Synopsis: Modern landlord-tenant relations in both Missouri and Kansas are still influenced to a large extent by traditional notions of property law. According to property law, all the terms, conditions and covenants of a legal instrument are to be construed as mutually independent. That means nonperformance by one party to an instrument does not excuse the other party from performance. There has been a trend in both states to apply contract principles to landlord-tenant relations but, for the most part, the doctrine of independent lease covenants is still followed in the construction of lease agreements. As a result, there are very few situations where a tenant will be excused from performing the covenant to pay rent due to a landlord's breach of the lease agreement.

I. Introduction

Oftentimes, there are legitimate reasons for a tenant in a commercial lease to withhold escrow or offset rent. For example, there may be a dispute over the amount of credit given to the tenant for tenant improvements. Or, the tenant might be forced to make repairs the landlord has failed or refused to make. Or, the tenant might dispute the amount of rent or utilities due under the lease. In those situations, taking an offset against rent may seem relatively innocent. However, doing so can put the tenant's possessory interest in the leasehold at risk in Missouri and Kansas.

II. Defending Tenants Against Chapter 534 and 535 Actions in Missouri

The Supreme Court of Missouri's 1993 decision in Broken Heart Venture, L.P. v. A&F Restaurant¹ illustrates the point. Landlord and tenant entered into a lease in 1991. Tenant agreed to pay rent, taxes, insurance and common area expenses. Landlord agreed to pay for certain tenant improvements, i.e., an outdoor patio, to be constructed by tenant. When tenant submitted its bills and invoices to landlord, a dispute arose over the reasonableness of the costs incurred to construct the patio. Landlord refused to pay a certain portion of the expenditures, and tenant proceeded to withhold rent until it recouped its expenditures. An additional relevant fact was that landlord had made some questionable representations concerning the gross profits of a prior tenant during lease negotiations.

Landlord filed a rent and possession action in the Circuit Court of St. Louis County, Associate Division. Later that same day, tenant filed an original action in the Circuit Court of St. Louis County for: (1) rescission of the lease based on fraudulent inducement; (2) reformation of the lease; and (3) declaratory judgment. Tenant also filed a counterclaim in the rent and possession action, asserting the same claims. On a motion by tenant, the rent and possession action was reassigned and certified to the regular circuit court, then consolidated with the original action.

Realizing reassignment and consolidation meant delay in possession, landlord filed an unlawful detainer action in the Circuit Court of St. Louis County. Tenant raised several affirmative defenses and a counterclaim. The trial court granted landlord's motion to strike the affirmative defenses and counterclaim and granted landlord possession and statutory double damages.

On appeal, tenant argued its stricken pleadings were aimed at proving it was in lawful possession of the premises, a core issue of an unlawful detainer action. The court disagreed. It restated the general principle that matters of equity, such as a claim for a setoff against rent, cannot be interposed as a defense in an unlawful detainer action. It further observed that counterclaims are generally prohibited in unlawful detainer actions. It then affirmed the trial court's decision below to strike the affirmative defenses and counterclaim.

The Broken Heart Venture, L.P. case is fair warning to any tenant who is withholding rent as a means of airing and vindicating its rights against a landlord. There is virtually no defense to an unlawful detainer action. The sole issue is the immediate right to possession. Even a core issue defense, like the one raised in Broken Heart Venture, L.P., is prohibited. Unlike a rent and possession action, the tenant cannot stay the action by tendering all the rent in arrears on or before the date of judgment.² The tenant cannot stay the proceedings pending related litigation.³ Nor can it have the action consolidated or reassigned to the Circuit Court.

For all those reasons and more, the unlawful detainer has been denounced as a harsh remedy and an abuse of tenant rights. In truth, due process is not exactly a pervasive theme in the unlawful detainer statutes. Yet, the economic realities of the landlord-tenant relationship dmand that landlords be given the means of summarily dispossessing tenants for nonpayment its of rent. A tenant should not be allowed to take the law into its own hands by withholding or recouping rent simply because of its vague sense that it has suffered an injustice.

