Residential Eviction Defense and Tenant Claims in Minnesota

Sixteenth Edition


October 2020


This revision is in progress.

See the note below on unpublished decisions.


By

Lawrence McDonough

Attorney at Law

651-398-8053

mcdon056@umn.edu


Posted at:

http://povertylaw.homestead.com/ResidentialUnlawfulDetainer.html

(manual and forms only)


* * *


Pandemic Eviction Suspension Update

http://povertylaw.homestead.com/PandemicEvictionandOtherHousingLawsandRules.html


Unpublished Decisions


New appendices beyond Appendix 628 will be posted at Pro Justice MN and PBWorks when done. Before then, new appendices are available from the author.


Appendices up to Appendix 628 are available from the following sites:


Pro Justice MN

http://www.projusticemn.org/

Manual, Forms and Scanned Unreported Decisions Filed under

Library, Substantive Law, Housing, Eviction Defense


PBWorks.

http://evictiondefense.pbworks.com/w/browse/#view=ViewAllFiles


They also linked in the wiki version.

http://evictiondefense.pbworks.com/w/page/8069836/Residential%20Eviction%20Defense%20in%20Minnesota

Search with the box at the upper left.


Quick Finder

 

Detailed Table of Contents

 

Eviction Answers, http://povertylaw.homestead.com/ResidentialUnlawfulDetainer.html

 

Housing Links, http://povertylaw.homestead.com/files/Reading/links.htm

 

Introduction To Unlawful Detainer (Eviction) Actions and Landlord-Tenant Relationships, Chapter I

            Eviction Summary, I.B.

 

Procedure, Chapter V

 

Service Defenses, VI.C.

Precondition Defenses, VI.D.

 

Rent Defenses, VI.E.

            Breach of the covenants of habitability, VI.E.1.

            Rental dwelling licenses, VI.E.2.c.

            Late fees and other fees, VI.E.10.

            Waiver of rent due by accepting partial payment, VI.E.13.

            Utilities, VI.E.18.

            Redemption, VI.E.20.

 

Holding Over Defenses, VI.F.

            Improper notice to quit, VI.F.1. 

            Retaliatory eviction, VI.F.3.

            Waiver of Notice to quit by acceptance of rent, VI.F.4.

            Public housing and government subsidized housing., VI.F.10.

 

Breach Defenses, VI.G.

            No right of reentry clause in the lease, VI.G.1.

            Waiver of breaches by acceptance of rent, VI.G.4.

            Reasonable Accommodation of disabilities, VI.G.9.

            Public housing and government subsidized housing, VI.G.10.

            Manufactured (mobile) home park lot tenancies, VI.G.11.

            Allegations of unlawful activity, VI.G.16.

            The breach is not material, VI.G.19.

 

Post Trial Issues, Chapter VIII

            Writ of Recovery, VIII.B.

            Motion to Vacate Judgment and Quash Writ, VIII.E.2.

            Motion for Expungement, VIII.E.5.

 

Judge Review of Referee Decisions, Chapter IX

Appeals, Chapter X

Other Landlord and Tenant Actions, Chapter XII

 

 

Acknowledgments

 

© Poverty Law and Lawrence R. McDonough

http://povertylaw.homestead.com

Permission granted for educational and pro bono purposes

 

Sixteenth Edition, 2019

 

Thanks again to the attorneys, law students, advocates, legislators, judges, and referees who continue to assert and expand the law for the benefit of tenants. I especially wish to thank Drew Schaffer, Luke Grundman, and Paul Birnberg, who continue to move the law toward a better balance of landlord and tenant rights and obligations, and research assistance from many fine attorneys at Dorsey and Whitney, LLP, including Angela E. Dralle, Pavlina Kochankovska Rafter, Vanessa J. Szalapski, Kelvin Kesse, Kent J. Schmidt, Bryan M. McGarry, Megan K. Baker, Craig Ritchey, Lindsey M. Sadler, Brad J. Hattenbach, Claire Smith, Natasha Wells, and Paula N. Kanne.

 

Fourteenth Edition, 2015

 

Thanks again to the attorneys, law students, advocates, legislators, judges, and referees who continue to assert and expand the law for the benefit of tenants. I especially wish to thank again Drew Schaffer and Paul Birnberg, who continue to move the law toward a better balance of landlord and tenant rights and obligations.

 

Thirteenth Edition, May 2013

 

Thanks again to the attorneys, law students, advocates, legislators, judges, and referees who continue to assert and expand the law for the benefit of tenants. I especially wish to thank Drew Schaffer and Paul Birnberg, who continue to move the law toward a better balance of landlord and tenant rights and obligations, and John Freeman, Erik Williamsen and the staff at the Minnesota Legal Services Coalition for their technical support at www.projusticemn.org.

 

Tenth Edition, March 2008

 

Thanks again to the attorneys, law students, advocates, legislators, judges, and referees who continue to assert and expand the law for the benefit of tenants. I especially wish to thank Drew Schaffer, whose analysis is reflected in much of the next text; John Freeman, for his technical support at www.projusticemn.org; and Alice Engstrom and Christa Lord, for word processing support.

 

Ninth Edition, March 2004

 

Thanks to the attorneys, law students, advocates, legislators, judges, and referees who continue to expand the law for the benefit of tenants. I especially wish to thank Paul Birnberg, whose analysis once again is reflected in many sections of this manual, and Sharon Elmore and Jaya Shoffner of the Minnesota Legal Services Coalition, who managed the placement of this manual, forms, and cases on www.projusticemn.org.

 

Eighth Edition, July 2000

 

I am grateful to Lila Talvitie-Zamora, who helped process the updates for this edition, and the attorneys and advocates who continue to expand the law for the benefit of tenants. I especially wish to thank Paul Birnberg, whose analysis is reflected in many sections of this manual, and Bricker Lavik and Candee Goodman, who first developed the idea of an annual housing law institute, for which I first prepared this manual. Finally, thanks to the Minnesota State Bar Association and Nancy Kleeman, Dorsey and Whitney, and Probono.net, for providing the encouragement and technical support to make this manual and the many unpublished decisions discussed in it available on the internet.

 

Seventh Edition, November 1996

 

I would like to thank Chris Nelson, who helped process this edition, and the attorneys and advocates who developed many creative arguments that resulted in the decisions reported here. As I put these materials together I can see the wonderful work all of you are doing to make life a little more just for tenants.

 

Sixth Edition, November 1995

 

I wish to thank and acknowledge the work of Peggy Armour, who spent many hours processing this edition; and the attorneys and advocates from legal services, volunteer attorney programs and other agencies, which provided important court decisions for these materials. I especially want to thank Paul Birnberg, Robin Williams, Charlene D'Cruz, and Doug Clark, who helped me develop some of the arguments and forms in these materials. Finally, I wish to dedicate this edition to Dawn Carlson, a legal services attorney in Moorhead, Minnesota, who recently passed away. While she was with Legal Services only for a few short years, her dedicated work benefitted her clients, the law, and those of us who knew her.

 

Fifth Edition, November 1994

 

The author again wishes to thank Kaylen Randle, who spent many hours processing this edition; and the attorneys and advocates from legal services, volunteer attorney programs and other agencies dedicated to the protection of tenants.

 

Fourth Edition, November 1993

 

The author wishes to thank Kaylen Randle, who had the thankless task of processing this edition from the previous edition, two supplements and additional material.

 

Third Edition, April 1991

 

This article is dedicated to all of the Legal Services and volunteer attorneys whose advocacy continues to expand legal protection for tenants. Many of the statutes and court decisions discussed in this article are a result of their work. The author also wishes to thank Mescal Urich, who again devoted countless hours to processing this continuously expanding article.

 

Second Edition, October 1989

 

The author wishes to thank Peter Brown, Richard Fuller, Bricker Lavik, Candace Rasmussen, Galen Robinson, Randall Smith, Timothy L. Thompson, Thomas Vasaly, and John Whitelaw, Esquires, whose written materials and/or comments formed the basis for portions of this article; and Mescal Urich, who devoted many hours to formatting and processing numerous drafts of this article.

 

Lawrence R. McDonough

 

 

 

 

 

 

 

 

 

 

 

Table of Contents

 

Quick Finder

 

Acknowledgments

 

Table of Contents

 

Chapter I: Introduction to Eviction Actions
and Landlord-Tenant Relationships

 

A.        Statutes and Cases

 

            0.         History of Landlord and Tenant Laws in Minnesota

            1.         Recodification of Landlord-Tenant Laws

            2.         Cases

            3.         Effect of Unpublished Court of Appeals Decisions

 

            4.         Preemption of Ordinances by State Statutes

 

                        a.         Express preemption

                        b.         Field preemption

                        c.         Conflict preemption

 

                        d.         Most landlord and tenant ordinances should not be preempted

 

                                    (1)       Express preemption

                                    (2)       Field preemption

                                    (3)       Conflict preemption

 

            5.         Preemption of State Statutes and Local Ordinances by Federal Law

 

                        a.         Express preemption

                        b.         Field preemption

                        c.         Conflict preemption

 

B.        Summary of Eviction Actions and Court Procedure

 

            1.         Commencing the Action

            2.         Answers and defenses

            3.         Filing, E-filing, Fees and Waivers

            4.         Arraignment and First Appearance

            5.         Removal of the Judicial Officer

            6.         Hennepin and Ramsey Housing Courts Administration Offices

            7.         Trial

            8.         Execution and enforcement of the writ of recovery

            9.         Judge Review and Appeal

            10.       Expungement

            11.       Housing Advice Clinics

 

B1.      Eviction Remedy in Other Actions

 

C.        Creation of a Landlord-Tenant Relationship.

 

D.        Types of Private Tenancies

 

            0.         Definition of tenancy, lease or leasehold interest

            1.         Fixed term

            1.a.      Tenancy for life

            1b.       Written lease terms and provisions may continue after lease expiration

            2.         Month-to-month, year-to-year, and other periodic tenancies

            3.         Tenancy at will

            4.         Tenancy at sufferance

 

            4a.       Analyzing holder over tenancies

 

                        a.         Tenants does not pay or landlord does not accept rent: tenancy at sufferance (no tenancy)

                        b.         Tenant pays and landlord accepts rent: month-to-month tenancy

                        c.         Automatic renewal clauses

 

            5.         Subtenancies and assignments

            6.         Domestic partners

            7.         Implied tenancy and terms

            8.         Covenant running with the land

            9.         Covenants implied by statute

            10.       Lease renewal or extension: actual, automatic, and implied

            11.       Relatives and Guests

            12.       Curtilage and Common Areas

            13.       Lease interpretation and construction

            14.       Parol Evidence

            15.       Caretakers as employees, tenants and landlords

            16.       Residency hotels

            17.       Shelters

            18.       Nursing homes residents are tenants

 

            19.       Assisted living and other housing with services for seniors and disabled persons

 

                        a.         Assisted living and housing with services

                        b.         Board and lodging

                        c.         Residences with services under Minn. Stat. Ch. 245D

 

            20.       Housing Support, Formerly Group Residential Housing

 

E.        Statutory Definitions

 

            1.         Residential tenant

            2.         Person

            3.         Residential building

            4.         Housing-related neighborhood organization

            5.         Landlord

 

E1.      Lease Requirements

 

            1.         Required Terms

            2.         Prohibited Terms

            3.         Regulated Terms

            4.         Lease Forms

 

F.        Manufactured (Mobile) Home Park Lot Tenancies

 

G.        Public Housing and Other Government Subsidized Housing Tenancies

 

H.        Other Relationships

 

            1.         Tenant versus hotel guest

            2.         Licenses versus profit a prendres

            3.         Caretakers as employees, tenants and landlords

            4.         Constructive trusts and property interests

            5.         Post Dissolution

 

I.         Tax forfeited property

 

J.         Forms

 

K.        Ethics Issues in Landlord and Tenant Representation

 

Chapter II: Summary Proceeding

 

A.        Summary Proceeding to Replace Self-help Eviction

 

B.        Action Not Appropriate for Certain Types of Litigation

 

            1.         Parallel or complex litigation

            2.         Domestic partners

 

Chapter III: Subject Matter Jurisdiction

 

A.        Minn. Stat. § 504B.285: Holding Over, Breach, and Rent

 

B.        Minn. Stat. § 504B.301: Unlawful Detention and Drug Seizures

 

Chapter IV: Personal Jurisdiction

 

Chapter V: Procedure

 

A.        Initial hearing

 

A0.      Venue

 

A1.      Removal of the Judicial Officer

 

B.        Answer

 

B1.      Filing Fee Waivers: In Forma Pauperis

 

B2.      Certification Can Replace Verification and Affidavits Co-signed by Notary

 

B3.      Appearance of Counsel for Defendant Without Defendant As an Appearance by Defendant

 

C.        Third Party Practice, Joinder and Intervention

 

D.        Injunctions and Temporary Restraining Orders

 

            1.         Against tenant within eviction action

            2.         Against landlord in another action to prevent filing of or stay eviction action

 

E.        Continuance and Stays by the court Hearing the Eviction Action

 

F.        Discovery

 

G.        Housing Court: Ramsey and Hennepin Counties

 

            0.         Jurisdiction

            1.         Housing Court Rules

            2.         Judge Review

            3.         Consolidation of actions

 

G1.      Copies of Court Files

 

H.        Trial and Evidence

 

            1.         The right to a real trial

            2.         Documents

            3.         Hearsay

            3a.       Business records

            4.         Lay witness v. expert testimony

            5.         Credibility

 

            6.         Burden of proof: preponderance of the evidence

 

                        a.         Rent claims

                        b.         Notice claims

                        c.         Breach claims

                        d.         Unlawful and criminal activity

 

            7.         Motion for summary judgment after plaintiff’s case

 

H1.      Reopening the Record

 

I.         Posting Rent or Security

 

J.         Non-attorney Advocate Exceptions to the Unauthorized Practice of Law

 

K.        Amending the complaint

 

L.        Summary Judgment and Dismissal

 

M.       Findings and conclusions

 

N.        Collateral Estoppel and Res Judicata

 

            1.         Effect of the eviction action on subsequent actions

 

                        a.         Discrimination claims

                        b.         Habitability claims

                        c.         Mortgage foreclosure

 

            2.         Effect of preceding actions on the eviction action

 

O.        Removal of Action to Federal Court

 

P.        Release from Prison for Hearing

 

Q.        Expedited Cases

 

R.        Settlement

 

S.        Consolidating the Eviction Action with Other Actions

 

T.        Sealing or Expunging Court Records

 

U.        Disbursement of Funds Paid Into Court

 

V.        Witness Fees

 

W.       Attorney Testimony

 

X.        Treatment of Pro Se Parties

 

Chapter VI: Defenses

 

A.        Form Answers and Motions

 

A1.      Filing Fee Waivers: In Forma Pauperis

 

B.        Limitations on Questions of Title or Equitable Defenses

 

            1.         In Municipal or County Court

            2.         In District Court

            3.         Mortgage Foreclosure and Contract for Deed Cancellation

            4.         Counterclaims

 

C.        Improper Service (Lack of Personal Jurisdiction)

 

            1.         Requirements for personal jurisdiction

 

            1a.       Strict compliance required

 

            2.         Specific defenses

 

                        a0.       Challenges to affidavits of service

                        a.         No service

                        b.         Service less than seven (7) days before the initial hearing

                        c.         Service on legal holidays

                        d.         Service by a named plaintiff or agents

                        e.         Substituted service on non-defendant defenses

                        f.         Improper substitute service by mail and posting

                        f1.       Improper mail and post service on commercial nonresidential tenant

                        g.         If the defendant is confined to a state institution, failure to serve the institution's chief executive officer

                        h.         Improper affidavit of service

                        h1.       Untimely or no affidavit of service

                        i.         Waiver of defense

                        j.         Service before filing action

                        k.         Service on business

                        l.         Incomplete service

 

            3.         It is unclear whether defendants can be designated as John Doe or Jane Doe

 

            4.         Subtenants

 

D.        Failure to Satisfy Preconditions to Recovery of the Premises

 

            0.         Lack of subject matter jurisdiction

 

            1.         The plaintiff is not entitled to possession

 

            1a.       Plaintiff’s agent is not authorized with a proper power of authority

 

            1b.       Power of attorney

 

            2.         Landlord address disclosure

 

                        a.         Failure to disclose

                        b.         Post office boxes and commercial mailbox services

                        c.         Changes in ownership or name

                        d.         Failure to plead disclosure

                        e.         Disclosure ordinances

 

            2a.       Disclosure of the identity of the principal of the property

 

            3.         Trade name registration

 

            4.         Foreign corporation

 

            5.         Tenant in possession for at least three years

 

            6.         Failure to state the facts that authorize recovery of the premises

 

                        a.         Pleading compliance with statutory preconditions for the action

                        b.         Rent claims

                        c.         Breach claims

                        d.         Allegations of unlawful activity

                        e.         Litigating claims not raised in the complaint

 

            7.         Unauthorized practice of law

 

                        a.         Management agents for plaintiff

                        b.         Corporations

                        c.         Limited Partnerships and Limited Liability Companies

 

            8.         Failure to attach to the complaint or provide at the initial hearing a copy of the termination notice or lease (Hennepin and Ramsey County Housing Court)

 

            9.         Failure to provide defendant with a copy of the lease before commencement of the action

 

            10.       Failure to timely file the affidavit of service (Fourth District; Hennepin and Ramsey County Housing Courts)

 

            11.       Section 8 Existing Housing Certificate and Voucher Programs: Failure to give notice to the public housing authority

 

            12.       Bankruptcy

 

            13.       Stay of eviction action pending parallel litigation

 

            14.       Failure to join an indispensable party

 

            15.       Lack of jurisdiction over Indian trust property

 

            16.       Action is inappropriate method to resolve complex claims

 

            17.       Failure to sign complaint

 

            18.       Landlord's preparation of summons

 

            19.       Premature action or claim that had not accrued

 

            20.       Plaintiff's voluntary dismissal

 

            21.       Lease Signed under Duress

 

            22.       Filing case in violation of consumer fraud order

 

            23.       Domestic abuse

 

                        a.         Eviction Defense

                        b.         Tenant Remedies

 

            24.       Summons content

 

            25.       Failure to use written lease

 

            26.       Mootness

 

            27.       Plaintiff’s default

 

            28.       Statute of frauds

 

            29.       Tenant waiver of claims

 

            30.       Statute of limitations

 

            31.       Servicemembers Civil Relief Act

 

            32.       Accord and satisfaction

 

E.        Nonpayment of rent defenses.

 

            1.         Breach of the covenants of habitability

 

                        a0.       Before the covenants

                        a.         The covenants

                        a1.       Waiver or modification of the covenants

                        a2.       Leases requiring tenant maintenance and repairs

                        a3.       Leases charging tenants for repairs

                        b.         The plaintiff must prove that rent was not paid

 

                        c.         Tendering rent into court or providing adequate security

 

                                    (1)       Fritz factors

 

                                    (2)       The court should not require full payment of back rent into court

 

                                                (a)       Fritz does not require posting of alleged back rent

                                                (a1)     The Fritz requirement is for security during the litigation

                                                (b)       Local rules do not require posting of alleged back rent

                                                (c)       Requiring the posting of back rent may violate due process

                                                (d)       Fritz allows for payment of adequate security

                                                (e)       Requiring posting back rent inhibits covenants enforcement

                                                (f)        Defending other causes of action does not require defendants to place into court the subject of the controversy

 

                                    (3)       Decisions requiring less than full payment into court of back rent

                                    (4)       Condemned or condemnable housing

                                    (5)       Disputed rent

                                    (6)       Law firm and agency checks

                                    (7)       Tenant's failure to comply with court's order to pay rent into court

                                    (8)       Appeal of decision ordering tenant to pay rent into court

                                    (9)       Guarantee of Payment

                                    (10)     Not applicable where tenant did not withhold rent

                                    (11)     McKnight Habitability Litigation Revolving Fund

 

                        d.         Evidence of violations

 

                                    (1)       Reasonable repair and code compliance covenants

                                    (2)       Fit for use intended covenant: other conditions and conduct problems

                                    (3)       Housing code violations not concerning housing condition

                                    (4)       Disrepair caused by acts of nature or third parties

                                    (5)       Court inspection of the property

                                    (6)       Trial court discretion

                                    (7)       Use of inspection reports

                                    (8)       Lead paint

                                    (9)       Lay testimony

                                    (10)     Bed bug and other pest infestations

                                    (11)     Quiet enjoyment

 

                        e.         No written notice of violations is required

                        f.         Landlord defenses

 

                        g.         Measure of damages

 

                                    (1)       Pre-Covenants of Habitability and Fritz

                                    (2)       Post-Covenants of Habitability and Fritz

                                    (3)       Condemned or condemnable housing

                                    (4)       Trial court discretion to determine rent abatement

                                    (5)       Limitation on retroactivity (back) rent abatement

                                    (5a)     Tenant awards beyond rent claimed credited against future rent

                                    (6)       Increase rent abatement for noncompliance

 

                        h.         Public and Government Subsidized Housing

                        i.         Relief

                        i1.       Rent abatement beyond rent claimed credited against future rent

                        j.         Companion tenant's remedies and rent escrow actions

                        k.         Landlord tort liability for personal injury

                        k1.       Landlord’s contact liability for personal injury

                        l.         Consequential damages

                        m.       No assessment of costs against tenant

                        n.         Fines

                        o.         Contempt of court

                        p.         Punitive damages

                        q.         Compliance hearings

                        r.         Housing agency inspections and records

                        s.         Studies of effects of inadequate housing conditions

                        t.         Subsequent owner liability

                        u.         Manufactured (mobile) home park lot tenancies

 

            2.         Rental licenses and other housing condition defenses

 

                        a.         Illegal contracts: violation of housing code precluding action for rent

                        b.         Agency housing repair orders

 

                        c.         Rental dwelling licenses

 

                                    (1)       Appellate Decisions

 

                                    (2)       Minneapolis

 

                                                (a)       1990 ordinance

                                                (b)       1997 amendment

                                                (c)       2012 amendment

                                                (c1)     Finding the code and property status on-line

                                                (d)       Dismissal

                                                (e)       Rent abatement

 

                                    (3)       Other cities

 

                                                (a)       Alexandria

                                                (b)       Brooklyn Park

                                                (c)       Duluth

                                                (d)       Eagan

                                                (d)       New Hope

                                                (e)       Plymouth

                                                (f)        Saint Paul

 

