Professional Documents
Culture Documents
Eviction Handbook
Eviction Handbook
I.
II.
III.
IV.
INTRODUCTION...................................................................... 764
SUMMARY OF EVICTION ACTIONS AND LANDLORD-TENANT
RELATIONSHIPS ...................................................................... 766
A. Statutes and Cases ............................................................ 766
B. Summary of an Eviction Action ......................................... 768
C. Creation of a Landlord-Tenant Relationship ...................... 772
D. Types of Private Tenancies................................................. 772
E. Domestic Partners .............................................................. 774
F. Implied Lease Terms .......................................................... 775
G. Statutory Definitions of Landlord and Tenants .................. 775
H. Public and Subsidized Rental Housing............................... 776
I. Special Relationships ......................................................... 777
SUBJECT MATTER JURISDICTION ............................................ 778
DEFENSES TO EVICTION ......................................................... 780
A. Limitations on Defenses ..................................................... 780
B. Lack of Personal Jurisdiction Due to Improper Service.......... 782
C. Failure of the Plaintiff to Satisfy Preconditions to Recovery
of the Property ................................................................... 786
1. Entitlement to Possession .............................................. 786
2. Landlord Disclosure of Address..................................... 787
3. Trade Name Registration ............................................. 788
4. Failure to State the Facts that Authorize Recovery of the
Premises ...................................................................... 789
5. Unauthorized Practice of Law ...................................... 790
6. Failure to Follow Hennepin and Ramsey County
Housing Court Rules ................................................... 791
7. Failure to Provide Defendant with a Copy of the Lease
Before Commencement of the Action .............................. 792
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INTRODUCTION
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25
park lots,
material breaches,
property storage,
costs,
26
expungement of court files and tenant records, judge review of
27
28
referee decisions, and appeals.
This article begins with a brief description of the Minnesota
statutes that address landlords and tenants, the eviction process,
and the types of tenancies. It then continues with a detailed
discussion of subject matter jurisdiction, procedural issues,
procedural and substantive defenses, post-trial issues, and appeals.
While this article focuses on the law as it affects landlords and
tenants in Minnesota, it is representative of how the confluence of
several legal sources makes the areas of eviction and general
landlord-tenant law confusing and challenging, but also distinctive
29
and fascinating.
II. SUMMARY OF EVICTION ACTIONS AND LANDLORD-TENANT
RELATIONSHIPS
A. Statutes and Cases
In 1998, the Minnesota legislature passed a re-codification of
the existing landlord-tenant statutes in chapters 504 and 566 into a
new chapter 504A. The legislature delayed the effective date of
chapter 504A and the repeal date of chapters 504 and 566 one year
to allow for study and comment of the re-codification. The
purpose of chapter 504A was to make landlord-tenant laws more
accessible to the public by placing them in one chapter and
rewriting them in a more understandable form. A committee of
22.
23.
24.
25.
26.
27.
28.
29.
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30. MINN. STAT. 504B.001 (2008) (formerly codified at MINN. STAT. 566.18
(1998)).
31. Id. 480A.08, subdiv. 3(c); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796,
800 (Minn. Ct. App. 1993). The Dynamic Air court noted that the trial court
committed error by relying upon an unpublished [court of appeals] opinion
. . . . 502 N.W.2d at 800. The court added, a party may cite to an unpublished
opinion affirming a trial courts exercise of discretion to persuade a trial court to
exercise discretion in the same manner. It is, however, improper to rely on
unpublished opinions as binding precedent. Id. However, counsel may have an
ethical obligation to cite unpublished opinions adverse to counsels client if that
authority is the only opinion on point in the jurisdiction. Marcia A. Johnson,
Advisory Opinion Service Update, BENCH & B. MINN., Oct. 1993, at 13.
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schedule a trial for another day. If the defendant appears and does
not contest the action, the court will find for the plaintiff, but
42
might stay issuance of the writ of recovery for seven days. In the
43
Fourth and Second Judicial Districts, a housing court referee
44
presides over the arraignment, which could include as many as
fifty cases scheduled on the calendar. If a trial is necessary, the
referee generally will schedule it for another day. The housing
45
court rules provide for discovery.
The court may continue the trial for up to six days without
46
consent of the parties; or, in certain circumstances, up to three
47
months for a material witness if a bond is paid. The court has
discretion to continue the trial longer in the interests of judicial
48
administration and economy. As explained in the courts syllabus
in a recent case at the court of appeals:
A district court abuses its discretion by denying a motion
to stay an eviction action when (1) an existing, separate
district court action would be dispositive of the issues of
possession and title to commercial real property involved
in the eviction action and (2) the district court in the
eviction action has concluded that some of the claims
asserted in the first-filed action are essential to the defense
49
of the eviction action.
Minnesota Statutes section 325N.18 also requires the court to issue
an automatic stay without imposition of a bond if a defendant
makes a prima facie showing that the defendant commenced an
50
illegal foreclosure reconveyance action.
In limited circumstances, the court may require the defendant
42. Id., subdiv. 2.
43. The Second Judicial District includes Ramsey County, which contains the
city of St. Paul. The Fourth Judicial District includes Hennepin County, which
contains Minneapolis.
44. MINN. GEN. R. PRAC. 602 (2008). Housing court procedures are based on
a housing court calendar project promulgated in 1989. Law of June 2, 1989, ch.
328, art. 2, 1719, 1989 Minn. Laws.
45. MINN. GEN. R. PRAC. 612 (2008).
46. MINN. STAT. 504B.341(a) (2008) (formerly codified at MINN. STAT.
566.08 (1998)).
47. Id. 504B.341(b).
48. Rice Park Prop. v. Robins, Kaplan, Miller & Ciresi, 532 N.W.2d 556, 556
(Minn. 1995) (noting that trial courts have considerable discretion to pursue
efficient judicial administration and economy).
49. Bjorklund v. Bjorklund Trucking, Inc., 753 N.W.2d 312, 313 (Minn. Ct.
App. 2008) (quoting syllabus by the court).
50. See infra Part IV(A).
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summary nature of the action does not relieve the court of the
obligation to find facts specially and state separately its conclusions
of law. Failure to include findings usually requires reversal unless
the decision necessarily decides all disputed facts, or the undecided
58
issues are immaterial.
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.
The landlord must then arrange for the sheriff or police to deliver
59
the writ, which is a twenty-four-hour eviction notice. If the tenant
does not move, the landlord must schedule an eviction of the
60
tenant with the sheriff or police. The landlord must store the
tenants property, either on site or with a storage company, for up
61
to sixty days. If a housing court referee heard the case in the
Second or Fourth Judicial Districts, a party may request a district
62
court judge to review the referees decision. Either party may
appeal from entry of judgment within ten days of entry of
63
judgment.
A collateral estoppel effect of an eviction judgment does not
prevent the tenant from raising, in another action, an issue that
could have been raised in the eviction action but was not raised, or
64
was raised in the eviction action but later withdrawn, an issue
65
raised in the eviction action on which the court declined to rule,
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or issues of title.
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74. Urban Inv., Inc. v. Thompson, No. UD-1950626525, slip op. at 35 (Minn.
Dist. Ct. Aug. 10, 1995) (order dismissing plaintiffs unlawful detainer action with
prejudice).
75. The notice period must be the lesser of the interval between when rent is
due, or three months. MINN. STAT. 504B.135 (2008) (formerly codified at MINN.
STAT. 504.06 (1998)). Where there are no rent intervals, the notice period is
three months. Marlett v. Honsey, No. 27CVHC 09-66, slip op. at 2 (Minn. Dist. Ct.
Jan. 22, 2009) (order allowing defendant to remain in possession of premises).
76. MINN. STAT. 504B.141 (2008) (formerly codified at MINN. STAT. 504.07
(1998)).
77. See id. 504B.135; Johnson v. Hamm Brewing Co., 213 Minn. 12, 16, 4
N.W.2d 778, 781 (1942); Oesterreicher v. Robertson, 187 Minn. 497, 501, 245
N.W. 825, 826 (1932) (holding that with our decisions that the rental month
begins on the day the lease is made, . . . notice served on the first of a rental
month is not in time to terminate the tenancy with the end of that month.);
Markoe v. Naiditch & Sons, 303 Minn. 6, 7, 226 N.W.2d 289, 290 (1975) (holding
that strict compliance is required); Eastman v. Vetter, 57 Minn. 164, 166, 58 N.W.
989, 98990 (1894) (finding a defective notice void and not effective at end of
next month).
78. See Wiedemann v. Brown, 190 Minn. 33, 4041, 250 N.W. 724, 727 (1933)
(holding that one who has permission by an owner to hold possession of the
owners land(s), but without a fixed term, is a tenant at will).
79. Hagen v. Bowers, 182 Minn. 136, 13738, 233 N.W. 822, 823 (1930)
(holding that the plaintiff was a tenant at will whose tenure could not be
terminated without the statutory notice).
80. Paget v. Elec. Engg Co., 82 Minn. 244, 246, 84 N.W. 800, 801 (1901)
(holding that the tenant was a tenant at will and he was required to give notice,
directed by statute, in order to terminate the tenancy).
81. See 504B.135.
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Special Relationships
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to quit. 114
The landlord may combine actions for nonpayment of rent
115
These claims shall be heard as
and material lease violations.
116
The hearing is bifurcated to first cover a
alternative grounds.
material violation of the lease, and then nonpayment of rent if the
landlord does not prevail on the material lease violation claim.
The tenant is not required to pay into court outstanding rent,
interest, or costs to defend against the material lease violation
117
If the court reaches the nonpayment of rent claim, the
claim.
118
The tenant shall be
tenant is permitted to present defenses.
given up to seven days to pay any rent and costs determined by the
119
court to be due, either into court or to the landlord.
The court also has jurisdiction for the claim of unlawfully
detaining the premises after having entered unlawfully or
120
Unlawful detention includes a seizure on residential
forcibly.
rental property of contraband or a controlled substance
manufactured, distributed or acquired in violation of Chapter 152
(Drugs, Controlled Substances) and with a retail value of $100 or
121
more, if the tenant does not have a defense.