The actual legal justifications for the unlawful detainer statutes are less sensible and more arcane. The modern-day lease is a relic of the medieval laws of real property, when all the terms, conditions and covenants of a lease were construed as mutually independent.⁴ If a covenant is dependent, nonperformance by one party excuses the other from performance.⁵ If a covenant is independent, nonperformance by one party does not excuse the other party from performance.⁶ The unlawful detainer statutes adopt that rather arcane rule of independent lease covenants and turn it into a guiding principle. The prohibition in the statutes against equitable defenses and counterclaims is the primary manifestation of the rule. The consequence for the tenant is that there is little, if any, commitment to mutuality or quid pro quo in the landlord-tenant relationship.

The doctrine of independent lease covenants has, in fact, been eroded over time. This has been due to the infiltration of contract law, which presumes the mutuality of covenants, into landlord-tenant law.⁷ The Missouri Court of Appeals has followed this trend and treated a lease as a bilateral contract in at least one case. In Hiatt Inv. Co. v. Buehler,⁸ landlord sued tenant for nonpayment of rent. Tenant filed a counterclaim based upon a violation by landlord of a covenant not to lease other space for a use competing with that of the tenant. The court found that the lease would not have been executed if it had not been for the insertion of the restrictive covenant in the lease. The covenant went to the whole of the consideration; it was not merely incidental to the main purposes of the lease. The court held the nature of the landlord's default gave tenant a right to rescind or terminate the lease, or affirm it and sue for damages.

Several important points can be extrapolated from the Buehler decision. First, the doctrine of independent lease covenants is not without exception in Missouri. Second, a tenant will be excused from performance when the landlord breaches a covenant that goes to the whole consideration of the lease. Third, in the event of such a breach, the tenant is merely entitled to terminate or affirm the lease and sue for damages; the breach will not give rise to a right to equitable setoff, abatement or recoupment.

However, the persuasiveness of Buehler as controlling precedent is undermined by the existence of a considerably more recent and contrary precedent in the Eastern District of Missouri. In C & J Deliver v. Vinyard & Lee & Partners, 647 S.W.2d 564 (Mo. App. E.D. 1983), the Court of Appeals for the Eastern District of Missouri held that covenants in a lease agreement are deemed independent unless expressly made dependent by terms of the lease. Under C & J Deliver, then, a tenant will not be excused from performance of the covenant to occupy the premises and pay rent even if the landlord breaches an essential term of the lease.

As a result, there seems to be a split in authority in Missouri over the exact nature of a tenant's remedies when a landlord breaches an essential lease covenant. A tenant appears to have a limited right to terminate the lease in this situation in the Western District of Missouri while the only recourse available to a tenant in the Eastern District of Missouri is a separate action for damages. In either case, the tenant who chooses to withhold rent does not have a substantive defense to an eventual action for possession because neither appellate district recognizes a tenant's right to such an equitable self-help remedy.

As a consequence, the art of prosecuting and defending an unlawful detainer action is mainly a procedural once. For the landlord, the process begins with drafting the lease. First, if at all possible, the lease should not give the tenant a right to cure a monetary default.⁹ By law, notice to terminate the tenancy must be given, and written demand for possession has to be made as a prerequisite to bringing an action.¹⁰ The termination of the lease and the demand for possession must be served on the tenant or posted on the premises.¹¹ However, the intervening time is not a cure period. Rather, notice and demand is the functional equivalent to re-entry. Second, the lease should require the tenant to waive its right to a jury trial. A tenant has a right to a jury trial in an unlawful detainer action. Section 534.160, RSMo 1994. The request has to be made in a timely manner, i.e., five days before the return date of summons or the date set for trial, whichever is later. See § 517.090.1, RSMo 1994. Jury nullification is not exactly prevalent in landlord-tenant cases. Nonetheless, the availability of a jury trial is the one wild card in the proceedings.Such a clause will be enforced where the waiver language is conspicuous, fair and unambiguous.¹² Third, the lease should require the tenant to waive its right to bring an affirmative defense, counterclaim or original action relating to the default. Fourth, the lease should include an anti-waiver clause, i.e., the landlord's acceptance of rent after declaring forfeiture is not a waiver of the default. The question of waiver is generally a fact question. Lucas Hunt Village Co. v. Klein, 218 S.W.2d 595 (Mo. banc 1949). Acceptance of part payment of the arrearage is not a waiver as a matter of law. Ball v. Kemp, 419 S.W.2d 55 (Mo. banc 1967). Nonetheless, because the issue is basically unsettled, the aforementioned language should be included in the lease, and any rent checks should be deposited with a full reservation of rights to take possession. Fifth, the lease should provide that there will be no setoff, diminution, abatement or setoff of rent for any reason. Sixth, it should be specified that none of the covenants or conditions in the lease are mutual or dependent. Seventh, the lease should not terminate automatically upon tenant's default, so that tenant has a continuing obligation to make payment of rent. Lastly, the lease should provide for an award of attorney's fees and costs to the nonbreaching party in the event of a default. These provisions will expedite the issues, and penalize the tenant for delay tactics and vexatious behavior.

