirmative defense and counterclaim for
breach of lease based on the implied warranty of
habitability, asserting such could not be raised because
Appellant failed to pay her rent to the court in custodia
legis. The court overruled Respondent's
motion and the case proceeded to trial.
court took the case under submission and, on May 13, 2015,
entered its Order and Judgment against Appellant for $2,
104.36 in rent, late fees, attorney's fees and court
costs and awarded possession of the premises to Respondent.
The court found the credible evidence demonstrated that, at
the time of trial, the hole in the ceiling remained covered
by plastic, the hole had not been repaired, and water
continued to drip from the hole and plastic covering the
ceiling. The court found Appellant was barred from asserting
the affirmative defense or counterclaim of implied warranty
of habitability because she failed to either vacate the
premises or tender her rent to the court in custodia
legis as required by King v. Moorehead, 495
S.W.2d 65 (Mo. App. W.D. 1973). The court also found
Respondent breached the maintenance clause of the lease
agreement and awarded Appellant a $300 set-off for hotel
costs. This appeal follows.
first point on appeal, Appellant argues the trial court erred
in barring her from asserting the affirmative defense of
breach of the implied warranty of habitability on the grounds
she had not vacated the premises or tendered her rent to the
court in custodia legis because doing so is not a
legal prerequisite to asserting the affirmative defense of
breach of implied warranty of habitability.
second point on appeal, Appellant argues the trial court
erred in barring her from asserting a counterclaim for breach
of the implied warranty of habitability on the grounds she
had not vacated the premises or tendered her rent to the
court in custodia legis because doing so is not a
legal prerequisite to asserting a breach of implied warranty
of habitability counterclaim.
central issue in the case is whether a tenant who remains in
possession of leased premises must tender her unpaid rent to
the court in custodia legis as a prerequisite to
raising a defense of or counterclaim for a breach of the
implied warranty of habitability in a rent and possession
suit against her.
v. Moorehead, 495 S.W.2d 65 (Mo. App. W.D. 1973) is the
seminal case in Missouri on the implied warranty of
habitability. The King court provided a thorough
history of the relevant common law, including the traditional
doctrine of caveat emptor and the evolution of this
doctrine as applied to tenants purchasing an estate in land.
Id. at 68-73. The court recognized that modern
housing leases are not purely conveyances of property
interests with independent covenants to perform ...