There are some claims that are not appropriate for an eviction
action. A tenant cannot bring an eviction action against the
landlord who wrongfully reentered the premises. The lockout
122
statute provides the tenants remedy. A state court does not have
jurisdiction over an eviction action involving the right of an
enrolled member of an Indian tribe to possession of property held
123
in trust for Indians by the United States.
In Rice Park Properties v. Robins, Kaplan, Miller & Ciresi, the
Minnesota Supreme Court reversed the court of appeals and
114. Id., subdiv. 1(3).
115. Id., subdiv. 5(a).
116. Id.
117. Id., subdiv. 5(b).
118. Id., subdiv. 5(c).
119. Id.
120. Id. 504B.301 (formerly codified at 566.02 (1998)).
121. Id.; MINN. STAT. 609.5317 (2008).
122. MINN. STAT. 504B.375 (2008) (formerly codified at MINN. STAT.
566.175 (1998)). See Berg v. Wiley, 303 Minn. 247, 25051, 226 N.W.2d 904,
90607 (1975).
123. White Earth Hous. & Redevelopment Auth. v. J.F., No. C8-91-224, slip op.
at 23 (Minn. Dist. Ct. Feb. 5, 1992) (order granting motion to dismiss)
(determining that the state court was without jurisdiction); All Mission Indian
Hous. Auth. v. Silvas, 680 F. Supp. 330 (C.D. Cal. 1987); 28 U.S.C. 1360(b)
(2006).
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summons was mailed but not posted, or posted but not mailed;
and (4) the plaintiff posted the summons before mailing the
summons and filing the affidavit of mailing, rather than mailing
160
the summons, filing the affidavit, and then posting the summons.
The landlord may bring the action jointly against the tenant
161
and subtenant. However, if the subtenant is not named as a party
in an action against the tenant, the writ cannot be enforced against
162
the subtenant.
Often, tenants have other defenses in addition to the defense
of improper service. If a defendant does not move the court for
dismissal based on lack of personal jurisdiction before or
contemporaneously with a motion for dismissal on other grounds
or partial summary judgment, the defendant invokes the
jurisdiction of the district court and waives by implication the
163
defense of lack of personal jurisdiction.
It is unclear whether defendants can be designated as John
Doe or Jane Doe. The summons must be directed to stat[e]
the full name and date of birth of the person against whom the
164
The eviction
complaint is made, unless it is not known . . . .
statutes do not contain authority for commencement of an action
165
against an unknown defendant by use of a fictitious name. While
Minnesota Rule of Civil Procedure 9.08 provides for designating
the unknown name of an opposing party with any name, it also
contemplates amendment of the pleadings with the true name of
166
It appears that Rule 9.08 contemplates an action of
the party.
longer duration, which would allow for identification of the true
159. Hartog v. Ketchum, No. C4-94-796 (Minn. Dist. Ct. July 25, 1994) (order
granting motion to dismiss) (finding that summons was posted but not mailed).
160. Minneapolis Pub. Hous. Auth. v. McKinley, No. UD-1980305507 (Minn.
Dist. Ct. Mar. 27, 1998) (order denying plaintiffs motion for unlawful detainer
action) (posting of summons before mailing of summons did not comply with
statute and rule, thus requiring dismissal).
161. Judd v. Arnold, 31 Minn. 430, 433, 18 N.W. 151, 152 (1884).
162. Bagley v. Sternberg, 34 Minn. 470, 47172, 26 N.W. 602, 60203 (1886);
Kowalenko v. Haines, No. C6-85-1365, slip op. at 2 (Minn. Ct. App. July 24, 1985)
(order).
163. Patterson v. Wu Family Corp., 608 N.W.2d 863, 86869 (Minn. 2000).
164. MINN. STAT. 504B.321, subdiv. 1 (2008) (formerly codified at MINN.
STAT. 566.05 (1998)).
165. Compare MINN. STAT. 504B.281.471 (2008) (eviction statutes), with
MINN. STAT. 558.02 (2008) (partition of real estate), and MINN. STAT. 559.02
(2008) (adverse claims to real estate).
166. MINN. R. CIV. P. 9.08. See also Peterson v. Sorlien, 299 N.W.2d 123, 132
(Minn. 1980); Leaon v. Washington County, 397 N.W.2d 867, 871 (Minn. 1986).
786
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Entitlement to Possession
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property.
The action may be commenced only by the person
171
or the authorized management
entitled to the premises,
172
company or agent for the owner of the premises. Housing court
rules also provide that the action shall be brought in the name of
the owner of the property or other person entitled to possession of
the premises, no agent shall sue in the agents own name, and
173
One joint
agents must be authorized to represent the principal.
tenant can evict a lessee from co-owned property without the other
174
A power of authority signed by a person
joint tenants consent.
175
other than the principal must be notarized.
2.
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The landlord also must plead compliance with the statute. A post
office box does not comply with the statute since it is not an
address and not a place where the plaintiff can be personally
178
Similarly, the landlords use of a commercial mailbox
served.
service, while appearing to be a street address, is not a proper
address because the landlord could not be personally served
179
Some local ordinances require a landlord who does not
there.
live in the local area to maintain a contact person who resides in
180
Failure to comply with such ordinances may be a
the area.
181
violation of section 504B.181.
3.
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District Court, Second Judicial District to the Clerk of the St. Paul Housing Court
(Mar. 30, 2001) (on file with author) (stating that a licensed attorney must
represent any corporation appearing in Housing Court of the Second Judicial
District); In re Morning Sun Invs., Inc. (Minn. Dist. Ct. Mar. 21, 2002) (stating that
a corporation must be represented by a licensed attorney when appearing in
district court).
Minnesotas district courts commonly dismiss eviction actions
commenced by corporations when not represented by an attorney. See Meldahl &
SJM Props., Inc. v. McIntosh, No. 1050923509 (Minn. Dist. Ct. Feb. 23, 2006)
(order on referee review) (stating that the corporation cannot be represented by a
non-attorney agent such as its president); Westfalls Hous. Ltd. Pship v. Scheer,
No. C8-93-227 (Minn. Dist. Ct. Nov. 30, 1993) (order) (stating that a limited
partnership cannot be represented by a non-attorney agent such as its vice
president); Remas Props., LLC v. Student, No. UD-1940705517 (Minn. Dist. Ct.
July 19, 1994) (decision and order) (dismissing the case when the limited liability
company was represented by a non-attorney).
196. MINN. GEN. R. PRAC. 604(d) (2008).
197. See Pham v. REDACTED, No. HC-030131517 (Minn. Dist. Ct. Feb. 13,
2003) (decision and order) (dismissing case for failure to present lease for breach
claim and notice for holdover claim, and for waiver of notice by acceptance of
rent); B&J Prop. Mgmt. v. Gates, No. UD-01970602519 (Minn. Dist. Ct. June 12,
1997) (order granting motion to dismiss) (dismissing for improper service, failure
to register trade name, and failure to attach notice to quit and lease to complaint).
198. MINN. GEN. R. PRAC. 605 (2008); Oloiye v. Washington, No. UD01990708534 (Minn. Dist. Ct. July 22, 1999) (order granting motion to dismiss)
(dismissing claim for failure to file an affidavit of service resulting in the grant of
an expungement motion and the award of tenant costs).
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240
damages.
The Tenants Remedies Act incorporates this
standard by authorizing the court to find the extent to which any
uncorrected violations impair the residential tenants use and
enjoyment of the property contracted for and order the rent
241
Minnesota trial courts have generally
abated accordingly.
applied the reduced use and enjoyment standard in summary
242
Where the premises are
proceedings such as eviction actions.
condemned as uninhabitable or are condemnable, the present
243
value is zero and no rent is due to the landlord. Unfortunately, it
is not uncommon for the court to place an arbitrary limit on how
244
Some
far back in time the tenant can seek rent abatement.
245
The
courts have chosen not to limit retroactive rent abatement.
only limitation on the rent abatement claim should be the six-year
240. ROBERT S. SCHOSHINSKI, AMERICAN LAW OF LANDLORD AND TENANT 3:25
(1980 & Supp. 2008).
241. MINN. STAT. 504B.425(e) (2008) (formerly codified at MINN. STAT.
566.25 (1998)).
242. Khan v. Greene, No. UD-1940330506, slip op. at 5 (Minn. Dist. Ct. May
25, 1994) (decision and order dismissing unlawful detainer action); Z & S Mgmt.
Co. v. Jankowicz, No. UD-1920219515, slip op. at 10 (Minn. Dist. Ct. Mar. 24,
1992) (decision and order dismissing action) (entitling defendant to an
abatement in rent for decreased use and enjoyment of property caused by
plaintiffs failure to remove peeling lead paint in a timely manner); Zeman v.
Arnold, No. UD-1900911501 (Minn. Dist. Ct. Oct. 11, 1990) (decision and order
denying plaintiffs unlawful detainer defense).
243. Love v. Amsler, 441 N.W.2d 555, affg, No. 87-14719 (Minn. Dist. Ct. July
14, 1988) (affirming order awarding complete rent abatement for uninhabitable
apartment); Zeman v. Smith, Nos. UD-1840504512, UD-1840605520, slip op. at 5
6 (Minn. Dist. Ct. July 11, 1984) (findings of fact, conclusions of law, and order
for judgment granting unlawful detainer action for defendant) (finding that
tenant owes no rent for period prior to condemnation where premises were in
condemnable condition); Hamre v. Wu, No. 797483, slip op. at 7 (Minn. Dist. Ct.
Jan. 27, 1983) (order reversing municipal court order) (involving three judge
appellate panel). If a landlord, agent, or person acting under the landlords
direction or control rents out residential housing after the premises were
condemned or declared unfit for human habitation, the landlord is liable to the
tenant for actual damages and an amount equal to three times the amount of all
money collected from the tenant, including rent and security deposits, after the
date of condemnation or declaration, plus costs and attorneys fees. The
provisions of the statute may not be waived. MINN. STAT. 504B.204 (2008)
(formerly codified at MINN. STAT. 504.245 (1998)).
244. Larson v. Bonacci, No. UD-1970506542 (Minn. Dist. Ct. June 18, 1997)
(order granting rent abatement) (finding that rent abatement claim was limited to
current lease, going back five months).