In the event of an actual default, the next step for the landlord is deciding whether to bring a Chapter 534 or Chapter 535 action. Typically, an unlawful detainer action, or Chapter 534 action, is used to evict holdover tenants and tenants who have committed nonmonetary defaults.¹³ There are a few other situations where it is used for tactical reasons. Where a tenant is in arrears on common area expenses, taxes, insurance, management or administrative fees, the tenant cannot be dispossessed for nonpayment of rent under Chapter 535.¹⁴ Those items can be pled in separate counts and recovered as damages, but that sort of default will not support a judgment for possession. However, the tenant can be evicted for not paying additional rent under Chapter 534. The only question would be whether the lease was properly terminated so that the landlord has the immediate right to possession. Another situation is illustrated by the Broken Heart Venture, L.P. case, i.e., where the landlord is confronted with a vexatious tenant who has not paid rent. Yet another ideal situation is where the tenant has habitually been late or behind in paying rent but pays like clockwork as soon as a Chapter 535 action is filed.

A rent and possession action, on the other hand, is normally used where there is substantial nonpayment of base rent. The landlord has to prove that there is rent due and payable, demand has been made on the tenant, and the tenant has failed to pay.¹⁵ The demand does not have to be written, but to put it in writing would be advisable for evidentiary reasons.¹⁶ The landlord may join a claim for any other unpaid sums, other than property damages. Once again, however, such other sums are not considered rent for purposes of recovering possession regardless of how denominated or defined in the lease.¹⁷

The procedural rules under Chapter 535 do provide an efficient means of recovering rent. The case is to be heard expeditiously by the judge on the return date of the summons.¹⁸ Plus, there is no right to a time-consuming jury trial.¹⁹ At the same time, the Chapter 535 procedures can also be a source of endless frustration for a landlord who badly wants possession. The tenant can pay rent at any time before trial and retain possession of the premises.²⁰ The tender can even be made after the judgment is entered, if it is on the same day of the judgment.²¹ The tenant may assert all of its counterclaims, but is not subject to the compulsory counterclaim rule.²² Even if the trial judge enters a judgment against the tenant for possession, the tenant may post a supersedeas bond on appeal and retain possession of the premises.²³ The tenant is entitled to a trial de novo on appeal.²⁴ In addition, the tenant can file a series of motions just to delay possession, e.g., a motion to stay the action, a motion to quash execution, a motion to consolidate the action, or a motion to reassign the case to the circuit court. As illustrated by Broken Heart Venture, L.P., supra, some of those motions may actually receive serious consideration.