                                    (4)       Challenges to license revocations

                                    (5)       Appeal

 

            3.         Breach of an express covenant which creates a condition precedent to payment of rent

 

            4.         Tenant payment of utility or essential services following landlord's nonpayment

 

            5.         Rent abatement for actual or constructive lockout or exclusion

 

            6.         Taxes on the land paid by the tenant

 

            7.         Improper notice to increase rent or fees

 

            7a.       Acquiescence to notice to increase rent

 

            8.         Waiver of notice to increase rent

 

            9.         Retaliatory rent increase or services decrease

 

                        a.         Statutory retaliation defenses

                        b.         Ordinances prohibiting retaliation

                        c.         Common law retaliation defense

 

            10.       Late fees

 

                        a.         Late fees regulated by Minn. Stat. § 504B.177

 

                        b.         Late fees not regulated by Minn. Stat. § 504B.177

 

                                    (1)       Liquidated damages and penalties

                                    (2)       Usurious interest

 

                        c.         Waiver of late fees

                        d.         Public housing and subsidized housing

                        e.         Manufactured (mobile) home park lot tenancies

                        f.         No late fee is due because the tenant properly withheld rent

                        g.         Plaintiff did not prove existence of late fees

 

            10a.     Other fees

 

                        a.         Fees for tenants to perform habitability maintenance

                        b.         Fees in violation of statutes

                        c.         Liquidated damages and penalties

                        d.         Unconscionable provisions

                        e.         Adhesion contract

 

            11.       Manufactured (mobile) home park lot tenancies

 

                        a.         Breach of the covenants of habitability

                        b.         Improper notice to terminate the lease

                        c.         The arrearage includes improper fees

                        d.         Waiver of notice

                        e.         Improper rent increases

                        f.         Retaliatory rent increase or services decrease

                        h.         Redemption

                        i.         Secured parties

 

            12.       Public housing and government subsidized housing

 

                        a0.       Lack of cause or tenant fault

 

                        a.         Section 8 existing housing certificate and voucher programs

 

                                    (1)       Side Payments

                                    (2)       Withheld housing assistance payments

 

                        b.         Subsidized housing projects

                        c.         Public housing

                        d.         Bankruptcy and public housing rent

 

            13.       Waiver of rent due by accepting partial payment

 

            14.       Waiver of past rent due by accepting rent for later months

 

            15.       Receipts, money orders, and when and how much rent is due

 

                        a.         Amount of rent

                        a1.       Premature rent claim

                        b.         No agreement on when the rent is due

                        c.         Waiver of prompt payment of rent

                        d.         Receipts required for cash

                        e.         Money orders

 

            16.       Discrimination

 

            17.       Reasonable accommodation of disabilities

 

            18.       Utilities

 

                        a.         Tenant or landlord liability under the lease

                        b.         Landlord liability with shared meters

                        c.         Landlord termination of utilities

                        d.         Tenant payment of utility or essential services following landlord's nonpayment

 

            19.       Combined actions for nonpayment of rent and material lease violations

 

            20.       Redemption

 

                        a.         The court may deny restitution of the premises, conditioned on the defendant's payment of the arrearage within a specific time to be determined by the court

                        b.         Redemption apparently applies to more than just traditional nonpayment of rent cases

                        c.         Combined actions for nonpayment of rent and material lease violations

                        d.         Attorney's fees

                        e.         Month-to-month tenancies

                        f.         In manufactured (mobile) home park lot tenancies

                        g.         No waiver of right to redeem

                        h.         Landlord extension of tenant's right to redeem

                        i.         Waiver of costs and service fees

                        j.         Good faith effort to redeem

 

            21.       Violation of tenant privacy

 

            21a.     Quiet enjoyment of the premises

 

            21b.     Tenant security

 

            22.       Landlord refused to accept rent

 

            23.       Rent credit for work done for the landlord by the tenant

 

            24.       Tenant financial obligations under a separate agreement with the landlord may not be rent

 

            25.       Retaliation

 

                        a.         Statutory retaliation defenses

                        b.         Ordinances prohibiting retaliation

                        c.         Common law retaliation defense

 

            26.       Notice for rent in month-to-month tenancies

 

            27.       Illegal lease provisions.

 

            28.       Manufactured (mobile) homes not in mobile home parks

 

            29.       Tenant or landlord in bankruptcy.

 

            30.       Assessment of rent from guest

 

            31.       Landlords actual or acquiescence in unlawful activities

 

            32.       Rent claims under prior leases

 

            33.       Garnishment of rent

 

            34.       Fair Debt Collection Practices Act defenses

 

            35.       Joint liability only if provided in lease

 

            36.       Right to cure under the lease

 

            37.       Notice to prospective tenants of mortgage foreclosure of residential rental property

 

            38.       Domestic violence defenses

 

                        a.         Private housing

                        b.         Public housing and subsidized housing

 

            39.       Premature action that had not accrued

 

            40.       Acceptance of rent before commencement of action

 

            41.       Landlord rejected rent before filing action

 

            42.       De minimus rent and fees

 

            43.       Laches

 

F.        Holding over and notice to quit defenses

 

            1.         Improper notice to quit

 

                        a.         Periodic tenancies, month-to-month tenancies, and tenancies at will

 

                                    (1)       Minn. Stat. § 504B.135

                                    (2)       Strict compliance required

                                    (3)       Service and receipt of notice

                                    (4)       Termination date

                                    (4a)     Defective notice is void and is not effective later

                                    (5)       Oral leases

                                    (6)       Oral notices are ineffective

                                    (7)       Notices of less than one month are ineffective

                                    (8)       Landlord has the burden of proof

 

                        b.         Periodic tenancies with no rent term

                        b1.       Year-to-year tenancies

                        c.         Term leases

                        d.         Notice to tenants following mortgage foreclosure or contract for deed cancellation

 

                                    (1)       State Law

                                    (2)       Federal Law

 

                        e.         Different notice lengths for landlord and tenant

 

            2.         The lease does not provide for termination of the tenancy before expiration of the lease

 

            3.         Retaliation

 

                        a.         Protected tenant activity

                        b.         Presumption of retaliation

                        c.         Housing code ordinance provisions on retaliation

                        d.         Litigating retaliation in a tenant initiated case

                        e.         Term leases

                        f.         Manufactured (mobile) home park lot tenancies

 

            3a.       Common law retaliation defense

 

            4.         Waiver of Notice to quit by acceptance of rent

 

                        a.         In public housing and government subsidized housing

                        b.         Manufactured (mobile) home park lot tenancies

                        c.         Landlord not depositing the rent

                        d.         Nonwaiver clause in lease

                        e.         Waiver of application of a nonwaiver clause

                        f.         Ongoing lease violations

 

            5.         Waiver of notice by issuing a later notice, extending a notice or executing a new lease

 

            6.         Waiver of notice by demanding subsequent rent in an eviction (unlawful detainer) action

 

            7.         Manufactured (mobile) home park lot tenancies

 

            8.         Discrimination

 

            9.         Reasonable accommodation of disabilities

 

            10.       Public housing and other subsidized housing programs

 

                        a.         Section 8 existing housing certificate and voucher programs.

 

                                    (1)       No notice required for breach cases

                                    (2)       Notice for business reasons

                                    (3)       The endless lease?

                                    (4)       State one year notice requirement

                                    (5)       Mortgage foreclosure

 

                                    (6)       Section 8 voucher subsidy termination

 

                                                (a)       Mandatory termination for eviction for serious violation of the lease

                                                (b)       Permissive termination

                                                (c)       Termination procedure

                                                (d)       Mitigating circumstances

                                                (e)       Judicial review and appeal

                                                (f)        Discrimination

                                                (g)       Reasonable accommodation of disabilities

                                                (h)       Domestic violence

 

                                    (7)       Landlord notice to the Section 8 Office

 

                        b.         Subsidized housing projects

 

                                    (1)       HUD Handbook No. 4350.3 projects

                                    (2)       Moderate rehabilitation projects

                                    (3)       Rural Housing and Community Development Service (RHCDS) and Rural Housing Service (RHS), formerly Farmers Home Administration FmHA Projects

                                    (4)       Low Income Housing Tax Credit Projects

                                    (5)       Other subsidized housing programs

 

                        c.         Public housing

 

                                    (1)       Notice

                                    (2)       Grievance process

                                    (3)       Bypassing the grievance process

 

                        d.         Revocation of tenant's notice to quit

 

            11.       Contract for deed termination

 

            11a.     Purchase agreements and exercised options terminations

 

            12.       Mortgage foreclosure

 

                        a.         Mortgagor defendant

                        a1.       Illegal foreclosure reconveyance

                        a2.       Stays of the eviction action

                        b.         Tenant of mortgagor as defendant

 

            13.       Subtenants

 

            14.       Landlord or tenant revocation or retraction of a notice to quit

 

            15.       Lease renewal

 

            16.       Uniform Relocation Act

 

            17.       Declaratory judgment action as alternative to eviction defense

 

            18.       Premature action that had not accrued

 

            19.       Residents of nursing homes and housing for seniors and people with disabilities

 

G.        Breach of lease defenses

 

            0.         Failure to attach to the complaint or provide at the initial hearing a copy of the lease (Hennepin and Ramsey County Housing Court)

 

            0a.       Lack of a municipal rental dwelling license

 

            1.         No right of reentry clause in the lease

 

            2.         Implied modification of the lease or waiver of lease provisions

 

            2a.       Modification of the lease

 

            3.         Plaintiff unilaterally modified the lease

 

            4.         Waiver of breaches by acceptance of rent

 

                        a.         In government subsidized housing

 

                        b.         Exceptions

 

                                    (1)       Breach of a fundamental lease term

                                    (2)       MCDA v. Powell

                                    (3)       The lease contains an enforceable nonwaiver clause

                                    (4)       Ongoing lease violations

                                    (5)       Payment of rent into court

 

                        c.         Waiver of a nonwaiver clause

 

            5.         Waiver of breaches by executing a new lease

 

            6.         Waiver of breaches by demanding subsequent rent in an eviction (unlawful detainer) action

 

            6a.       Laches

 

            7.         Improper late fees.

 

            8.         Discrimination

 

            9.         Reasonable Accommodation of disabilities

 

            10.       Public housing and government subsidized housing

 

                        a.         Notice and administrative process

 

                        b.         Good cause for eviction

 

                                    (1)       Tenant's conduct

 

                                                (a)       Decisions holding for the tenant

 

                                                            (i)        Alterations

                                                            (ii)       Cure

                                                            (iii)      Damage

                                                            (iv)      Deposit

                                                            (v)       Domestic violence

                                                            (vi)      Failure to prove violation

                                                            (vii)     Housekeeping

                                                            (viii)    ID

                                                            (ix)      Invalid lease provision

                                                            (x)       Noise and disturbances

                                                            (xi)      Late fees

                                                            (xii)     Recertification

                                                            (xiii)    Rent

                                                            (xiv)    Self-defense

                                                            (xv)     Temporary absence

                                                            (xvi)    Termination of tenant’s employment

                                                            (xvii)   Unauthorized resident

                                                            (xviii)  Violation of settlement agreement

 

                                                (b)       Minnesota decisions finding good cause for eviction

 

                                                            (i)        Generally

                                                            (ii)       Assault and threats

                                                            (iii)      Damage

                                                            (iv)      Failure to report income

                                                            (v)       Unauthorized resident

                                                            (vi)      Noise

                                                            (vii)     Other lease violations

 

                                    (2)       Repeated lease violations

 

                                    (3)       Criminal activity by tenants and third parties

 

                                                (a00)   Regulation prohibiting Legal Services Corporation (LSC) recipients from representing tenants in certain drug allegation public housing cases

 

                                                (a0)     Distinguishing between crimes and offenses: marijuana and other petty misdemeanors

 

                                                            (i)        Marijuana possession

                                                            (ii)       Medical marijuana use

                                                            (iii)      Possession of drug paraphernalia

 

                                                (a)       Public housing

 

                                                            (i)        Statute, regulations and legislative history

                                                            (ii)       Lor and Rucker

 

                                                            (iii)      Elements of criminal activity eviction

 

                                                                        (a)       Criminal activity

                                                                        (b)       Location of criminal activity not drug-related

                                                                        (c)       Acts by others

                                                                        (d)       Proof of criminal activity

 

                                                            (iv)      Notice

                                                            (v)       Waiver

                                                            (vi)      Isolated incident

                                                            (vii)     Coordination with criminal defense

                                                            (viii)    Interplay between federal and state statutes

 

                                                (b)       Section 8 certificates and vouchers

                                                (c)       HUD subsidized projects

                                                (d)       Rural Housing and Community Development Service (formerly Farmers Home Administration) subsidized housing projects

                                                (e)       Search and seizure

                                                (f)        Other criminal law defenses

                                                (g)       Admissibility of plea from criminal action

                                                (h)       Crime-free ordinances

 

                                    (4)       Other actions of third parties

                                    (5)       Verification requirements

                                    (6)       Laundry list of allegations

                                    (7)       Tenant waiver of rights

                                    (8)       Pets

 

                        c.         Section 8 Existing Housing Certificate and Voucher Programs

                        d.         Government subsidized housing projects

                        e.         Public housing

                        f.         Low Income Housing Tax Credit properties

                        g.         Violence Against Women Act (VAWA)

 

            11.       Manufactured (mobile) home park lot tenancies

 

                        a.         Termination of tenancy

 

                        b.         Defenses

 

                                    (1)       Inadequate notice period

                                    (2)       Notice did not specify the reasons for termination

 

                                    (3)       The plaintiff has not alleged or proven cause for termination

 

                                                (a)       Violation of manufactured (mobile) home ordinances, rules and laws, following a reasonable time after written notice of noncompliance

                                                (b)       Rule violations, after failure to cure following thirty (30) days written notice

                                                (c)       Endangerment or substantial annoyance after notice

                                                (d)       Repeated serious violations of the lease or certain laws, following written notice and warning and continued violation

                                                (e)       Material misstatement in the application, if termination occurs within one year of when the tenant first paid rent

                                                (f)        Improvement of the park, after 90 days written notice

                                                (g)       Park or lot closing, after nine months written notice. Relocation within the lot may be permitted in certain circumstances

 

                                    (4)       Nonpayment of rent defenses

                                    (5)       The rule is unreasonable

                                    (6)       The rule constitutes a substantial modification of the original lease or rules

                                    (7)       Improper notice to adopt or amend a rule

                                    (8)       Retaliation

                                    (9)       Waiver of notice

                                    (10)     Implied modification of the lease

                                    (11)     Defendant cured the violation

                                    (12)     Violation repeated but not serious

                                    (13)     Violation caused by owner’s violation

                                    (14)     Discrimination

                                    (15)     Domestic violence

                                    (16)     In-park sales

 

            12.       Illegal lease provisions

 

            13.       Unconscionable lease term

 

            14.       Adhesion contract.

 

            15.       Oral leases

 

            16.       Allegations of unlawful activity

 

                        a.         Covenant of landlords and tenants.

 

                                    (1)       Proving elements of the violation

                                    (1a)     Drug paraphernalia

                                    (1b)     Medical marijuana

                                    (2)       Lack of knowledge defense

                                    (3)       Waiver

                                    (4)       Landlord violations

 

                        b.         Seizure

                        c.         Public nuisance

                        c1.       Registered sex offenders

                        d.         Public housing and subsidized housing.

                        e.         Regulation prohibiting Legal Services Corporation (LSC) recipients from representing tenants in certain drug allegation public housing cases

                        f.         Reasonable accommodation of disabilities

                        g.         Informants

 

                        h.         Search and seizure of the tenant and tenant’s property

 

                                    (1)       In private eviction actions

                                    (1a)     In public housing and subsidized housing eviction actions

                                    (2)       In other civil actions

 

                                    (3)       Criminal prosecutions concerning tenants

 

                                                (a)       Garages and storage units

                                                (b)       Curtilage and common areas

                                                (c)       Co-tenants

                                                (d)       Resident’s unit

 

                        i.         Other criminal law defenses

                        j.         Admissibility of plea from criminal action

                        k.         Crime-free ordinances

 

            17.       Subtenants and assignees

 

            18.       Retaliation

 

                        a.         Statutory retaliation defenses

                        b.         Ordinances prohibiting retaliation

                        c.         Common law retaliation defense

 

            19.       The breach is not a material breach

 

                        a.         Subletting

                        b.         Improvements

                        c.         Parking

                        d.         Activity not regulated by the lease

                        e.         Damage

                        f.         Over-occupancy

                        h.         Landlord access to unit

                        i.         Rental insurance

                        j.         Noise

                        k.         Loitering

                        l.         Violence

                        m.       Business activity on residential property

                        n.         Utilities

                        o.         Property maintenance

                        p.         Housing inspector visits

                        q.         Combined rent and breach cases

 

            20.       Cure

 

            21.       Combined actions for nonpayment of rent and material lease violations

 

            22.       Tenant guest and trespass rules

 

            23.       Nonpayment of utilities and other charges

 

            24.       Nuisance or serious endangerment of safety of other residents, their property, or the landlord's property

 

            25.       Lack of clear rules or lease provisions

 

            26.       Plaintiff must prove lease violations by a preponderance of the evidence

 

            27.       Original written lease terms continue after lease expiration and extend into subsequent month-to-month tenancies

 

            28.       Equitable power to provide relief from forfeiture to avoid eviction

 

            29.       Tenant’s breach was caused by landlord’s breach.

 

            30.       Lease requirement for notice must be followed.

 

            31.       Eviction for emergency police calls

 

            32.       Public reports

 

            33.       Uniform Relocation Act

 

            34.       Eviction of one tenant but not the other

 

            35.       Election of remedies

 

            36.       Proof of the lease

 

            37.       Landlord’s violation of covenants of habitability as defense to tenant breach

 

            38.       Domestic violence defenses

 

                        a.         Private housing

                        b.         Public housing and other subsidized housing programs

 

Chapter VII: Remedies And Requests For Relief

 

A.        Ordinary Relief

B.        Extraordinary Relief

C.        Contempt of Court

 

Chapter VIII: Post Trial Issues

 

A.        Redemption

 

B.        Writ of Recovery or Restitution.

 

            1.         Stay of the writ

            2.         Unavailability of writ for nonpayment of future rent

 

C.        Execution of the writ

 

            1.         Service

            1a.       Priority writs

            1b.       30-day Deadline for Enforcing the Writ?

 

            2.         Removal of the defendant and property

 

                        a0.       Notice to defendant

                        a.         Storage of property off of the premises

                        b.         Storage of property on the premises

                        c.         Property motions and claims

 

            3.         Illegal Lockouts

 

            4.         Contemp for failing to vacate

 

D.        Waiver of the writ or the right to restitution

 

E.        Motions

 

            1.         Motions in anticipation of appeal

 

                        a.         Motion for new trial or amended findings not required for appeal

                        b.         Motions on bonds, fees and staying eviction pending appeal

 

            2.         Motion to vacate judgments and stay or quash the writ of restitution

 

                        a.         Inherent authority

                        b.         Minn. R. Civ. P. 60.02

                        c.         Mandatory vacation of judgment: lack of personal jurisdiction

                        d.         For other claims, the Finden Factors

                        e.         Timing

                        f.         Effect on the writ of recovery

                        g.         Appeal

                        h.         Form motion

 

                        i.         Cases

 

                                    (1)       Substantial compliance with settlement agreement

                                    (2)       Eviction grounds outside scope of complaint

                                    (3)       Tenant confusion

                                    (4)       Landlord violation of settlement agreement

                                    (5)       Improper enforcement of writ

                                    (6)       Landlord waiver of tenant violation of settlement agreement

                                    (7)       Improper plaintiff

                                    (8)       Improper notice to Section 8 Office

                                    (9)       Rent had been paid

                                    (10)     Unavailability of writ for nonpayment of future rent

                                    (11)     Mistake

                                    (12)     Landlord failed to cooperate with tenant

                                    (13)     Service defects

                                    (14)     Waiver of the writ by acceptance of rent

 

            3.         Motion for return of personal property

 

            4.         Motion for costs and attorney’s fees

 

                        a.         Attorney’s fees

 

                                    (0)       Jurisdiction

 

                                    (1)       Landlord claims

 

                                                (a)       Nonpayment of rent cases

                                                (b)       Cases other than nonpayment of rent

 

                                    (2)       Tenant claims

 

                                                (a)       Attorney’s fees under Minn. Stat. § 504B.172

 

                                                            (i)        Effective date

                                                            (ii)       Basis for attorney’s fees claims

                                                            (iii)      Free legal services eligible for attorney’s fees awards

                                                            (iv)      Standard for prevailing

 

                                                (b)       Other statutory authority for attorney’s fees

                                                (c)       Attorney’s fees as sanctions on landlord’s conduct

                                                (d)       Attorney’s fees in consolidated actions

                                                (e)       Collection through credited rent

 

                                    (3)       Calculation of attorney’s fees

 

                                    (4)       Appeal of attorney’s fee awards

 

                        b.         Costs and disbursements

 

                                    (1)       $200 in costs

 

                                                (a)       Service defenses

                                                (b)       Precondition defenses

                                                (c)       Rent claims and defenses

                                                (d)       Holding over claims and defenses

                                                (e)       Mortgage foreclosure and contract for deed cancellations

                                                (f)        Breach claims and defenses

                                                (g)       Public housing and other subsidized housing programs

                                                (h)       Manufactured home parks

                                                (i)        Judge review of referee denial of costs

                                                (j)        Cost awards to prevailing plaintiffs

 

                                    (2)       $5.50 for the cost of filing a satisfaction of the judgment

                                    (3)       Disbursements

                                    (4)       Award of costs and disbursements credited against rent

 

            5.         Motion to Seal or Expunge Court Records

 

                        a00.     Expungement distinguished with amending caption

 

                        a0.       Expungement motion forms

 

                        a.         At common law under inherent authority

 

                                    (1)       Action should not have been filed

                                    (2)       Defendant not at fault

                                    (3)       Unique circumstances outside the defendant’s control

                                    (4)       Good faith dispute

                                    (5)       Agreement of the parties

                                    (4)       File retention schedule

 

                        a1.       Timing of expungement motion

 

                        b.         Expungement statute

 

                                    (0)       Eviction lacking sufficient merit

 

                                    (1)       Plaintiff’s default

 

                                    (2)       Service defenses

 