245. See Larson v. Anderson, No. C9-96-416 (Minn. Dist. Ct. Nov. 8, 1996)
(decision and order) (awarding rent abatement of $6,910 over five years for failing
to repair discharge of raw sewage on the premises; landlords notice to quit was in
retaliation for tenants complaint to health department).
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801
Rent escrow actions and eviction actions that involve the same
parties must be consolidated and heard on the dates scheduled for
253
Consolidating actions also may allow the
the eviction action.
court to grant relief beyond what it would do in the eviction
254
action.
Landlords may have tort liability related to housing repair
problems. In Bills v. Willow Run I Apartments, the Minnesota
Supreme Court held that an owner is not negligent per se for a
violation of the uniform building code, unless (1) the owner knew
or should have known of the violation, (2) the owner failed to take
reasonable steps to remedy the violation, (3) the injury suffered was
the kind the code was intended to prevent, and (4) the violation
adopted by court to pay tenant $500 at move out and $1,500 one week later. No.
HC-031022520 (Minn. Dist. Ct. Dec. 15, 2003) (decision and order). He paid the
first payment, but not the second. Id. The court ordered the landlord to provide
discovery on ability to pay; after a trial, found the landlord in contempt of court
for failing to pay the $1,500, fined the landlord, and ordered the landlord to jail,
staying the order until the end of the month for the landlord to comply. Id.
(Minn. Dist. Ct. Feb. 6, 2004) (decision and order). When the landlord did not
comply, the court first issued a bench warrant for his arrest. Id. (Minn. Dist. Ct.
Mar. 3, 2004) (bench warrant and decision and order). The court then ordered
the landlord confined. Id. (Minn. Dist. Ct. Mar. 17, 2004) (decision and order).
See also REDACTED v. Floy, No. HC-010829900 (Minn. Dist. Ct. Dec. 14, 2001)
(findings, conclusion, and order) (ordering the landlord to be imprisoned or pay
immediately for failure to pay damages ordered by court in earlier emergency
relief action where the landlord rented condemned property, the housing
inspector ordered the tenant to vacate, the court awarded damages for rental of
condemned property by a specific date, and the landlord failed but had the ability
to pay). See generally Hopp v. Hopp, 279 Minn. 170, 17376, 156 N.W.2d 212, 216
18 (1968) (discussing civil contempt law in Minnesota); Cox v. Slama, 355 N.W.2d
401 (Minn. 1984) (holding defendant in civil contempt for failure to pay child
support); MINN. STAT. 588.01 (2008).
253. MINN. STAT. 504B.385, subdiv. 8 (2008) (formerly codified at MINN.
STAT. 566.34 (1998)).
254. Smith v. Brinkman, No. HC-1000124900 (Minn. Dist. Ct. Mar. 9, 2000)
(decision and order dismissing eviction action); Smith v. Brinkman, No. HC1000202517 (Minn. Dist. Ct. May 10, 2000) (decision and order of expungement
for one of the tenants) (involving consolidated eviction and rent escrow actions
where landlord failed to prove statutory notice to quit, notice to increase rent
given November 1 was not effective to increase rent December 1; presumption of
retaliation applied to a rent increase notice with the landlord failing to prove a
non-retaliatory purpose; habitability rent abatement of $800 over four months
(38%); tenant awarded $300 in civil penalties for landlord visits without notice in
which he was rude toward the tenant and her daughter; landlord ordered to make
repairs with tenants authorized to make repairs and submit bills for court
approval; landlord restrained from harassing tenant and household members with
landlord allowed to enter only to make repairs with written twenty-four hours
notice; tenants awarded costs, disbursements and attorneys fees).
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If the lease does not provide for increasing the rent, the
landlord may not increase the rent until the lease expires, unless
the tenant agrees to an increase. If the lease provides for
increasing the rent with notice, the landlord must comply with the
notice provision. In a month-to-month lease, the landlord should
give notice of the rent increase at least one month before the rent
increase. Since rent often is the most significant element of the
lease, increasing the rent is equivalent to terminating the present
lease and entering into a new lease with a higher rent, and
termination of a month-to-month lease requires written notice
273
before the last month of the tenancy.
In a mobile home lot lease, the landlord must give sixty days
written notice of the rent increase and may increase the rent only
274
The rent also may not be
twice in any twelve month period.
increased to pay any court or government imposed civil or criminal
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complains to the inspection agency, or the tenant of the city sues the landlord
over housing conditions. The presumption has no time limit. Id.
281. Line v. Reynolds, No. UD-1960612512 (Minn. Dist. Ct. Aug. 12, 1996)
(decision and order for defendant occupants and for rent abatement) (involving
consolidated eviction and rent escrow actions; tenant proved that proposed 21%
rent increase was in retaliation for tenants complaints of repair needs, and
landlord did not prove that the rent increase was based on other factors);
Lundstrom v. Colglazier, No. UD-1960524502 (Minn. Dist. Ct. June 17, 1996)
(decision and order) (stating that tenants proved that landlords proposed rent
increase was in retaliation for complaints about repairs).
282. In Smithrud v. McDaniel, neither party testified regarding the landlords
late fee claim of $150. No. UD-195050529 (Minn. Dist. Ct. May 22, 1995)
(decision and order). The court found that it was not clear what late fees the
landlord asserted were due and for which months, and concluded that the
landlord had not proven that the tenants owed $150 for late fees. Id.; see also Clark
v. Urban Invs., No. UD-1970821901 (Minn. Dist. Ct. Sept. 10, 1997) (decision and
order) (stating that claimed late fees were not based on lease but on later notice to
increase late fees; landlord did not prove it was entitled to unilaterally amend lease
to increase late fees).
283. Cook v. Finch, 19 Minn. 407, 413, 19 Minn. (Gil.) 350, 358 (1872)
(decision and order); Brooklyn Ctr. Leased Hous. v. REDACTED, No. HC030819518 (Minn. Dist. Ct. Sept. 16, 2003) (decision and order).
284. Local 34 State, County & Mun. Employees v. County of Hennepin, 310
Minn. 283, 28788, 246 N.W.2d 41, 44 (1976) (stating that because the issue of
damages was not raised at trial, it may not be considered on appeal).
285. Palace Theatre, Inc. v. Northwest Theatres Circuit, Inc., 186 Minn. 548,
553, 243 N.W. 849, 851 (1932).
286. Zirinsky v. Sheehan, 413 F.2d 481, 485 (8th Cir. 1969).
2009]
807
287
expression of intention.
Where actual damages cannot be
measured, liquidated damages not manifestly disproportionate to
actual damages are enforceable. Where actual damages are
susceptible of definite measurement, an amount greatly
288
The actual
disproportionate is an unenforceable penalty.
damages for late payment of rent may be measured without
difficulty: the legal rate of interest plus the actual costs caused by
289
the late payment.
Minnesota courts have found certain late fee provisions to be
290
Like other lease provisions, late fees
unenforceable penalties.
291
Tenants are not liable for late fees where the
can be waived.
292
Rules for late fees in public and
tenant properly withheld rent.
287. Gorco Constr. Co. v. Stein, 256 Minn. 476, 48182, 99 N.W.2d 69, 74
(1959); Meuwissen v. H.E. Westerman Lumber Co., 218 Minn. 477, 483, 16
N.W.2d 546, 54950 (1944).
288. Gorco, 256 Minn. at 48283, 99 N.W.2d at 75.
289. United Shoe Mach. Co. v. Abbott, 158 F. 762, 765 (8th Cir. 1908);
Maudlin v. Am. Sav. & Loan Assn, 63 Minn. 358, 367, 65 N.W. 645, 649 (1896)
(actual damages of breach of term to pay money susceptible of definite
measurement).
290. Wheeler v. REDACTED, No. HC-030905517 (Minn. Dist. Ct. Oct. 3, 2003)
(decision and order) (holding $1,005 in late fees was excessive and although
tenant did not prove habitability violations tenant may still redeem); Cherrier v.
Harper, No. UD-1940113508, slip op. at 2 (Minn. Dist. Ct. Feb. 4, 1994) (decision
and order for plaintiff and writ of restitution issued subject to defendants right of
redemption) (stating that late charge of $15 if rent was more than one day late
and $20 after two days was an unenforceable penalty); Cent. Cmty. Hous. Trust v.
Anderson, No. UD-1900611534, slip op. at 3 (Minn. Dist. Ct. July 6, 1990) (order
denying plaintiffs unlawful detainer action) (stating that $20 late fee bore no
relation to cost of landlords preparation of form notice and slipping the notice
under the tenants door, triggering the tenants prompt action in paying the rent,
where government-subsidized housing is involved); Larson v. Cooper, No. UD1880209557, slip op. at 8 (Minn. Dist. Ct. Mar. 21, 1988) (order abating
defendants rent because of breach in covenant of habitability) (stating that $10
per day late fee was an unenforceable penalty). But see 606 Vandalia Pship v. JLT
Mobil Bldg. Ltd. Pship, No. C3-99-1723 (Minn. Ct. App. Apr. 25, 2000) (affirming
district courts conclusion that commercial late fee was a proper liquidated
damage and not an unenforceable penalty or unconscionable provision).
291. Chaska Vill. Townhouses & Lifestyle, Inc. v. Edberg, No. 91-27365, slip op.
at 3 (Minn. Dist. Ct. Apr. 1, 1991) (order denying plaintiffs unlawful detainer
action) (deciding that plaintiff induced defendant to believe that late rental
payments would continue to be accepted without consequences).
292. Cent. Manor Apartments v. Beckman, No. UD-1980513525, slip op. at 3
(Minn. Dist. Ct. May 27, 1998) (order denying plaintiffs unlawful detainer
action). When a tenant withholds rent due to habitability issues which are then
proven by the tenant, fees for late payment of rent are not due for the month a
tenant withheld rent. Assessing a late fee would frustrate the tenants right to
withhold rent to remedy habitability problems, and is contrary to public policy.
Id.
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809
the tenants share of the rent, the landlord may not recover from
the tenant the government subsidies portion of the rent withheld
by the housing authority for the landlords failure to keep the
297
In public and subsidized
apartment in reasonable repair.
housing projects where the landlord calculates the tenants rent
based upon the tenants income, the landlord may not evict the
298
tenant based on improper rent assessments by the landlord.
7.