If Chapter 535 proceedings run amok, as they are prone to do, there are two procedural methods for transforming a rent and possession into a simple action for possession. The first method is not a sophisticated one. The landlord can simply docket an unlawful detainer action and abandon the rent and possession case. The second method is to sever the Chapter 535 case by moving for a separate trial on the issue of possession. A landlord cannot plead an unlawful detainer action and rent and possession action as separate counts in the same petition. However, a landlord can achieve the functional equivalent of pleading in the alternative by severing a Chapter 535 action.²⁵ A separate trial can be ordered within the discretion of the judge where the natural course of trial indicates that one claim can be disposed of quickly and summarily, while the other will require a considerable trial.²⁶ On the other hand, a separate trial will not be ordered where the facts are so inextricably interwoven that it would be impossible or at least manifestly unfair to separate them.²⁷

One of the basic premises of this article is that a tenant wants to protect its possessory interest in the leasehold at whatever cost. That is not always true, of course. Due to the nature of the business and customer base of some small-store tenants, a specific location may be critical to that tenant's continued operation. For a chain store, however, there will be other equally viable spaces available in the market, but it will need some time to relocate on its own terms. There are also situations where a tenant, regardless of size, is positioning itself to declare bankruptcy or close its business. In either case, the tenant will not be worried about the ultimate consequences of breaching the covenant to pay rent. But the tenant will want to delay repossession long enough to find a new location and clear out its inventory. For a tenant in those circumstances, there are probably enough delay tactics touched upon in this article alone to avoid dispossession for a good six months to a year.

III. Defending Tenants Against a Forcible Entry and Detainer Action in Kansas

In Kansas, there is only one form of action to evict a problem tenant under the forcible entry and detainer statutes, K.S.A. 61-2301, et seq.²⁸ A forcible detainer action is summary in character and purely statutory.²⁹ A three-day notice to quit is a prerequisite to filing suit.³⁰ Generally, the lease will allow the tenant a cure period. If so, the notice to quit will have to be given after the expiration of the cure period. If not, the notice to quit can be given at the same time as the notice to terminate.³¹ The amount of notice necessary to terminate the lease will be determined by the lease itself or by statute if the lease is silent. Either way, the notice to quit will probably still be effective at the end of the notice period.³² The case is not tried on the return date, as in Missouri, but is tried within eight days of the appearance or answer date.³³ Because of the equitable nature of the proceedings, a jury trial is not available.³⁴ If the tenant loses, as it does in the vast majority of cases, a judgment is entered against it for rent, damages, costs of the suit and restitution.³⁵ The judge then issues a writ of execution to the sheriff's department.³⁶ The sheriff's department has 10 days to execute on the writ and restore possession to the landlord.³⁷ As such, a tenant can lose possession, and much of its bargaining power, within a very short time period.

As in Missouri, however, there are ways for a tenant's counsel to delay dispossession. If the tenant has a legitimate claim arising out of the same transaction or occurrence as the forcible detainer, it can be asserted as an affirmative defense or counterclaim.³⁸ There is no jurisdictional amount for the main action.³⁹ However, if the counterclaim is beyond the scope of Chapter 61, e.g., a tort claim seeking more than $10,000 in damages, the whole case can be referred to the administrative judge for reassignment to a Chapter 60 court.⁴⁰ Or, tenant's counsel could file an original action in Chapter 60, asserting the same claims, and apply to have the actions consolidated.⁴¹ If all else fails, the tenant can still appeal an adverse judgment, stay the proceedings, and delay execution of the writ of restitution.⁴² The appeal generally has to be filed in a short time frame, i.e., within five days of the entry of judgment, and a supersedeas bond has to be posted.⁴³ The appeal is taken to a district judge if originally tried by a magistrate judge.⁴⁴ The case will be tried and determined de novo by the district judge unless the parties tried the case on the record.⁴⁵ If there is a record, then review is limited to the record.⁴⁶ A trial de novo obviously gives the tenant a better opportunity to present its defenses and counterclaims against the landlord. If the case was originally tried by a full district judge, appeal is directly to the court of appeals on the record. As in Missouri, the effectiveness of these tactics is strictly dependent on the continuing truth of the old proverb about possession being nine-tenths of the law.

