Davidson v. Kenney

Decision Date21 July 1998
Docket NumberNo. WD,WD
Citation971 S.W.2d 896
PartiesJohn H. DAVIDSON and Una Jean Davidson, Respondent, v. Edward KENNEY, Appellant. 54577.
CourtMissouri Court of Appeals

Daniel R. Dykstra, Kansas City, for appellant.

Tammy J. Glick, Platte City, for respondent.



Edward Kenney appeals the trial court's judgment against him and in favor of plaintiffs John and Una Davidson for $5,121.00 in an unlawful detainer action. He argues that the trial court erred in entering judgment for the Davidsons because his tenancy had not been lawfully terminated in that he did not receive timely notice of the termination. We agree that recovery for unlawful detainer was not warranted because Mr. Kenney did not receive the required notice of termination, and we, therefore, reverse. However, because the Davidsons have stated facts entitling them to recover past-due rent and damages, we remand to allow them to amend their pleadings to assert such a claim.


The Davidsons own a building in Parkville, Missouri consisting of two one-bedroom apartments. On May 26, 1993, the Davidsons entered into a contract to lease the first-floor apartment to Edward Kenney for one year, from June 1, 1993, to May 31, 1994. Under the terms of the lease, rent of $425.00 per month was due on the first day of each month. The lease also provided that if a new lease were not signed at the end of the original lease term, the tenancy would continue as a month-to-month tenancy with all of the other conditions remaining the same.

Mr. Kenney continued to live in the apartment after the original lease term expired on May 31, 1994, and began a month-to-month tenancy. On September 1, 1995, the Davidsons increased Mr. Kenney's rent to $450.00 per month and increased the fees for late payment to $5.00 per day. By the end of August 1996, the Davidsons became dissatisfied with Mr. Kenney's conduct and care of the premises and decided to terminate his tenancy. They drafted a letter to Mr. Kenney notifying him that he needed to vacate by September 30, 1996. The letter was dated August 28, 1996, and stated:

Please be advised that as of this date you are hereby notified to vacate the property at 802 East Street, Parkville, Missouri on September 30th, 1996.

Please consider this a thirty day written notice as called for in our rental agreement.

An inspection of the property will be made at that time.

The Davidsons were unable to locate Mr. Kenny the day they wrote the letter or for the following week. They therefore did not serve him with the notice to vacate until he delivered his September rent check to them on September 6, 1996. Although the notice still purported to be a "thirty day written notice" to vacate, it obviously was not served 30 days prior to September 30, 1996, the date on which the notice required Mr. Kenny to vacate the property.

Mr. Kenney did not vacate the apartment by September 30, 1996. Rather, he remained in the apartment for the month of October 1996, but failed to pay the rent for that month. On October 31, 1996, the Davidsons gave Mr. Kenney a new letter notifying him to vacate the premises immediately. Mr. Kenney continued to remain in possession of the apartment and again failed to pay his November 1996 rent.

On November 6, 1996, the Davidsons filed a Complaint for Unlawful Detainer in Platte County. The Complaint alleged that the Davidsons had given Mr. Kenney notice to vacate the premises on September 6, 1996, and on October 31, 1996. The Complaint stated that the Davidsons had "sustained damages by reason of said unlawful and willful holding over in an amount yet to be determined" and requested "judgment for the possession of said premises and for said damages."

Mr. Kenney finally moved out of the apartment on December 11, 1996, without paying the then past-due rent and late charges for October, November and December 1996. The Davidsons recovered possession of the premises on December 12, 1996. They found what they alleged to be substantial damages to the property, including dirty, torn carpeting which had been chewed and urinated on by a dog, requiring it to be thrown away; damage to the floor from the dog's urination; missing draperies, drapery rods and curtains; construction of a wall and holes in the ceiling, smashed mirrors, broken doors and duct work, and other damage.

The trial court held a hearing in the Unlawful Detainer action on May 22, 1997. Mr. and Mrs. Davidson were the only two witnesses to testify. The Davidsons offered evidence showing the cost of repairs to be $2,621.26, showing past-due rent of $1,350.00 (which would be doubled under the unlawful detainer statute) and late fees of $375.00. On May 30, 1997, the trial judge entered judgment for the Davidsons in the amount of $5,121.00. 1 Mr. Kenney appeals.