The landlord and tenant can agree, only in writing, that partial
payment of rent, accepted by the landlord before issuance of the
order for the writ of restitution, may be applied to the balance due
and does not waive the landlords action for possession based on
299
Acceptance of a partial payment of rent
nonpayment of rent.
4, 1996) (order granting termination of Section 8 tenancy).
297. 24 C.F.R. 982.310(b), .451(b)(4) (2008); Mattson v. Harmon, No. UD1961203552, slip op. at 79 (Minn. Dist. Ct. Jan. 28, 1997) (order granting
plaintiffs judgment for restitution of the premises subject to tenants right to
redeem) (holding tenant not responsible for rent subsidy withheld by housing
authority which is not due to tenants conduct; landlord cannot require tenant to
pay full rent or evict tenant for failing to pay full rent; landlord bound by housing
authoritys reinstatement of contract); Wiley v. Flax, No. UD-1961107516 (Minn.
Dist. Ct. Nov. 25, 1996) (order denying plaintiffs unlawful detainer action)
(stating that landlord could enforce Section 8 approved lease but could not
enforce contradictory private lease or subsequent side agreement for a higher rent
and change in responsibility for utilities).
298. See generally NATIONAL HOUSING LAW PROJECT, supra note 100, at ch. 3, 5
(providing general overview of individual tenant rents and extra charges). See also
Innsbruck Ltd. Pship v. Askvig, No. C-5-95-0604, slip op. at 67 (Minn. Dist. Ct.
Apr. 19, 1995) (order granting defendant tenant possession) (finding that tenant
did not under-report income and paid too little rent, since tenant could pool
income and expenses from both of her jobs). In Buffalo Court Apartments v. Velde,
the subsidized housing project sent a letter to the tenant retroactively terminating
the subsidy, claiming that another person was living with her in violation of the
lease. No. C6-98-1798 (Minn. Dist. Ct. Sept. 14, 1998) (order dismissing plaintiffs
unlawful detainer action). The tenant claimed that the person was a guest and not
a resident and provided documentation. Id. The landlord did not give the
required ten days notice to remove the subsidy or the thirty days notice to
terminate the lease. Id. The court concluded that the landlord had not proven
that the tenant violated the lease, the landlord failed to comply with regulations in
increasing the tenants rent, and failure to provide proper notice prevented the
landlord from removing the tenants rent subsidy. Id. The court dismissed the
action and ordered that the landlord immediately reinstate the tenants rent
subsidy, and if the subsidy was not available, the landlord must credit the tenants
rent in the same amount. Id.
299. MINN. STAT. 504B.291, subdiv. 1(c) (2008) (formerly codified at MINN.
STAT. 504.02 (1998)).
810
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2009]
811
the tenant based on the tenants written offer to pay that sum, and
the landlords acceptance of it for the following eight months
without any written or oral objections to it, establishes the parties
307
agreement to rent at that sum.
9.
Utilities
812
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2009]
813
814
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325
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815
affirming trial courts restitution order) (stating that redemption must occur
before possession has been delivered to plaintiff).
The court may permit a tenant who wants to redeem and has already paid
or brought into court all of the rent in arrears, but is unable to pay the statutory
interest, attorneys fees and costs, to pay these additional amounts in the period
when the court otherwise stays issuance of the writ of recovery. 504B.291, subdiv.
1(b). The court also may deny restitution of the premises, conditioned on the
defendants payment of the arrearage within a specific time. In 614 Co., the court
affirmed trial court orders allowing commercial tenant one month to pay amounts
in default. 211 N.W.2d at 893, affirming the district courts first and second
interlocutory orders. See 614 Co. v. D. H. Overmayer Co., No. 204678 (Minn. Dist.
Ct. Apr. 22, 1972) (first interlocutory order); id. (Minn. Dist. Ct. July 9, 1972)
(second interlocutory order). See Schaapveld v. Crump, No. UD-1951011528, slip
op. at 56 (Minn. Dist. Ct. Oct. 31, 1995) (order denying unlawful detainer and
abating rent) (providing assurance of payment, given one month to pay portion of
rent due, and tenant given two weeks from date of hearing to pay balance).
If the court allows the tenant to redeem but the tenant fails to do so, the
court can consider whether the tenant made a good faith effort. In Huntington
Place v. Scott, the court ordered the tenant to pay rent that day. No. UD1980409509, slip op. at 34 (Minn. Dist. Ct. Apr. 30, 1998) (motion partial
transcript). The tenant contacted county emergency assistance that day, which
agreed to make payment but did not accomplish it that day. Id. The court
concluded that the tenant made a good faith effort to redeem, and in fact
redeemed and ordered the judgment and writ vacated. Id. But see Clark v. Smith,
No. A04-1850, 2005 WL 1669123, at *2 (Minn. Ct. App. July 19, 2005) (affirming
eviction where tenant had promised rent payment but had not made the payment
before the trial courts decision); Jasa v. LaMac Cleaners, Inc., No. C4-02-1239,
2003 WL 174729 (Minn. Ct. App. Jan. 28, 2003) (affirming referee determination
that tenant did not redeem the rented premises in a timely manner, rejecting a
substantial compliance argument).
The redemption statute limits attorney fees not exceeding $5.
504B.291, subdiv. 1(a). In a commercial case where the lease provided for
attorneys fees in an action based upon breach of the lease, the trial courts denial
of restitution conditioned upon payment of rent, interest, and attorneys fees was
upheld. 614 Co., 211 N.W.2d at 894. However, in Cheyenne Land Co. v. Wilde, the
court of appeals affirmed the trial courts decision that the statutory limitation of
$5 in attorneys fees governs residential cases. 463 N.W.2d 539, 539 (Minn. Ct.
App. 1990). See also Cityview Coop. v. Marshall, No. C6-99-968, 2000 WL 16334
(Minn. Ct. App. Jan. 11, 2000) (holding that a $5 attorneys fee limit applied to
cooperative which chose landlord-tenant law to govern the relationship and the
eviction action as a remedy).
The right to redeem may be limited in month-to-month tenancies. In
University Community Properties v. New Riverside Cafe, the Minnesota Supreme Court
held that the right of redemption was unavailable to periodic tenants, including
month-to-month tenants. 268 N.W.2d 573, 575 (Minn. 1978); see also Birk v. Lane,
354 N.W.2d 594, 59698 (Minn. Ct. App. 1984). However, New Riverside Cafe
should be read narrowly and not applied to residential tenancies. In New Riverside
Cafe, the tenancy was a commercial tenancy. 268 N.W.2d at 574. Plaintiff served a
fourteen days notice under Minnesota Statutes section 504B.135 (formerly
codified at Minnesota Statutes section 504.06 (1998)), and thus defendant could
have paid the rent during this period. Id. Usually, the summons and complaint is
the first notice that the defendant receives and it serves as a demand for rent.
816
[Vol. 35:3
504B.291. Defendants attempted redemption after the trial. New Riverside Cafe,
268 N.W.2d at 574. In Stevens Court v. Steinberg, Nos. UD-92932, UD-92480, UD92483 (Minn. Dist. Ct. Aug. 30, 1978) (order), the court distinguished New
Riverside Cafe on the above grounds, noting that the supreme court did not intend
to disenfranchise the majority of tenants in the state. Id.
334. 614 Co., 211 N.W.2d at 894; Soukup v. Molitor, 409 N.W.2d 253, 25657
(Minn. Ct. App. 1987).
335. Duling Optical Corp. v. First Union Mgmt., Inc., No. C5-95-2718 (Minn.
Ct. App. Aug. 13, 1996) (order affirming in part and reversing in part trial courts
decision).
336. MINN. STAT. 327C.11, subdiv. 1 (2008).
337. Id. In Kjellbergs, Inc. v. Herrera, the mobile home park lot owner
brought an eviction action for nonpayment of rent. No. CX-98-0363 (Minn. Dist.
Ct. Mar. 11, 1998) (decision and order). The tenant, who did not speak English
and was unfamiliar with the court system, waited in the hallway for his case to be
called and defaulted. Id. The tenant moved to vacate the default judgment. Id.
The landlord claimed that, as a month-to-month tenant, the tenant did not have
the right to redeem, so the motion should be denied. Id. (citing New Riverside Cafe,
268 N.W.2d 573). The court concluded that the tenant defaulted due to
excusable neglect, and that the tenant had the right to redeem the property. Id.
The court distinguished New Riverside Cafe, noting that the New Riverside Cafe court
concluded that redemption would be negligible in a month-to-month tenancy at
will as the lease could be terminated on one months notice, while in this case, the
landlord could terminate the lease only for cause and with proper notice. Id.
338. MINN. STAT. 504B.211, subdiv. 2 (2008) (formerly codified at MINN. STAT.
504.183 (1998)).
339. Id.
340. Id., subdiv. 3.
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817
341
818
[Vol. 35:3
347
347. Id. Neither of the drug covenants are violated if someone other than one
of these parties possesses or allows illegal drugs on the property, unless the party
knew or had reason to know of the activity. Id. The Legislature did not extend
this part of the statute to the prostitution and firearms covenants. It is unclear
whether that was intended or a drafting oversight. However, the fact that each of
the covenants uses the word allow suggests that the test for liability is whether
the party was directly involved or acquiesced in the conduct of others.
348. In a nonpayment of rent case, the tenant should have the remedy of rent
abatement that is available for a landlords violation of the only other implied
lease covenants, the covenants of habitability under section 504B.161 (formerly
codified at section 504.18 (1998)). The covenants are similar in that they deal
with basic issues of safety and security. The Legislature has created the same
enforcement mechanisms for them in the tenant remedies statutes, which also are
part of the eviction chapter. Even before full extension of the covenants to
landlords, the tenant could claim that the landlords failure to remove unlawful
activities from the building violated the tenants right to quiet enjoyment. Ricke v.
Villebrun, No. UD-1961112566, slip op. at 45 (Minn. Dist. Ct. Dec. 5, 1996)
(order denying plaintiffs unlawful detainer action and awarding defendant a rent
abatement). In Ricke, the court stated that every lease contains the right of quiet
enjoyment, and a landlords failure to remove a known risk created by illegal drug
activity violated this covenant of quiet enjoyment. Id. at 34. The court then
ordered the landlord to notify the court of immediate and continuing steps to
enforce the right to quiet enjoyment, and provided that the tenants may pay rent
into the court if the landlord does not take such continuing steps. Id. at 56.