The rights of appeal may be of little consolation to a tenant who values long-term possession. Even if the tenant eventually prevails on its counterclaim, possession may have been irreversibly lost early in the dispute, i.e., when the tenant allowed the cure period to expire without paying the rent in arrears. How this result comes about is almost a mystery in modern practice because its theoretical underpinnings are not widely known and hardly ever discussed in open court. But, once again, the result is a by-product of medieval property law and that somewhat antiquated but important distinction between dependent and independent covenants. The prevailing view in Kansas is that contractual covenants are to be construed as mutual and dependent in any case of doubt.⁴⁷ However, to what extent this principle, which amounts to a general rule of contractual interpretation, applies to commercial leases is unclear. The answer to that question depends on whether modern landlord-tenant relations in Kansas rest more on notions of property law or more on contract principles.

In a case decided by the Kansas Supreme Court in 1965, Winn v. Sampson Constr. Co.,⁴⁸ the court made a clear departure from traditional common law analysis in construing a commercial lease. In that case, a lessor failed to disclose hidden defects to a grain elevator. The defects rendered the farm untenantable for the intended purposes. The court held the tenant had a right of abatement to recoup the costs of correcting the faulty design.

The Sampson Constr. Co. case brings Kansas into line with the majority of jurisdictions, which excuse a tenant from paying rent when a landlord breaches a covenant deemed essential to the tenant's enjoyment of the property or one that goes to the whole of the consideration. Where Kansas seems to depart with the majority viewpoint is in the nature of remedies available in the event of a landlord's breach of an essential covenant. Other jurisdictions generally uphold a tenant's right to rescind or terminate the lease;⁴⁹ while Kansas actually seems to confer a right of recoupment on the tenant. Even more surprising, this right was first recognized in a case involving a very subjective and fact-intensive dispute, i.e., a mutual mistake of fact concerning hidden defects.

The implication of Sampson Constr. Co. is an unknown. The holding was expressly limited to its facts. Plus, the grain elevator design was really a peripheral issue in the case. Nonetheless, it would be advisable for landlords in Kansas to take precautions against the tenant's right of recoupment in drafting the lease. The lease should include a catch-all provision specifying that all lease terms are mutually independent and no setoffs, abatements or diminutions in rent are permissible. It should also include similar language in specific reference to essential lessor covenants, the breach of which would lead to a claim of constructive eviction. From the tenant's perspective, it will want the lease to remain silent on the issue because its common law rights seem to be clearly superior to any contractual rights it could realistically hope to negotiate.

Landlords in both Missouri and Kansas should also be aware of a further distinction made between conditions and covenants in a lease. The basic distinction between them pertains to the remedy in the event of a breach. If a covenant is breached, the breaching party will be required to answer in damages while breach of a condition could mean forfeiture of the leasehold interest.⁵⁰ The distinction often comes into play when a tenant is paying base rent but withholding additional rent, i.e., taxes, utilities, etc. The landlord will want those items denominated as rent in the lease. That is because the obligation to pay rent will always be construed as a condition precedent to continued possession while the promise to pay taxes, etc. may be viewed as a mere covenant.

IV. Conclusion: The Practical Consequences of Withholding Rent in a Commercial Lease

In advising a client on the consequences of withholding rent, counsel should be mindful of relevant dates and the nature of the tenant's grievance. The relevant dates are the dates of termination, demand, notice to quit, right to cure, answer, trial, and appeal. Typically, the landlord will contend the relationship is beyond reconciliation and it has other tenants lined up for the space. Tenant will respond that the space is not economically viable under the current lease terms and that it has to relocate or close its doors. These points are intended to underscore the tenant's need for a rent concession and the landlord's unwillingness to give one. Tenant also might make overtures about a possible bankruptcy. Depending on the actual truth of the matter, tenant will lose or gain bargaining power over the passage of time, so good timing is essential.

Identifying the exact nature of the tenant's grievance is crucial in determining whether it has proper for the tenant to withhold rent. As indicated above, however, it will be hard to predict whether the covenant to pay rent is dependent or independent of the covenant underlying the particular grievance. There is simply no bright line rule in Missouri or Kansas for determining whether a landlord has breached an essential covenant or a less consequential one. As a consequence, the tenant should be flatly advised that possession is at risk if it does not pay the arrearage before the cure period expires. The tenant should be made to understand that, as a basic premise, there are few, if any, legal justifications for withholding rent. The tenant should further be advised that its defenses and counterclaims may even be severed from the main action if they are not inextricably interwoven with the issue of possession.