                                                (a)       Improper service

                                                (b)       No proof of service

                                                (c)       Service by plaintiff or employees

                                                (d)       Lack of jurisdiction

                                                (e)       Improper mail and posting

                                                (f)        Improper substitute service

 

                                    (3)       Precondition defenses

 

                                                (a)       Insufficient pleading

                                                (b)       Failure to attach lease or notice

                                                (c)       Plaintiff not entitled to possession

                                                (d)       Case is moot

                                                (e)       Foreign limited liability company had no state certificate of authority

                                                (f)        Failure to notify Section 8 Office

                                                (g)       Failure to disclose address

                                                (h)       Premature filing

                                                (i)        Accord and satisfaction

                                                (j)        Failure to register trade name

 

                                    (4)       Rent defenses

 

                                                (a)       Dispute over amount of rent

                                                (b)       No license to rent

                                                (c)       Landlord waived prompt payment of rent

                                                (d)       Landlord waived claim by accepting part payment of rent

                                                (e)       Improper late fees

                                                (f)        Violation of covenants of habitability

                                                (g)       Premature rent claim

                                                (h)       Improper subsidized housing claims

                                                (i)        Privacy violations

                                                (j)        Constructive eviction

                                                (k)       Rent already paid before commencement of action by service of complaint

 

                                    (5)       Notice defenses

 

                                                (a)       Retaliation

                                                (b)       Improper notice

                                                (c)       Improper subsidized housing notice

                                                (d)       Waiver of notice

                                                (e)       Premature notice claim

                                                (f)        Mortgage foreclosures

                                                (g)       Manufactured and mobile home parks

 

                                    (6)       Breach defenses

 

                                                (a)       Illegal activity violation not proven

                                                (b)       No right of reentry clause

                                                (c)       Manufactured (mobile) home park lot

                                                (d)       Unenforceable lease violation

                                                (e)       Tenant did not violate lease

 

                                    (7)       Stipulation

 

                                    (8)       Mortgage foreclosures and cancelled contract for deeds

 

                        c.         Judge review of referee denial of expungement

 

                                    (1)       Statutory expungement

 

                                                (a)       Settled cases

                                                (b)       Service defenses

                                                (c)       Precondition defenses

                                                (d)       Nonpayment of rent cases

                                                (e)       Holding over cases

                                                (f)        Breach of lease cases

 

                                    (2)       Common law inherent authority expungement

 

                                    (3)       Referee denial of judge review

 

                                    (4)       Settlement on judge review

 

                        d.         Notice to tenant screening agencies

 

                        e.         In the future: automatic purging of older eviction files

 

Chapter IX: Judge Review of Referee Decisions

 

A0.      Statutes and Rules

 

            1.         Hennepin and Ramsey Counties, Fourth and Second Judicial Districts

            2.         Other Counties and Districts

 

A.        Time for Request for Review

 

B.        Stay of Referee Decision Pending Judge Review

 

            1.         Bond, payments in lieu of a bond, or waiver of a bond or payments

            2.         Judge review of referee decisions setting bond for judge review

 

C.        Transcripts of Referee Hearings for Judge Review

 

D.        Standard of Review

 

E.        Cases

 

            1.         Service defenses

            2.         Precondition defenses

            3.         Nonpayment of rent claims

            4.         Holding over claims

            5.         Breach claims

            6.         Costs

            7.         Personal property disposition

            8.         Expungement

 

F.        Judge Review Request Form

 

Chapter X: Appeal

 

A.        Fifteen Day Appeal Period.

 

B.        The Appeal Lies from Entry of Judgment

 

C.        In Some Districts, the court Does Not Regularly Enter Judgment, but Merely Issues or Denies the Writ of Restitution Based upon the Order for Judgment

 

D.        Housing Court Appeal V. Judge Review

 

E.        Motions in Anticipation of Appeal

 

            1.         Motion for new trial or amended findings not required

 

            2.         Notice of intent to appeal

 

            3.         Motion to waive cost bond and set supersedeas bond: staying execution of the writ of restitution pending appeal

 

                        a.         Cost bond

                        b.         Supersedeas bond

                        c.         Mootness on appeal

 

            4.         Appeal after issuance of the writ: certificate to stay execution of the writ pending appeal

 

            5.         Note on exceptions

 

Chapter XI: Writ of Prohibition

 

Chapter XII: Other Landlord and Tenant Actions

 

A.        Public Nuisance Actions

 

B.        Tenant Initiated Actions and Claims

 

            0.         Considerations for all actions

 

                        a.         Filing Fee Waivers: In Forma Pauperis

 

                        b.         Verification Signed by Notary No Longer Required

 

                        c.         Statutes of limitations

 

                        d.         Attorney’s Fees, Costs, and Disbursements

 

                                    (1)       Attorney’s fees

 

                                                (a)       Leases and tenant claims under Minn. Stat. § 504B.172

                                                (b)       Statutory tenant actions

                                                (c)       Substantive tenant claims

                                                (d)       Successful defense of landlord claims

                                                (e)       Sanctions for landlord conduct

 

                                    (2)       Costs and disbursements

 

                        e.         Definitions, Tenancies, and Leases

 

                        f.         Obtaining Addresses for Litigation from the United States Postal Service

 

                        g.         Damages Awards Affecting Income and Asset limits for Government Benefit Program Recipients

 

            1.         Lockout Actions

 

                        a.         Statutes

 

                                    (1)       History

 

                                    (2)       Current statutes

 

                                                (a)       Definitions, tenancies, and leases

                                                (b)       Prohibition of self-help eviction

                                                (c)       Misdemeanor crime

                                                (d)       Action to recover possession of the property

                                                (e)       Damages

 

                        b.         Analysis of actions for tenant repossession of property and damages

 

                                    (1)       Petition forms

 

                                    (2)       Procedure

 

                                    (3)       Types of exclusions

 

                                                (a)       Exclusion of tenant, a person with legal right of occupancy

                                                (b)       Exclusion of tenant before physical occupancy

                                                (c)       Exclusion from part of the property

                                                (d)       Landlord termination of utility service

                                                (e)       Exclusion through bad faith restraining order

                                                (f)        Towing tenant’s vehicle

                                                (g)       Contracts for deed

                                                (h)       Legal exclusion with eviction action

                                                (i)        Post-eviction exclusion from personal property

                                                (j)        Tenant abandonment

                                                (k)       Disputed residency

                                                (l)        Owner and agent liability for exclusion

 

                                    (4)       Damages

 

                                                (a)       Personal property

                                                (b)       Rent abatement

                                                (c)       Clothing

                                                (d)       Lodging

                                                (e)       $500 penalty if greater than treble damages

                                                (f)        Attorney’s fees

 

                        c.         Waiver of rights

 

                        d.         Litigating lockouts in evictions

 

                        e.         Appeal

 

            2.         Violation of Tenant’s Privacy Rights

 

                        a0.       Common law

 

                        a.         Statutes and ordinances

 

                                    (1)       Minn. Stat. § 504B.211

                                    (2)       Ordinances

 

                        b.         Statutory privacy claims outside of eviction actions

 

                                    (1)       General civil actions

                                    (2)       Rent escrow actions

                                    (3)       Criminal actions

 

                        c.         Statutory privacy claims in consolidated eviction and tenant actions

 

                        d.         Other bases for privacy claims in eviction actions

 

                                    (1)       Quiet enjoyment

                                    (2)       Habitability

 

                        e.         Privacy tort

 

                        f.         Attorney’s fees

 

            2a.       Quiet enjoyment

 

                        a.         Generally

                        b.         Civil action for rent, constructive eviction defense

                        c.         Eviction action, quiet enjoyment defense

                        d.         Habitability actions

                        e.         Privacy statute claims

                        f.         Ordinances

 

            3.         Habitability

 

                        a0.       Definitions, tenancies, and leases

 

                        a01.     Landlord disclosure of housing inspection records

 

                        a.         Rent escrow action

 

                                    (1)       Statutes

 

                                                (a)       Definitions

                                                (b)       Minn. Stat. § 504B.385

                                                (b1)     Minn. Stat. § 491A.01

                                                (c)       Minn. Stat. § 504B.425

 

                                    (2)       Cases

 

                                                (a)       Habitability repairs and rent abatement

 

                                                            (i)        Appliances

                                                            (ii)       Bed bugs and other infestations

                                                            (iii)      Flooding

                                                            (iv)      Mold

 

                                                (a1)     Lack of rent license

                                                (a2)     Condemnation

                                                (a3)     Consequential damages

                                                (a4)     Method of repair

                                                (b)       Shared utility meters

                                                (c)       Domestic violence release from lease

                                                (d)       Conduct of neighbors

                                                (e)       Retaliation

                                                (f)        Injunction against eviction

                                                (g)       Subsequent eviction retaliation

                                                (h)       Eviction expungement

                                                (i)        Consolidated with eviction actions

                                                (j)        Privacy violations

                                                (k)       Lease interpretation

                                                (l)        Subsidized housing

                                                (m)      Terminating the lease for the tenant

                                                (n)       Res judicata

                                                (o)       Compliance hearings

                                                (p)       Administrators

 

                                                (q)       Notice to landlord

 

                                                            (i)        Email notice

                                                            (ii)       Excessive time in inspection order

 

                                                (r)        Due process

                                                (s)       Additional remedies

 

                                                (t)        Landlord defenses and claims

 

                                                            (i)        Landlord’s claims outside of scope of action

                                                            (ii)       Tenant impairing landlord repair

                                                            (iii)      Lease requirement for tenant maintenance

 

                                                (u)       Attorney’s fees

                                                (v)       Reconsideration

 

                                                (w)      Appeals

 

                                                            (i)        Consolidation with eviction action

                                                            (ii)       Bed bugs

                                                            (iii)      Due process and denial of reconsideration

                                                            (iv)      Notice to landlord and extent of relief

 

                        b.         Emergency tenant remedies action

 

                        c.         Tenant remedies action

 

                        d.         Constructive eviction

 

                        e.         Damages action

 

                                    (1)       Habitability

                                    (2)       Lack of rental license

 

                        f.         Condemned housing

 

                        f1.       Lack of rental license

 

                                    (1)       As a defense in eviction actions

                                    (2)       In damages actions

                                    (3)       In rent escrow actions

                                    (4)       In emergency tenant remedies actions

                                    (5)       In tenant remedies actions

 

                        g.         Tort liability for personal injury and property damage

                        h.         Contract liability for personal injury and property damage

 

            4.         Utilities

 

            5.         Domestic Violence, Harassment and Abuse

 

                        a.         Harassment

 

                                    (1)       Statutes

                                    (2)       Cases

 

                        b.         Domestic abuse order for protection

 

                        b1.       Termination of Lease by Victims of Violence

 

                                    (1)       Minn. Stat. § 504B.206

                                    (2)       Forms and Information for Tenants

 

                        c.         Vulnerable adults

 

            6.         Discrimination

 

            7.         Consumer Claims

 

            8.         Security Deposits

 

            9.         Disposition of Abandoned Personal Property

 

C.        Landlord Actions and Claims

 

            1.         Rent in damages actions

            2.         Property damage

            3.         Collection

            4.         Exclusion of non-tenants

 

 

 

 

Chapter I: Introduction to Eviction Actions

and Landlord-Tenant Relationships

 

A.        Statutes and Cases, I.A

B.        Summary of Eviction Actions and Court Procedure, I.B

C.        Creation of a Landlord-Tenant Relationship, I.C

D.        Types of Private Tenancies, I.D

E.        Statutory Definitions, I.E 

E1.      Lease Requirements, I.E1

F.        Manufactured (Mobile) Home Park Lot Tenancies, I.F 

G.        Public and Government Subsidized Housing Tenancies, I.G

H.        Non Leasehold Relationships, I.H

I.         Tax forfeited property, I.I

J.         Forms, I.J

K.        Ethics Issues in Landlord and Tenant Representation, I.K

 

A.        Statutes and Cases

 

            0.         History of Landlord and Tenant Laws in Minnesota

 

            Minn. Stat. Ch. 504B is titled Landlord and Tenant, and contains most of the state laws concerning landlords and tenants. A few landlord and tenant statutes are contained in other chapters, such as Chapters 484 and 557. See Minn. Stat. §§ 484.014, 557.08, 557.09. The predecessors of current landlord and tenant statutes date back to the Territorial Laws of Minnesota. See Minn. Terr. Stat. Chs. 74, 87 (1851); Minn. Stat. Chs. 64, 77 (1858); Minn. Stat. Chs. 504, 566 (1941); Minn. Stat. Chs. 504, 566 (1998). The statutes were consolidated into Chapter 504B in 1999. The author was one of five attorneys appointed to draft Chapter 504B.

 

            The Minnesota Office of the Revisor of Statute maintains the current version of Minn. Stat. Ch. 504B and its predecessors.

 

Minn. Stat. Ch. 504B

https://www.revisor.mn.gov/statutes/?id=504B

 

The versions of the predecessors to Chapter 504B, Chapters 504 and 566, before conversion into Chapter 504B in 1999

https://www.revisor.mn.gov/statutes/?id=504&year=1999

https://www.revisor.mn.gov/statutes/?id=566&year=1999

 

Other previous versions of statutes as far back as Minnesota Territorial Laws

https://www.revisor.mn.gov/statutes/?view=archive

 

            The initial statutes were few, and governed creation and termination of tenancies, and remedies. The Legislature gradually began a piecemeal expansion of tenant and landlord protections. The original chapters covered rights to real property and forcible detainer actions. Minn. Terr. Stat. Chs. 74, 87 (1851); Minn. Stat. Chs. 64, 77 (1858); Minn. Stat. Chs. 75, 84 (1863); Minn. Stat. Chs. 75, 79, § 5497 (1891); Minn. Stat. Chs. 75, 84 (1894); Minn. Stat. Chs. 76, 82 (1905); and Minn. Stat. Chs. 76, 82 (1927); Minn. Stat. Chs. 557, 566 (1941). The first chapter titled Landlord and Tenant appeared in 1950. Minn. Stat. Ch. 62 (1950); Minn. Stat. Ch. 504.

 

            Significant enactments beginning in the 1970s included:

 

                        a.         habitability and retaliation in 1971, Minn. Laws 1971 Ch. 219 §1, creating Minn. Stat. § 504.18, now § 504B.161; and Minn. Laws 1971 Ch. 240 § 1, creating Minn. Stat. § 566.03, Subd. 2, now § 504B.285, Subd. 2;

 

                        b.         security deposits, automatic renewals, and tenant remedies actions in 1973, Minn. Laws 1973 Ch. 561 § 1, creating Minn. Stat. § 566.20, now § 504B.178; Minn. Laws 1973 Ch. 603 § 1, creating Minn. Stat. § 504.21, now § 504B.145; and Minn. Laws 1973 Ch. 611 §13, creating Minn. Stat. § 566.18, et. seq., now § 504B.395, et. seq.;

 

                        c.         landlord's disclosure of address in 1974, Minn. Laws 1974 Ch. 370 § 1, creating Minn. Stat. § 504.22, now § 504B.181;

 

                        d.         abandoned personal property, unlawful ouster crime, utility termination, and unlawful exclusion action in 1975, Minn. Laws 1975 Ch. 410, creating Minn. Stat. §§ 504.24, 504.25, 504.26, 566.175, now §§ 504B.271, 504B.225, 504B.221, 504B.375;

 

                        e.         family status discrimination in 1980, Minn. Laws 1980 Ch. 531 § 9, creating Minn. Stat. § 504.265, now § 504B.315;

 

                        f.         death of tenant in 1981, Minn. Laws 1981 Ch. 168 § 2, creating Minn. Stat. § 504.28, now § 504B.265;

 

                        g.         unlawful ouster damages in 1984, Minn. Laws 1984 Ch. 612 § 1, creating Minn. Stat. § 504.255, now § 504B.231;

 

                        h.         condemned property actions in 1988, Minn. Laws 1988 Ch. 526 § 1, creating Minn. Stat. § 504.245, now § 504B.204;

 

                        i.         housing courts, rent escrow action, emergency tenant remedies action, tenant screening regulation, unlawful activity, and more, Minn. Laws 1989 Ch. 214, Ch. 305, and Ch. 328 Art. 2, creating or amending Minn. Stat. §§ 484.013; 504.181, now 504B.171; 504.255, now 504B.231; 504.26, now 504B.221; 504.29-504.31, now 504B.235-504B.245; 566.175, now 504B.375; 566.34, now 504B.385; and 566.205, now 504B.381; based for the most part on the Recommendations of the Governor's Commission on Affordable Housing for the 1990's. https://www.leg.state.mn.us/docs/pre2003/other/890122.pdf The author was a member of a Commission task Force on landlord and tenant law and lobbyist for the statutes;

 

                        j.         landlord's disclosure of inspection orders and pets in subsidized handicapped accessible rental housing units in 1993, Minn. Laws 1993 Ch. 317 § 4, creating Minn. Stat. § 504.246, now § 504B.195; and Minn. Laws 1993 Ch. 369 § 145, creating Minn. Stat. § 504.36, now § 504B.261. The author was a lobbyist for these statutes;

 

                        k.         privacy in 1995, Minn. Laws 1995 Ch. 226 Art. 4 § 21, creating Minn. Stat. § 504.183, now § 504B.211. The author was a lobbyist for this statute;

 

                        l.         police and emergency calls in 1997, Minn. Laws 1997 Ch. 133 § 1, creating Minn. Stat. § 504.215, now § 504B.205. The author was a lobbyist for this statute;

 

                        m.       pre-lease deposits and application fees in 1999, Minn. Laws 1999 Ch. 97 § 1, creating Minn. Stat. § 504.301, now § 504B.175; and Minn. Laws 1999 Ch. 150 § 1, creating Minn. Stat. § 504.38, now § 504B.173. The author was a lobbyist for this statute; and

 

                        n.         the 2010 HOME Line Tenants Bill of Rights on expungement, receipts, attorney's fees, late fees, deposits, utility metering, abandoned person property, foreclosure notice, and money orders, Minn. Laws 2010 Ch. 315, creating Minn. Stat. §§ 504B.118, 504B.172, 504B.177, and amending others. The author was a lobbyist, along with HOME Line and the Legal Aid Society for the Tenants Bill of Rights.

 

                        o.         lease requirements regarding start and end dates, and notices to increase rent and terminate the lease, in 2019, Minn. Laws 1Sp2019 Ch. 1, Art. 6, §§ 57-58, creating Minn. Stat. §§ 504B.146-504B.147.

 

            1.         Recodification of Landlord-Tenant Laws

 

            The 1998 legislature passed a recodification 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 recodification. 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 landlord and tenant attorneys reviewed Chapter 504A, and proposed in its place Chapter 504B, which was an attempt to reach the goals of Chapter 504A while better ensuring that the recodification does not change state law.

 

            In 1999 the legislature passed 504B. It replaces both 504A, which never went into effect, and 504 and 566, which it consolidated. Tenants should cite to both 504B (the current statutes) and either 504 or 566 (the old statutes), since case law up to 1999 cited the old statutes. This manual contains cites to both the new statute and it old counterpart. Tenants can review and download a copy of 504B, 504, and 566 from the Minnesota Legislature at http://www.leg.state.mn.us/leg/statutes.htm. Tenants also should review the Statute Cross Reference Charts (Form 1).

 

            The purpose was to modernize the language and to make the statutes easier to read. In Occhino v. Grover, 640 N.W.2d 357 (Minn. Ct. App. 2002), the statutes in chapter 504B and in the old Chapters 504 and 566 are meant to have the same meaning. Id. at 362.

 

            As part of the recodification creating Chapter 504B, the term unlawful detainer was replaced with eviction. Minn. Stat. § 504B.001. This manual will use both terms, often with a cross reference to the other term, since all cases before 1999 used the term unlawful detainer.

 

            The Minnesota Office of the Revisor of Statute maintains the current version of Minn. Stat. Ch. 504B and its predecessors.

 

Minn. Stat. Ch. 504B

https://www.revisor.mn.gov/statutes/?id=504B

 

The versions of the predecessors to Chapter 504B, Chapters 504 and 566, before conversion into Chapter 504B in 1999

https://www.revisor.mn.gov/statutes/?id=504&year=1999

https://www.revisor.mn.gov/statutes/?id=566&year=1999

 

            Statute cross reference tables:

 

From Minn. Stat. Ch. 504B to Predecessor Statutes

http://povertylaw.homestead.com/files/Reading/1acrossfrom504B.pdf

 

From Predecessor Statutes to Minn. Stat. Ch. 504B

http://povertylaw.homestead.com/files/Reading/1crossto504B.pdf

 

            2.         Cases

 

            Many cases interpreting landlord-tenant law are unreported, either at the state district court or Court of Appeals levels. Unreported district court decisions are in an appendix to this manual. Given the rise of tenant screening agencies reporting information on eviction cases, recent decisions discussed in this manual do not contain the tenant’s name in the citation.

 

            This manual also refers to some unpublished district court decisions contained in Minnesota Residential Tenant Remedies and its appendix (TR), which covers actions brought by tenants to enforce tenant rights. Unreported Court of Appeals decisions can be reviewed and downloaded from the Minnesota State Courts, as well as online legal research services.

 

            3.         Effect of Unpublished Court of Appeals Decisions

 

            Minn. Stat. § 480A.08, subd. 3, provides:

 

Unpublished opinions of the Court of Appeals are not precedential. Unpublished opinions must not be cited unless the party citing the unpublished opinion provides a full and correct copy to all other counsel at least 48 hours before its use in any pretrial conference, hearing, or trial. If cited in a brief or memorandum of law, a copy of the unpublished opinion must be provided to all other counsel at the time the brief or memorandum is served, and other counsel may respond.

 

In 2017, the Court of Appeals limited the obligation to provide copies in Rule 4 of the Special Rules of Practice for the Minnesota Court of Appeals.

 

Unpublished opinions are not precedential and may not be cited by counsel at an oral argument unless notice is given to the court and other counsel at least 48 hours before the oral argument. If unpublished opinions are cited in a brief or other written submission, copies must be provided to any self-represented litigants at the time the brief or written submission is served, unless a self-represented litigant indicates that no copies are desired. Unless specifically requested, copies of unpublished opinions need not be provided to the court or to other counsel.