349. MINN. STAT. 504B.291, subdiv. 1 (2008) (formerly codified at MINN.
STAT. 504.02 (1998)). See supra notes 33037 and accompanying text (discussing
redemption).
350. 15 U.S.C. 1692 (2006).
351. Id. 1692a(6).
352. Id. 1692a(6)(A).
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820
[Vol. 35:3
359
2009]
821
364. MINN. STAT. 504B.125 (2008) (formerly codified at MINN. STAT. 504.04
(1998)).
365. Baehr v. Penn-O-Tex Oil Corp., 104 N.W.2d 661, 66364 (1960);
McLaughlin v. Minn. Loan & Trust Co., 255 N.W. 839, 840 (1934); Minn. Loan &
Trust v. Med. Arts Bldg., 255 N.W. 85, 86 (1934); Campbell v. Stetson, 43 Mass. (2
Met.) 504, 505 (1841).
366. See generally Letter from Paul Birnberg, Staff Attorney, Community Action
for Suburban Hennepin, to Lawrence McDonough and Mike Vraa, Legal Aid
Society (Jan. 15, 1998) (on file with author) (citing MINN. STAT. 504.04 (1996)
(currently codified at 504B.125 (2008)). Since the statute does not contain a
non-waiver clause, the parties may be free to contract for join liability.
367. Mortgage foreclosures are governed by Minnesota Statutes sections 580
582 (2008).
822
[Vol. 35:3
368
redemption period, the tenant remains liable for the rent and
other obligations under the lease and landlord tenant laws, and the
landlord remains obligated to maintain the property and comply
with the lease and landlord tenant laws.
Prior to August 1, 2008, if the landlord wanted to rent the
property to a new tenant during the foreclosure process, the
landlord only could enter into a periodic residential lease
agreement with a term of two months or less or a fixed term
residential tenancy not extending beyond the cancellation period
369
However, the
or the landlords period of redemption.
restriction no longer applied if the mortgage default has been
cured and the mortgage reinstated; the mortgage has been
satisfied; the property has been redeemed from a foreclosure sale;
370
or a receiver has been appointed. Landlords had no obligation
to disclose to prospective tenants that the property was in
foreclosure and that the tenant might have to move again within
months of entering the lease.
Landlords are now required by statute to notify a prospective
tenant in writing that the property is in foreclosure and may not
371
accept rent or a deposit before giving notice. If the landlord and
tenant then enter into a lease, the lease is limited to the time in
372
The statute
which the landlord continues to own the property.
does not apply if the foreclosing entity agrees to honor the lease
373
after the landlords ownership interest expires. While the statute
374
does not contain a penalty for violations, tenants should argue
that a violation of the disclosure requirement renders the lease
illegal and void, entitling a tenant to a full abatement of rents
375
illegally obtained.
Also beginning August 1, 2008, a tenant in the last month of
the foreclosure redemption period may now withhold the rent and
376
Following expiration of the
have the deposit cover it.
redemption period, the foreclosing bank steps into the shoes of the
368. 580.23.
369. Id. 504B.151 (2006).
370. Id., subdiv. 1.
371. Id., subdiv. 1(b) (2008).
372. See id., subdiv. 1(a).
373. See id., subdiv. 2.
374. Id. 504B.151.
375. See supra notes 25869 and accompanying text (discussing dwelling
licenses).
376. 504B.178, subdiv. 8 (formerly codified at 504A.241, subdiv. 6 (1998)).
2009]
823
landlord as the owner of the property until the bank terminates the
377
tenancy.
E. Holding Over After Notice to Quit Defenses
1.
824
[Vol. 35:3
2009]
825
Retaliatory Eviction
826
[Vol. 35:3
2009]
827
Waiver of Notice
828
[Vol. 35:3
403
2009]
829
830
[Vol. 35:3
over after notice, grants the tenant the right to redeem the tenancy
416
and waive the notice.
5.
Discrimination
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831
832
[Vol. 35:3
2009]
833
431
834
[Vol. 35:3
433
2009]
835
438
836
[Vol. 35:3
445
Paul Birnberg, Staff Attorney, Cmty. Action for Suburban Hennepin, to Lawrence
McDonough and Mike Vraa, Legal Aid Society (Jan. 15, 1998) (on file with
author).
445. OBrian v. REDACTED, No. HC-1010402506 (Minn. Dist. Ct. Apr. 18,
2001) (decision and order) (involving breach claims dismissed where oral lease
contained no right of reentry clause; notice claim dismissed where landlord failed
to attach notice to complaint and failed to prove notice was given; and
expungement granted); Lowe v. Cotton, No. UD-01990924515, slip op. at 1 (Minn.
Dist. Ct. Oct. 7, 1999) (order dismissing breach of lease claim) (involving situation
where there was no written lease, parties recently entered into a written agreement
that defendant would not have a pet but the memo did not include a right of
reentry); D & D Real Estate Inv. v. Hughes, No. UD-1990311505, slip op. at 2
(Minn. Dist. Ct. Mar. 30, 1999) (order dismissing breach of lease claim) (involving
situation where there was no convincing evidence that the oral lease contained a
right of reentry clause).
446. Mitchell v. Rende, 225 Minn. 145, 14849, 30 N.W.2d 27, 2930 (1947).
447. No. C9-90-175, 1990 WL 89450, at *1 (Minn. Ct. App. July 3, 1990).
448. Id.
449. Id.
450. Id.
451. Id.; see also Kostakes v. Daly, 246 Minn. 312, 318, 75 N.W.2d 191, 195
(1956) (holding landlord could not enforce non-assignment provision where
landlord knew of assignment and investment by assignee of large sum of money in
the property but took no action for three months); Garakani v. Five Lakes Centre,
L.L.C., No. C7-96-673, 1996 WL 636213, at *1 (Minn. Ct. App. Nov. 5, 1996)
(concluding that the parties did not modify, by their conduct, a notice
requirement in the lease where lease contained clear notice and non-waiver
clauses and past conduct did not indicate the lease would not be formally
enforced).
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3.
837
838
[Vol. 35:3
459
459. Gluck v. Elkan, 36 Minn. 80, 81, 30 N.W. 446, 446 (1886); Priordale Mall
Investors, 411 N.W.2d at 584. But see Christy v. Berends, No. A07-1451, 2008 WL
2796663, at *34 (Minn. Ct. App. July 22, 2008) (stating that sublease is not an
ongoing lease violation).
460. Cent. Union Trust Co. of New York v. Blank, 168 Minn. 312, 316, 210
N.W. 34, 36 (1926) (finding no waiver when breach of nonpayment of taxes where
payment was in lieu of additional rent); Priordale Mall Investors, 411 N.W.2d at 585
(finding waiver where lease provisions did not expressly relate to real
consideration).
461. MCDA v. Powell, 352 N.W.2d 532, 53334 (Minn. Ct. App. 1984); Priordale
Mall Investors, 411 N.W.2d at 585; Las Americas, Inc. v. Am. Indian Neighborhood
Dev. Corp., No. A04-505, 2004 WL 2710061, at *6 (Minn. Ct. App. Nov. 30, 2004)
(affirming ruling of no waiver of breach where lease contained broad non-waiver
clause and landlords payment of rent received from tenants into court did not
constitute waiver). However, there are two types of clauses in leases commonly
called non-waiver clauses, but only one type may serve as a non-waiver clause for
the purposes of the waiver of breach defense. A clause that protects the landlord
from waiver of past breaches by acceptance of rent may be enforceable. However,
a clause which states that acceptance of rent following breach of the lease shall not
constitute a waiver of a subsequent breach does not protect the landlord from
waiver of past breaches. Priordale Mall Investors, 411 N.W.2d at 585; Buckeye Realty
Co. v. Elias, No. CX-91-0697, slip op. at 67 (Minn. Dist. Ct. Aug. 6, 1991) (order
denying plaintiffs eviction action) (finding that an election of remedies clause was
not an express non-waiver clause and did not protect landlord from waiver of past
breaches by acceptance of rent). A lease provision stating that acceptance of rent
does not waive rental payment obligations is not a non-waiver of breach clause.
Plymouth Ave. Town Houses & Apartments v. Toussaint, No. UD-1980707535, slip
op. at 1 (Minn. Dist. Ct. July 27, 1998) (order dismissing unlawful detainer action)
(finding that lease provision stating that acceptance of rent does not waive rental
payment obligations was not a non-waiver of breach clause, and dismissing for
waiver of breach).
462. Pollard v. Southdale Gardens of Edina Condo. Assn, 698 N.W.2d 449, 453
(Minn. 2005); McNair v. Doub, No. UD-1960708524 (Minn. Dist. Ct. Aug. 12,
1996) (Appendix 205) (decision and order) (stating that proof of retaliation may
void a landlords non-waiver lease provision); Yvonne M. Rosmarin, Stopping
Defaults with Late Payments, CLEARINGHOUSE REV. 154, 15758 (1992) (discussing
waiver and estoppel theories and challenges to non-waiver clauses).
2009]
5.
839
Discrimination
840
[Vol. 35:3
2009]
841
478
842
[Vol. 35:3
waived or did not prove tenant did not pay deposit five years earlier; finding
allegations of damaging apartment, disturbing tenants, staling mulch, and
abandoning lumber were not proven but would not have been sufficient; and
finding fianc was not an unauthorized resident following landlords improper
denial of his addition to the lease).
Domestic violence: The Violence Against Women and Department of
Justice Reauthorization Act of 2005, commonly called the Violence Against
Women Act (VAWA), bars evictions for lease violations which are the result of
domestic violence, dating violence, or stalking of the tenant or immediate family
members. 42 U.S.C. 1437d (l)(56) (2006). See Metro N. Owners, LLC v.
Thorpe, 870 N.Y.S.2d 768, 2008 WL 5381477 (N.Y. City Civ. Ct. 2008) (dismissing
eviction claiming nuisance where tenant was victim of domestic violence and
entitled to protection under VAWA).
Failure to prove violation: Minneapolis Pub. Hous. Auth. v. Brown, No.