At the same time, the tenant probably has to let the cure period expire to gain a concession from the landlord. Before the cure period expires, the right to continued possession will always be a significant part of the settlement package. This, of course, places a lower emphasis on cash or other compensation. It is not until the cure period expires that the tenant will find itelf in a good bargaining position (or an extremely bad one if landlord was not bluffing). The landlord should begin to aggressively seek possession at that point, e.g., by severing the case, to test the tenant's conviction in its grievance against the landlord. In turn, the tenant has to convince the landlord it is prepared to take the case through the appellate process and simultaneously prosecute its counterclaim in the same or separate forum. If the tenant eventually does obtain a favorable result in the case, it will be due to the economics of the landlord-tenant relationship, market conditions, the merits of tenant's counterclaim, strategic use of procedural rules, tenant's persistence, and counsel's judgment on how to manipulate all those factors.

Endnotes

1 859 S.W.2d 282 (Mo. App. E.D. 1993).

2 Section 535.160, RSMo Supp. 1997 provides: "If the defendant, on the date any money judgment is given in any action pursuant to this chapter, either tenders to the landlord, or brings into the court where the suit is pending, all the rent then in arrears, and all the costs, further proceedings in the action shall cease and be stayed.

3 American Vision Center v. Carr Optical, 810 S.W.2d 121 (Mo. App. E.D. 1991).

4 Milton R. Friedman, Friedman on Leases § 1.1, at 11-12 (4th ed. 1997).

5 49 Am. Jur. 2d, Landlord and Tenant § 84 (1995).

6 Id.

7 Id. at 8 and 9.

8 16 S.W.2d 219 (Mo. App. W.D. 1929).

9 A right to cure a nonmonetary default should be given. However, the lease should make it clear the right to cure is lost in the event of persistent or incurable nonmonetary defaults.

10 Section 534.030, RSMo Supp. 1997.

11 Section 534.050, RSMo 1994.

12 Malan Realty Investors, Inc. v. Harris, 953 S.W.2d 624 (Mo. banc 1997).

13 The unlawful detainer statute now also applies to any person who holds over after a deed of trust has been foreclosed and the person has received written notice of foreclosure. Section 534.030, RSMo Supp. 1997. Formerly, the owner had to sue in ejectment unless the deed of trust had a penny rent clause.

14 Those items are often denominated as rent in the lease. However, the lease's definition of rent will not be recognized by the courts. On the one hand, those items could be estimated and included in base rent. In that sense, the labels attached to the expenses are not far from accurate. On the other hand, the landlord has chosen to bill the items separately because of potential fluctuation in costs. It is perhaps this perceived economic benefit, or tradeoff, which forms the justification for denying the landlord possession.

15 Section 535.020, RSMo Supp. 1997.

16 Edwards v. Tolbet, 849 S.W.2d 717 (Mo. App. W.D. 1993).

17 Id.

18 Section 535.040, RSMo Supp. 1997.

19 Id. However, the tenant might be entitled to a jury trial "where the prayer exceeds $5,000 and the case is tried on the record." See Rice v. Lucas, 560 S.W.2d 850 (Mo. banc 1978) and I Mo. Civil Actions §6.37 (MoBar 2d ed. 1993).

20 Section 535.040, RSMo Supp. 1997.

21 Section 535.160, RSMo Supp. 1997; Holy Temple Homes, Ltd. v. West, 812 S.W.2d 202 (Mo. App. W.D. 1991).

22 Rahman v. Matador Villa Assocs., 821 S.W.2d 102 (Mo. banc 1991).

23 Section 535.110, RSMo 1994. The bond must be sufficient to cover rent payments, common area expenses and taxes during the appeal. Nickles v. Auntie Margaret Daycare, 829 S.W.2d 614, 618 (Mo. App. E.D. 1992).