 

Minn. Ct. App. Spec. R. of Prac. 4.

https://www.revisor.mn.gov/court_rules/ap/subtype/spec/id/4/

 

            Since creation of the Minnesota Court of Appeals, most appellate decisions discussing residential landlord-tenant law have been unpublished decisions of the Court of Appeals, rather than published decisions of the Court of Appeals or Minnesota Supreme Court. Unpublished decisions of the Court of Appeals may be of persuasive value, but are not precedential. Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796 (Minn. Ct. App. 1993). The Dynamic Air Court noted that the trial court "committed error by relying upon an unpublished [Court of Appeals] opinion ...." The court added that "a party may cite to an unpublished opinion affirming a trial court's 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. at 800.

 

            In State v. Gunderson, 812 N.W.2d 156, 161-62 (Minn. Ct. App. 2012), the court suggested that it was error for the trial court to rely on one published and several unpublished decisions of the Court of Appeals that were in conflict with a Minnesota Supreme Court decision.

 

            Counsel may have an ethical obligation to cite unpublished opinions adverse to counsel's client if that authority is the only opinion on point in the jurisdiction. M. Johnson, Advisory Opinion Service Update, Bench & Bar of Minn. at 13 (Oct. 1993). See generally 3 E. Magnuson, D. Herr & R. Haydock, Minn. Prac. § 117.3 at 95 (Supp. 1994).

 

            4.         Preemption of Ordinances by State Statutes

 

            Ordinances passed by municipalities in the exercise of their policy power "will generally be upheld if they are not inconsistent with state law." Mangold Midwest Co. v. Village of Richfield, 143 N.W.2d 813, 815 (Minn. 1966). Cities do not have inherent power. They possess powers expressly conferred by statute or by implication from powers expressly conferred. Id. at 820. Within these powers, cities have a great deal of latitude to act.

 

It is also true that a municipality can act to protect the security of the community and that in so doing it is not limited to the things enumerated in the general welfare clause in its charter. It would therefore seem that, generally stated, the rule would be that once the municipality is granted a charter with a general welfare clause, as the village has been, that clause will be construed liberally to allow effective self-protection by the municipality.

 

Id.

 

            A home rule charter city, such as Minneapolis, has the same regulatory authority within its boundaries as the state, unless state law has limited or otherwise withheld that power. See Minn. Const., art XII, sec. 4; Minn. Stat. §410.07; Dean v. City of Winona, 843 N.W.2d 249, 256 (Minn. App. 2014), appeal dismissed, 868 N.W.2d 1 (Minn. 2015); Nordmarken v. City of Richfield, 641 N.W.2d 343, 347 (Minn. App. 2002).

 

            Preemption of a local ordinance can occur in three ways: (1) express preemption, when a statute explicitly defines the extent to which its enactments preempt local regulation; (2) field preemption, when a city ordinance attempts to regulate conduct in a field that the state legislature intended for state law to exclusively occupy; and (3) conflict preemption, when a city ordinance permits what a state statute forbids or forbids what a state statute permits. State v. Kuhlman, 722 N.W.2d 1, 4 (Minn. App. 2006), citing English v. General Elec. Co., 496 U.S. 72, 78-80 (1990) (federal preemption); Mangold Midwest Co., 143 N.W.2d at 816, 819-820 (state field and conflict preemption).

 

                        a.         Express preemption

 

            When a statute explicitly forbids local regulation that imposes greater restrictions, any ordinance doing so will conflict with state statute. For example, in State v. Apple Valley Redi-Mix, Inc., a state statute provided that "No local government unit shall set standards of air quality which are more stringent than those set by the pollution control agency." 379 N.W.2d 136, 138 (Minn. Ct. App. 1985), citing Minn. Stat. § 116.07, subd. 2. When a St. Louis Park Ordinance set a more stringent standard for air quality than that of the statute, the Minnesota Court of Appeals held that the ordinance conflicted with the statute because it violated the statutory mandate. Id. The court also noted that a party could violate the air quality standards of the ordinance, while being in compliance with the air quality standards in the state statute, which also is a conflict. Id.

 

            In City of Morris v. Sax Invs., Inc., 749 N.W.2d 1 (Minn. 2008), the court considered whether the City of Morris Rental Licensing Ordinance conflicted with the State Building Code. The court noted:

 

In this case, the relevant language of the State Building Code expresses the legislature's specific intent to supersede municipal building codes. In enacting a statewide building code, the legislature recognized that a single, uniform set of building standards was necessary to lower costs and make housing more affordable. See Act of May 26, 1971, Ch. 561, § 1, 1971 Minn. Laws 1018, 1019 (noting that multiple laws, ordinances, and rules regulating the construction of buildings "serve to increase costs without providing correlative benefits of safety to owners, builders, tenants, and users of buildings"). The statute therefore provides:

 

The State Building Code applies statewide and supersedes the building code of any municipality. A municipality must not by ordinance or through development agreement require building code provisions regulating components or systems of any residential structure that are different from any provision of the State Building Code.

 

            Minn. Stat. § 16B.62, subd. 1.

 

Id., 749 N.W.2d at 7. The court concluded that the Rental Licensing Ordinance impermissibly regulated ground fault interrupter receptacles, bathroom ventilation, and egress window covers in a way that conflicted with the State Building Code, because those were all properly under the State Building Code's purview since they governed the construction or design of buildings. Id. at 10-12.

 

            The court noted that the State Building Code permitted some local regulation.

 

Local governing bodies, however, are specifically authorized to adopt more restrictive smoke detector requirements for single-family homes: "Notwithstanding subdivision 7, or other law, a local governing body may adopt, by ordinance, rules for the installation of a smoke detector in single-family homes in the city that are more restrictive than the standards provided by this section." Minn. Stat. § 299F.362, subd. 9 (emphasis added). If the building at issue in this case is a single-family home, the smoke detector provision of the Rental Licensing Ordinance would be expressly permitted by section 299F.362, subdivision 9, and would therefore not be different than the State Building Code.

 

Id., 479 N.W.2d at 13. The court then concluded:

 

But because the record in this case does not reveal whether the building owned by Sax is a single-family home, we cannot determine whether the ordinance provision requiring the installation of smoke detectors in each sleeping room is invalid under state law. Accordingly, we remand this issue to the district court for further proceedings.

 

Id.

 

                        b.         Field preemption

 

            "Local regulation will be preempted when the legislature has fully and completely covered the subject matter, clearly indicated that the subject matter is solely of state concern, or the subject matter itself is of such a nature that local regulation would have unreasonably adverse effects on the general populace." Hannan, 623 N.W.2d at 285. Full and complete coverage of subject matter by the State, often called field preemption, can be express or implied. Mangold Midwest Co., 143 N.W.2d at 820-21.

 

                                    (1)       Express field preemption

 

            Provisions requiring uniformity and statewide applications will sometimes expressly preempt ordinances. See State v. Kuhlman, 729 N.W.2d 577, 580 (Minn. 2007) (quoting Minn. Stat. § 169.022, "which imposes a uniformity requirement on traffic regulations throughout the state"); City of Morris, 749 N.W.2d at 7 (State Building Code). Statutes that expressly allow for limited local regulation do not negate state occupation of a field. Mangold Midwest Co., 143 N.W.2d at 823.

 

                                    (2)       Implied field preemption

 

            In Mangold, the court set forth four questions that are relevant in determining whether the area is one the legislature has impliedly declared to be an area solely of state concern:

 

(1) What is the 'subject matter' which is to be regulated? (2) Has the subject matter been so fully covered by state law as to have become solely a matter of state concern? (3) Has the legislature in partially regulating the subject matter indicated that it is a matter solely of state concern? (4) Is the subject matter itself of such a nature that local regulation would have unreasonably adverse effects upon the general populace of the state?

 

143 N.W.2d at 820.

 

            The court noted previous decisions concerning field preemption. Id. at 821-23. Those finding field preemption included Minnetonka Elec. Co. v. Village of Golden Valley, 141 N.W.2d 138 (Minn. 1966) (adverse effects upon the electrical contractors of the state outweighed the policy of allowing local regulation); State v. Hoben, 98 N.W. 2d 813 (Minn. 1959) (provision requiring uniformity and statewide application regarding traffic regulation clearly showed the legislative intent to preempt this field except for the limited local regulation the statute expressly permitted); and Village of Brooklyn Center v. Rippen, 96 N.W. 2d 585 (Minn. 1959) (boat licensing was of such a nature that there would be unreasonably adverse effects upon the general populace of the state if local licensing were allowed).

 

            Those finding no field preemption included State ex rel. Sheahan v. Mulally, 99 N.W. 2d 892 (Minn. 1959) (legislature had not acted comprehensively on disorderly conduct and had not expressly indicated that it was a matter of state concern; there were no adverse effects of local regulation); and State v. The Crabtree Co., 15 N.W. 2d 98 (Minn. 1944) (statute expressly allowed cities to regulate cigarette sales disposed of the issue).

 

                        c.         Conflict preemption

 

            If an ordinance and statute address "separate and distinct aspects" of a subject matter, "the plan and ordinance can be reconciled." Canadian Connection v. New Prairie Tp., 581 N.W.2d 391, 396 (Minn. Ct. App. 1998). In Canadian Connection, a state management plan set standards for "storing, processing, monitoring, and applying manure," along with a requirement "to take wind patterns into account" when placing manure storage bins. Id. The ordinance "impos[ed] setback requirements for the feedlot facility." Id. The court held that the two regulations did not conflict. The state plan and the township ordinance "address[ed] separate and distinct aspects of feedlot odor," one addressing wind patterns, and the other a setback requirement. Accordingly, "the plan and ordinance can be reconciled." Id.

 

            In Hannan v. City of Minneapolis, 623 N.W.2d 281, 284-85 (Minn. Ct. App. 2001), the Minnesota Court of Appeals upheld a city ordinance providing for the classification and regulation of dangerous-animal behavior. The relevant state statute included two scenarios that allowed for the destruction of a dangerous dog. Id. at 284. The ordinance added another circumstance for destruction, with some provisions that were "more severe" than the statute. Id. Because "the state ha[d] not expressly precluded local regulation," the court found no conflict between the statute and ordinance. Local government may provide additional regulations that create "consequences greater than those already provided [in the state statute]" without a conflict. Id. at 285.

 

            A city ordinance requiring a license and permit to install heating systems specifically required the plans to be prepared by a registered engineer. State v. Clarke Plumbing & Heating, Inc., 56 N.W.2d 667, 672 (Minn. 1952). Although a state statute existed on the same subject, with narrower coverage, the Minnesota Supreme Court upheld the ordinance. Id. The court recognized that it was valid for the city to decide that a greater restriction was necessary in a city the size of Minneapolis. Id.

 

            In another case, the state granted a permit amendment to a company allowing it to burn a mixture of coal and fluid at a plant in Granite Falls. Northern States Power Co. v. City of Granite Falls, 463 N.W.2d 541, 542 (Minn. Ct. App. 1990). The city, however, had an ordinance which in effect prohibited the application of the state amendment. Id. Because the "ordinance and statute contain irreconcilable express and implied terms," the Minnesota Court of Appeals held that the ordinance conflicted with the statute. Id.

 

                        d.         Most landlord and tenant ordinances should not be preempted

 

                                    (1)       Express preemption

 

            Only two statutes in Chapter 504B expressly preempt local regulation. The first is Minn. Stat. § 504B.205, concerning a residential tenant's right to seek police and emergency assistance.

 

Subd. 3. Local preemption. This section preempts any inconsistent local ordinance or rule including, without limitation, any ordinance or rule that:

 

(1) requires an eviction after a specified number of calls by a residential tenant for police or emergency assistance in response to domestic abuse or any other conduct; or

 

(2) provides that calls by a residential tenant for police or emergency assistance in response to domestic abuse or any other conduct may be used to penalize or charge a fee to a landlord.

 

This subdivision shall not otherwise preempt any local ordinance or rule that penalizes a landlord for, or requires a landlord to abate, conduct on the premises that constitutes a nuisance or other disorderly conduct as defined by local ordinance or rule.

 

            The second is Minn. Stat. § 504B.111, concerning landlords of larger properties having to provide written leases. This statute provides:

 

A landlord of a residential building with 12 or more residential units must have a written lease for each unit rented to a residential tenant. Notwithstanding any other state law or city ordinance to the contrary, a landlord may ask for the tenant's full name and date of birth on the lease and application. A landlord who fails to provide a lease, as required under this section, is guilty of a petty misdemeanor.

 

Id.

 

            Several statutes in Chapter 504B contain non-waiver provisions that prohibit waiver of statutory requirements. See Minn. Stat. §§ 504B.145 (automatic renewal of leases); 504B.161 (covenants of habitability); 504B.171 (tenant's covenant not to manufacture, sell or distribute illegal drugs); 504B.178 (security deposits); 504B.204 (rental of condemned residential premises); 504B.205 (prohibiting penalty on tenant for calling for police or emergency assistance in response to domestic abuse or any other conduct); 504B.211 (notice of landlord entry onto premises); 504B.215 (landlord's nonpayment of utility or essential services; shared meters); 504B.221 (unlawful termination of utilities); 504B.231 (unlawful eviction); 504B.271 (abandoned property); 504B.365 (execution of eviction writ of restitution). While non-waiver is not the same as express preemption, it is evidence of the Legislature’s intent that a statute not be modified.

 

            As noted above, the State Building Code also preempts conflicting ordinances. Minn. Stat. § 16B.62, subd. 1; City of Morris v. Sax Invs., Inc., 749 N.W.2d 1 (Minn. 2008).

 

            Ordinances outside of the topics of these statutes should not be expressly preempted.

 

                                    (2)       Field preemption

 

                                                (a)       Express field preemption

 

            Minn. Stat. Ch. 504B contains no express preemption of the field of landlord and tenant relations, or the subfield of tenancy termination and eviction. As noted above, the only preemptive provisions in Chapter 504B concern a residential tenant's right to seek police and emergency assistance and the obligation of landlords of certain properties to use written leases. Minn. Stat. §§ 504B.205, Subd. 3; 504B.111.

 

                                                (b)       Implied Field Preemption

 

            Again, the Mangold factors are:

 

(1) What is the 'subject matter' which is to be regulated? (2) Has the subject matter been so fully covered by state law as to have become solely a matter of state concern? (3) Has the legislature in partially regulating the subject matter indicated that it is a matter solely of state concern? (4) Is the subject matter itself of such a nature that local regulation would have unreasonably adverse effects upon the general populace of the state?

 

143 N.W.2d at 820.

 

                                                            (I)        What is the 'subject matter' which is to be regulated?

 

            That would depend on the ordinance at issue.

 

                                                            (ii)       Has the subject matter been so fully covered by state law as to have become solely a matter of state concern?

 

            The Territory of Minnesota and later this State only marginally regulated landlords and tenants. See Minn. Terr. Stat. Chs. 74, 87 (1851); Minn. Stat. Chs. 64, 77 (1858). While the number of statutes has increased, it did not occur at one time but rather has resulted from a gradual evolution. There is no point in time where one could conclude that the State moved beyond treating landlord and tenants as not a matter of sole state concern.

 

            A number of cities already regulate landlord and tenants. Mpls. Code of Ord. Title XII, Chs. 240-44. Some of the Minneapolis ordinances cover topics that are governed by state statutes.

 

                      Section 244.80 prohibits landlord retaliation against tenants and goes beyond Minn. Stat. §§ 504B.285, Subds. 2-3, and 504B.441.

                      Section 244.265 requires landlords to notify tenants of mortgage foreclosure or contract for deed cancellation and goes beyond Minn. Stat. § 504B.151, which the ordinance predated.

                      Section 244.280 requires the landlord to give a tenant a copy of a written lease within five days of signing and goes beyond Minn. Stat. § 504B.115.

                      Section 244.285 requires the landlord to notify a tenant before entering the dwelling and goes beyond Minn. Stat. § 504B.211.

                      Section 244.1840 requires landlords to disclose address and contact information, including a contact within the metropolitan area, and goes beyond the requirement of Minn. Stat. § 504B.181.

                      Section 244.2020 prohibits various types of activity on rental property and goes beyond Minn. Stat. §§ 504B.165, 504B.171, and 504B.285.

 

Other ordinances regulate landlords and tenants on which state statutes are silent. Sections 244.1800-244.2020 require landlords to obtain rental dwelling licenses. Minn. Stat. 504B contains no provisions on rental licenses.

 

            Another example of the coexistence of state and local regulation of landlords and tenants is in city civil-rights law. For many years, the state has extensively regulated discrimination in the area of housing. Minnesota Human Rights Act ("MHRA"), Minn. Stat. Chap. 363A (originally Minn. Stat. Chap. 363). Since 1961, the MHRA has prohibited landlords from evicting Minnesota tenants based on race, color, creed, religion, or national origin. 1961 Minn. Laws Ch. 428, Minn. Stat. § 363.03, subd. 2 (1962). Over the next few years other protected classes were added so that in 1974 the state statute prohibited landlords from terminating the leases of Minnesota tenants based on race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance or disability. Minn. Stat. § 363.03, subd. 2 (1974).

 

            Absent from this list was "sexual orientation". In 1974 the Minneapolis City Council, which had subsequent to 1961 created its own civil rights ordinance, added to the protected-class list within Minneapolis "sexual orientation." Minneapolis Code of Ordinances 99-68 (1974) ( now codified in Minneapolis Code of Ordinances 139.10 et seq.) It was not for almost another two decades before Minnesota added "sexual orientation" to the list of protected classes. 1993 Minn. Laws Ch. 22 s. 1-2 (now codified in Minn. Stat. §§ 363A.02, 363A.03, Subd. 44, 363A.09).

 

            In other words, for almost two decades, landlords throughout all of Minnesota could evict a tenant based on sexual orientation but could not do so in Minneapolis. The availability of local regulation of discriminatory evictions within the context of the extensive regulation of the MHRA is consistent local regulation of tenancy terminations within the context of more limited regulation in Chapter 504B.

 

            Another example is local regulation requiring landlords to evict tenants when not required by state law. A number of cities require landlords to terminate tenants in situations where state law imposes no such requirement. Many cities in the 7-county Twin Cities metro area that regulate conduct and/or nuisances within rental housing, most of which penalize landlords in some fashion if they do not pursue lease termination and/or eviction for certain activities. In a number of unique examples, cities require that landlords include detailed lease language or lease addendums that outline specific "good causes" for termination of the tenancy. See Brooklyn Park: Code of Ordinances, Title XI, Chapter 117, 117.491 ©; Golden Valley: City Code, Chapter 6, § 6.29 Subd 4 (I) (1); Maple Grove: Code of Ordinances, Chapter 10, Article X, § 10-358 (e) (1); Robbinsdale: City Code, Chapter 4, 425.31, Subd. 5; St. Louis Park: City Code, Chapter 8, Subd. VIII, § 8-331 (a); Wayzata: City Code, Part VII, Section 815.18; Falcon Heights: Code of Ordinances, Part II, Chapter 105, Article IV, 105-96 (a); Little Canada: Code of Ordinances, Municipal Code, Chapter 3200, 3200.40 (I) (1) & (2); North Oaks: Rental Properties Ordinance No 121 § 114.80 (M & N); Shoreview: City Code, Chapter 700 § 714.040 (H); South St. Paul: City Code, Subpart B, Chapter 106, Article VII, § 106-237 (4); West St. Paul: Code of Ordinances, Title XV, Chapter 150, § 150.037 (A) (M).

 

            For example, under Saint Louis Park Ordinance § 3-331, a St. Louis Park landlord's lease shall permit termination for drug-related activity not just on the premises (as required by Minn. Stat. § 504B.171) but also near the premises; for other crimes not regulated by Minn. Stat. Chap. 504B; and for a range of "disorderly uses" not regulated by Minn. Stat. Chap. 504B. The landlord must enforce these lease provision whether the landlord likes it or not. Id.; Saint Louis Park Ordinance §§ 3-326 - 3-335.

 

            In summary, for many years state law and local ordinances have co-existed to address landlord and tenant concerns, such that landlord and tenant relationships are not solely of state concern.

 

                                                            (iii)      Has the legislature in partially regulating the subject matter indicated that it is a matter solely of state concern?

 

            Chapter 504B contains no general provision precluding local regulation. The only statutes in Chapter 504B that expressly preempts local regulation are Minn. Stat. §§ 504B.111 and 504B.205 concerning written leases and a residential tenant's right to seek police and emergency assistance. Several other statutes include non-waiver provisions. Minn. Stat. §§ 504B.145, 504B.161, 504B.171, 504B.178, 504B.204, 504B.205, 504B.211, 504B.215, 504B.221, 504B.231, 504B.271. It would be redundant for Chapter 504B to contain these provisions if landlord and tenant law was solely of state concern. Chapter 504B is in sharp contrast to the State Building Code, which expressly precludes local regulation. See City of Morris, 749 N.W.2d at 7, citing Minn. Stat. § 16B.62, subd. 1.

 

                                                            (iv)      Is the subject matter itself of such a nature that local regulation would have unreasonably adverse effects upon the general populace of the state?

 

            The rental of an apartment is a necessarily local activity, as the apartment and tenant reside in only one city. The landlord and tenant relationship differs from others that are not geographically specific that the courts have held cannot be locally regulated, such as electrical contractors, Minnetonka Elec. Co. v. Village of Golden Valley, 141 N.W.2d 138, traffic regulation, State v. Hoben, 98 N.W. 2d 813, and boat licensing, Village of Brooklyn Center v. Rippen, 96 N.W. 2d 585. The subject is more like local regulation of disorderly conduct that the Court upheld in State ex rel. Sheahan v. Mulally, 99 N.W. 2d 892.

 

                                    (3)       Conflict preemption

 

            Whether an ordinance presents a conflict requires an analysis of the ordinance and any statute with which it might conflict. One question is whether the relationship between the ordinance and the statute is best categorized as different but merely additional or complementary, or an actual conflict.

 

            Another question is whether the ordinance would prevent the application of the statute, like the conflicting ordinance in Northern State Power, 463 N.W.2d at 542. On the other hand, if an ordinance and statute address separate and distinct aspects of a subject matter, they can be reconciled. See Canadian Connection, 581 N.W.2d at 396.