UD-1960306523, slip op. at 3 (Minn. Dist. Ct. May 16, 1996) (order granting
possession to defendant tenant) (finding that the landlord did not prove that the
tenant engaged in drug-related criminal activity on or near the premises).
Failure to report income: H & Val J. Rothschild, Inc. v. Sampson, No.
C395396, 1995 WL 619792 (Minn. Ct. App. Oct. 24, 1995) (finding, in a subsidized
project, tenant under-reported income and underpaid rent).
Housekeeping: Johnson v. Bostic, UD-1951205504, slip op. at 6 (Minn.
Dist. Ct. Feb. 12, 1996) (order denying plaintiffs unlawful detainer action)
(stating that housekeeping problems and noise from tenant in Section 8 certificate
housing did not amount to good cause).
Identification: Bethune Assocs. v. Davis, No. C8-95-705, 1995 WL 619794,
at *12 (Minn. Ct. App. Oct. 24, 1995) (holding that in a subsidized project, there
was no material lease violation or repeated violations where tenant did not show
identification to security guard upon request, and tenant defended himself when
attacked by security guard).
Invalid lease provision: Johnson v. Bostic, No. 1950508539 (Minn. Dist.
Ct. June 5, 1995) (order dismissing plaintiffs unlawful detainer action) (citing a
case with a Section 8 certificate/voucher, holding that landlord did not prove
tenant did not shovel snow, provision prohibiting young boy and girl from sharing
bedroom was invalid, neighbor disturbed by normal noise of small children).
Late fees: Cent. Cmty. Hous. Trust v. Anderson, No. UD-1900611534, slip
op. at 3 (Minn. Dist. Ct. July 6, 1990) (order denying plaintiffs motion to evict)
(holding that a $20 late fee bore no relation to cost of landlords preparation of
form notice and slipping the notice under the tenants door, triggering the
tenants prompt action in paying the rent).
Late rent: Oak Glen of Edina v. Brewington, 642 N.W.2d 481 (Minn. Ct.
App. 2002) (holding that late rent is a minor violation in a HUD subsidized
project; repeated late payment of rent may constitute a material breach; landlord
presented no evidence that late payment affected the landlords rental business;
principal reason for the waiver rule is to instill a feeling of repose in the tenant;
the landlord, by accepting the rent, effectively reaffirms the lease between parties;
and landlord waives breach by late payment of rent by accepting timely rental
payment following the last late payment); Chancellor Manor v. Gates, 649 N.W.2d
892 (Minn. Ct. App. 2002) (finding that in HUD subsidized project, sixty-eight late
rent notices and eight eviction court cases for rent constituted repeated minor
violations which had a adverse financial effect on the project, supporting eviction).
Noise and disturbances: Ford v. REDACTED, No. HC-1020325505 (Minn.
Dist. Ct. Apr. 06, 2002) (decision and order) (Section 8 voucher, plaintiff failed to
2009]
843
prove that loud cars belonged to tenants guests, that defendant knew or should
have known that guests had firearms, that children hanging around the property
were defendants guests, that trash in the yard was from defendants apartment,
that a basement electrical fire resulted from defendants conduct, that the notice
of intent to condemn resulted from defendants conduct, and that the smell of
marijuana came from defendants apartment; plaintiff failed to allege drug use
with any particularity; action dismissed and defendant awarded costs and
disbursements); Hegenes Props. v. Reed, No. UD-4920624902, slip op. at 4 (Minn.
Dist. Ct. Aug. 7, 1992) (order denying plaintiffs eviction action) (deciding that a
tenants disturbance of other tenant on one occasion and violation of city code on
one other occasion did not constitute serious or repeated violations of the lease).
Recertification: St. Cloud Hous. & Redevelopment Auth. v. Slayton, No.
C9-98-1671, slip op. at 69 (Minn. Dist. Ct. Nov. 3, 1998) (order denying plaintiffs
request for restitution of the premises) (citing case where the PHA accepted the
tenants late recertification, PHA did not prove that the tenants daughters
babysitting job away from the premises constituted operation of a daycare business
on the premises, the repayment agreement between the parties over back rent did
not provide for eviction as a consequence for nonpayment or late payment, and
the PHAs acceptance of rent from the tenant in a private agency along with the
PHAs recertification and renewal of the lease constituted waiver of lease
violations).
Rent: Horning Props. v. Wang, No. C3-98-1211 (Minn. Dist. Ct. June 23,
1998) (order dismissing plaintiffs unlawful detainer action) (holding no lease
violation where the tenant in a Rural Housing and Community Development
Service Subsidized Housing Project tendered April rent that the landlord refused,
which did not support the eviction notice; tenant legally resided on the property
during her incarceration so as to not breach the lease); Hous. Auth. of St. Louis
County v. Boone, 747 S.W.2d 311, 316 (Mo. Ct. App. 1988) (stating that in public
housing, tenant not at fault for nonpayment of rent where the PHA failed to adjust
the rent in accordance with changing circumstances).
Self-defense: Bethune Assocs. v. Davis, No. C8-95-705, 1995 WL 619794, at
*2 (Minn. Ct. App. Oct. 24, 1995) (citing a subsidized project case, with no
material lease violation or repeated violations where tenant did not show
identification to security guard upon request, and tenant defended himself when
attacked by security guard).
Temporary absence: Hous. & Redevelopment Auth. of Winona v.
Fedorko, C4-94-884, 1994 WL 654525 (Minn. Ct. App. Nov. 22, 1994) (remanding
a public housing case for further findings, and implying that eviction was not
supported where tenant temporarily moved to a nursing home while litigating
states refusal to approve his personal care attendant).
Termination of tenants employment: Mountainview Place Apartments v.
Ford, No. 94CV1492, slip op. at 3 (Colo. County Ct. Mar. 24, 1994) (decision and
order) (stating that Section 8 project tenancy was unaffected by employment
agreement, and termination of employment was not good cause for eviction).
Unauthorized resident: Buckeye Reality Co., v. Elias, No. CX-91-0697
(Minn. Dist. Ct. Aug. 6, 1991) (findings of fact, conclusions of law, order and
order for judgment) (finding that minor housekeeping violations and occupancy
by unauthorized persons who left the premises after verbal notice from the
landlord probably did not constitute material noncompliance with the lease or
other good cause); Minneapolis Pub. Hous. Auth. v. Rozas, C0-95-956, 1996 WL
5780 (Minn. Ct. App. Jan. 9, 1996) (involving substance abuse and unauthorized
resident).
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499
498. See Hedlund v. Potter, No. C3-91-1383 (Minn. Dist. Ct. Oct. 22, 1991)
(order dismissing plaintiffs unlawful detainer action) (finding that a generalized
notice that was not specific as to time and date of the violation of the lease terms
or mobile home parks rules, and that did not provide for required time to remedy
the conduct was not sufficient).
499. MINN. STAT. 327C.10, subdiv. 3, 327C.01, subdiv. 8; Lea, 345 N.W.2d at
27172; Northview Villa M.H.P. v. Henderson, No. C2-90-13460, slip op. at 5
(Minn. Dist. Ct. Apr. 24, 1991) (decision and order) (finding that plaintiffs no pet
rule was a reasonable rule).
500. MINN. STAT. 327C.02, subdiv. 2, 327C.01, subdiv. 11. See Lemke v.
VanNess, 436 N.W.2d 784, 787 (Minn. Ct. App. 1989) (finding that lease required
the landlord to repair damage from ordinary wear and tear, new rule which
required the tenants to make such repairs was a substantial modification of the
lease, and unenforceable); Renish v. Hometown Am., L.L.C., No. A05-2384, 2006
WL 2474090, at *1 (Minn. Ct. App. Aug. 29, 2006) (affirming district court
decision that imposing separate utility bills was a substantial modification of the
lease and was arbitrary and capricious). But see S. Valley Inv. Co. v. Krogstad, No.
C2-01-631, 2001 WL 1117865, at *2 (Minn. Ct. App. Sept. 25, 2001) (stating that
lease amendment which requires residents to maintain their homes, decks, and
sheds to meet reasonable standards for appearance and general condition, is not
a substantial modification and can be enforced against resident).
501. 327C.02, subdiv. 2; Hedlund v. Davis, No. C1-91-1687, slip op. at 3
(Minn. Dist. Ct. Dec. 31, 1991) (order denying plaintiffs request for eviction)
(finding that landlords request for additional fees was improper because there
was no notice informing the tenants that such charges could be imposed under
the rental agreement).
502. MINN. STAT. 327C.09, subdiv. 4. See Condodemetraky v. Walker, No. 90C-287, slip op. at 1112 (N.H. Super. Ct. Nov. 21, 1990) (order denying plaintiffs
writ of possession) (finding that park tenant cured minor violations in a
reasonable time).
503. MINN. STAT. 327C.11, subdiv. 2; Lea, 345 N.W.2d at 271; Howard Lake
Mobile Home Park v. REDACTED, No. C1-01-2272, slip op. at 14 (Minn. Dist. Ct.
Nov. 19, 2001) (findings of fact, conclusions of law, and order) (concluding waiver
of notice to terminate manufactured home lot rental by receiving, retaining, and
intending to negotiate rent check). See supra notes 40216 and accompanying
text.
504. MINN. STAT. 327C.12; Tamarack Court, Inc. v. Milliman, No. C2-02-1787,
2003 WL 21911150, at *3 (Minn. Ct. App. Aug. 12, 2003) (affirming holding of no
retaliation where trial court concluded that tenant did not prove retaliation when
the presumption of retaliation applied, but also concluded that manufactured
home park had a legitimate economic reason for eviction); Howard Lake Mobile
Home Park, at 14 (plaintiffs notice was in retaliation for defendants complaints to
police and residents association). See supra notes 390402 and accompanying
text.
850
9.
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these cases, it appears that the tenant has the strongest argument
for excluding improperly obtained evidence in a public housing
eviction where the government is the landlord, another branch of
the government obtained the evidence, and the branches may well
520
have worked together.
11. The Breach Is Not Material
In an eviction action alleging breach of lease, the landlord
must prove a material breach or substantial failure in
521
To determine present possessory rights, it is
performance.
necessary to determine the truth of the allegations in the complaint
and whether the plaintiff demonstrates a material breach of the
522
lease agreement.
