Housing Law 101/Refresher Volunteer Lawyers Network Hennepin County Bar Association November 29, 2017

Lawrence McDonough Pro Bono Counsel Dorsey and Whitney, LLP Suite 1500 50 South Sixth Street Minneapolis, MN 55402-1498 P: 612-492-6795, F: 612-677-3220 McDonough.Lawrence@Dorsey.com http://povertylaw.homestead.com/Biolarrymcdonough.html https://www.dorsey.com/people/m/mcdonough-lawrence

Topics Housing Law Materials Evictions: Summary, Preconditions, Service, the Writ, Answer, and Defenses IFP Fee Waivers Motions to Vacate Judgments Expungement Lockouts Privacy Habitability Settlements Owner Exclusion of Family Members and Guests Deposits Attorney’s Fees Ethics My Favorite Jazz Pianist

Housing Law Materials Housing Law in Minnesota: Residential Eviction Defense in Minnesota, and Other Housing Law Materials By Lawrence R. McDonough http://povertylaw.homestead.com/ResidentialUnlawfulDetainer.html Housing Law Links http://povertylaw.homestead.com/files/Reading/links.pdf Residential Eviction Defense and Tenant Claims in Minnesota http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm Most of the unpublished cases in this manual are posted in the wiki version. http://evictiondefense.pbworks.com/w/page/8069836/Residential%20Eviction%20Defense%20in%20Minnesota Search with the box at the upper left. Newer decisions not yet in the wiki are available from author until they are posted. Law Help http://www.lawhelpmn.org/

Evictions: Summary Residential Eviction Defense and Tenant Claims in Minnesota Lawrence R. McDonough Summary of Unlawful Detainer (Eviction) Actions and Court Procedure http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#TOC1_6

Service The defendant must be served at least seven days before the initial hearing, either by personal or substitute service. Service should be carefully scrutinized, since Minn. Stat. § 504B.331 (formerly § 566.06) requires strict compliance in service, not merely substantial compliance.

Arraignments in Hennepin and Ramsey Counties In the Fourth the Second Judicial Districts for Hennepin and Ramsey Counties, a referee presides over the arraignment, which could include as many as 50 cases scheduled on the calendar. The Hennepin County cases are heard in Minneapolis at 12:45 pm. (previously 8:45 and 10:30 am.) Monday through Friday at the Hennepin County Government Center, C-300, 300 South 6th Street, Minneapolis, http://www.mncourts.gov/Find-Courts/Hennepin.aspx. The Ramsey County cases are heard in St. Paul at 8:45 am, Monday through Friday, at the Ramsey County Courthouse, Room 170, 15 West Kellogg Boulevard, Saint Paul, http://www.mncourts.gov/Find-Courts/Ramsey.aspx.

Removal of the Judicial Officer A party still may remove a specific referee or judge from a case upon a written notice of removal. “The notice shall be served and filed within ten days after the party receives notice of which judge or judicial officer is to preside at the trial or hearing, but not later than the commencement of the trial or hearing.” Minn. R. Civ. P. 63.03. Unless the parties receive a notice of judicial assignment, which does not happen in eviction cases in the Second and Fourth Districts, the deadline for a judicial officer removal is before the hearing begins. Once a party appears before that officer, the party may not remove the officer. When a party files a notice of removal, the court assigns the case to either another referee or a judge. Removal forms are available at http://povertylaw.homestead.com/ResidentialUnlawfulDetainer.html.

Trial The Court usually schedules trials within a week of the arraignment, but the parties can agree to a later date. At trial, the plaintiff has the burden of proof by preponderance of the evidence, and the defendant may raise numerous statutory and common law defenses. If the tenant prevails, the landlord may not evict the tenant at this time. If the landlord prevails, the court may immediately issue a Writ of Recovery, or stay issuance of the Writ for up to seven days.

Enforcing the Writ The plaintiff pays for and obtains the writ of recovery from the Court. The plaintiff takes it to the sheriff and pays for service. The sheriff serves the writ on the property, giving the occupants 24 hours to move. If the occupants do not comply, the plaintiff schedules the sheriff for a second visit and pays for it. The plaintiff shall notify the defendant of the date and approximate time the officer is scheduled to remove the defendant, family, and personal property from the premises.

