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Residential Landlord- Tenant Law in Minnesota To access PowerPoint slides and other seminar resource material: http://www.minncle.org/eAccess/1014001701/index.htm Minnesota Continuing Legal Education 2550 University Avenue West, Suite 160S Saint Paul, Minnesota 55114 (651) 227-8266 (800) 759-8840 http://www.minncle.org August 2016 1400-17

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Residential Landlord-Tenant Law in Minnesota

To access PowerPoint slides and other seminar resource material: http://www.minncle.org/eAccess/1014001701/index.htm

Minnesota Continuing Legal Education2550 University Avenue West, Suite 160S Saint Paul, Minnesota 55114 (651) 227-8266 • (800) 759-8840

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2016–2017Minnesota Continuing Legal EducationBoard Members

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The Minnesota CLE Board consists of practicing attorneys and Judges from throughout Minnesota as well as one representative from each Minnesota law school. This provides representation of the interest and efforts of the bench, practicing bar and academic community.

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Faculty

Drew Schaffer Managing Attorney, Housing Unit Mid-Minnesota Legal Aid Minneapolis

Robin Ann Williams Bassford Remele PA Minneapolis

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Residential Landlord-Tenant Law in Minnesota

August Real Estate SeriesAugust 15, 2016

Drew Schaffer, Esq.Mid-Minnesota Legal Aid

[email protected]

Robin Ann Williams, Esq.Bassford Remele, [email protected]

612.376.1631

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

This presentation is offered as information only and is not to be construed as the opinion or position of Bassford Remele, P.A., Mid-Minnesota Legal Aid, their clients, or the speakers.

Disclaimer

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

Hot Topics in Fair Housing

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

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Hot Topic:Disparate Impact Claims

Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015).

Held: Disparate impact claims are cognizable under the Fair Housing Act.

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

Disparate Treatment – most commonDefinition: Tenant belonging to a protected class is treated less favorably than others similarly situated.Tenant must establish discriminatory intent or motive.

Disparate Impact – less commonDefinition [24 CFR § 100.500 (2)]: A practice “actually or predictably results in a disparate impact on a group of persons or creates, increases, reinforces, or perpetuates segregated housing patterns because of race, color, religion, sex, handicap, familial status, or national origin.”Outlaws discriminatory effect.

Disparate Treatment v. Disparate Impact

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

Need not show intent or motive.Claims based on statistics suggesting that a practice has a discriminatory effect on a protected class.Disparate impact is used to attack policies or practices that are neutral on their face but that have allegedly disproportionate impact on protected classes.

Disparate Impact

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

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Hot Topic: Criminal Screening Criteria

Alexander v. Edgewood Mgmt. Corp., Court File No. 15-01140 (U.S. Dist. Ct. D.C., July 25, 2016).

Disparate Impact’s Impact

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

April 4, 2016https://portal.hud.gov/hudportal/documents/huddoc?id=HUD_OGCGuidAppFHAStandCR.pdfApplies to all residential housing (market, tax credit, subsidized, Section 8 vouchers, etc.)African-Americans and Hispanics are arrested and convicted at higher rates than the general population. Criminal screening criteria disproportionately affect these two groups.

2016 HUD Directive

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

Landlords must not reject applicants based on arrest records.Blanket rejections for any type of conviction are not allowed.Criteria must consider types of conviction and length of time since conviction.

2016 HUD Directive

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

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HUD is encouraging individualized assessment of relevant mitigating information beyond that contained in an individual’s criminal record (facts surrounding crime, age at time of offense, tenancy history before and after the conviction, rehabilitation).HUD encourages criminal screening after all other housing criteria are applied.

2016 HUD Directive

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

Hot Topic: Domestic violence.

Disparate Impact’s Impact

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

2011 HUD Directive

February 9, 2011http://www.hud.gov/offices/fheo/library/11-domestic-violence-memo-with-attachment.pdfApplies to all residential housing.

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

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2011 HUD Directive

Survivors of domestic violence often face housing discrimination because of their history or the acts of their abusers.Women are overwhelmingly the victims of domestic violence.African-American and Native American women experience higher rates of domestic violence than white women.

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

2011 HUD Directive

Disparate treatment claims are actionable (i.e., landlord rejects women applicants with history of domestic violence).Facially neutral housing policies can lead to disparate impact claims when the policy or practice proportionally affects domestic violence survivors. Example: entire household is evicted for the criminal activity of one household member.