24 Section 512.180.1, RSMo 1994; V.F.W. Post No. 7222 v. Summersville Saddle Club, 788 S.W.2d 796 (Mo. App. S.D. 1990).

25 Section 510.180(2) RSMo 1994 provides: "The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues."

26 B-W Acceptance Corp. v. Benack, 423 S.W.2d 215, 217 (Mo. App. E.D. 1967).

27 Id.

28 An action in ejectment could be brought under Kan. Stat. Ann. § 60-1001 (1994), et seq., but it would not be as summary as a Chapter 61 case.

29 Gunter v. Eiznhamer, 196 P.2d 177 (Kan. 1948).

30 Kan. Stat. Ann. § 61-2304 (1994).

31 Bell v. Dennis, 144 P.2d 938 (Kan. 1944).

32 Pyle v. Western Union Tel. Co., 116 P. 229 (Kan. 1911) (where it was held that a delay of two and one-half months in commencing forcible entry proceedings after giving statutory notice was not necessarily fatal to the proceeding).

33 Kan. Stat. Ann. § 61-2308 (1994). The tenant can ask for a continuance if it can show there is missing evidence and it is prepared to post a bond sufficient to cover all the rent and damages alleged in the petition. Id.

34 Koerner v. Custom Components, Inc., 603 P.2d 628 (Kan. Ct. App. 1979).

35 Kan. Stat. Ann. § 61-2309 (1994).

36 Kan. Stat. Ann. § 61-2310 (1994).

37 Kan. Stat. Ann. § 61-2311 (1994).

38 Kan. Stat. Ann. § 61-1709 (1994). Also see, Mueller v. Seiler, 148 P.2d 266 (Kan. 1944) (where the court observed the longstanding rule that in determining the right of possession in a forcible detainer action, the tenant may interpose every defense it has available to it).

39 Kan. Stat. Ann. § 61-2309 (1994).

40 Kan. Stat. Ann. § 61-1603 (1994) and Kan. Stat. Ann. § 61-1720 (1994).

41 Kan. Stat. Ann. § 61-1717 (1994) provides, in pertinent part: "If one of the parties to an action commenced pursuant to this chapter commences, in a district court of this state, an action pursuant to chapter 60 of the Kansas Statutes Annotated involving a question of law or fact in common with the action pursuant to this chapter, the judge in the action pursuant to chapter 60 of the Kansas Statutes Annotated may on his or her own motion, or upon application of any party to the action pursuant to this chapter, direct that such actions be consolidated."

42 Kan. Stat. Ann. § 61-2311 (1994).

43 Kan. Stat. Ann. § 61-2102(a) (1994) and Kan. Stat. Ann. § 61-2105 (1994).

44 Kan. Stat. Ann. § 61-2102(c) (1994).

45 Kan. Stat. Ann. § 20-302b(c) (1997 Supp.).

46 Id.

47 Nance v. Mullikin, 293 P. 490 (Kan. 1930); Zehring v. Driskel, 647, 339 P.2d 57 (Kan. 1959).

48 398 P.2d 272 (Kan. 1965).

49 Milton R. Friedman, Friedman on Leases § 1.1, at 11 (4th ed. 1997).

50 49 Am. Jur. 2d, Landlord and Tenant § 83, 85 (1995). Also see Ball v. Kemp, 419 S.W.2d 55, 59 (Mo. 1967).

Mr. Heaven is a shareholder of Holbrook, Heaven & Osborn, P.A., where he practices in the areas of banking, real estate, probate and municipal law. He received his J.D., 1977, from the University of Kansas. He is a member of the American, Kansas and Johnson County Bar Associations.

Mr. Brumbaugh is an associate working for Mr. Heaven in essentially the same areas of practice. He received his J.D., 1995, from St. Louis University. He is a member of the Missouri, Kansas and Johnson County Bar Associations.

We would like to thank Kurt S. Brack for assisting us in the preparation of this article by sharing with us his insight into the realm of commercial leases.

1998, Lewis A. Heaven, Jr. and Christopher T. Brumbaugh