Enforcing the Writ If the occupants still remain on the property, the sheriff removes them with force if necessary. If the plaintiff stores property on-site, the plaintiff must prepare an inventory and mail a copy of the inventory to the defendant's last known address or, if the defendant has provided a different address, to the address provided. The inventory must be prepared, signed, and dated in the presence of the officer. The landlord must store the tenant's property, either on site for 28 days (formerly 60 days), or with a storage company for 60 days.

Judge Review and Appeal Either party may appeal from entry of judgment, within 15 days of entry of judgment, expanded in 2013 from 10 days. If the case was heard by a referee in the Second or Fourth Judicial Districts (Ramsey and Hennepin counties), a party may request district court judge review of the decision (within 13 days from date of mailing or 10 days of oral decision), but should request stay or vacation of entry of judgment pending review to preserve the right to appeal.

Eviction Statutes Chapter 504B. Landlord and Tenant https://www.revisor.mn.gov/statutes/?id=504Bhttps://www.revisor.mn.gov/statutes/?id=504B

Service Minn. Stat. § 504B.331 Summons; How Served https://www.revisor.mn.gov/statutes/?id=504B.331 7 days Personal service   Substitute service on another person: (1) If the defendant cannot be found in the county, (2) leaving a copy at the defendant's last usual place of abode (3) with a person of suitable age and discretion (4) residing there; (5) failure of the sheriff to serve the defendant is prima facie proof that the defendant cannot be found in the county.

Service Mail and posting http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#TOC2_31 The statute can be broken down into the following sequence: 1. Defendants cannot be found in the county 2. For residential property, service has been attempted at least twice on different days, with at least one of the attempts between 6:00 p.m. and 10:00 p.m. …

Service 3. A copy of the summons has been mailed to the defendant at the defendant's last address known to the plaintiff. 4. The plaintiff or counsel files an affidavit (1) stating that the defendant cannot be found, or the affiant believes that the defendant is not in the state, and (2) that a copy of the summons has been mailed to the defendant at the defendant's last address known to the plaintiff. 5. Posting the summons in a conspicuous place on the property for not less than one week. The Freund Haus, LLC, v. Doe, No. 27-CV-HC-13-6609 (Minn. Dist. Ct. 4th Dist. July 22, 2014) (Judge Chou); Howard v. Brady, Court File No. 27-HG-CV-13-469 (Minn. Dist. Ct. 2nd Dist. June 21, 2013) (Judge Van de North).

Service by Whom Service by the plaintiff is improper. Minn. R. Civ. P. 4.02. https://www.revisor.mn.gov/court_rules/rule.php?type=cp&id=4   In Lewis v. Contracting Northwest, Inc., 413 N.W.2d 154, 155 (Minn. Ct. App. 1987), the court explained the reason for precluding parties from serving process: “The law has wisely entrusted the decision of disputes between citizens to persons wholly disinterested and free from bias and the acrimony of feeling so frequently, if not uniformly, engendered by litigation; and the same is equally true of the persons selected to execute the process necessary to the adjustment of such disputes.” Some referees are reluctant to apply Lewis to agents. Several district court decisions from around the state have held that partners, managers, caretakers, and other employees of the plaintiff are not authorized to serve defendants because they are not wholly disinterested in the case. http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#TOC2_42 There are no Minnesota appellate decisions on the issue.

