Would you pay rent if there was potentially hazardous mold on the ceiling of your bathroom? What if there was a large hole in the ceiling, along with mold, and the floor tiles kept popping off? What if you needed what money you had to find other accommodations or attempt to fix the apartment yourself? Latasha Johnson faced this dilemma, and a rent and possession action for eviction, in Kohner Properties v. Johnson.[i]
In Kohner, the trial court refused to consider the implied warranty of habitability as an affirmative defense because Johnson did not submit the entire rent amount to be held in custodia legis[ii] as required by case law.[iii] However, interpreting both King v. Moorehead and Detling v. Edelbrock,[iv] the court of appeals found that failure to submit payments to be held in custodia legis might not necessarily be an automatic bar to the affirmative defense of the implied warranty of habitability.[v] Instead, the trial court could order the tenant to submit all, part, or none of the withheld rent in custodia legis as the trial court is in the best position to consider the merits of the case, the relative position of the parties, and their competing interests.[vi]
In coming to this decision, the court of appeals considered why the implied warranty of habitability existed in the first place. Echoing King, the court stated that this affirmative defense was meant to “provide a remedy to low-income households faced with limited housing options by allowing the tenant to retain possession and withhold rent until habitability was restored.”[vii] This remedy was not available before King.[viii] At its core, the implied warranty of habitability provides the option to remain in admittedly undesirable conditions when, economically, there is simply no option to relocate.[ix] Automatically requiring every tenant with a potential warranty of habitability defense to escrow all withheld rent payments “dilutes the very remedy” the defense establishes.[x]
The King court addressed the countervailing concerns of the landlord and his fiscal ability to maintain habitable housing, which may require the receipt of rents.[xi] However, the Kohner court was skeptical of this reasoning, asking, “why [is] a landlord entitled to the special protection of being assured of recovery on a monetary judgment before the tenant can even raise an otherwise permissible defense or counterclaim?”[xii]
Ultimately, the court decided to transfer the issue directly to the Missouri Supreme Court due to general interest and the importance of the matter.[xiii] More than a year later, that court has yet to issue an opinion.[xiv] Washington University School of Law Professor Karen Tokarz, a leading scholar in Missouri housing law, asserts that this decision has the potential to drastically restrict tenants’ ability to assert affirmative defenses based on unlivable housing conditions.[xv] If the Missouri Supreme Court decides against the tenant and in favor of default in custodia legis, it will go against the majority of state courts, which allow rent withholding under the warranty of habitability subject to the court’s discretionary power.[xvi] In the meantime, Missouri tenants should still submit withheld rent payments to the court. That is, if they can afford to wait.
[i] Kohner Props. v. Johnson, No. ED103133, 2016 Mo. App. LEXIS 896 (Sep. 13, 2016) [hereinafter Kohner].
[ii] “[P]roperty taken into the court’s charge during pending litigation over it.” Black’s Law Dictionary (10th ed. 2014).
[iii] Id. at 5; King v. Moorehead, 495 S.W.2d 65 (Mo. App. W.D. 1973).
[iv] King, 495 S.W.2d at 65; Detling v. Edelbrock, 671 S.W.2d 265 (Mo. 1984).
[v] Kohner at 19–25.
[vi] Id. at 28.
[vii] Id. at 20.
[ix] Id. at 20–21.
[x] Id. at 21.
[xi] King, 495 S.W.2d at 77.
[xii] Kohner at 22.
[xiii] Id. at 28.
[xiv] Oral arguments were heard on Wednesday, February 8, 2017. See Case Summary for February 8, 2017, https://www.courts.mo.gov/SUP/index.nsf/fe8feff4659e0b7b8625699f0079eddf/1299709912fb4d0c86258083007ec87e?OpenDocument) (accessed Nov. 20, 2017).
[xv] Karen Tokarz & Zachary Schmook, Law School Clinic and Community Legal Services Providers Collaborate to Advance the Remedy of Implied Warranty of Habitability in Missouri, 53 Wash. U. J.L. & Pol’y 169, 175 (2017).
[xvi] Restatement (Second) of Prop.: Landlord and Tenant § 11.3 n.2 (1977) (amended 2016).