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

2011 HUD Directive

Landlord served a 24-hour eviction notice based on an incident of domestic violence on wife by assailant-husband. Landlord then initially declined to rent one-bedroom apartment to wife. Landlord relented and rented the one-bedroom unit but warned wife that “any type of recurrence” of domestic violence would lead to eviction. Alvera v. C.B.M. Group, Case No. 01-857 (D. Or. 2001).

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

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2011 HUD Directive

Evictions based on “zero tolerance” crime policies have a disparate impact on survivors of domestic violence. Warren v. Ypsilanti Housing Authority,Case No. 4:02-cv-40034 (E.D. Mich. 2003) (settlement); see also Cleaves-Milan v. AIMCO Elm Creek LP, Case No. 1:09-cv-06143 (N.D. Ill., filed Oct. 1, 2009).

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

Hot Topic: Occupancy standards.See the Keating Memorandum, published in December 22, 1998, Federal Register as FR Doc. 98–33568.

http://www.hud.gov/offices/fheo/library/occupancystds.pdf

Disparate Impact’s Impact

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

Hot Topic: Reasonable Accommodations

Housing provider is required to make change in rules, policies, practices, or services IF:

Accommodation may be necessary to give disabled person equal use and enjoyment of dwelling

ANDThe change is not unreasonable

42 U.S.C. § 3604(f)(3).

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

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Must Have DisabilityAccommodation may be necessary for use and enjoyment of dwellingAccommodation is related to disability or disability-related need (nexus)Accommodation is reasonable

Reasonable Accommodations –4 Step Analysis

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

Definition of “Disability” (42 U.S.C. § 3602):A person who has a physical or mental impairment that “substantially limits” one or more “major life activities.”

The ADA provides guidance about “major life activity.” 42 U.S.C. § 12102. Such activities include seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading.

“Disability” Definition

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

Definition,Cont’d

“Disability” also includes:A person who has a history or record of such an impairment.A person who is perceived by others as having such an impairment.

Note – persons who are perceived to have a disability are not entitled to reasonable accommodations!

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

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“Unreasonable” Requests

Impose an undue financial and administrative burden; OR

Require a fundamental alteration in the nature of the housing provider’s operations

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

RA Examples

At admission:Rent due on the 3rd day of the month instead of the 1st

day (for SSA payments)Section 8/Public Housing – additional time to fill out paperwork

During Tenancy:Parking space assignment

At Termination:“Second bite at the apple” – retract termination and implement plan to make tenant lease-compliant

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

Hot Topic: Assistance Animals

2013 HUD Directive applicable to HUD-funded housing.

https://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

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The ADA

Do not confuse the ADA and the FHA. The ADA applies to public facilities such as community rooms leased to the public or leasing offices. (It also applies to public housing agencies and state and local government-provided housing.)

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

For the ADA, an animal must meet the definition of “service animal.”Only dogs (and miniature horses)

The dog must be individually trained to do work or perform tasks for the benefit of an individual with a disability (physical, sensory, psychiatric, intellectual, or mental).

Psychiatric service animals for individuals with psychiatric disabilities and autism service animals for individuals with an autism-related disability are service animals.

Dogs that only provide emotional support, wellbeing, comfort, or companionship are not service animals.

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

For the ADA, landlords may not ask about the nature or extent of a person’s disability to determine if a dog is a service animal.

Landlords may make a two-pronged inquiry:

“Is this a service animal that is required because of a disability?”

“What work or tasks has the animal been trained to perform?”

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

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For the ADA:

A landlord may not require proof of training, certification, or licensure as a service animal.

No inquiries should be made when the work or tasks performed by the service animal are readily apparent.

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

For the ADA, the following service animals may be denied access to the premises:

The animal is out of control, and its handler does not take effective action to control it.

The animal is not housebroken.

The animal poses a direct threat to the health or safety of others that cannot be eliminated or reduced to an acceptable level.

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

The Fair Housing Act and the Minnesota Human Rights Act

Apply to virtually every tenant and landlord in Minnesota

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

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Under the FHA:

Applicants and tenants may seek a waiver of no-pet rules (or other limits) to have an “assistance animal.”

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

Definition of “Assistance Animals”

Assistance animals are NOT pets.

They are often referred to as “service animals,” “companion animals,” “support animals,” and “therapy animals.”

Some AAs have formal training; some do not.

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

They perform many disability-related functions. Examples:

guiding individuals who are blind or have low visionalerting individuals who are deaf or hard of hearing to soundspulling a wheelchairfetching itemsalerting persons to impending seizuresproviding emotional support to persons with disabilities who have a disability-related need for such support.