 

            5.         Preemption of State Statutes and Local Ordinances by Federal Law

 

            Federal preemption challenges to state and local housing law are uncommon, as most regulation of landlord and tenant relationships is by states and localities. Federal law does regulate public and subsidized housing, see discussion, supra, at I.A.4., so it has the potential for conflicts with state and local law. See generally HUD Housing Programs: Tenants' Rights §13.8.1.5 at 812-16 (National Housing Law Project, 4th ed. 2012 and Supplements) (also known as the Green Book).

https://www.nhlp.org/trainings-publications/

 

            Like preemption analysis under state law, see discussion, supra, at I.A.4., federal law can preempt state law in three ways: through express preemption, field preemption, and conflict preemption. Housing and Redevelopment Authority of Duluth v. Lee, 852 N.W.2d 683, 687 (Minn. 2014) (citing Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 152-54, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982).

 

                        a.         Express preemption

 

            If a federal statute includes an express preemption clause, the court should “focus on the plain wording of the clause, which necessarily contains the best evidence of Congress' preemptive intent.” In re Consol. Hosp. Surcharge Appeals, 867 N.W.2d 513, 518 (Minn. Ct. App. 2015), quoting Chamber of Commerce of United States v. Whiting, 563 U.S. 582 (2011).

 

            In In re Consol. Hosp. Surcharge Appeals, the Court held that an express preemption provision that prohibited state taxes on payments from the Federal Employees Health Benefits Act (FEHBA) to insurance carriers did not expressly preempt a state law that imposes a tax on a provider that receives payment from a carrier that receives payment from the FEHBA fund.

 

            In Leonard v. Northwest Airlines, Inc., No. C0-99-948, 605 N.W.2d 425 (Minn. Ct. App. 2000), the Court of Appeals analyzed whether federal statute preempted claims that airline ticket reissuing charges were illegal penalties under state law. In concluding that the federal statute preempted the state claims, the court noted that it first must review the text of the statute, and if the text does not resolve the preemption question, then analyze the structure and purpose of the act. The statute in question contained a preemption clause stating that a state “may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier.” 49 U.S.C. § 41714(b)(l).

 

            Express preemption in federal public and subsidized is extremely rare, with an exception being preemption of local rent control. 24 C.F.R. § 246.1 (2012) (formerly 24 C.F.R. § 403.1). See HUD Housing Programs: Tenants' Rights §13.8.1.5 at 814 (National Housing Law Project, 4th ed. 2012 and Supplements) (also known as the Green Book).

https://www.nhlp.org/trainings-publications/

 

            In Milwaukee City Housing Authority v. Cobb, 849 N.W.2d 920, 354 Wis.2d 603 (2014), the Court of Appeals held that federal law does not preempt a Wisconsin statute that provides tenants the right to notice and cure where Congress did not explicitly mandate preemption of state law, Congress did not implicitly indicate an intent to occupy an entire field of regulation to the exclusion of state law, and state law did not actually conflict with federal law.

 

                        b.         Field preemption

 

            “If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted.” Flynn v. Am. Home Prods. Corp., 627 N.W.2d 342, 347 (Minn. Ct. App. 2001), quoting Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984). In Flynn, the Court concluded that the Food and Drug Administration’s comprehensive enforcement statutes precluded state fraud-on-the-FDA common-law tort and statutory consumer fraud claims. Id. at 348-49, citing Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341 (2001).

 

            In contrast, federal public and subsidized housing regulations and handbooks have state that the federal statutes and regulations work in tandem with state law. For public housing, see Public Housing Occupancy Guidebook, Part 5, and ¶17 Overview (United States Department of Housing and Urban Development, June 2003). For subsidized housing buildings and projects, see 24 C.F.R. §§ 880.607(b)(1)(iv), 882.511(e); HUD Handbook 4350.3: Occupancy Requirements of Subsidized Multifamily Housing Programs, 8-13(A)(5)(b), 8-13(B)(2)(d), 8-15(B)(2) (United States Department of Housing and Urban Development, Nov. 2013). For Section 8 Vouchers, see State and Local Law Applicability to Lease Terminations in the Housing Choice Voucher (HCV) Program, PIH 2009-18(HA) (June 22, 2009). See HUD Housing Programs: Tenants' Rights §13.8.1.5 at 813-14 (National Housing Law Project, 4th ed. 2012 and Supplements) (also known as the Green Book).

https://www.nhlp.org/trainings-publications/

 

            The Minnesota Supreme Court discussed the interplay between federal and state law when it analyzed conflict preemption in Housing and Redevelopment Authority of Duluth v. Lee, 852 N.W.2d 683 (Minn. 2014). The Court noted:

 

Congress declared that it is also federal policy "to assist States ... to remedy the unsafe housing conditions and the acute shortage of decent and safe dwellings for low-income families" and "to assist States ... to address the shortage of housing affordable to low-income families." 42 U.S.C. § 1437(a)(1)(A)-(B) (emphasis added). The statute therefore demonstrates congressional intent to have state regulations exist side-by-side with federal regulations of subsidized housing.

 

...

 

Pursuant to HUD's interpretation of its regulations, federal statutes and regulations provide a floor of protection for tenants in public housing, not a ceiling, and states may forbid lease provisions that federal law would permit.

 

Id., citing Barrientos v. 1801-1825 Morton LLC, 583 F.3d 1197 (9th Cir.2009) (rejected a preemption challenge to a Los Angeles ordinance that gave tenants in federally subsidized housing greater protection from eviction than did federal law). See L. McDonough and M. MacCreight, Wait a Minute: Slowing Down Criminal Activity Eviction Cases to Find the Truth, 41 Clearinghouse Review 55 (May/June 2007) and updated slide show.

http://povertylaw.homestead.com/WaitAMinute.html

 

                        c.         Conflict preemption

 

            The Minnesota Supreme Court analyzed conflict preemption in Housing and Redevelopment Authority of Duluth v. Lee, 852 N.W.2d 683 (Minn. 2014), where the Court was asked to determine whether federal subsidized housing law preemption application of state law limitation on late fees applied to public housing authority (PHA) subsidized housing. The Court began by discussing conflict preemption law. “Conflict preemption may arise in two different ways. First, a state law is preempted by means of conflict preemption if a party cannot simultaneously comply with both state and federal law. Second, a state law is preempted by means of conflict preemption if the state law is an obstacle to achieving the purpose of a federal law.” Id., at 687-88 (citations omitted).

 

            The Court then summarized the allegedly preemptive federal statute and regulation.

 

The "federal reasonableness standard" to which the HRA refers derives from the combination of a federal statute and a federal regulation. The relevant federal statute is 42 U.S.C. § 1437d(l )(2), which requires every PHA to "utilize leases which ... do not contain unreasonable terms and conditions." Notably, the statute does not mandate the inclusion of reasonable terms and conditions in a PHA's lease; it simply forbids the inclusion of any unreasonable terms and conditions. The relevant federal regulation is 24 C.F.R. § 966.4(b)(3) (2013), which provides that "[a]t the option of the PHA," a lease "may pro-vide for payment of penalties for late payment." (Emphasis added.) The language of the regulation is permissive, not mandatory.

 

Taken together, the statute and the regulation permit a PHA to include in a lease a provision specifying a reasonable late fee for overdue rent, but they do not require the inclusion of such a provision. Accordingly, a PHA can easily comply both with the applicable federal laws and regulations and with Minn.Stat. § 504B.177(a), either by specifying no late fee at all in a lease, or by specifying a late fee of eight percent or less that is not unreasonable.

 

Id. at 688.

 

            The state statute at issue was Minn. Stat. § 504B.177. In 2010 the Minnesota Legislature enacted Minn. Stat. § 504B.177 to regulate late fees. Previously late fees were regulated by the common law of liquidated damages. See discussion, infra, at VI.E.10.b.

 

Minn. Stat. § 504B.177 provides:

 

(a) A landlord of a residential building may not charge a late fee if the rent is paid after the due date, unless the tenant and landlord have agreed in writing that a late fee may be imposed. The agreement must specify when the late fee will be imposed. In no case may the late fee exceed eight percent of the overdue rent payment. Any late fee charged or collected is not considered to be either interest or liquidated damages. For purposes of this paragraph, the "due date" does not include a date, earlier than the date contained in the written or oral lease by which, if the rent is paid, the tenant earns a discount.

 

(b) Notwithstanding paragraph (a), if a federal statute, regulation, or handbook permitting late fees for a tenancy subsidized under a federal program conflicts with paragraph (a), then the landlord may publish and implement a late payment fee schedule that complies with the federal statute, regulation, or handbook.

 

Id.

 

            The Court rejected three arguments of the Housing and Redevelopment Authority of Duluth (HRA) that the statute conflicted with federal law. First, it argued that if it determined that a reasonable late fee is greater than eight percent of an overdue payment, it is impossible to comply with both the federal reasonableness standard and Minn. Stat. § 504B.177(a). The Court concluded that a public housing authority (PHA) “can easily comply both with the applicable federal laws and regulations and with Minn. Stat. § 504B.177(a), either by specifying no late fee at all in a lease, or by specifying a late fee of eight percent or less that is not unreasonable.” 852 N.W.2d at 688.

 

            The HRA next argued that the statute was an obstacle to achieving the purposes of federal law in that the late fee limitation interfered with congressional intent to give maximum flexibility to PHAs and to increase the supply of public housing. The Court noted:

 

Congress declared that it is also federal policy "to assist States ... to remedy the unsafe housing conditions and the acute shortage of decent and safe dwellings for low-income families" and "to assist States ... to address the shortage of housing affordable to low-income families." 42 U.S.C. § 1437(a)(1)(A)-(B) (emphasis added). The statute therefore demonstrates congressional intent to have state regulations exist side-by-side with federal regulations of subsidized housing.

 

...

 

Pursuant to HUD's interpretation of its regulations, federal statutes and regulations provide a floor of protection for tenants in public housing, not a ceiling, and states may forbid lease provisions that federal law would permit.

 

Id., citing Barrientos v. 1801-1825 Morton LLC, 583 F.3d 1197 (9th Cir.2009) (rejected a preemption challenge to a Los Angeles ordinance that gave tenants in federally subsidized housing greater protection from eviction than did federal law).

 

            The HRA then argued that the state statute permitted its late in excess of 8% of unpaid rent by providing:

 

If a federal statute, regulation, or handbook providing for late fees for a tenancy subsidized under a federal program conflicts with paragraph (a), then the landlord may continue to publish and implement a late payment fee schedule that com-plies with the federal statute, regulation, or handbook.

 

Minn. Stat. § 504B.177(b).

 

The Court concluded that

 

the plain and ordinary meaning of “conflicts with” in Minn. Stat. § 504B.177(b) refers to an incompatibility between the state standard for late fees for overdue rent in paragraph (a) and the federal standard referred to in paragraph (b). In other words, under section 504B.177(b), “a federal statute, regulation, or handbook providing for late fees ... conflicts with paragraph (a)” only if the state statute contains provisions that are incompatible with federal law.

 

852 N.W.2d at 693 (citations omitted). The Court found no conflict.

 

It is true that the federal and state standards differ, but the eight percent limitation on late fees (state standard) is not incompatible with the federal standard. Indeed, federal law does not expressly authorize any particular amount of fees or prohibit a state from setting a limitation on late fees that is more favorable to the tenant. The HUD Guidebook explicitly permits states to prohibit lease provisions beyond those prohibited by federal law and indicates that, in the case of a conflict, the provision most beneficial to the tenant prevails. Thus, the federal scheme allows individual states to have a different state standard on late fees, provided that the state standard does not permit late fees that are unreasonable under federal law.

 

Id. at 693-94.

 

            Preemption has been raised a couple of times in evictions alleging drug-related criminal activity. In Public Housing Agency for the City of St. Paul v. _____, No. HG-CV-08-4518, Order (Minn. Dist. Ct. 2nd Dist. Jan. 22, 2009) (Appendix 615) (Judge Monahan), the public housing landlord authority filed an eviction action, claiming that the police responded to call from the tenant about serious fight between tenant and guest involving knives, and found small amount of marijuana. The tenant claimed self defense and that she did not know about marijuana. The court concluded possession of a small amount of marijuana is not criminal activity under state law, and that the landlord presented no evidence of criminal conduct, disturbance, or impairment of the physical or social environment, health, safety, or enjoyment. The landlord also claimed that defense under Minn. Stat. § 504B.171 was preempted federal and state decisions interpreting the federal criminal activity statute. The court declined to rule on the issue, as it found that the landlord had not proven a breach of lease under federal law. In Maryland Park Apartments v. _____, No. CX-02-4044 (Minn. Dist. Ct. 2nd Dist. June 17, 2002) (Appendix 533), the court held that federal law and Rucker do not preclude Minnesota statute with greater tenant protection.

 

            For more on conflict preemption, see L. McDonough and M. MacCreight, Wait a Minute: Slowing Down Criminal Activity Eviction Cases to Find the Truth, 41 Clearinghouse Review 55 (May/June 2007) and updated slide show.

http://povertylaw.homestead.com/WaitAMinute.html

 

See also HUD Housing Programs: Tenants' Rights §13.8.1.5 at 812-16 (National Housing Law Project, 4th ed. 2012 and Supplements) (also known as the Green Book).

https://www.nhlp.org/trainings-publications/

 

B.        Summary of Eviction Actions and Court Procedure

 

            1.         Commencing the Action

 

            The unlawful detainer action is now called an eviction action under Minn. Stat. § 504B.001, Subd. 4. It is a summary proceeding, created by statute, to allow the landlord or owner of rental property to evict the tenant or possessor of the property. The plaintiff prepares a complaint, often using a form. The plaintiff files the case with the court administrator, who prepares a summons. The Minnesota Courts website contains the complaint and other housing forms.

http://www.mncourts.gov/GetForms.aspx?cat=Housing+-+Landlord-Tenant

 

            The defendant must be served at least seven days before the initial hearing, either by personal or substitute service. Service should be carefully scrutinized, since Minn. Stat. § 504B.331 (formerly § 566.06) requires strict compliance in service, not merely substantial compliance. Color-Ad Packaging, Inc. v. Kapak Industries, Inc., 285 Minn. 525, 526 n.1, 172 N.W.2d 568, 569 n.1 (1969), overruled on other grounds by In re Lake Valley Twp. Bd., Traverse Cnty. v. Lewis, 305 Minn. 488, 234 N.W.2d 815 (1975); Bloom v. American Express Co., 222 Minn. 249, 253, 23 N.W.2d 570, ____(1946); Koski v. Johnson, 837 N.W.2d 739 (Minn. Ct. App. 2013); Nieszner v. St. Paul Sch. Dist. No. 625, 643 N.W.2d 645, 649–50 (Minn. Ct. App. 2002). For more information on service defenses, see discussion at VI.C.

 

            2.         Answers and defenses

 

            There are many defenses to eviction action, although defendants may assert them orally without a written answer. The Table of Contents lists defenses. The Poverty Law website contains various answer forms.

http://povertylaw.homestead.com/ResidentialUnlawfulDetainer.html.

 

            3.         Filing, E-filing, Fees and Waivers

 

            The base filing fee for eviction actions is $285, but it can be as high as $299, which can include local district fees. The fee applies to both plaintiffs and defendants, and landlords and tenants, for the first document filed each party in a case. The court charges a separate fee for motions. The Minnesota Courts website lists court fees.

http://www.mncourts.gov/Help-Topics/Court-Fees.aspx

 

            If a defendant does not file anything and orally presents an answer or response to the plaintiff’s complaint, the court does not assess a fee to the defendant. Low income persons can request a fee waiver by filing an in forma pauperis application.

 

            Attorneys are required to e-file documents in eviction and other landlord and tenant actions in district court as in other actions. Minn. Gen. R. Prac. 14. It often takes several hours for an attorney e-filing to receive confirmation from the court that the submission has been accepted. The court website includes information and training on e-filing.

http://www.mncourts.gov/File-a-Case/File-in-A-District-Trial-Court.aspx

 

            Unrepresented defendants can file documents in person. An attorney representing a defendant can file quicker by having the defendant sign the document and file in-person, rather than having the attorney e-file it.

 

            The Hennepin County Housing Court accepts both the answer and in forma pauperis affidavit by e-filing. Counsel should be careful to list the affidavit as a confidential document, while the answer is a public document. Given the delays involved with e-filing, counsel should plan to complete e-filing the day before the arraignment.

 

            Recently there have been a number of in forma pauperis orders issued by a referee in Hennepin County that have required defendants to pay part of the filing or sheriff service fees even though they meet the statutory requirements for a fee waiver, such as receipt of means-tested public assistance, representation by a civil legal services program or volunteer attorney program based on indigency, or family income less than 125% of the Federal Poverty Line. Low-income defendants should be as complete as possible about income and expenses, including completing the second page of the affidavit, and even attaching a more detailed list of expenses than listed in the form.

 

            The Poverty Law website contains in forma pauperis forms, including a table of detailed debt and expenses that can be attached to the affidavit.

http://povertylaw.homestead.com/ResidentialUnlawfulDetainer.html

 

            4.         Arraignment and First Appearance

 

            In most courts, the initial hearing serves as an arraignment. If the defendant does not appear, the court will find for the plaintiff and issue a Writ of Recovery, formerly Writ of Restitution. If the defendant appears to contest the action, the court generally will schedule a trial for another day, usually within a week. While a written answer is not required, the courts require a filing fee if the defendant files an answer, unless the defendant obtains in forma pauperis status. If the defendant appears and does not contest the action, the court will find for the plaintiff, but might stay issuance of the Writ of Recovery for seven days.

 

                        a.         Hennepin County, Fourth Judicial District

 

            In the Fourth Judicial District for Hennepin County, a referee presides over the arraignment, which could include as many as 50 cases scheduled on the calendar. Cases are heard in Minneapolis at 1:15 (previously 12:45 pm., and before that 8:45 and 10:30 am.) Monday, Wednesday and Friday at the Hennepin County Government Center, C-300, 300 South 6th Street, Minneapolis, MN 55487.

http://www.mncourts.gov/Find-Courts/Hennepin/Housing-Court.aspx

http://www.mncourts.gov/Find-Courts/Hennepin.aspx.

 

            The clerk does a roll call before the arraignment begins. The order of cases in Hennepin County is judge requests, defaults, settled cases, disputed cases with counsel, and disputed cases without counsel. See Memorandum to Housing Court Staff from Sue Daigle (Oct. 3, 1996) (Appendix 173). If a trial is necessary, the referee generally will schedule it for another day. The court also may schedule an evidentiary hearing if needed to resolve pre-trial motions, such as motions for dismissal for improper service. Referees usually hear all motions and trials.

 

                        b.         Ramsey County, Second Judicial District

 

            In the Second Judicial District for Ramsey County, a referee presides over the arraignment. The cases are heard in St. Paul at 8:15 a.m. on Tuesday and Thursday at the Ramsey County Courthouse, 15 West Kellogg Boulevard, Saint Paul, MN 55102, on the 1st floor.

http://www.mncourts.gov/Find-Courts/Ramsey/RamseyCivilCourt.aspx

 

            If a trial is necessary, the referee generally will schedule it for another day. The court also may schedule an evidentiary hearing if needed to resolve pre-trial motions, such as motions for dismissal for improper service. Judges and not referees usually hear all motions beyond the arraignment, and trials.

 

                        c.         Anoka County, Tenth Judicial District

 

            In the Anoka County in the Tenth Judicial District, a judge presides over the arraignment, hearing cases in Anoka on Monday and Wednesday mornings 8:30 a.m. at the Anoka County Courthouse, 2100 3rd Ave., Anoka, MN 55303-2489. If a trial is necessary, the referee generally will schedule it for another day.

http://www.mncourts.gov/Find-Courts/Anoka.aspx

 

                        d.         St. Louis County, Sixth Judicial District

 

            In St. Louis County in the Sixth Judicial District, a referee presides over the arraignment. The cases are heard in Duluth on Monday afternoon and Friday morning at Duluth Courthouse, 100 North 5th Avenue West, Duluth, MN 55802-1285. Trials are held on the following Mondays and Fridays.

http://www.mncourts.gov/Find-Courts/Duluth.aspx

 

            5.         Removal of the Judicial Officer

 

            It is unclear where a party may opt out of a Housing Court referee hearing by filing a written request the day before the first hearing, and the case will be referred to a judge. Minn. R. Gen. Prac. § 602 provides this right. Removal under this rule allows a party to remove a referee have a judge assigned to the case, but still could remove the judge as discussed below.

 

            In 2014 the Minnesota Legislature amended Minn. Stat. § 484.013, which created housing courts in Hennepin and Ramsey Counties. Subdivision 3 used to provide “Section 484.70, subdivision 6, applies to the housing calendar program.” Minn. Stat. § 484.70 covers court referees in general, and provides: “Subd. 6.Objection to referee. No referee may hear a contested trial, hearing, motion or petition if a party or attorney for a party objects in writing to the assignment of a referee to hear the matter. The court shall by rule, specify the time within which an objection must be filed.” The amended § 484.013, Subd. 3 now states “Section 484.70, subdivision 6, does not apply to the housing calendar program.”

 

            While it was the intention of the Minnesota Legislature to eliminate removal of housing court referees, Minn. R. Gen. Prac. § 602 has not been amended.

 

            A party still may remove a specific referee or judge from a case upon a written notice of removal. “The notice shall be served and filed within ten days after the party receives notice of which judge or judicial officer is to preside at the trial or hearing, but not later than the commencement of the trial or hearing.” Minn. R. Civ. P. 63.03. Unless the parties receive a notice of judicial assignment, which does not happen in eviction cases in the Second and Fourth Districts, the deadline for a judicial officer removal is before the hearing begins. Citizens State Bank of Clara City v. Wallace, 477 N.W.2d 741, 742 (Minn. Ct. App. 1991). Once a party appears before that officer, the party may not remove the officer. State v. Pierson, 368 N.W.2d 427, 432 (Minn. Ct. App. 1985).