Eviction Defenses Residential Eviction Defense and Tenant Claims in Minnesota, by Lawrence R. McDonough Tenancies Table http://povertylaw.homestead.com/files/Reading/a0atenancytable.htm   Answer Forms: Defenses of service, preconditions, rent, notice, and breach; and remedies http://povertylaw.homestead.com/ResidentialUnlawfulDetainer.html Manual http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm

IFP Fee Waivers http://povertylaw.homestead.com/IFP.html Affidavit Table of Expenses Proposed Order

Motions to Vacate Judgments Manual http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#TOC1_231 Slide Show and Forms http://povertylaw.homestead.com/MotionstoVacateJudgments.html

Expungement Statutory   The court may order expungement of an eviction case court file only upon motion of a defendant and decision by the court, if the court finds that the plaintiff's case is sufficiently without basis in fact or law, which may include lack of jurisdiction over the case, that expungement is clearly in the interests of justice and those interests are not outweighed by the public's interest in knowing about the record. Expungement is mandatory for contract for deed cancellation or mortgage foreclosure evictions and (1) the time for contract cancellation or foreclosure redemption has expired and the defendant vacated the property prior to commencement of the eviction action; or (2) the defendant was a tenant during the contract cancellation or foreclosure redemption period and did not receive required notice. Minn. Stat. § 484.014. https://www.revisor.mn.gov/statutes/?id=484.014 http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#TOC1_257

Expungement Common Law   In 2014 the Minnesota Legislature amended Minn. Stat. § 504B.345, Subd. 1(c)(2), to provide that “the court may expunge the records relating to the action under the provisions of section 484.014 or under the court's inherent authority at the time judgment is entered or after that time upon motion of the defendant.” https://www.revisor.mn.gov/statutes/?id=504B.345 http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#TOC1_254

Expungement Slide Shows http://povertylaw.homestead.com/ResidentialUnlawfulDetainer.html   Forms http://minnhousingclinic.homestead.com/expungementforms.html

Lockouts Minn. Stat. § 504B.225 Intentional Ouster and Interruption of Utilities; Misdemeanor https://www.revisor.mn.gov/statutes/?id=504B.225 Minn. Stat. § 504B.375 Unlawful Exclusion or Removal; Action for Recovery of Possession https://www.revisor.mn.gov/statutes/?id=504B.375 http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#TOC1_277 Combined Lockout and Emergency Tenant Remedies Action: Slide Show and Form http://povertylaw.homestead.com/EmergencyReliefandLockoutActions.html

Privacy Minn. Stat. § 504B.211 (formerly § 504.183) https://www.revisor.mn.gov/statutes/?id=504B.211 http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#TOC1_132 Entry by landlord. Except as provided in subdivision 5, a landlord may enter the premises rented by a residential tenant only for a reasonable business purpose and after making a good faith effort to give the residential tenant reasonable notice under the circumstances of the intent to enter. A residential tenant may not waive and the landlord may not require the residential tenant to waive the residential tenant's right to prior notice of entry under this section as a condition of entering into or maintaining the lease.

Privacy A landlord may enter the premises rented by a residential tenant to inspect or take appropriate action without prior notice to the residential tenant in emergencies. If the landlord enters when the residential tenant is not present and prior notice has not been given, the landlord shall disclose the entry by placing a written disclosure of the entry in a conspicuous place in the premises.   If a landlord substantially violates the statute, the residential tenant is entitled to a penalty which may include a rent reduction up to full rescission of the lease, recovery of any damage deposit less any amount retained under the deposit statute, and up to a $100 civil penalty for each violation.

Privacy Raising Privacy Violations in Actions   Not in eviction actions under the statute, but maybe if authorized by ordinance. http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#TOC1_164 Emergency Tenant Remedies Action https://www.revisor.mn.gov/statutes/?id=504B.381 http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#TOC2_169 http://povertylaw.homestead.com/EmergencyReliefandLockoutActions.html Rent Escrow Action to Remedy Violations https://www.revisor.mn.gov/statutes/?id=504B.385 http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#TOC1_280 http://povertylaw.homestead.com/RentEscrowandTenantRemediesActions.html Tenant Remedies Action https://www.revisor.mn.gov/statutes/?id=504B http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#TOC2_170

Habitability Prior to 1971, the landlord only had an obligation to maintain the property if the landlord agreed to take the obligation, or if the lease was silent. Delamater v. Foreman, 184 Minn. 428, 239 N.W. 148 (1931). In 1971 the Minnesota Legislature enacted Minn. Stat. § 504.18, now § 504B.161. https://www.revisor.mn.gov/statutes/?id=504B.161 http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#TOC1_99