Definition of “Assistance Animals”

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

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Landlords may ask for the following information when processing

a request for an assistance animal:

Does the applicant or resident have a disability?Does the applicant or resident have a disability-related need for an assistance animal?The landlord may require the applicant or resident to provide documentation of the disability and the need for the animal from an appropriate third party, such as a medical provider, mental health provider, or other professional in a position to provide this verification.

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

However, a tenant or applicant should not be required to provide documentation of the disability or the disability-related need for the assistance animal if the disability is or the need is readily apparent or already known to the provider.

Seeing-eye dog

Landlords may ask for the following information when processing

a request for an assistance animal:

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

Some animals can be rejected . . .

The animal poses a direct threat to the health or safety of others that cannot be reduced or eliminated by a reasonable accommodation.

The animal would cause substantial physical damage to the property, and the risk cannot be reduced or eliminated by a reasonable accommodation.

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

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The presence of the assistance animal would pose an undue financial and administrative burden to the landlord.

The presence of the assistance animal would fundamentally alter the nature of the landlord’s services.

Some animals can be rejected . . .

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

The 2013 HUD Directive

Assistance animals must be allowed in all areas of the premises where persons are normally allowed to go, unless doing so would pose an undue financial or administrative burden or would fundamentally alter the nature of the landlord’s services.

Breed, size, and weight limitations may not be applied to an assistance animal.

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

Hot Topic: Uneven Marketing Techniques

Fair housing issues and claims can arise in the marketing of rental housing to applicants and prospective tenants.

Example: A landlord “steers” applicants with Latino names to certain apartment buildings, while renting apartments in other buildings nearly exclusively to white tenants.

Landlords should maintain uniform policies and practices in marketing rental properties and processing applications, including the following areas:

Advertising methodologies for different rental propertiesWaiting listsShowings

“Thank you” letters and the like© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

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Landlords should maintain records of the timing of receipt and processing of rental applications.

Minn. Stat. § 504B.173 applies to applications when landlords charge tenant screening fees.

Requires pre-application disclosure of screening criteriaRequires orderly processing of applicationsRequires written notice of rejection of applicant and reason for rejection

Hot Topic: Uneven Marketing Techniques

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

Top 10 Landlord and Tenant Complaints

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

1. My apartment has bedbugs!

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

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“Fun” Facts

Bedbugs generally feed at nightSigns of bedbugs include reddish or brown dots on beddingBedbugs hang out in headboards, bedside tables, etc.Bedbugs piggyback on luggage, clothing, bedding, linens, and furnitureUsed furniture can be particularly problematic (hence deployment of orange spray paint and box cutters)Bedbugs are not caused by poor hygiene or housekeeping

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

Bedbug Treatment

Treatment is complex and expensive (heat or chemicals)Professional exterminatorsTenant cooperation is essential Tenants may have to dispose of furniture and other belongings

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

The Best Way to Avoid Bedbug Litigation is to Plan for It

Consider use of bedbug addendum (including restricting resident movement at property)Act immediately on tenant complaints about bedbugs, including surrounding unitsBe highly responsive to city inspectorsDocumentation is key (date of report, dates of treatment, instructions given to tenant about unit preparation, tenant noncompliance with unit preparation and treatment protocol)

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

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Defense in eviction actions (Fritz defense)Tenant-initiated actions (rent escrow action or tenant remedies action) after expired inspection orders or 14 days' notice from tenantFritz defenses and tenant-initiated actions are predicated on landlord breaches of the covenants of habitability (premises are fit for use intended by the parties, premises are kept in reasonable repair, premises comply with housing codes –Minn. Stat. §504B.161)

Bedbug Litigation

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

Forms of Relief:Order the landlord to treat the unitRent abatementReimbursement for furniture or property that must be thrown away

Bedbug Litigation

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

If the landlord can establish that the tenant brought in the bugs-- rare-- the landlord may not be required to pay for treatment, pay rent abatement, or pay for the tenant's damaged propertyLandlords who are responsive and have good documentation reduce their liability-- courts may see the bedbugs as nobody's faultTenants who do not immediately report the problem or do not cooperate in treatment may not fare well in front of courts

Bedbug Litigation

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

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Bedbug Litigation

A tenant may sue a landlord in conciliation court or district court for personal property loss, costs to clean property (i.e.,dry cleaning), rent abatement, constructive eviction, or bodily injuryClaims are based on negligence or covenants of habitabilityConsider tender to insurance company Same dynamics as Fritz-defense eviction actions, rent escrow actions, and TRAs

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

A. The safest course is to file an eviction action so as to avoid a lock-out claim under Minn. Stat. §§ 504B.225, 504B.231. “If a landlord, an agent, or other person acting under the landlord's direction or control unlawfully and in bad faith removes, excludes, or forcibly keeps out a tenant from residential premises, the tenant may recover from the landlord treble damages or $500, whichever is greater, and reasonable attorney's fees.”