12. Cure
In one public housing case, the court of appeals held that the
knowledge of alleged altercation was from a police report whose authors did not
testify, and did not connect tenant to the incident); Minneapolis Pub. Hous. Auth.
v. REDACTED, No. HC000921508 (Minn. Dist. Ct. Oct. 20, 2000) (excluding
evidence from a warrantless search of the apartment).
520. Minneapolis Pub. Hous. Auth. v. Martin, No. HC000921508 (Minn. Dist.
Ct. Oct. 23, 2000) (order dismissing action) (holding evidence from warrantless
search excluded and action dismissed).
521. Cut Price Super Mkts. v. Kingpin Foods, Inc., 256 Minn. 339, 351, 98
N.W.2d 257, 266 (1959); Cloverdale Foods, Inc. v. Pioneer Snacks, 580 N.W.2d 46,
49 (Minn. Ct. App. 1998).
522. Cloverdale Foods, 580 N.W.2d at 49. See Skogberg v. Huisman, No. C7-022059, 2003 WL 22014576 (Minn. Ct. App. Apr. 19, 2003) (finding that a breach
that improved land and did not damage the landlord was not material under a
clear error rather than de novo review; rejected argument that any breach was
material) (citing Cloverdale Foods, 580 N.W.2d 46); Skogberg v. Huisman, No. C901-1131, 2002 WL 417185 (Minn. Ct. App. Mar. 19, 2002) (affirming findings that
landlord failed to prove subletting where farmer-tenant farmed with his relative
but did not assign control to him, and landlord accepted late payments; reversed
finding that alteration was not a breach, but remanded to determine whether
breach was material); Amsler v. Harris, No. UD-1990826901, slip op. at 4 (Minn.
Dist. Ct. Sept. 20, 1999) (decision and order denying landlords motion for
removal) (holding that tenant did not breach material term of lease where
provision on occupancy limit was an afterthought to the entire lease, was not in
the body of the agreement, and was not initialed by the parties); D & D Real Estate
Inv. v. Hughes, No. UD-1990311505, slip op. at 2 (Minn. Dist. Ct. Mar. 30, 1999)
(decision and order dismissing complaint) (involving no convincing evidence as to
the dollar amount of damage to a door to determine whether damage was
material or de minimis, and the landlord failed to prove that the tenant or one of
her guests damaged the door where the tenant claimed damage was caused by a
burglar).
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527
lease. The tenant decides who may visit the tenant. The landlord
does not have the right to exclude guests of the tenant without a
528
court order.
14. Eviction for Emergency Police Calls
A landlord may not bar or limit a tenants right to call for
police or emergency assistance in response to domestic abuse or
any other conduct. 529 A landlord may also not impose a penalty on
a tenant for calling for police or emergency assistance in response
530
to domestic abuse or any other conduct. A tenant may not waive
531
this right and the landlord may not require the tenant to do so.
While the statute does not refer to eviction actions, the prohibition
against landlord-imposed penalties on tenants for making
emergency calls should allow the tenant to defend eviction actions
where the landlord claims a right of eviction because of emergency
calls, or where the tenant claims that the landlords notice to quit is
532
based upon the tenants emergency calls.
527. Seabloom v. Krier, 219 Minn. 362, 367, 18 N.W.2d 88, 91 (1945).
528. State v. Hoyt, 304 N.W.2d 884 (Minn. 1981) (reversing a conviction for
trespass where guest had claim of right to visit nursing home resident after
administrator revoked her privilege to enter the premises); State v. Holiday, 585
N.W.2d 68, 7071 (Minn. Ct. App. 1998) (holding that since the tenant is the
lawful possessor of the property, the police or the housing authority can only serve
as agents for the tenant, and since the tenant could not exclude a person from all
properties of the public housing authority, neither could the police or the public
housing authority as an agent for the tenant).
529. MINN. STAT. 504B.205, subdiv. 2(1)(2) (2008) (formerly codified at
MINN. STAT. 504.215) (1998)).
530. Id.
531. Id., subdiv. 2(2)(b). Local ordinances that require eviction or penalize a
landlord in response to tenant calls for police or emergency assistance are
preempted. Id., subdiv. 3(1)(2). A tenant may bring a civil action for violation of
the statute for the greater of $250 or actual damages, and reasonable attorney fees.
Id., subdiv. 5. The Attorney General also can investigate and prosecute violations
of the statute. Id., subdiv. 6.
532. In Real Estate Equities, Inc. v. Schmidt, No. CX-00-297, slip op. at 4
(Minn. Dist. Ct. Mar. 14, 2000) (findings of fact, conclusions of law, order, and
order for judgment), the tenant was assaulted on the property both before and
after she obtained a restraining order, leading her to call the police. Id. at 2. The
landlord sent a letter stating the intention to terminate the tenancy based on late
payment of rent, damage to the property, and police calls to the unit. Id. at 23.
The parties then executed an agreement to vacate. Id. at 3. The court concluded
that the termination letter and the resulting agreement violated section 504B.205,
rendering the agreement void as contrary to public policy. Id. at 34. See also
Haukos-Lund Pship v. Borjon, No. C3-98-632, slip op. at 6 (Minn. Dist. Ct. Oct.
30, 1998) (decision and order dismissing landlords claim to evict) (finding in
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The landlord must bring the writ to the sheriff or police for
551
service on the defendant. If the defendant does not comply with
the demand, the landlord will have to arrange for the sheriff or
police to return to the premises and remove the defendant,
552
There are two
defendants family, and their personal property.
553
alternatives for removing and storing the tenants property. The
days written notice, or sixty-one days after issuance of the conditional writ. Id.
551. Id. 504B.365 (formerly codified at 566.17 (1998)). Often, the
landlord will have to schedule service on a later date. Some sheriffs or police
require the landlord not only to prepay the sheriff or police for service, but to
arrange for a bonded moving company to remove and store the tenants
possessions if they will be stored in a place other than the premises. The sheriff or
police will serve the writ on the defendant, any adult member of the defendants
family holding possession of the premises, or any other person in charge of the
premise. The sheriff or police will demand that the defendant and the
defendants family vacate the premises and remove their personal property within
twenty-four hours. In cases where the landlord prevails on claims of violations of
the illegal drug covenant, or that the tenant caused a nuisance or seriously
endangered the safety of other residents, their property, or the landlords
property, execution of the writ receive priority. Id.
552. Id., subdiv. 1(b).
553. When property is to be stored in a place other than the premises, the
sheriff or police shall remove the property at the plaintiffs expense. Often the
sheriff or police will require the plaintiff to use a bonded moving company. The
plaintiff shall have a lien upon the personal property only for the reasonable costs
and expenses incurred from removing and storing the property. The plaintiff may
retain possession of the personal property until payment. If the defendant does
not pay such costs and expenses within sixty days after execution of the writ, the
plaintiff may enforce the lien by holding a sale. Id. 514.18.22, 504B.365. See
Conseco Loan Fin. Co. v. Boswell, 687 N.W.2d 646 (Minn. Ct. App. 2004)
(manufactured home park lot owner who stored tenants manufactured home on
the premises retained only a claim for storage costs, and not a lien); Alexander v.
DaimlerChrysler Servs. N. Am., L.L.C., No. A03-351, 2003 WL 22183564 (Minn. Ct.
App. Sept. 23, 2003) (affirmed conclusion that plaintiff properly sold defendants
remaining property); Lang v. Terpstra, No. UD-1940207512 (Minn. Dist. Ct. June
12, 1994) (decision and order granting defendants motion to enjoin) (finding
that notice of sale under Minnesota Statutes section 504.24 (currently codified at
Minnesota Statutes section 504B.271 (2008)) did not amount to election of
remedies precluding storage company from enforcing lien under section 514.18 et
seq., but notice did not comply with section 514.21 requirement of publication).
When property is to be stored on the premises, the plaintiff must send
written notice to the defendant of the date and approximate time when the sheriff
or police is scheduled to execute the writ. The notice must inform the defendants
that they and their property will be removed if they do not vacate by the date and
time stated in the notice. The notice must be mailed as soon as the plaintiff knows
of the date and time for execution. The plaintiff also must attempt in good faith
to notify the defendant by telephone. After the sheriff or police enters the
premises, the plaintiff may remove the property. In the officers presence, the
plaintiff must prepare, sign and date an inventory, which includes a listing of the
items of personal property and description of their condition; the date, signature
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the tenant should file the appeal and make a motion to the court
570
of appeals to reduce the amount.
2. Motion to Vacate Judgment and Stay or Quash the Writ of
Restitution
The court has authority to entertain a motion to vacate a
judgment in an eviction action, either under the courts inherent
571
572
Where the court
power to review its own action, or by rule.
lacks personal jurisdiction over the defendant due to inadequate
service, a judgment entered by default must be vacated
573
No showing of a meritorious defense is
unconditionally.
574
necessary. The court may vacate a judgment and writ obtained by
the landlord where the landlord did not have grounds for the
575
eviction complaint, or where the landlord claimed that the tenant
570. Sisto v. Hous. & Redev. Auth., 258 Minn. 391, 395, 104 N.W.2d 529, 532
(1960).
571. Itasca County v. Ralph, 144 Minn. 446, 449, 175 N.W. 899, 900 (1920);
Crosby v. Farmer, 39 Minn. 305, 309, 40 N.W. 71, 73 (1888).
572. Minn. R. Civ. P. 60.02; Wong Kong Har Wun Sun Assn v. Chin, No. C887-2439 (Minn. Ct. App. Apr. 12, 1988) (decision of appeal from district court
decision) (holding that trial court abused discretion in refusing to vacate default
eviction judgment due to mistake).
573. Lange v. Johnson, 295 Minn. 320, 323, 240 N.W.2d 205, 208 (1973).
574. Hengel v. Hyatt, 312 Minn. 317, 318, 252 N.W.2d 105, 106 (1977);
Minneapolis Pub. Hous. Auth. v. Kline, No. UD-1930712506, slip op. at 2 (Minn.
Dist. Ct. Aug. 5, 1993) (order granting motion to quash writ) (involving situation
where service was on child who did not reside on the premises).