 

            When a party files a notice of removal, the court assigns the case to either another referee or a judge. The Poverty Law website contains forms.

http://povertylaw.homestead.com/ResidentialUnlawfulDetainer.html

 

            6.         Hennepin and Ramsey Housing Courts Administration Offices

 

            Hennepin County Housing Court administrative services are divided into two offices, with one office on the Second Floor skyway public service level handling eviction action case filings and public service information, and the Third Floor Housing Court (formerly on the Seventeenth Floor), which houses courtrooms and clerks office handling other services. See Hennepin County District Court, Access, Filing & Information Are Moving (Appendix 174). The Housing Court issued a May 15, 1996, Order approving acceptance of uncertified checks from Legal Aid and other law firms. The Housing Court retains discretion to decide whether to accept uncertified checks from social service agencies. It takes quite a bit longer for the court to process and disperse uncertified funds, so if quick dispersal of funds is important to the tenant, the tenant or tenant's attorney should submit funds by certified check. (Appendix 174A). The address is Hennepin County Government Center, C-300, 300 South 6th Street, Minneapolis. The court website is http://www.mncourts.gov/Find-Courts/Hennepin/HennepinHousingCourt.aspx

 

            The Ramsey County Housing Court is at Ramsey County Courthouse, Room 170, 15 West Kellogg Boulevard, Saint Paul. The website is http://www.mncourts.gov/Find-Courts/Ramsey/RamseyCivilCourt.aspx

 

            7.         Trial

 

            The court usually schedules trials within a week of the arraignment, but the parties can agree to a later date. At trial, the plaintiff has the burden of proof by preponderance of the evidence, and the defendant may raise numerous statutory and common law defenses. If the defendant prevails, the plaintiff may not evict the defendant at this time.

 

            8.         Execution and enforcement of the writ of recovery

 

            If the plaintiff prevails, the court may immediately issue a writ of recovery, which is a 24-hour eviction notice, or stay issuance of the writ for up to seven days. The plaintiff then must purchase the writ from the court and arrange for the sheriff or police to deliver the writ.

 

             If the defendant does not move within 24 hours after delivery of the writ, the plaintiff must (1) schedule the sheriff or police to return to evict the tenant and (2) send a letter to the tenant stating the date and time when the sheriff will return.

 

            When the sheriff or police return with the plaintiff, the plaintiff then can change the locks. The plaintiff must store remaining personal property. The landlord must prepare an inventory of the property in the presence of the sheriff.

 

            The plaintiff must store the defendant's property, either on site for 28 days (formerly 60 days), or with a storage company for 60 days. If the plaintiff stores the property on-site, the defendant has 28 days to return to retrieve it without charge from the plaintiff. Afterward the plaintiff has a lien on the property for moving and storage costs. The plaintiff should send the defendant a 14 day letter stating the date, time, and location of sale or disposal of remaining property.

 

            If the tenant removes some but not all of the property during this process, the landlord should continue and complete the process unless the landlord can confirm that the tenant has abandoned living there.

 

            For more information, see discussion at VIII.B.

 

            9.         Judge Review and Appeal

 

            Either party may appeal from entry of judgment, within 15 days of entry of judgment, expanded in 2013 from 10 days. If the case was heard by a referee in the Second or Fourth Judicial Districts (Ramsey and Hennepin Counties), a party may request district court judge review of the decision within 10 days of the earlier of oral announcement or service of the decision, but should request stay or vacation of entry of judgment pending review to preserve the right to appeal. Minn. Stat. § 484.013, Subd. 6; Minn. Gen. R. Prac. 611.

 

            Outside of Ramsey and Hennepin Counties, referee decisions are governed by Minn. Stat. § 484.70, Subd. 7, providing for review with notice served and filed within ten days of effective notice of the recommended order or finding.

 

            For more information on judge review and appeal, see discussion at IX and X. The Poverty Law website contains judge review forms.

http://povertylaw.homestead.com/ResidentialUnlawfulDetainer.html

 

            10.       Expungement

 

            The court has common law and statutory power of expunge or seal court files. For more information, see discussion at VIII.E.5. The Poverty Law website contains expungement forms.

http://povertylaw.homestead.com/ResidentialUnlawfulDetainer.html

 

            11.       Housing Advice Clinics

 

            There are several court-based housing advice clinics in Minnesota. See Referral List for Clinics.

http://povertylaw.homestead.com/files/Reading/0Referrals.htm

 

            Professional rules allow attorneys to provide limited service at pro bono advice clinics without checking for conflicts. Minnesota Rules of Professional Conduct 6.5 provides:

 

Rule 6.5 Pro Bono Limited Legal Services Programs

 

            (a) A lawyer who, under the auspices of a program offering pro bono legal services, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:

 

(1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and

 

(2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7or 1.9(a) with respect to the matter.

 

(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by the rule.

 

Comment

 

[1] Legal services organizations, courts and various organizations have established programs through which lawyers provide short-term limited legal services - such as advice or the completion of legal forms - that will assist persons to address their legal problems without further representation by a lawyer. In these programs, such as legal-advice hotlines, advice-only clinics or pro se counseling programs, a client-lawyer relationship is established, but there is no expectation that the lawyer's representation of the client will continue beyond the limited consultation. Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation. See, e.g., Rules 1.7, 1.9 and 1.10.

 

[2] A lawyer who provides short-term limited legal services pursuant to this rule must secure the client's informed consent to the limited scope of the representation. See Rule 1.2(c). If a short-term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel. Except as provided in this rule, the Rules of Professional Conduct, including Rules 1.6 and 1.9(c), are applicable to the limited representation.

 

[3] Because a lawyer who is representing a client in the circumstances addressed by this rule ordinarily is not able to check systematically for conflicts of interest, paragraph (a) requires compliance with Rule 1.7 or 1.9(a) only if the lawyer knows that the representation presents a conflict of interest for the lawyer, and with Rule 1.10 only if the lawyer knows that another lawyer in the lawyer's firm is disqualified by Rule 1.7 or 1.9(a) in the matter.

 

[4] Because the limited nature of the services significantly reduces the risk of conflicts of interest with other matters being handled by the lawyer's firm, paragraph (b) provides that Rule 1.10 is inapplicable to a representation governed by this rule except as provided by paragraph (a)(2). Paragraph(a)(2) requires the participating lawyer to comply with Rule 1.10 when the lawyer knows that the lawyer's firm is disqualified by Rule 1.7 or 1.9(a). By virtue of paragraph (b), however, a lawyer's participation in a short-term limited legal services program will not preclude the lawyer's firm from undertaking or continuing the representation of a client with interests adverse to a client being represented under the program's auspices. Nor will the personal disqualification of a lawyer participating in the program be imputed to other lawyers participating in the program.

 

[5] If, after commencing a short-term limited representation in accordance with this rule, a lawyer undertakes to represent the client in the matter on an ongoing basis, Rules 1.7, 1.9(a) and 1.10 become applicable.

 

Minn. R. Prof'l. Cond. 6.5. Rule 1.10 governs conflicts of interest.

 

            See L. McDonough, “Ethical Representation of Landlords and Tenants.”

http://povertylaw.homestead.com/files/Reading/ETHICAL_CONCERNS_IN_REPRESENTING_LANDLORDS_AND_TENANTS_REVISED.pptx

 

B1.      Eviction Remedy in Other Actions

 

            Minn. Stat. § 504B.001, Subd. 4 provides “‘Evict’ or ‘eviction’ means a summary court proceeding to remove a tenant or occupant from or otherwise recover possession of real property by the process of law set out in this chapter. Minn. Stat. §§ 504B.281-504B.371 describe the action and the availability of the eviction writ of recovery.

 

            The statutes do not provide for the writ of recovery in actions other than evictions as discussed above, or in rent escrow actions in limited circumstances. Minn. Stat. § 504B.385, Subd. 2.

 

            Ejectment actions are discussed briefly in Minn. Stat. Ch. 559, specifically §§ 559.07, 559.08, 559.10, and 559.14. Owners use ejectment actions to obtain possession of the property and damages, while the eviction action can provide possession or rent, but not both.

 

            Absent one of the above actions, eviction is not a remedy.

 

C.        Creation of a Landlord-Tenant Relationship.

 

            A landlord-tenant relationship arises when one person occupies the premises owned by another with or without consent, in subordination to the other person's title. Gates v. Herberger, 202 Minn. 610, 612, 279 N.W. 711, 712 (1938). The relationship is created by a conveyance of property for a period less than the conveying party has in the premises, in consideration of rent, leaving the landlord a reversionary interest. State v. Bowman, 202 Minn. 44, 46, 279 N.W. 214, 215 (1938). See 10B DUNNELL MINN. DIGEST 2D Landlord and Tenant § 1.00.

 

            The term "lease" generally is used to refer to the physical document creating the tenancy, although it is common to refer to a tenancy created by an oral agreement as an "oral lease". The lease is both a conveyance of the right to possession of real property and a contract creating the terms for the landlord-tenant relationships. Local Oil Company, Inc. v. City of Anoka, 303 Minn. 537, 539, 225 N.W. 2d. 849, 851 (1975). Often the term "lease" and "tenancy" are used interchangeably to describe the relationship between the landlord and tenant. The tenant's interest in the property is a leasehold interest. Sanford v. Johnson, 24 Minn. 172, 173 (1877). While a tenancy may be created by an oral or written lease, it also may be created by operation of law.

 

D.        Types of Private Tenancies

 

            0.         Definition of tenancy, lease or leasehold interest

 

            A lease is a conveyance of lands or tenements for a term less that the party conveying for rent or other consideration. Gruman v. Investors Diversified Services, Inc., 247 Minn. 502, 78 N.W.2d 377 (1956); Place v. St. Paul title Ins. & Trust co., 67 Minn. 126, 69 N.W. 706 (1897). See discussion, supra, at I.C.

 

            While Minn. Stat. § 504B.001 defines landlord and tenants of residential properties for the purposes of the rights and obligations provided in Chapter 504B, see discussion, infra, at I.E, it does not eliminate earlier definitions in the common law.

 

            1.         Fixed term

 

            A tenancy for a fixed term also is called a tenancy for years, and can be for any duration. Generally, during the term of the lease, the terms of the agreement cannot be changed without the consent of the parties. The landlord cannot evict the tenant unless the tenant has breached (violated) the lease. The tenant cannot terminate the lease before the end of the term without the landlord's consent, unless a constructive eviction occurs or the tenant enters the miliary service and gives written notice to the landlord.

 

            Some term leases allow the landlord and tenant to terminate the lease before the end of the term with notice. However, in some cases, the notice period may be unconscionable. See Pickerign v. Pascal Marketing, Inc., 303 Minn. 442, 446, 228, N.W. 2d 562, 565 (1975) (lease providing for 30-day notice to service station operator may be unconscionable). If a term lease becomes void under the statute of frauds, the law will imply the creation of a tenancy at will. Fisher v. Heller, 174 Minn. 233, 236, 219 N.W. 79, 80 (1928).

 

            When a landlord has proposed a written term lease, but the tenants took occupancy without signing it and the landlord did not provide a copy to the tenants, the written lease is not applicable to the tenancy, leaving the landlord and tenant in a month-to-month oral tenancy. Ochoa v. Kenneth, UD-1950919505 (Minn. Dist. Ct. 4th Dist. Oct. 20, 1995) (Appendix 79). But see Line v. Reynolds, Number UD-1960612512 (Minn. Dist. Ct. 4th Dist. Aug 12, 1996) (Appendix 175) (Consolidated unlawful detainer (now called eviction) and rent escrow actions; landlord could require tenant to sign a term lease rather than continue as a month-to-month tenant).

 

            A term tenancy should not terminate upon sale of property by the owner, Fisher v. Heller, 174 Minn. 233, 236, 219 N.W. 79, 80 (1928) (tenancy at will).

 

            1.a.      Tenancy for life

 

            In Jacobson v. Meinen Holdings, LLC, No. 28-CV-16-645 (Minn. Dist. Ct. 3rd Dist., Houston County, Feb. 15, 2017) (Appendix 807) (Judge Sturino), the landlord in an email offered a tenancy for life, but the proposed lease which was not signed proposed a termination provision. The subsequent email and mail correspondence confirmed the former and that the landlord would continue to participate in the Section 8 program. After the tenant complained about conditions, the landlord attempted to terminate the tenancy. The tenant filed a rent escrow action, with the court ordering that (1) landlord is required to make repairs, (2) tenant has the right to lease the property for life, through the part performance exception to the statute of frauds, (3) landlord is required to participate in section 8 program for remainder of lease, (4) the landlord shall reimburse the tenant for expenses incurred in connection with repair issues, (5) the corporate veil was pierced to make the entity and the shareholder liable, and (6) $500 statutory attorneys' fees for tenant.

 

            1b.       Written lease terms and provisions may continue after lease expiration

 

            See discussion, infra, at VI.G.27.

 

            2.         Month-to-month, year-to-year, and other periodic tenancies

 

            A periodic tenancy is a tenancy made up of an indefinite series of rental periods, which either party may terminate by giving written notice before the last rental period. A periodic tenancy also is created where a tenant of urban real estate holds over after expiration of a lease, with a period of the tenancy being the period between payments. Minn. Stat. §§ 504B.135 (formerly 504.06), 504.141 (formerly § 504.07). Upon expiration of an initial term lease, without any action by the parties to renew the lease, the parties' continuation of the landlord-tenant relationship becomes a month-to-month tenancy and cannot be based on the original written lease. Urban Investments, Inc. v. Thompson, No. UD-1950626525 (Minn. Dist. Ct. 4th Dist. Aug. 10, 1995) (Appendix 80). When a landlord has proposed a written term lease, but the tenants took occupancy without signing it and the landlord did not provide a copy to the tenants, the written lease is not applicable to the tenancy, leaving the landlord and tenant in a month-to-month oral tenancy. Ochoa v. Kenneth, UD-1950919505 (Minn. Dist. Ct. 4th Dist. Oct. 20, 1995) (Appendix 79).

 

            If the interval between rent payments is a month, a 30-day notice is not adequate if there are 31 days in the month. Johnson v. Schoen, 2004 WL 614857 at *1 (Minn. Ct. App. Mar. 30, 2004) (unpublished) (“Johnson was obligated to give a one-month (not 30 days) advance notice to effectively terminate her tenancy. The record clearly shows that she did not do this.”).

 

            In the most common form, the month-to-tenancy, written notice must be given and received before the last month of the tenancy. Minn. Stat. § 504B.135 (formerly 504.06); Johnson v. Ceil Hamm Brewing Company, 213 Minn.12, 16, 4 N.W.2d 778, 781 (1942); Oesterreicher v. Robertson, 187 Minn. 497, 501, 245 N.W. 825, 826 (1932). See Mako v. Naditch & Sons, 303 Minn. 6, 7, 226 N.W.2d 289, 290 (1975) (strict compliance required); Eastman v. Vetter, 57 Minn. 164, 166, 58 N.W. 989, 989-90 (1894) (defective notice void and not effective at end of next month). A periodic tenancy does not terminate upon the death by either party. State Bank of Loretto v. Dixon, 214 Minn. 39, 43, 7 N.W.2d 351, 353 (1943).

 

            In State v. Lilienthal, 889 N.W.2d 780 (Minn. Feb. 1, 2017) the appellant met the victim through a mutual friend and, after learning that the victim needed a place to stay, agreed to rent a room in his house to the victim for $100 per week. The victim and the appellant had a disagreement and appellant asked victim to move out. That same day, because victim refused to move out, appellant poured gasoline on the victim and lit the gasoline on fire. The appellant was convicted of first-degree premeditated murder. He appealed arguing, among other things, that the district court erred in denying his request to give a jury instruction on defense of dwelling. The Minnesota Supreme Court found that the district court did not abuse its discretion because the defense of dwelling cannot be asserted against those with "rights to the dwelling" and the victim had a tenancy at will with the appellant which entitled him to written notice of the termination of the tenancy. The court explained that the appellant's arguments that (I) the victim's tenancy terminated when the appellant expressed that he did not want the victim to continue to live with him and (ii) the victim had not paid rent in a while both failed because the appellant did not provide a notice in writing to the victim to terminate the tenancy.

 

            In Shirk v. Hoffman, 57 Minn. 230, 58 N.W. 990 (Minn. 1894), John Hoffman and Frank Hoffman ("the Hoffman's") leased a house from Shirk, on a month-to-month basis, beginning on December 1, 1890. The Hoffman's continued to reside at the property, and continued to pay rent, until February 1, 1892. The Hoffman's then vacated and stopped paying rent without providing any notice to Shirk. Shirk filed suit seeking rent for the remainder of the year. The trial court entered judgment for Shirk and awarded him two month's rent. The Minnesota Supreme Court reversed, holding that when a month-to-month tenant holds over after that month and continues to pay rent without entering into a new agreement, a month-to-month tenancy is created. The appellate court further held that the month-to-month tenancy can only be terminated upon reasonable notice by either party.

 

            In Bongard v. Premium Tax Servs., Inc., No. 27CVHC 12-6392 207 (Minn. Dist. Ct. 4th Dist. Dec. 5, 2012) (Appendix 695), in a commercial eviction action, the court granted partial summary judgment in favor of the tenant and dismissed the landlord’s claims for eviction for breach of lease due to the lack of a right of re-entry clause in the lease, and termination of lease for public nuisance due to the lack of notice from a prosecuting attorney as required by Minn. Stat. § 617.81. The court noted the lease was year-to-year rather than month-to-month requiring a three month notice under Minn, Stat. § 504B.135, but if the effective date was after the action was commenced, the action would not have accrued. Because the lease’s starting date remained a disputed fact, the issue was set for termination at trial.

 

            It is unclear whether the landlord has the right to unilaterally modify the terms of a periodic tenancy by giving the same kind of notice as is required to terminate the tenancy. Landlords argue that it is a common practice for landlords to give notice of changes in the rent or building rules, and for these changes to be accepted as part of the lease without the need for specifically terminating the existing tenancy or informing the tenant that the tenant must move if the tenant does not accept the new terms. Alternatively, landlords argue that such a notice is actually a notice to terminate the old periodic tenancy combined with an offer to re-rent the premises on new terms.

 

            Tenants argue that if the tenant objects to the rent increase, the tenant cannot be bound to a new lease by implication. See Urban Investments, Inc. v. Thompson, UD-1950626525 (Minn. Dist. Ct. 4th Dist. Aug. 10, 1995) (Appendix 80) (additional provisions that were not part of the original lease do not create additional obligations on the part of the tenant, without an agreement to make the additional provisions part of a new lease); Fundamentals of Landlord/Tenant Law and Practice, supra, § 4.1-02(3) at 3-4 (MCLE 1988). However, a notice that explicitly terminates an existing tenancy, offers to renew the lease at an increased rent, and specifies that the offer may be accepted by remaining in possession past the expiration of the original term should be effective.

 

            For notice defenses, see discussion, infra, at VI.F.

 

            3.         Tenancy at will

 

            Historically there was some disagreement over whether a periodic tenancy was a tenancy at will. See State Bank of Loretto v. Dixon, 214 Minn. 39, 43 n.1, 7 N.W.2d 351, 353 n.1 (1943). Compare 10b Dunnell Minn. Digest 2d Landlord and Tenant § 1.02 and Fundamentals of Landlord/Tenant Law and Practice, § 4.1-02(4) at 4. In any event, a tenancy at will generally has the same legal effect as a periodic tenancy.

 

            A tenancy at will has an uncertain term, and is created where the parties agree to a tenancy without a fixed term, Weidemann v. Brown, 190 Minn. 33, 40-41, 250 N.W. 724, 727 (1933); where the lease is void, Hagen v. Bowers, 182 Minn. 136, 137-38, 233 N.W. 822, 823 (1931); or where a tenant remains on the property after expiration or termination of the lease (holdover tenant) and continues to pay rent, Paget v. Electrical Engineering, 82 Minn. 244, 246, 84 N.W. 800, 801 (1901). Where the parties relationship was a personal and domestic partnership, rather than a relationship of landlord-tenant, vendor-vendee, or arms-length contracting parties, the relationship may be a tenancy-at-will. Charboneau v. Johnson, UD-1950817510 (Minn. Dist. Ct. 4th Dist. Aug. 30, 1995) (Appendix 81). Where there is a landlord-tenant relationship, but the term is indefinite and the rent is unclear, the relationship may be a tenancy-at-will. Hansen v. Trom, UD-1950926503 (Minn. Dist. Ct. 4th Dist. Nov. 6, 1995) (Appendix 82).

 

            Permission is all that is needed from an owner to create a tenancy-at-will, and rent or other obligations are not needed. Thompson v. Baxter, 107 Minn. 122, 119 N.W. 797 (1909); Lee v. Regents of the University of Minnesota, 672 N.W.2d 366 (Minn. Ct. App. 2003) (followed Thompson).

 

            Either party may terminate a tenancy at will in the same manner as a periodic tenancy. Minn. Stat. § 504B.135 (formerly 504.06). A tenancy at will does not terminate upon sale of property by the owner, Fisher v. Heller, 174 Minn. 233, 236, 219 N.W. 79, 80 (1928) or upon death of either party. See R. Schoshinski, American Law Of Landlord And Tenant, § 10.3 (Bancroft-Whitney 1980 and Supp. 2008).

 

            In State v. Lilienthal, 889 N.W.2d 780 (Minn. Feb. 1, 2017) the appellant met the victim through a mutual friend and, after learning that the victim needed a place to stay, agreed to rent a room in his house to the victim for $100 per week. The victim and the appellant had a disagreement and appellant asked victim to move out. That same day, because victim refused to move out, appellant poured gasoline on the victim and lit the gasoline on fire. The appellant was convicted of first-degree premeditated murder. He appealed arguing, among other things, that the district court erred in denying his request to give a jury instruction on defense of dwelling. The Minnesota Supreme Court found that the district court did not abuse its discretion because the defense of dwelling cannot be asserted against those with "rights to the dwelling" and the victim had a tenancy at will with the appellant which entitled him to written notice of the termination of the tenancy. The court explained that the appellant's arguments that (I) the victim's tenancy terminated when the appellant expressed that he did not want the victim to continue to live with him and (ii) the victim had not paid rent in a while both failed because the appellant did not provide a notice in writing to the victim to terminate the tenancy.

 

            In Wajda v. Schmeichel, No. A18-0060, 2018 Minn. App. Unpub. LEXIS 981, 2018 WL 6165295 (Minn. Ct. App. Nov. 26, 2018) (unpublished), rev. den. (Minn. Feb. 19, 2019), the court reversed the district court decision awarding eviction. The court held that an eviction for breach of lease was improper where the lease is void on public-policy grounds because the landlord had rented the property without a license required by Minneapolis. Id. at *5-8. The court then noted that because the lease was void, the parties created a tenancy at will by paying and accepting rent. The court held the eviction for holdover after notice to quit was improper because landlord did not give proper written notice to the tenant appellant terminating the tenancy at will by giving only 8 days notice. Id. *8-9.