Habitability Subdivision 1. Requirements. (a) In every lease or license of residential premises, the landlord or licensor covenants: (1) that the premises and all common areas are fit for the use intended by the parties; (2) to keep the premises in reasonable repair during the term of the lease or license, except when the disrepair has been caused by the willful, malicious, or irresponsible conduct of the tenant or licensee or a person under the direction or control of the tenant or licensee;  

Habitability (3) to make the premises reasonably energy efficient by installing weatherstripping, caulking, storm windows, and storm doors when any such measure will result in energy procurement cost savings, based on current and projected average residential energy costs in Minnesota, that will exceed the cost of implementing that measure, including interest, amortized over the ten-year period following the incurring of the cost; and (4) to maintain the premises in compliance with the applicable health and safety laws of the state, and of the local units of government where the premises are located during the term of the lease or license, except when violation of the health and safety laws has been caused by the willful, malicious, or irresponsible conduct of the tenant or licensee or a person under the direction or control of the tenant or licensee.

Habitability (b) The parties to a lease or license of residential premises may not waive or modify the covenants imposed by this section.  Subd. 2. Tenant maintenance. The landlord or licensor may agree with the tenant or licensee that the tenant or licensee is to perform specified repairs or maintenance, but only if the agreement is supported by adequate consideration and set forth in a conspicuous writing. No such agreement, however, may waive the provisions of subdivision 1 or relieve the landlord or licensor of the duty to maintain common areas of the premises.

Habitability Subd. 3. Liberal construction. This section shall be liberally construed, and the opportunity to inspect the premises before concluding a lease or license shall not defeat the covenants established in this section. Subd. 4. Covenants are in addition. The covenants contained in this section are in addition to any covenants or conditions imposed by law or ordinance or by the terms of the lease or license. Subd. 5. Injury to third parties. Nothing in this section shall be construed to alter the liability of the landlord or licensor of residential premises for injury to third parties. Subd. 6. Application. The provisions of this section apply only to leases or licenses of residential premises concluded or renewed on or after June 15, 1971. For the purposes of this section, estates at will shall be deemed to be renewed at the commencement of each rental period.

Habitability The covenants of habitability and the covenant to pay rent are mutual and dependant, and all or part of the rent is not due when the landlord has breached the covenants. Fritz v. Warthen, 298 Minn. 48, 54, 213 N.W.2d 339, 341-42 (1973). The defendant may raise breach of the covenants as a defense to an action for nonpayment of rent. Id. at 59, 213 N.W.2d at 342. http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#TOC1_99

Landlord Licenses Many cities in Minnesota have ordinances which require residential landlords to obtain a license before renting their properties. In Beaumia v. Eisenbraun, No. A06-1482, 2007 WL 2472298 (Minn. Ct. App. Sept. 4, 2007) (unpublished), the Court of Appeals held that failure to pay rent could not be a ground for eviction where the landlord failed to comply with a municipal requirement to license or register the rental unit. But see Guminiak v. Sowokinos, No. A16-1796, 2017 Minn. App. Unpub. LEXIS 396, 2017 WL 1549981 (Minn. Ct. App. May 1, 2017) (unpublished) (distinguished Beaumia on different ordinances). http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#TOC1_124

Tenant Habitability Actions 504B.381 Emergency Tenant Remedies Action https://www.revisor.mn.gov/statutes/?id=504B.381 http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#TOC2_169 http://povertylaw.homestead.com/EmergencyReliefandLockoutActions.html   504B.385 Rent Escrow Action to Remedy Violations https://www.revisor.mn.gov/statutes/?id=504B.385 http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#TOC1_280 http://povertylaw.homestead.com/RentEscrowandTenantRemediesActions.html 504B.395-471 Tenant Remedies Action https://www.revisor.mn.gov/statutes/?id=504B http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#TOC2_170

Settling Disputes Conduct Money Repairs Privacy Occupants Expungement References Accommodation of disability http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#TOC1_45

Owner Exclusion of Family Members and Guests Adult members of the same family in the same dwelling might or might not be in a landlord and tenant relationship. If one member owns the property and the other does not pay rent or provide services in lieu of rent under Minn. Stat. § 504B.001, the latter is not a tenant.

