Academic journal article Missouri Law Review

In Custodia Legis: Implied Warranty of Habitability Procedure in Missouri

Academic journal article Missouri Law Review

In Custodia Legis: Implied Warranty of Habitability Procedure in Missouri

Article excerpt

Kohner Properties, Inc. v. Johnson, 553 S.W.3d 280 (Mo. 2018) (en banc)


The common law has changed drastically in its treatment of tenants who rent their living spaces from landlords. Over the course of the twentieth century, property doctrine has evolved in response to an ever changing society. (1) Although early common law failed to recognize the relationship between landlord and tenant as a contractual relationship, modern common law has developed to treat the relationship as such. (2) The implication of contractual principles upon the relationship has increased the scope of duties landlords owe tenants in exchange for the tenants' agreed upon rent. (3)

The evolution of the law has most notably encouraged landlords to become more responsible for maintaining safe and habitable living spaces for their tenants. The contractual nature imputed into the relationship between modern landlords and tenants allows tenants to abandon their leases when the living spaces are uninhabitable through a doctrine known as constructive eviction. (4) However, abandoning leased premises carries serious risks for tenants, particularly tenants of lower income classes. (5) With this in mind, our legal system has developed the implied warranty of habitability, which protects vulnerable tenants by allowing them to remain in possession of unsafe living spaces while withholding their monthly rent payments.

Kohner Properties, Inc. v. Johnson applies an evolving modern habitability doctrine to a landlord-tenant dispute over unpaid rent. (6) The situation in Kohner is one in which a tenant refused to pay her rent because she asserted that her landlord failed to provide her with a habitable living space. (7) The ultimate issue assessed by the Missouri Supreme Court involved the propriety of allowing Missouri circuit courts to compel tenants to pay withheld rent to the courts, in lieu of payment to the landlord, during the course of litigation. (8)

This Note addresses whether the judiciary should have the power to compel tenants to pay their rent to the court ("in custodia legis") as a prerequisite to asserting a breach of the implied warranty of habitability at trial. Section II of this Note will describe the relevant facts and the holding of Kohner. Section III explores the legal background surrounding the implied warranty of habitability and in custodia legis procedures. Section IV describes the Missouri Supreme Court's holding and rationale. Finally, the Comment Section of this Note argues in favor of the dissenting opinion, that the use of discretionary in custodia legis procedures is harmful to the interests of tenants in Missouri.


On October 31, 2014, Latasha Johnson entered into a lease with Kohner Properties, Inc. to rent an apartment in St. Ann, Missouri. (9) Johnson paid a $200 security deposit to secure her lease at a rate of $585 per month. (10) Upon moving into the apartment, Johnson immediately discovered various problems with the only bathroom, including missing tiles and cracks on the floor. (11) Kohner's property manager informed Johnson that nothing could be done about the bathroom. (12) In November of that year, Johnson noticed a water leak had developed in the ceiling of the bathroom above the shower and bathtub. (13) Mold began growing on the ceiling, and Johnson called Kohner to report the leak and mold. (14) Over the next few months, Johnson noticed and reported various other problems with the bathroom and other rooms in her apartment. (15) Other issues that Johnson faced involved her kitchen sink, stove, and range. (16) She contacted the property manager again in February and was told "there was nothing they could do." (17)

Beginning in March of 2015, Johnson withheld her rent because property management would not resolve the maintenance requests for the apartment. (18) At 2:00 A.M. on March 17, 2015, the bathroom ceiling in Johnson's apartment collapsed. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.