 

            In Ricks v. _____, No. 27-CV-HC-14-6380 (Minn. Dist. Ct. 4th Dist. Dec. 18, 2014) (Appendix 797), the court granted judgment and costs for tenant where the parties had a written lease with no end date and no rent, creating a tenancy at will requiring three month written notice, so the one month notice was ineffective. The parol evidence rule precluded evidence of landlord's intent of a term lease.

 

            For notice defenses, see discussion, infra, at VI.F.

 

            4.         Tenancy at sufferance

 

            A tenancy at sufferance describes the legal limbo which exists when a tenant holds over after expiration or termination of the lease and the landlord does not accept rent. Weidemann v. Brown, 190 Minn. 33, 40-41, 250 N.W. 724, 727 (1933). It is not a true tenancy because there is no landlord/tenant relationship between the parties, but the landlord must bring an eviction (formerly unlawful detainer) action to evict the tenant. Minn. Stat. § 504B.285 (formerly § 566.03), 504B.301 (formerly § 566.02).

 

            In Shirk v. Hoffman, 57 Minn. 230, 58 N.W. 990 (Minn. 1894), John Hoffman and Frank Hoffman ("the Hoffman's") leased a house from Shirk, on a month-to-month basis, beginning on December 1, 1890. The Hoffman's continued to reside at the property, and continued to pay rent, until February 1, 1892. The Hoffman's then vacated and stopped paying rent without providing any notice to Shirk. Shirk filed suit seeking rent for the remainder of the year. The trial court entered judgment for Shirk and awarded him two month's rent. The Minnesota Supreme Court reversed, holding that when a month-to-month tenant holds over after that month and continues to pay rent without entering into a new agreement, a month-to-month tenancy is created. The appellate court further held that the month-to-month tenancy can only be terminated upon reasonable notice by either party.

 

            4a.       Analyzing holder over tenancies

 

            When the tenant remains on the property following the end of the tenancy, either after a term lease expires or a periodic or at-will tenancy if terminated with proper notice, several relationships between the parties can be implied based on their conduct.

 

                        a.         Tenants does not pay or landlord does not accept rent: tenancy at sufferance (no tenancy)

 

            The tenant remaining on the property without payment and acceptance of create does not create an ongoing tenancy. The result is a tenancy at sufferance, which actually is not a tenancy. If the tenant does not vacate the property, the landlord must commence an eviction action. See discussion, supra, at I.D.4.

 

            The landlord could sue the tenant after vacating the property for rent due under the lease. See discussion, infra, at XII.C.1. 

 

                        b.         Tenant pays and landlord accepts rent: month-to-month tenancy

 

            Minn. Stat. § 504B.141 provides:

 

URBAN REAL ESTATE; HOLDING OVER.

When a tenant of urban real estate, or any interest therein, holds over and retains possession after expiration of the lease without the landlord's express agreement, no tenancy for any period other than the shortest interval between the times of payment of rent under the terms of the expired lease shall be implied.

 

The statute and its predecessors date back to 1901. 1901 Minn. Laws Ch. 31; Minn. Stat. § 3333 (1905); Minn. Stat. § 68.12 (1913); Minn. Stat. § 504.07 (1927), recodified to the current statute in 1999.

 

            Prior to the enactment of 1901 Minn. Laws Ch. 31, the origin of Minn. Stat. § 504B.141, if a tenant for a term remained in possession and paid rent after the termination of the lease, the law implied a lease for another term upon the same conditions. Shirk v. Hoffman, 57 Minn. 230, 231, 58 N.W. 990 (1894). "The purpose of the act was to remove the hardships of the rule as to those cases where the parties had not made any provisions in the lease with reference to a renewal." Slafter v. Siddall, 97 Minn. 291, 292, 106 N.W. 308 (1906).

 

            The resulting tenancy is a month to month tenancy. Mid Continent Management Corporation v. Donnelly, 372 N.W.2d 814, 816 (Minn. App. 1985) (interpreting Minn. Stat. § 504.07, the predecessor of Minn. Stat. § 504B.141). Either party can terminate the tenancy with a one-month written notice. Minn. Stat. § 504B.135 (formerly § 504.06); Johnson v. Theo Hamm Brewing Co., 213 Minn. 12, 16, 4 N.W.2d 778, 781 (1942). See discussion, supra, at I.D.2, and infra, at VI.F.1.

 

                        c.         Automatic renewal clauses

 

See discussion, infra, at I.D.10.

 

            5.         Subtenancies and assignments

 

            A subtenancy is created when a tenant transfers the tenant's possessory interest under the lease to another for less than the whole term of the lease. Warnert v. MGM Properties, 362 N.W.2d 364, 367 (Minn. Ct. App. 1985). A subtenancy creates a landlord tenant relationship between the tenant-sublessor and subtenant. Privity of estate exists between the landlord and the tenant, and the sublessor and the subtenant, but not between the landlord and the subtenant. See R. Schoshinski, American Law Of Landlord And Tenant, §§ 8.11-8.12 (Bancroft-Whitney 1980 and Supp. 2008). Generally, termination of the prime lease terminates the subtenant's possessory rights under the sublease, but surrender of the prime lease does not terminate the sublease. It simply causes the lessor to "step down" to the position of the sublessor on the sublease. Warnert, 362 N.W.2d at 367-69. A tenant may not create a sublease for a time period identical to the tenants lease with the landlord, and co-tenants of a landlord may not create a sublease between themselves. Hansen v. Trom, UD-1950926503 (Minn. Dist. Ct. 4th Dist. Nov. 7, 1995) (Appendix 82).

 

            The writ cannot be enforced against a subtenant who was not a party to the eviction (unlawful detainer) action nor named in the writ of restitution. See Kowalenko v. Haines, No. C6-85-1365 (Minn. Ct. App., July 24, 1985) (attached as Appendix 4). In Kowalenko, the petitioner had subleased the apartment from the former tenants. The writ was enforced against the petitioner, pursuant to an unlawful detainer action against former tenants, but not the petitioner. The petitioner was not named in the writ. The court ordered the landlord to return possession of the apartment and petitioners personal property to her, pursuant to Minn. Stat. § 504B.375 (formerly § 566.175).

 

            An assignment is created when a tenant transfers the tenant's possessory interest under the lease for the full remaining term of the lease. Kostakes v. Daly, 246 Minn. 312, 315-16, 75 N.W.2d 191, 193-94 (1956). Where a third person is in possession of the premises under a lease, the law presumes that the lease has been assigned by the lessee to such person, but the presumption is rebuttal. O'Neal v. A.F. Oys & Sons, 216 Minn. 391, 394, 13 N.W.2d 8, _____(1944). However, the reservation of the right to collect rents, reenter in case of default, and enter to make repairs creates a sublease, rather than an assignment. Judd v. Landin, 211 Minn. 465, 472, 1 N.W.2d 861, 865 (1942).

 

            An assignment leaves privity of estate only between the landlord and the assignee, and privity of contract between the tenant-assignor and the assignee. Kostakes, 246 Minn. at 316, 75 N.W.2d at 194. However, in some cases the assignee may be an equitable assignee, subject to the covenants and obligations of the agreement between the landlord and tenant-assignor. Baehr v. Penn-O-Tex Oil Corp., 258 Minn. 533, 536, 104 N.W.2d 661, (1960). The assignee is liable for rent only during the time the assignment. O'Neil v. A.F. Oys & Sons, 216 Minn. 394-95, 13 N.W.2d at . However, the landlord and the assignee could agree that the assignee would pay prior rent. Additionally, if the assignee vacated before the end of the assignment period, the assignee could be liable for rent for the balance of the assignment period.

 

            A landlord may prohibit assignment and subletting by the terms of the lease, or limit assignment and sublet to the landlord's sole consent. A landlord has no duty to agree to an assignment or sublease where the tenant desires an early termination of the lease and proposes an assignment or sublease to mitigate damages. Gruman v. Investors Diversified Services, Inc., 247 Minn. 502, 505-08, 78 N.W.2d 377, ____ (1956). A landlord may condition consent to assignment on specific terms or restrictions. Leonard, Street & Deinard v. Marquette Assocs., 353 N.W.2d 198, 200-01 (Minn. Ct. App. 1984). However, acceptance by the landlord of rent from the assignee with knowledge of the assignment waives a provision requiring consent of the landlord to any assignment. O'Neal v. A.F. Oys & Sons, 216 Minn. at 394, 13 N.W.2d at .

 

            In Southcross Commerce Center, LLP v. Tupy Properties, LLC, 766 N.W.2d 704 (Minn. Ct. App. 2009), the court addressed whether the warehouse occupant was a subtenant or assignee. The district court granted the occupant’s motion for summary judgment, concluding that the occupant was a subtenant and not an assignee and did not have liability to the landlord. The court first reviewed the case law.

 

"A lease is both an executory contract and a present conveyance, and creates a privity of contract and a privity of estate between the lessor and the lessee." Davidson v. Minn. Loan & Trust Co., 158 Minn. 411, 415, 197 N.W. 833, 834 (1924). When the lessee transfers all of its interest in the lease to another for the entire term of the lease, an assignment of the lease occurs and privity of estate is created between the original lessor and assignee, "giv[ing] the original lessor the right to enforce against the [assignee] all the covenants which run with the land, including the covenant to pay rent." Id. at 415-16, 197 N.W. at 834-35; see also Baehr v. Penn-O-Tex Oil Corp., 258 Minn. 533, 536, 104 N.W.2d 661, 664 (1960) (stating that "[a]n assignment occurs where, and only where, a lessee transfers his entire interest" and that "the liability of an assignee arises by privity of estate."); Anderson v. Ries, 222 Minn. 408, 414, 24 N.W.2d 717, 721 (1946) ("Where a lessee transfers the whole term for which premises were leased to him, leaving no reversionary interest in himself, it amounts to an assignment....").

 

But when a tenant transfers less than its entire interest under the lease, or transfers its interest for less than the whole term of the lease, it creates a subtenancy. Warnert v. MGM Props., 362 N.W.2d 364, 367 (Minn. Ct. App.1985), review denied (Minn. Apr. 18, 1985); see also Anderson, 222 Minn. at 414, 24 N.W.2d at 721 ("[W]here the transfer is a lease of the premises for only a portion of the unexpired balance of the term, the transaction is a sublease...."). "Neither privity of estate nor privity of contract exist[s] between the subtenant and the [original] lessor." Warnert, 362 N.W.2d at 367.

 

Accordingly, in order for appellant to hold RHS liable for the unpaid rent under the lease, appellant must establish that RHS was an assignee to the lease and not just a subtenant of Tupy. Appellant acknowledges that there is no written assignment of the lease between Tupy and RHS, but it contends that RHS was an assignee by operation of law. The district court concluded that appellant put forth no facts to support a claim of assignment by operation of law. We disagree.

 

"Even without a formal assignment, one in pos-session may be an equitable assignee and subject to the covenants and obligations of the lease." Baehr, 258 Minn. at 536, 104 N.W.2d at 664. There is a re-buttable presumption that a third party in possession of leased premises is there as an assignee of the lessee. O'Neil v. A.F. Oys & Sons, 216 Minn. 391, 394, 13 N.W.2d 8, 10 (1944) (" 'When a third person is in possession of leased premises under the lessee, the law presumes that the lease has been assigned by the lessee to such person.' " (quoting Dickinson Co. v. Fitterling, 69 Minn. 162, 164, 71 N.W. 1030, 1031 (1897))). "In all civil actions ..., a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption." Minn. R. Evid. 301.

 

Appellant put forth uncontroverted evidence that RHS began occupying the leased space on or about October 1, 2006, and continued to occupy the space until April 2007. The district court specifically found that "RHS Realty occupied all or a portion of [the leased space] from October 2006 to April 2007." Under Baehr, this undisputed evidence conclusively established a rebuttable presumption that RHS was an assignee to the lease, requiring RHS to come forward with evidence to rebut the presumption of assignment. Therefore, the district court erred by holding that appellant failed to put forth facts to support a claim of assignment by operation of law.

 

Id. at 707-08. The court then held that when a nonmoving party to a summary judgment motion puts forth undisputed evidence that conclusively establishes a rebuttable presumption in its favor, the moving party is precluded from obtaining summary judgment. Id. at 708.

 

            See generally 10B Dunnell Minn. Digest 2D Landlord and Tenant, §§ 2.01-2.02, 7.04; R. Schoshinski, American Law Of Landlord And Tenant, |Ch. 8 (Bancroft-Whitney 1980 and Supp. 2008).

 

            6.         Domestic partners

 

            Domestic partners may or may not be in a landlord-tenant relationship, and if not, an eviction (formerly unlawful detainer) action not be an appropriate forum to determine their possessory interests in the property.

 

                        a.         Ownership interest

 

In Shustarich v. Fowler, UD 1960604520 (Minn. Dist. Ct. 4th Dist. July 5, 1996) (Appendix 176), Plaintiff and defendant first lived in defendant's home. Then plaintiff and defendant moved from her home to a second property, and the parties then living at the second property moved to defendant's old home. Plaintiff took title to the new property, and defendant contributed several thousand dollars from the sale of her home to a new roof and appliances. The parties kept separate expenses. After defendant obtained an order for protection, plaintiff gave notice and filed an unlawful detainer action. The court concluded that plaintiff failed to establish a landlord-tenant relationship, defendant was entitled to assert an interest in the premises, and an unlawful detainer action was a summary remedy inappropriate to try issues of title or to substitute for an action in ejectment, and denied restitution of the premises. See In re Estate of Ericksen, 337 N.W.2d 671 (Minn. 1983). See also discussion, infra, at I.H.4.

 

                        b.         Tenancy

 

            Some domestic partners are in landlord and tenant relationships. Stock v. Beaulieu (Minn. Dist. Ct. 9th Dist. Mar. 9, 1995) (Appendix 140) (domestic partners were in landlord-tenant relationship; plaintiff retaliated against defendant for reporting a crime of domestic abuse committed by the plaintiff in which the defendant was the victim). If the parties have not agreed to rent, a termination notice would have to be 90 days. See discussion, infra, at VI.F.1.b.

 

                        c.         Domestic violence

 

            In 2014, the Minnesota Legislature enacted new rights for tenant who are victims of domestic violence, including (1) an expedited process for tenant termination of the lease and rent obligation, Minn. Stat. § 504B.206; and (2) and eviction defense where basis of the eviction is that the tenant or authorized occupant in the household has been a victim of domestic abuse, criminal sexual conduct, or stalking, Minn. Stat. §§ 504B.285, Subd. 1 (b); 504B.206, Subd. 1 (a).

 

                        d.         Guests

 

 

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

 

            The owner could file an eviction action to evict the other person as one unlawful detaining the property under Minn. Stat. § 504B.301 (formerly § 566.02). See DePetro v. DePetro, No. A03-727, 2004 WL 885552 (Minn. Ct. App. April 27, 2004) (unpublished) (affirmed eviction by owner of her adult daughter who was not a rent-paying tenant). See Subject Matter Jurisdiction, infra, at III.

 

            For owner options for excluding non-tenants, see discussion at XII.C.4.

 

            7.         Implied tenancy and terms

 

            When the parties have neither a written nor oral agreement of undisputed terms but act as if there is a rental agreement by continuing all the indicia of a landlord/tenant relationship, the court must determine the applicable terms by their actions and the surrounding circumstances. The landlord’s regular acceptance of a specific sum from the tenant based on the tenant’s written offer to pay that sum, and the landlord’s acceptance of it for the following eight months without any written or oral objections to it, establishes the parties’ agreement to rent at that sum. Orchestra Hall Associates v. Crawford, No. UD-1960119508 (Minn. Dist. Ct. 4th Dist. Feb. 13, 1996) (Appendix 177).

 

            8.         Covenant running with the land

 

            In general, basic covenants that touch the land run with the land, including covenants to pay rent and maintain the property. R. Schoshinski, American Law Of Landlord And Tenant Ch. 8 (Bancroft-Whitney 1980 and Supp. 2008). A new landlord takes the land with the rights and liabilities which existed between the old landlord and the tenant. Glidden v. Second Avenue Investment Co., 125 Minn. 471, 473-74, 147 N.W. 658, 659 (1914). See Whitney v. Leighton, 225 Minn. 1, 11, 30 N.W.2d 329, 334 (1947) (assignee of a landlord's interest in a lease had a duty to pay property taxes based on his privity of estate with the owners of the fee); 1975 Robert Street Partners v. SR Shingle Creek LLP, No. A07-0844 (Minn. Ct. App. May 13, 2008) (Unpublished) (rejection of lease by tenant in bankruptcy operated as a breach, rather than a termination, of the lease, allowing tenant to enforce the lease covenants against purchaser); Farmers Insurance Exchange v. Ouellette, No. C8-97-1504 (Minn. Ct. App. Feb. 24, 1998) (Appendix 330) (Unpublished) (new landlord assumed terms of modified lease under the terms of the lease, and Minnesota case law). The old landlord's rights and obligations transfer over to the new landlord, if the tenant had notice of the change. See Pillsbury Investment Co. v. Otto, 242 Minn. 432, 437, 65 N.W.2d 913, (1954). See also Borer v. Carlson, 450 N.W.2d 592, 594 (Minn. Ct. App. 1990); Snortland v. Olsonawski, Minn. , 238 N.W.2d 215, 217-18 (1976).

 

            9.         Covenants implied by statute

 

            All oral and written leases include implied statutory covenants on habitability and illegal activity. Minn. Stat. §§ 504B.161 (formerly § 504.18), 504B.171 (formerly § 504.181). See discussion at VI.E.1. (habitability), VI.G.16. (unlawful activities).

 

            10.       Lease renewal or extension: actual, automatic, and implied

 

            If a term for the duration of the lease's extension is indefinite, any extension due to holdover and payment is limited to the duration of the original lease. Hildebrandt v. Newell, 199 Minn. 319, 272 N .W. 257 (1937); Hallin v. Hallin, No. C3-02-910, 2002 WL 31893031 (Minn. Ct. App. Dec. 31, 2002) (unpublished). Acceptance of rent following expiration of lease creates a month-to-month lease, but not a lease renewal where negotiations still were underway. Stoneburner v. Dubow, No. CX-01-2160, 2002 WL 1051700 (Minn. Ct. App. May 28, 2002) (unpublished).

 

            In Excelsior Devel. LLC v. Musse, No. 27-CV-HC-09-20, Second Amended Order (Minn. Dist. Ct. 4th Dist. June 15, 2009) (Appendix 645) (Judge Karasov), the judge reversed the decision of the referee in a commercial eviction, concluding that the (1) the landlord failed to rebut tenant's evidence of exercise of lease renewal option; (2) the lease offered by landlord to tenant and signed by tenant but not landlord was binding lease; (3) the copy of alleged termination notice of tenant offered into evidence by landlord but denied by tenant lacked consideration and was invalid; (4) the tenant had been given 30 days to vacate one commercial space under one expired lease but allowed to retain possession of two other spaces under other leases until expiration.

 

                        a.         Implied renewal

 

            In Caley v. Thornquist, 94 N.W. 1084 (Minn. 1903), Thornquist rented a saloon building from the building's owner, Caley. The original written lease was for a term of one year, with the term expiring on February 1, 1901. The lease contained an option for Thornquist to renew the lease for a period of two years, with the same terms, following the lease's original expiration. Following the expiration of the lease, Thornquist continued to remain in possession of the saloon and continued to pay rent, which Caley accepted without dispute, until February 1902. On February 11, 1902, Caley served notice of his intention to have Thornquist vacate the saloon by April. Thornquist refused to vacate the saloon and continued to pay rent. Caley brought an action for eviction, which was granted by the trial court. On appeal, the Minnesota Supreme Court reversed, holding that Thornquist's continuance of paying rent for a substantial period (14 months) after the option to renew was active was conclusive evidence of his intention to exercise his option to renew the lease for the additional two years. The court held that Thornquist's actions, and Caley's continued acceptance of rent, created vested rights to the renewal of the lease for the full two-year period contained in the original lease, and therefore Thornquist had a continued right to occupancy of the saloon.

 

                        b.         Automatic renewal

 

            Minn. Stat. § 504B.145 (formerly § 504.21) restricts automatic renewals of leases.

 

Notwithstanding the provisions of any residential lease, in order to enforce any automatic renewal clause of a lease of an original term of two months or more which states, in effect, that the term shall be deemed renewed for a specified additional period of time of two months or more unless the tenant gives notice to the landlord of an intention to quit the premises at the expiration of the term due to expire, the landlord must give notice to the tenant as provided in this section. The notice must be in writing and direct the tenant's attention to the automatic renewal provision of the lease. The notice must be served personally or mailed by certified mail at least 15 days, but not more than 30 days prior to the time that the tenant is required to furnish notice of an intention to quit.

 

            There is little appellate case law interpreting it. In Mid Continent Management Corporation v. Donnelly, 372 N.W.2d 814 (Minn. App. 1985), Barbara and Arthur Donnelly ("the Donnelly's") entered into a written lease for an apartment managed by Mid Continent Management Corporation ("Mid Continent"). The lease, which included a rental amount of $550 per month, was for a six-month period beginning on October 1, 1979 and terminating on March 31, 1980. The lease contained an automatic renewal provision stating that following the expiration of the lease, the lease automatically renewed indefinitely for successive 12-month periods based on the same terms. On June 18, 1981, Mid Continent notified the Donnelly's that effective on August 1, 1981, the rent would be increasing to $640 per month. The notification included three options for the tenants: (1) to remain on a month-to-month lease at the new rental rate; (2) to remain on a six month lease at the new rental rate; or (3) to vacate following a 30 day written notice. The Donnelly's chose to remain on a six month lease at $640 per month. On October 28, 1982, Mid Continent notified the Donnelly's that, effective December 1, 1982, rent would be increasing to $750 per month. Mid Continent also included a statement regarding the automatic renewal clause that was in the original lease agreement, notifying the Donnelly's that Minnesota law prohibited Mid Continent from automatically renewing the lease, and that the Donnelly's had been month-to-month tenants since March 30, 1982. The Donnelly's never objected to the notification, and continued to reside at the apartment and pay the increased rent. On March 29, 1984, Mid Continent again notified the Donnelly's that rent would be increasing. The new increase to $910 per month was to become effective on June 1, 1984. The Donnelly's refused to pay the new rental amount and Mid Continent sued for unpaid rent and unlawful detainer. The trial court ruled in favor of the Donnelly's, but the appellate court reversed. The appellate court based its decision on Minnesota Statute § 504.21 (1984), which stated that no automatic renewal clauses could be enforced unless, 30 days prior the expiration of the lease, the lessor directs the tenant's attention to the automatic renewal provision of the lease. It was undisputed that Mid Continent failed to meet this requirement, and therefore the Donnelly's argument that the lease had automatically been renewed on the same terms failed. Therefore, because no definite term was ever subsequently agreed to by the parties, the appellate court held that the Donnelly's had been month-to-month tenants since March 1982, and because Mid Continent gave reasonable notice of the rental increase, the rent increase to $910 per month went into effect in June 1984.

