Section 18 Recording of Leases

• Library: Real Estate Leasing and Landlord-Tenant Actions and Remedies 2011

In most instances, short-term leases are not recorded. If the tenant is in possession of the property, it is not necessary to record the lease because the tenant’s possession puts any party interested in title to the property on notice of the tenant’s rights, C&J Delivery, Inc. v. Vinyard & Lee & Partners, Inc., 647 S.W.2d 564 (Mo. App. E.D. 1983), and it is then incumbent on the interested party to determine the rights of the tenant by examining the lease, if the lease is in writing, or to make inquiry of both the landlord and the tenant, if the lease is oral, Woodbury v. Conn. Mut. Life Ins. Co., 166 S.W.2d 552 (Mo. 1942). If the tenant will not enter into possession of the property for a period of time following the execution of the lease, if the tenant intends to obtain leasehold financing, or if the lease is otherwise of significant importance to either of the parties, the lease or a memorandum of it should be recorded to give constructive notice of the lease.

If the lease is to be recorded, it must contain a legal description of the property and be duly executed and acknowledged by the landlord and tenant. Frequently, parties will record a memorandum of lease to avoid making the entire lease a matter of public record. A memorandum of lease should set forth:

the names of the parties;

the date of the lease; a description of the leased property;

the commencement and termination dates of the term of the lease; and

any options to extend or purchase.

The memorandum should be duly executed and acknowledged by the landlord and the tenant. In addition, it should either provide (1) that
the landlord leases to the tenant and the tenant leases from the landlord the leased property upon all the terms and conditions of the lease or (2) that the landlord and the tenant confirm and ratify the lease. A memorandum including such a provision does not merely give notice of the lease but also constitutes an instrument of or concerning real estate, which a recorder of deeds is obligated to record under § 59.330, RSMo Supp. 2010. Any lease or memorandum to be recorded must also satisfy the requirements set forth in § 59.310, RSMo Supp. 2010, or, for the City of St. Louis, § 59.313, RSMo Supp. 2010.

IV. Assignment of Leases

A. (§1.19) Considerations in Drafting Assignment Provisions

It should be noted that tenants under leases of two years or less may not assign their rights under the lease without the landlord’s consent, regardless of whether the lease contains a...