Non-tenants The owner still could file an eviction action to evict the other person as one unlawful detaining the property under Minn. Stat. § 504B.301. See DePetro v. DePetro, No. A03-727, 2004 WL 885552 (Minn. Ct. App. April 27, 2004) (unpublished) (affirmed eviction by owner of her adult daughter who was not a rent-paying tenant). The owner could change the locks. While an owner cannot lockout a tenant, the owner may lock out a non-tenant. The risk for the owner is if a person excluded filed a lockout action and the court concluded the person was a tenant, the owner would be liable for damages, penalties, and attorney’s fees. The owner also could trespass a non-tenant. If the owner tells the non-tenant to leave and the non-tenant does not comply, the owner could call the police for trespass.

Tenants If the member is a tenant, the owner must follow landlord and tenant law. Options for eviction of tenants: (1) file eviction action for nonpayment of rent or failure to provided services as agreed, or breach of other conditions of occupancy; (2) if tenant is compliant, give notice to terminate tenancy, with the period of notice equal to the interval between rent payments or three months, whichever is shorter. Options not available: trespass and lockout

Harassment and Abuse Tenants, non-tenants, landlords, and managers can be excluded through harassment and domestic abuse restraining orders. A vulnerable adult victim of financial exploitation can recover damages equal to three times the amount of compensatory damages or $10,000, whichever is greater.   http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#TOC1_282

Security Deposits Minn. Stat. § 504B.178 https://www.revisor.mn.gov/statutes/?id=504B.178 Manual http://povertylaw.homestead.com/files/Reading/Security_Deposit.htm Fact Sheet http://www.lawhelpmn.org/issues/housing/damage-deposit-law Issues: interest, not withholding last month rent, end of tenancy, forwarding instructions, three weeks to return deposit plus interest or give notice of withholding, doubling penalty for failure to give timely notice, landlord burden of proof for withholding from deposit for funds due under lease or damage beyond ordinary wear and tear, tenant defenses to landlord’s claims, $500 punitive damages, and conciliation court.

Attorney’s Fees Minn. Stat. § 504B.172 provides: “If a residential lease specifies an action, circumstances, or an extent to which a landlord, directly, or through additional rent, may recover attorney fees in an action between the landlord and tenant, the tenant is entitled to attorney fees if the tenant prevails in the same type of action, under the same circumstances, and to the same extent as specified in the lease for the landlord. EFFECTIVE DATE. This section is effective for leases entered into on or after August 1, 2011, and for leases renewed on or after August 1, 2012.” Minn. Laws Ch. 315, § 3, H.F. No. 2668. http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#TOC1_282 Other statutes provide for attorney’s fees. See relief sections in tenant habitability forms. http://povertylaw.homestead.com/EmergencyReliefandLockoutActions.html http://povertylaw.homestead.com/RentEscrowandTenantRemediesActions.html

Ethics Ethical Representation of Landlords and Tenants http://povertylaw.homestead.com/files/Reading/ETHICAL_CONCERNS_IN_REPRESENTING_LANDLORDS_AND_TENANTS_REVISED.pptx

Other Topics Housing Law in Minnesota: Residential Eviction Defense in Minnesota, and Other Housing Law Materials, by Lawrence R. McDonough http://povertylaw.homestead.com/ResidentialUnlawfulDetainer.html Housing Law Links http://povertylaw.homestead.com/files/Reading/links.pdf Law Help http://www.lawhelpmn.org/

Bill Evans My favorite jazz pianist. https://en.wikipedia.org/wiki/Bill_Evans

Lawrence McDonough Pro Bono Counsel Dorsey and Whitney, LLP Suite 1500 50 South Sixth Street Minneapolis, MN 55402-1498 P: 612-492-6795, F: 612-677-3220 McDonough.Lawrence@Dorsey.com http://povertylaw.homestead.com/Biolarrymcdonough.html https://www.dorsey.com/people/m/mcdonough-lawrence