The trial court's decision in a court-tried case will not be disturbed on appeal unless the judgment is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The trial court's decision is presumed correct, and the appellant has the burden of showing error. Kerr v. Jennings, 886 S.W.2d 117, 123 (Mo.App.1994).


The action which the Davidsons brought against Mr. Kenney was styled as a Complaint for Unlawful Detainer. Unlawful detainer is defined as "[w]hen any person shall willfully and without force hold over any lands, tenements or other possessions, after the termination of the time for which they were demised or let to him, or the person under whom he claims...." § 534.030, RSMo 1994. "[T]here can be no unlawful detention by the tenant until his estate is terminated...." Fisher v. Payton, 219 S.W.2d 293, 296 (Mo.App.1949). See also Kaimann v. Kaimann Bros., 182 S.W.2d 458, 460 (Mo.App.1944) ("[T]here could have been no unlawful detainer on defendant's part until after the giving of notice and the expiration of the time provided in it.").

Therefore, in order for the Davidsons to show unlawful detainer, they were required to prove that Mr. Kenney remained in possession after they validly terminated his month-to-month tenancy. Termination of a month-to-month tenancy is governed by Section 441.060. That Section provides:

A tenancy at will or by sufferance, or for less than one year, may be terminated by the person entitled to the possession by giving one month's notice, in writing, to the person in possession, requiring him to move.

§ 441.060, RSMo 1994. "A month to month tenancy is determinable at the end of the month." Fisher, 219 S.W.2d at 296.

Cases have interpreted these requirements to mean that the tenancy can only be terminated at the end of a rental period and notice of that termination must be given at least one rental period prior to the termination date. "The law is that the statutory notice must terminate the occupancy on the day of the month succeeding that in which it is served, corresponding to the day when the occupancy began." McIlvain v. Kavorinos, 202 S.W.2d 103, 105 (Mo.App.1947), quoting, Berner v. Gebhardt, 87 Mo.App. 409 (1901). For this reason, if "either party desires to terminate the tenancy, he must give a month's notice of his intention. If he suffers a new month to commence, he cannot terminate the tenancy till the end of the next month, and in order to do so, he must give the required notice at or before the end of the current month." Fisher, 219 S.W.2d at 296, quoting, Gunn et al. v. Sinclair, 52 Mo. 327, 330 (1873).

The issue before us is whether the Davidsons gave adequate notice to vacate to Mr. Kenney under the law as set forth above. The Davidsons concede in their brief that the September 6, 1996 notice was not effective to terminate Mr. Kenney's tenancy on September 30, 1996, because it was not given one full month in advance of the latter date. But, they argue, this does not mean the notice was of no legal effect. Rather, they suggest, the notice should be considered sufficient to terminate the tenancy at the end of the next rental period, that is, on October 31, 1996. While they admit that this is inconsistent with the September 30, 1996, date stated in the notice itself, they say that the date is mere surplusage and the only important factor is that the tenant received notice to terminate more than thirty days before October 31, 1996.

The Davidsons cite no authority for their argument. The cases they refer to in their brief do not hold that inadequate notice can be effective to terminate a tenancy on a date other than that stated in the notice itself. Our own research has revealed, however, that their argument is consistent with the rule set out in the Restatement (Second) of Property. It states that "if the date stated in the notice for termination is not the end of a period or is too short a time before the end of a period, the notice will be effective to terminate the lease at the earliest possible date after the date stated." Restatement (Second) of Property § 1.5 cmt. f (1977).

Many states follow a different approach than that taken by the Restatement, however. These states hold, for example, that the requirements for an unlawful detainer action must be strictly construed, and that where the notice purports to require the tenant to vacate less than thirty days after the end of the month in which the notice is given, the notice is completely invalid and ineffective to terminate the tenancy at any date. See, eg, Commonwealth v. Fultz, 360 S.W.2d 216, 222 (Ky.1962), citing, Pack v. Feuchtenberger, 232 Ky. 267, 22 S.W.2d 914 (1929); Kaplan v. Lopatin, 156 Cal.App.3d 767, 202 Cal.Rptr. 912, 915 (1984), citing, Arbenz v. Exley, Watkins & Co., 57 W.Va. 580, 50 S.E. 813 (1905); Sanford v. Harvey, 65 Mass. 93 (1853).

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