B. Consider use of “declaration of abandonment” letter.

2. My tenant left half his stuff in the apartment and took off. Do I have to file an eviction

action to get the apartment back?

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

C. Be mindful of Minn. Stat. § 504B.271 (Landlord must store abandoned personal property for 28 days, after which time landlord may sell or otherwise dispose of the property; landlord must provide 14-day written notice to tenant if the property is to be sold; landlord may recover storage costs from tenants (a lien exists only if property is store off site (Minn. Stat. § 504B.365)); and punitive damages and attorney’s fees may be awarded if landlord refuses to return property to tenant).

2. My tenant left half his stuff in the apartment and took off. Do I have to file an eviction

action to get the apartment back?

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

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D. Cocchiarella v. Driggs, 870 N.W.2d 103 (Minn. Ct. App. 2015), review granted December 15, 2015.1. A person who has paid rent and a deposit is not a

“residential tenant” until taking physical occupancy of the rental premises.

2. A person in this situation has no claim for relief in a summary proceeding for possession under Minn. Stat. § 504B.375.

3. However, the person may proceed on a claim for penalties for bad faith, unlawful exclusion under Minn. Stat. § 504B.231.

2. My tenant left half his stuff in the apartment and took off. Do I have to file an eviction

action to get the apartment back?

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

A. What does the lease say?

B. Pursuant to Minn. Stat. § 504B.211, a landlord may enter a tenant’s unit with reasonable notice and for a reasonable business purpose.

C. Pursuant to Minn. Stat. § 504B.211, a landlord may enter a tenant’s unit without notice when immediate entry is necessary (1) to prevent injury to persons or property because of conditions relating to maintenance, building security, or law enforcement; (2) to ascertain whether a tenant is safe; or (3) to comply with local ordinances regarding unlawful activity.

3. My tenant says I can’t enter her unit unless I give her 24 hours’ notice.

Is that true?

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

3. My tenant says I can’t enter her unit unless I give her 24 hours’ notice.

Is that true?

D. 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.

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

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4. Revenge is best served cold. (Retaliation)

Retaliation is a defense to holding over after receiving a notice to quit. Minn. Stat. §504B.285.A residential tenant may not be evicted or otherwise penalized for filing a tenant remedies action. Minn. Stat. § 504B.441.

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

Plaintiff lacks a substantial non-retaliatory purpose, arising at or within a short time before service of the notice to quit, wholly unrelated to and unmotivated by the protected activity. Parkinv. Fitzgerald, 240 N.W.2d 828 (Minn.1976).

4. Revenge is best served cold. (Retaliation)

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

5. Should I deposit this rent check? (Waiver)

A landlord can waive its right to evict for nonpayment of rent by accepting a partial payment of rent without some written indication that the landlord is not waiving its right to evict for the balance. See Minn. Stat. § 504B.291, Subd. 1(c).The fix: “Acceptance now or in the future of less than the full amount owed by tenant will not waive the right to file an eviction action for nonpayment of the balance of the owed amounts.”

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

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A landlord can waive its right to evict a tenant for holding over after a lease termination by accepting or asking for rent during the time the tenant is allegedly holding over.

5. Should I deposit this rent check? (Waiver)

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

Example: Landlord terminates the lease as of October 31, and the tenant remains in possession into November. Landlord cannot evict if it accepts rent for November. If the landlord files an eviction action for holding over, it should not demand November’s rent in the eviction action complaint. By demanding rent for November, the landlord activates Minn. Stat. §504B.291(1)(2), which gives a tenant the right to redeem the premises and stay.

5. Should I deposit this rent check? (Waiver)

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

A landlord waives its right to evict for breach of lease by accepting rent with knowledge of the breach. Whether the landlord intended to waive the breach is immaterial. Parkin v. Fitzgerald, 240 N.W.2d 828, 833 (Minn. 1976); Kenny v. Seu Si Lun, 112 N.W. 220, 221-22 (Minn. 1907); Westminster Corp. v. Anderson, 536 N.W.2d 340, 341 (Minn. Ct. App. 1995); Priordale Mall Investors v. Farrington, 411 N.W.2d 582, 585 (Minn. Ct. App. 1987).