575. Pub. Hous. Agency of St. Paul v. Simpkins, No. C7-97-2137, slip op. at 2
(Minn. Dist. Ct. Jan. 30, 1998) (order). The public housing authority gave the
tenant a fourteen-day nonpayment of rent notice for $25. Id. The tenant then
paid the rent and a late fee. Id. However, the PHA applied the payments to
alleged arrearage for previous months, and filed an unlawful detainer action
claiming nonpayment of the February rent. Id. The referee allowed the PHA to
amend its claim orally, and ordered the tenant to pay $209 and court costs within
seven days or move. Id. at 3. The tenant moved and later obtained bank
verification of deposit of the tenants payment. Id. The tenant moved to vacate
the judgment, which was first denied by another referee, and then granted on
judge review. Id. The court concluded the first referee erred by going beyond the
pleadings and ordering the tenant to pay more than had been pled, and the
second referee erred in denying the motion to vacate. Id. The court noted that it
would be unjust to evict another tenant who moved into the unit vacated by the
tenant, so the court ordered the PHA to place the tenants name immediately at
the top of the waiting list for the next available vacancy without requiring her to
address claims for past due rents. Id. at 4. See also Filas v. REDACTED, No. HC
040115532 (Minn. Dist. Ct. Feb. 18, 2004) (order granting motion to quash writ)
(dismissing eviction where [p]laintiffs were not the real parties in interest when
the complaint was filed because they had executed a contract for deed, now
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Dec. 3, 2003) (decision and order) (awarding $200 in costs which could be
credited against rent where action dismissed for accepting partial payment in
rent); SJM Props., Inc. v. REDACTED, No. HC-020402501 (Minn. Dist. Ct. Apr. 11,
2002) (order dismissing plaintiffs action and awarding defendant costs and
disbursements that may be credited against rent, and granting expungement).
582. See Fradette v. Mettner, No. C4-00-56 (Minn. Dist. Ct. Jan. 26, 2000)
(order) (citing MINN. STAT. 549.02, 549.04). The court awarded plaintiff $402
in costs and disbursements, including $200 in statutory costs.
583. No. C5-95-2718, 1996 WL 453580, at *2 (Minn. Ct. App. Aug. 13, 1996)
(reversal of order).
584. Id.
585. 554 N.W.2d 621, 622 (Minn. Ct. App. 1996).
586. Id.
587. Smith v. Brinkman, Nos. HC-1000124900, HC-1000202517, slip op. at 5
(Minn. Dist. Ct. Mar. 9, 2000) (decision and order dismissing eviction action).
588. Lumpkin v. Lewis, No. 96-10295, slip op. at 2 (Minn. Dist. Ct. July 12,
1996) (order directing defendant to show cause).
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589
functions.
In 1999, the Minnesota Legislature provided the procedures
590
It
for expungement in Minnesota Statutes section 484.014.
defines expungement as the removal of evidence of the court
591
It defines
files existence from the publicly accessible records.
592
eviction case as an action brought under the eviction statutes
and court file as the court file created when an eviction case is
593
filed with the court.
The statute provides for discretionary
expungement noting that:
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 plaintiffs 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 publics interest in knowing about
594
the record.
The main difference between common law and statutory
expungements are that the former focuses only on the equities and
does not require that the landlords claim be flawed.
Expungements have been granted under the common law where
595
the defendant was not at fault and where unique circumstances
589. Player v. King, UD-1960306541, slip op. at 2 (Minn. Dist. Ct. May 2, 1996)
(decision and order) (holding that the dismissed companion eviction action
records be sealed in an Emergency Tenants Remedies and Lock-out Action, at
compliance hearing). See Phillips Neighborhood Hous. Trust v. Brown, No. UD1960705508 (Minn. Dist. Ct. Mar. 2, 1998) (decision and order approving the
parties joint motion for expungement) (expunging name of tenant on joint
motion of parties where the landlord prevailed in action for breach of lease by the
co-tenant because there was no question that the tenant seeking expungement was
not at fault for the breach); Cent. Manor Apartments v. Beckman, Nos. UD1980609509, UD-1980513525 (Minn. Dist. Ct. July 29, 1998) (decision and order
denying plaintiffs complaint) (stating that the ends of justice would be best served
by expunging a second eviction action where landlord could have sought relief by
motion in first eviction action). See generally State v. C.A., 304 N.W.2d 353 (Minn.
1981); State v. T.M.B., 590 N.W.2d 809 (Minn. Ct. App. 1999) (stating that courts
may exercise their inherent authority to issue expungement orders affecting court
records, and the judiciary may not order expungement of criminal records
maintained by executive branch agencies absent evidence of an injustice resulting
from an abuse of discretion in the performance of an executive function).
590. MINN. STAT. 484.014 (2008).
591. Id., subdiv. 1(1).
592. Id., subdiv. 1(2).
593. Id., subdiv. 1(3).
594. Id., subdiv. 2.
595. Bigos Mgmt., Inc. v. REDACTED, No. HC-030423531 (Minn. Dist. Ct. July
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604
comply with the address disclosure statute, the landlord filed the
605
606
action prematurely, the parties agreed to expungement, and in
cases where tenants had defenses to the landlords claims of
607
608
nonpayment of rent, notice to terminate the tenancy, and
609
Tenants have been successful challenging
breach of lease.
landlords failure to serve the housing authority was a jurisdictional defect,
depriving the court of jurisdiction).
604. Stein v. REDACTED, No. HC-000804513 (Minn. Dist. Ct. Nov. 8, 2000)
(citing MINN. STAT. 504B.181 (2008) (formerly codified at MINN. STAT. 504.22
(1998)) (finding a violation of the landlords requirement to comply with the
address disclosure statute).
605. McCampbell v. REDACTED, No. HC-000814500 (Minn. Dist. Ct. Nov. 8,
2000) (housing court decision and order).
606. Heintzman v. Steinman, No. C7-99-1772 (Minn. Dist. Ct. Dec. 29, 1999)
(housing court decision and order) (granting expungement and dismissing the
action with prejudice based upon stipulation for dismissal). However, some argue
that statutory expungement requires specific findings, so that a stipulation for
expungement cannot bind the court. See MINN. STAT. 484.014, subdiv. 2 (2008)
(the court may order expungement if the court finds that the plaintiffs 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 publics interest in knowing about the record.)
(emphasis added).
607. Brooklyn Ctr. Leased Hous. v. REDACTED, No. HC-031216540 (Minn.
Dist. Ct. Mar. 10, 2004) (housing court decision and order) (granting
expungement where landlords accounting records resulted in confusion of
amount of rent due); Taylor v. REDACTED, No. HC-031202508 (Minn. Dist. Ct.
Mar. 10, 2004) (housing court decision and order) (granting expungement where
the case was brought by plaintiff, landlord, without a rental license); Gardner
Invs., Inc. v. REDACTED, No. HC-040102502 (Minn. Dist. Ct. Mar. 10, 2004)
(decision and order) (granting expungement where the landlord waived prompt
payment of rent); Valley Inv. & Mgmt., Inc. v. REDACTED, No. HC-000927525
(Minn. Dist. Ct. Dec. 19, 2000) (order on motion for expungement and costs)
(citing section 504B.291 (formerly codified at 504.02 (1998)) (granting
expungement where plaintiff, landlord, accepted part payment of rent without a
written agreement retaining the right to evict for the balance, under section
504B.291); Mar-Jil Corp. v. REDACTED, No. HC-1020802508 (Minn. Dist. Ct. Oct.
28, 2002) (housing court decision and order) (granting expungement where the
defendant, tenant, raised a habitability defense to a claim for nonpayment of rent
and the parties settled after plaintiff agreed to make repairs).
608. Payne v. REDACTED, No. HC-1010801519 (Minn. Dist. Ct. Aug. 23, 2001)
(decision and order) (granting expungement where plaintiff, landlord, failed to
rebut a presumption of retaliation).
609. OBrian v. REDACTED, No. HC-1010402506 (Minn. Dist. Ct. Apr. 18,
2001) (decision and order) (granting expungement where an oral lease contained
no right of reentry clause); Minneapolis Pub. Hous. Auth. v. REDACTED, No.
1951117536 (Minn. Dist. Ct. Mar. 28, 2003) (order) revg (Minn. Dist. Ct. Feb. 24,
2003) (referees decision and order) (reversing referees denial of expungement
where tenant settled, vacated and raised an expungement motion defense under
the illegal activity statute because the adverse effect of even a settled case
outweighs the public interest).
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610. McCampbell v. REDACTED, No. HC-031002506 (Minn. Dist. Ct. Jan. 22,
2004) (decision and order) revg (Minn. Dist. Ct. Nov. 5, 2003) (referees decision
and order) (reversing referees denial of expungement where a successful eviction
defense gave rise to a presumption of retaliation for a subsequent notice to vacate
and the landlords evidence of prior tenant claims against the landlord did not
prove the claims were in bad faith); Sidal Realty Co. v. REDACTED, No. HC030114401 (Minn. Dist. Ct. Mar. 28, 2003) (decision and order) revg (Minn. Dist.
Ct. Feb. 12, 2003) (reversing referees denial of expungement where there had
been a dismissal for defective service of plaintiff); Project for Pride in Living, Inc.
v. REDACTED, No. HC-1021121502 (Minn. Dist. Ct. Apr. 7, 2003) (decision and
order) revg (Minn. Dist. Ct. Dec. 10, 2002) (reversing referees denial of
expungement because landlords desire to end residential use of building cannot
be used as a pretext to ignore the covenants of habitability.).
611. Viking Props. of Minn., LLC v. Wesley, Nos. UD-1990714563, UD1990709901 (Minn. Dist. Ct. Aug. 11, 1999) (order holding action to be
expunged) (holding expungement immediately upon filing of order where
eviction action was erroneously filed due to mistake or confusion).
612. Minneapolis Pub. Hous. Auth. v. Dixon, No. HC-000121514 (Minn. Dist.
Ct. May 12, 2000) (citing MINN. STAT. 484.014 (2008)) (order granting
expungement) (holding expungement where landlord and tenant agreed that cotenant, and not tenant, was the culpable party for lease violations; hence tenants
name, not co-tenants name, was ordered for removal from the caption and
computerized records).
2009]
871
872
[Vol. 35:3
2009]
873
629
874
[Vol. 35:3