The fix: “Acceptance of any payment from tenant does not waive the right to evict tenant for past or existing violations of any term of the lease.”

5. Should I deposit this rent check? (Waiver)

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

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6. No landlord will rent an apartment to me! (Expungements)

Minn. Stat. § 484.014Can be requested at eviction action hearing More likely requested after the hearingTenant must show:

Landlord's eviction case was "sufficiently" without basis in fact or law; The expungement is "clearly in the interest of justice," and The "interest of justice" is not outweighed by the "public's interest in knowing the record."

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

Courts have inherent authority to perform a judicial action when the relief requested “is necessary to the performance of a judicial function as contemplated in [the] state constitution.” In re: Clerk of Court’s Compensation for Lyon County v. Lyon County Commissioners, 241 N.W.2d 781, 786 (Minn. 1976).Courts also have inherent authority to control their own records, along with the equitable power to prevent unfairness to individuals. State v. C.A.,304 N.W.2d 353, 358 (Minn. 1981).

6. No landlord will rent an apartment to me! (Expungements)

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

In inherent authority expungement motions, the court “must decide whether expungement will yield a benefit to the petitioner commensurate with the disadvantages to the public from the elimination of the record and the burden on the court in issuing, enforcing and monitoring an expungement order.” State v. C.A., 304 N.W.2d 353, 358 (Minn. 1981).

6. No landlord will rent an apartment to me! (Expungements)

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Hennepin County applies non-dispositive motion deadlines to expungement motion.Parties in Hennepin County cannot stipulate to expungements as part of eviction action settlements.

BUT the referees entertain stipulations for case caption changes (e.g., Defendants become “John Doe” and “Jane Doe”)AND Plaintiff support or non-opposition to expungement in a settlement agreement is a factor the referees may consider in later deciding a motion for expungement.

6. No landlord will rent an apartment to me! (Expungements)

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

7. My landlord won’t fix my leaking sink!

Under Minn. Stat. § 504B.161, all residential leasesinclude the following landlord covenants:

That the premises are fit for the use intended;To keep the premises in reasonable repair;To maintain the premises in compliance with applicablecodes – e.g., municipal housing codes; andTo make the premises reasonably energy efficient.

The covenants of § 504B.161 CANNOT be waived or modified bythe parties to a lease. See Subd. 1.

504B.161 “shall be liberally construed.” See Subd. 3.

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

There are three basic types of tenant-initiated courtactions to enforce habitability and repair rights:

1. ETRA – Emergency Tenant Remedies Action;

2. Rent Escrow Action; and

3. TRA – Tenant Remedies Action.

7. My landlord won’t fix my leaking sink!

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7. My landlord won’t fix my leaking sink!

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There are three basic requirements for each type oftenant-initiated legal action to force repairs:

1. A qualifying habitability problem or “violation”;

2. Notice to the landlord; and

3. An opportunity for the landlord to cure the qualifyinghabitability problem or “violation” before filing.

In a tenant-initiated action for repairs, there must be an existing“violation.”

The violation must exist at the time of filing. See Minn. Stat. §§504B.385, subd. 1; 504B.395, subd. 1.

“Violation” is defined at § 504B.001, subd. 14. It includes thefollowing:

A violation of any state or local code applicable to the building;A violation of Minn. Stat. § § 504B.161, subd. 1(a)(1),(2), or504B.171, subd. 1; orA violation of the parties’ lease.

Practice tip: Overthink whether a case involves an existing“violation.”

7. My landlord won’t fix my leaking sink!

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

7. My landlord won’t fix my leaking sink!

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Notice requirements for legal action:1. ETRA

24 hours

2. Rent Escrow and Tenant Remedies Actions14 days or expired inspection orders.

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In a rent escrow action, the tenant must pay into court anyunpaid rent at the time of filing and any rent that accrueswhile the action is pending.

A tenant should NOT file a rent escrow if the tenant does not haveall of the rent that is unpaid or will not be able to pay rent eachmonth while the action is pending.

It is illegal for a landlord to retaliate against a tenant forasserting habitability and repair rights.

BUT a landlord can counterclaim to evict a tenant in a RentEscrow Action if the tenant fails to deposit all of the unpaid rentinto court at the start of the case.AND any non-rent breaches of the lease by the tenant may serveas a basis for a separate eviction action by a landlord.

7. My landlord won’t fix my leaking sink!

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A Tenant Remedies Action may be brought byany of the following:

A residential tenant living in a building where a housing violationexists;Any housing-related neighborhood organization with the writtenpermission of a residential tenant living in a building;

Any housing-related neighborhood organization located in an areawhere there is an unoccupied residential building where a housingviolation exists; or

A state, county, or local department or authority, charged with theenforcement of codes relating to health, housing, or buildingmaintenance.

7. My landlord won’t fix my leaking sink!

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

7. My landlord won’t fix my leaking sink!

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

Relief available in tenant-initiated repair actions:Order for repairs;Retroactive rent abatement based on impaired use andenjoyment of the property (could be awarded as aprospective rent credit);Prospective rent abatement;Appointment of administrator;Fines;Attorney’s fees up to $500 and costs; and/orOther relief the Court deems just and proper.

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A. The lease and addenda drive the bus. 1. Any lease in Minnesota, including oral leases.

a. Minn. Stat. § 504B.171 creates the "covenant of landlord and tenant not to allow unlawful activities." Neither the landlord nor the tenant will allow or sell controlled substances, will allow prostitution, will allow the unlawful use or possession of a firearm, or will allow stolen property on the premises (including common areas).

b. Oral leases likely do not preclude unauthorized residents.

8./9. My tenant is dealing drugs. Or let his nephew move in.

Can I file an eviction action?

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

2. Carefully consider the language of the written lease. a. If the landlord has a crime-free/drug-free addendum, does it

prohibit illegal activities on the premises, near the premises and/or away from the premises?

b. Most written leases bar unauthorized residents.

8./9. My tenant is dealing drugs. Or let his nephew move in.

Can I file an eviction action?

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

B. Avoid procedural pitfalls.1. Waiver of breach of lease.

2. Give proper lease termination notices.

If the lease requires a lease termination notice, i.e., subsidized housing, spend less (no) time quoting lease and addenda provisions and more time concisely stating the factual basis for the eviction. The point is to give notice of the misconduct giving rise to the lease termination, not the contractual term providing the legal basis for the eviction.

8./9. My tenant is dealing drugs. Or let his nephew move in.

Can I file an eviction action?

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3. Concentrate on underlying misconduct, not number or existence of police calls.

Minn. Stat. § 504B.205 establishes a residential tenant's right to seek police and emergency assistance. A landlord cannot bar or limit a tenant's right to call for police or emergency assistance or impose a penalty on the tenant for such calls.

4. If the landlord doesn’t have sufficient “criminal” or “unauthorized resident” grounds, can the landlord instead rely on other breaches of lease?

8./9. My tenant is dealing drugs. Or let his nephew move in.

Can I file an eviction action?

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

C. The proof is in the pudding. 1. Landlords cannot rely on hearsay.

a. Police reports—even certified ones—frequently are not admissible because the reports contain hearsay.

b. If a landlord needs the testimony of a confidential reliable informant, it may be very difficult to procure.

8./9. My tenant is dealing drugs. Or let his nephew move in.

Can I file an eviction action?

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

2. Proving a drug is a drug. It is extremely helpful to have the material tested, either at police or landlord expense.

3. Pot is not “just” pot. Smoking marijuana is an evictable offense—worthy of more than a lease violation letter.

4. It is difficult to prove that an unauthorized resident lives in the unit.

8./9. My tenant is dealing drugs. Or let his nephew move in.

Can I file an eviction action?

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A. Key corporate counsel rule decisions:1. Nicollet Restorations, Inc. v. Turnham, 486 N.W.2d 753 (Minn. 1992)

(landmark decision).

2. Walnut Towers v. Schwan, No. A07-1311, 2008 WL 4224462 (Minn. Ct. App. Sept. 16, 2008) (invalidating district court practice allowing non-attorney agents to appear for corporate landlords).

3. 301 Clifton Place, L.L.C. v. 301 Clifton Place Condominium Ass’n, 783 N.W. 2d 551, 560-61 (Minn. Ct. App. 2010) (extension of rule generally to LLCs).

4. Hinckley Square Associates v. Cervene, 871 N.W.2d 426 (Minn. Ct. App. 2015) (extension of rule in eviction actions to limited partnerships).

10. The court says I have to be represented by an attorney.

What gives?

© 2016 Bassford Remele, P.A. / Mid-Minnesota Legal Aid

B. Many districts have concluded that landlord corporations and LLCs must be represented by counsel in eviction (and other housing) actions, including in Ramsey County.

10. The court says I have to be represented by an attorney.

What gives?

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The Eviction Process: A Hypothetical

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