 

            In Knight v. McGinty, 868 N.W.2d 298 (Minn. Ct. App. 2015), the tenant had signed a month-to-month lease with a clause prohibiting notice to move out (“no-move-out clause”) between November 1st and February 28th or 29th. After renting the property approximately four years, the landlord sent the tenant a new lease with a $15 increase in rent. The tenant did not sign the new lease but increased his monthly rent payments by $10, which the landlord accepted. Two years later, in November 2006, the tenant paid rent and gave notice to vacate and did vacate. The landlord did not re-lease the apartment until after February 2007. The landlord brought claims for three months’ rent and other damages in conciliation court, and, following an adverse ruling, removed the case to district court. The district court found that the no-move out clause constituted an automatic renewal and invalidated the lease pursuant to Minn. Stat. § 504B.145. Therefore the parties’ arrangement was a standard month-to-month lease with a 30 day notice. The landlord appealed, and the Court of Appeals held that (1) the no-move-out clause did not constitute an automatic renewal because the lease was not two months or more, would not renew for a specified period of two months or more absent notice that the tenant would move out at the specified time, and nothing in the record suggested that it was intended to automatically renew the lease if the tenant failed to give notice of his intent to vacate; and (2) because the rent increased with the consent of both parties, all other terms of the lease remained in effect.

 

            Fixed term leases often include a provision that following expiration of the original lease term, the tenancy will continue on a month-to-month basis. Such provisions do not trigger the notice requirement of the automatic renewal statute, Minn. Stat. § 504B.145 (formerly § 504.21), since it only applies to leases of an original term of at least two months and a renewal period of at least two months.

 

            However, it is unclear how § 504B.145 (formerly § 504.21) applies a periodic tenancy where the parties have agreed to a two month or 60 day notice period. On one hand, the parties have mutually agreed to the longer notice period in order to give both parties more time to respond to a notice to quit, and the parties should be bound to the agreement. See Control Data Corp., v. Metro Office Parks, Co., 208 N.W.2d 738, 740 (Minn. 1973) (after commercial tenant exercised option to extend lease, tenant was bound by 12 month notice requirement of the lease). On the other hand, § 504B.145 (formerly § 504.21) requires that in leases with an original term of at least two months, and then an automatic renewal period of at least two months if the tenant does not give a notice to quit, the landlord must give a reminder notice to the tenant at least 15 days before the tenant is required to give the notice to quit. In theory, this would require the landlord to give such a reminder notice every two months. This interpretation would appear to conflict with Minn. Stat. § 504B.135 (formerly 504.06), which provides that a periodic tenancy with a rental period of three months or more may be terminated by three months notice, thus a revolving three month periodic tenancy. Perhaps the applicability of § 504B.145 (formerly § 504.21) to a two month periodic tenancy rests on how one analyzes operation of the tenancy. On one hand it is a tenancy that continues on a one month-to-one month basis, but a two month termination notice is required. On the other hand, it is a two month-to-two month tenancy, since at any point in time a two month termination notice is required to terminate it.

 

            11.       Relatives and Guests

 

            The Court of Appeals discussed the difference between licensees and guests in Lee v. Regents of the University of Minnesota, 672 N.W.2d 366 (Minn. Ct. App. 2003):

 

If a licensee has property on the premises in question, she is entitled to "reasonable notice" of the revocation of her right to use the premises. Ingalls v. St. Paul, Minneapolis & Manitoba Ry. Co., 39 Minn. 479, 481, 40 N.W. 524, 525 (1888). Here, the district court ruled that appellant was a "guest" but applied the licensee "reasonable notice" analysis. The facts of this case make it clear that the appellant was a licensee rather than a guest. Compare Black's Law Dictionary 932 (7th ed.1999) (defining licensee as "[o]ne who has permission to enter or use another's premises, but only for one's own purposes and not for the occupier's benefit"), with Black's Law Dictionary 714 (7th ed.1999) (defining guest as "[a] person who is entertained or to whom hospitality is extended"). Therefore, while the district court incorrectly labeled appellant's status, it used the correct notice analysis by concluding appellant was entitled to reasonable notice.

 

Id. at 373-74.

 

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

 

            The owner could file an eviction action to evict the other person as one unlawful detaining the property under Minn. Stat. § 504B.301 (formerly § 566.02). See DePetro v. DePetro, No. A03-727, 2004 WL 885552 (Minn. Ct. App. April 27, 2004) (unpublished) (affirmed eviction by owner of her adult daughter who was not a rent-paying tenant). See Subject Matter Jurisdiction, infra, at III.

 

            For owner options for excluding non-tenants, see discussion at XII.C.4.

 

            12.       Curtilage and Common Areas

 

            In State v. Milton, 821 N.W.2d 789 (Minn. 2012), the court discussed the distinction between the curtilage and common areas for the purposes of police searches, as tenants have an expectation of privacy in the former but not the latter. Id. at 799.

 

The United States Supreme Court has explained that courts determine whether an area constitutes curtilage, "as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private." Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). Still, what constitutes curtilage often "defies precise definition." Sorenson, 441 N.W.2d at 458. Thus, we have sought guidance from the Supreme Court and we have described curtilage in our case law as the court has described it-"the 'area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life.' " Id. at 458 (quoting Oliver, 466 U.S. at 180, 104 S.Ct. 1735). Because curtilage is "so immediately and intimately connected to the home," a resident has a reasonable expectation of privacy in the curtilage of his home. Garza v. State, 632 N.W.2d 633, 639 (Minn. 2001).

 

But, a resident of a multifamily residence has a "diminished" expectation of privacy in the common areas surrounding the residence. See State v. Krech, 403 N.W.2d 634, 637 (Minn. 1987) (discussing the backyard of a duplex in a suburban neighborhood). More specifically, we have explained that this "di-minished" expectation of privacy in the common areas of multifamily residences is due to the fact that the common areas are " 'not subject to the exclusive control of one tenant and [are] utilized by tenants generally and the numerous visitors attracted to a multiple-occupancy building.' " Id. at 637 (quoting 1 W. LaFave, Search and Seizure § 2.3(f) at 414 (1987)); see also United States v. Brooks, 645 F.3d 971, 975-76 (8th Cir. 2011) (holding that a stairway leading to a common area of a multifamily residence was not curtilage).

 

Id. The court concluded that the police officer was in legitimate position to view shell casings on platform of duplex and stairway leading up to defendant's residence. Id. at 799-800.

 

            13.       Lease interpretation and construction

 

            The rules of contract interpretation also apply to leases. Carlson Real Estate Co. v. Soltan, 549 N.W. 2d 376, 379 (Minn. Ct. App. 1996); Minneapolis Public Housing Authority v. Lor, 591 N.W.2d 700,704 at fn. 20 (Minn. 1999).

 

            In Knight v. McGinty, 868 N.W.2d 298, 300 (Minn. Ct. App. 2015), the Court of Appeals stated:

 

“[L]eases are contracts to which [appellate courts] apply general principles of contract construction." RAM Mut. Ins. Co. v. Rohde, 820 N.W.2d 1, 14 (Minn. 2012). "Contract interpretation is . . . a question of law that [appellate courts] review de novo." City of Duluth v. Fond du Lac Band of Lake Superior Chippewa, 843 N.W.2d 577, 581 (Minn. 2014). "[L]eases should be construed so as to give effect to the intention of the parties." Snyder's Drug Stores, Inc. v. Sheehy Props., Inc., 266 N.W.2d 882, 884 (Minn. 1978). "Great weight should be given to the intention of the parties regarding the purpose of the lease." Orme v. Atlas Gas & Oil Co., 217 Minn. 27, 30, 13 N.W.2d 757, 760 (1944).

 

            In Waterworth v. Eckman, et al., No. A15-1206 (Minn. Ct. App. Mar. 28, 2016) (unpublished), the matter at issue for the Court of Appeals was whether the lessee’s option to purchase encompassed the entirety of the landlord’s property or just the portion leased pursuant to the agreement. The district court found that the lease agreement, which was drafted by the lessee, was ambiguous because the parties’ intent could not be determined by the plain language therein, and in light of the fact that ambiguity is resolved against the drafter, the district court held that the option applied to only the previously leased land. The Court of Appeals affirmed, finding that the antecedent phrase relating to the term “this land” was susceptible to more than one meaning. The court further held that when a contract is ambiguous, the parties’ intentions should control, but it is the mutual intention that should be given effect, not the intention of one party if the other’s intent is unknown. The court found that, in addition to the construing the provision against the drafter, if the lessee’s position was adopted, it would lead to the unreasonable conclusion that the landlord was obligated to convey property that she did not own, which could not reasonably have been her intent.    

 

            14.       Parol Evidence

 

            The parol evidence rule precludes considering extrinsic evidence to construe the terms of an unambiguous, fully-integrated lease. See, generally, Apple Valley Red-E-Mix, Inc. v. Mills-Winfield Engineering Sales, Inc., 436 N.W.2d 121 (Minn. Ct. App. 1989); Hruska v. Chandler Associates, Inc., 372 N.W.2d 709 (Minn. 1985).

 

            In Arrow Southampton, LLC v. Akinnola, No. A15-0731, 2016 WL 363487 (Minn. Ct. App. February 1, 2016) (unpublished), Akinnola alleged that oral promises regarding lease renewals were made to him both prior to and after execution of a written one-year lease agreement, which included an express lease renewal term, a non-waiver provision, and an integration clause. Prior to the expiration of the initial lease term, the landlord sent a nonrenewal notice, but then offered, via letter, to enter into a new one-year lease with an increased rent term. Akinnola responded that he wished to renew and sent the new rent payment, but did not sign a new lease because he wanted to negotiate one of its provisions. When the original lease expired, Akinnola did not vacate the apartment, and the landlord filed an eviction complaint. The housing court held that any oral representations made before the lease was signed were subsumed by the lease terms and that because the lease expired of its own terms (not terminated by the landlord), the retaliation defense (regarding Akinnola’s complaints about un-leashed large dogs on the property and other safety issues) did not apply.

 

            The Court of Appeals affirmed, holding that: (1) the alleged oral agreements made prior to lease execution were not conditions precedent because Akinnola did not use them to show that the written agreement never became operative, but instead to contradict the lease he was trying to enforce; (2) the alleged oral agreements were inconsistent with the express terms of the written lease and the parol-evidence rule prohibited their admission; (3) the oral promises made after lease execution were merely reassurances of the original oral agreements and did not constitute the clear and convincing evidence needed to alter the terms of the contract; (4) an express contract covering the same subject matter as alleged promise will preclude application of the promissory estoppel doctrine; and (5) even if the oral promises were made and were enforceable, the landlord abided by them by offering a renewal, which Akinnola refused to sign. The Court of Appeals also held that the landlord did not waive its right to evict by accepting rent payments because the agreement contained a nonwaiver provision and there was no history of conduct alleged to support modification of that lease provision. Finally, the Court of Appeals declined to decide whether a notice of nonrenewal qualifies as a Notice to Quit under the Minnesota Statues prohibiting retaliatory eviction because Akinnola could not demonstrate any retaliation and was actually given a chance to sign a new lease, but refused to do so.

 

            In Ricks v. _____, No. 27-CV-HC-14-6380 (Minn. Dist. Ct. 4th Dist. Dec. 18, 2014) (Appendix 797), the court granted judgment and costs for tenant, finding that a written lease with no end date and no rent was a tenancy at will requiring three month written notice, so the one month notice was ineffective. The court added that the parol evidence rule precluded evidence of landlord's intent of a term lease.

 

            15.       Caretakers as employees, tenants and landlords

 

                        a.         Tenants

 

            Caretakers traditionally were reviewed as occupying the premises incidentally to the caretaker's employment, and once the landlord terminated the employment, the employee who did not vacate immediately became a trespasser who could be evicted without court process. See Lighbody v. Truelsen, 39 Minn. 310, 40 N.W. 67 (1888); Trustees v. Froislie, 37 Minn. 447, 35 N.W. 216 (1887).

 

            However, Section 504B.001 (formerly § 566.18) now includes caretakers in the definition of tenant.

 

"Residential tenant" means any person who is occupying a dwelling in a building. . . under any agreement, lease, or contract, whether oral or written, and for whatever period of time, which requires the payment of money or exchange of services as rent for the use of the dwelling unit, and all other regular occupants of that dwelling unit, or any resident of a manufactured home park.

 

Minn. Stat. § 504B.001, Subd. 12 (emphasis added). See State Auto Insurance Company v. Knuttila, 645 N.W.2d 475 (Minn. Ct. App. 2002) (caretaker was a tenant under Minn. Stat. § 504B.001 (formerly § 566.18)). See Mountainview Place Apartments v. Ford, No. 94CV1492 (Colo. Cty. Ct. Mar. 24, 1994) (Appendix 179) (Section 8 project tenancy was unaffected by employment agreement; termination of employment was not good cause for eviction).

 

                        b.         Landlords

 

            Minn. Stat. § 504B.001, Subd. 7 provides:

 

“Landlord” means the owner or owners of the free hold of the premises or lesser estate therein, contract vendee, receiver, executor, trustee, lessee, agent, or any other person, firm or corporation directly or indirectly in control of a building.

 

This expansive definition of landlord includes caretakers as lessees, agents, or any other person directly or indirectly in control.

 

            16.       Residency hotels

 

            Some owners of hotels that often long-term residency assert that they are not governed by landlord and tenant law. Whether landlord and tenant law regulates the hotel depends on whether the resident has housing elsewhere.

 

            A hotel is a building which is kept, used and advertised, or held out to the public as a place for sleeping or housekeeping accommodations or supplied for pay to guests for transient occupancy. Transient occupancy means occupancy when it is the intention of the parties that the occupancy will be temporary. There is a rebuttable presumption that, if the unit occupied is the sole residence of the guest, the occupancy is not transient. There also is a rebuttable presumption that, if the unit occupied is not the sole residence of the guest, the occupancy is transient. Minn. Stat. § 327.70, subds. 3, 5.

 

            If the occupancy is not transient, it would be a tenancy. Minn. Stat. § 504B.001, Subd. 12 provides:

 

“Residential tenant” means any person who is occupying a dwelling in a building. . . under any agreement, lease, or contract, whether oral or written, and for whatever period of time, which requires the payment of money or exchange of services as rent for the use of the dwelling unit, and all other regular occupants of that dwelling unit, or any resident of a manufactured home park.

 

In Gutierrez v. Eckert Farm Supply, Inc., No. C5-02-1900, 2003 WL 21500161 (Minn. Ct. App. July 1, 2003) (unpublished), the Court affirmed the district court conclusion that a hotel resident was a tenant and not a hotel guest. See In re Mid-City Hotel Assoc., 114 B.R. 634 (D. Minn. 1990) (“Chapter 504 [now Chapter 504B], governing landlord-tenant relationship, does not in its own terms exclude the innkeeper-guest relationship from its governance; nor do MINN. STAT. §§ 327.01-.13, the statutes governing hotel operations, expressly exclude landlord-tenant relationships from their regulation.”).

 

            17.       Shelters

 

            Owners of shelters often are housed in old hotels and like hotel owners, assert that they are not governed by landlord and tenant law. Like hotels, whether landlord and tenant law regulates the shelter depends on whether the resident has housing elsewhere. See discussion, supra, at I.D.16.

 

            In Luten v. Salvation Army, No. UD-1860324520 (Minn. Dist. Ct. 4th Dist. March 24, 1986) (Appendix 603) even though the respondent considered itself a hotel and not a landlord, the court noted that the nature of the tenancy is created by the conduct of the parties, as well as the written documents, and concluded that the petitioner was a tenant where he paid monthly rent for two years and reasonably understood that he was a tenant. See Residential Tenants' Remedies, Appendix 18.

 

            Lockouts of tenants are prohibited and can subject the landlord to civil and criminal liability. See discussion, infra, at XII.B.1.

 

            18.       Nursing homes residents are tenants

 

            Residents of nursing homes are tenants. Minn. Stat. § 144A.13, Subd. 2, provides that “no nursing home resident may be denied any right available to the resident under chapter 504B.” Minn. Stat. Chapter 504B governs the landlord and tenant relationship. Lockouts of tenants are prohibited and can subject the landlord to civil and criminal liability. See discussion, infra, at XII.B.1.

 

            In addition to landlord and tenant law, tenants who also are patients have protections.

Minn. Stat. § 144.651 (Health Care Bill of Rights). See Patient, Resident and Home Care Bill of Rights (Minnesota Department of Human Services).

http://www.health.state.mn.us/divs/fpc/consumerinfo/index.html

 

            Residents can complain to the Office of Health Facility Complaints of the Minnesota Department of Health, 651-201-4200 or 1-800-369-7994.

https://www.health.state.mn.us/facilities/regulation/ohfc/contohfc.html

 

            19.       Assisted living and other housing with services for seniors and disabled persons

 

            Most residential settings with services for seniors and disabled persons are covered by landlord and tenant law. Lockouts of tenants are prohibited and can subject the landlord to civil and criminal liability. See discussion, infra, at XII.B.1.

 

            In addition to landlord and tenant law, tenants who also are patients have protections.

Minn. Stat. § 144.651 (Health Care Bill of Rights). See Patient, Resident and Home Care Bill of Rights (Minnesota Department of Human Services).

http://www.health.state.mn.us/divs/fpc/consumerinfo/index.html

 

            Residents can complain to the Office of Health Facility Complaints of the Minnesota Department of Health, 651-201-4200 or 1-800-369-7994.

https://www.health.state.mn.us/facilities/regulation/ohfc/contohfc.html

 

                        a.         Assisted living and housing with services

 

            Minn. Stat. § 144D.06 provides: “In addition to registration under this chapter, a housing with services establishment must comply with chapter 504B.” Minn. Stat. § 144D.01, Subd. 4 defines housing with services establishment or establishment as “(1) an establishment providing sleeping accommodations to one or more adult residents, at least 80 percent of which are 55 years of age or older, and offering or providing, for a fee, one or more regularly scheduled health-related services or two or more regularly scheduled supportive services, whether offered or provided directly by the establishment or by another entity arranged for by the establishment.”

 

            Minn. Stat. § 144G.03, Subd. 6 provides:

 

Subd. 6.Termination of housing with services contract.

 

If a housing with services establishment terminates a housing with services contract with an assisted living client, the establishment shall provide the assisted living client, and the legal or designated representative of the assisted living client, if any, with a written notice of termination which includes the following information:

 

(1) the effective date of termination;

 

(2) the section of the contract that authorizes the termination;

 

(3) without extending the termination notice period, an affirmative offer to meet with the assisted living client and, if applicable, client representatives, within no more than five business days of the date of the termination notice to discuss the termination;

 

(4) an explanation that:

 

(i) the assisted living client must vacate the apartment, along with all personal possessions, on or before the effective date of termination;

 

(ii) failure to vacate the apartment by the date of termination may result in the filing of an eviction action in court by the establishment, and that the assisted living client may present a defense, if any, to the court at that time; and

 

(iii) the assisted living client may seek legal counsel in connection with the notice of termination;

 

(5) a statement that, with respect to the notice of termination, reasonable accommodation is available for the disability of the assisted living client, if any; and

 

(6) the name and contact information of the representative of the establishment with whom the assisted living client or client representatives may discuss the notice of termination.

 

Id. (emphasis added).

 

            The references to both housing with services and assisted living in conjunction with eviction actions support the claim that the assisted residents also are tenants. Additionally, the statutory definitions of residential tenant, residential building, and landlord should apply to assisted living. See discussion, infra, at I.E. Lockouts of tenants are prohibited and can subject the landlord to civil and criminal liability. See discussion, infra, at XII.B.1.

 

            Residents can complain to the Office of Health Facility Complaints of the Minnesota Department of Health, 651-201-4200 or 1-800-369-7994.

https://www.health.state.mn.us/facilities/regulation/ohfc/contohfc.html

 

                        b.         Board and lodging

 

            Board and lodging establishments are licensed under Minn. Stat. Chapter 157. Minn. Stat. § 157.15, provides:

 

Subd. 4.Boarding establishment.

"Boarding establishment" means a food and beverage service establishment where food or beverages, or both, are furnished to five or more regular boarders, whether with or without sleeping accommodations, for periods of one week or more.

 

Subd. 8.Lodging establishment.

"Lodging establishment" means: (1) a building, structure, enclosure, or any part thereof used as, maintained as, advertised as, or held out to be a place where sleeping accommodations are furnished to the public as regular roomers, for periods of one week or more, and having five or more beds to let to the public; or (2) a building, structure, or enclosure or any part thereof located within ten miles distance from a hospital or medical center and maintained as, advertised as, or held out to be a place where sleeping accommodations are furnished exclusively to patients, their families, and caregivers while the patient is receiving or waiting to receive health care treatments or procedures for periods of one week or more, and where no supportive services, as defined under section 157.17, subdivision 1, paragraph (a), or health supervision services, as defined under section 157.17, subdivision 1, paragraph (b), or home care services, as defined under section 144A.471, subdivisions 6 and 7, are provided.

 

            Chapter 157 makes no mention of Chapter 504B or tenants but does not preclude application of Chapter 504B to board and lodging. However, the Chapter 504B definitions of residential tenant, residential building, and landlord might apply, making residents tenants. See discussion, infra, at I.E. Lockouts of tenants are prohibited and can subject the landlord to civil and criminal liability. See discussion, infra, at XII.B.1.

 

            Residents can complain to the Office of Health Facility Complaints of the Minnesota Department of Health, 651-201-4200 or 1-800-369-7994.

https://www.health.state.mn.us/facilities/regulation/ohfc/contohfc.html

 

                        c.         Residences with services under Minn. Stat. Ch. 245D

 

            Residential settings for persons with developmental disabilities in which the services are licensed under Minn. Stat. Chapter 245D. Many programs are covered, including home and community-based services to persons with disabilities and persons age 65 and older; basic support services and intensive support services; respite care services; community alternative care; community access for disability inclusion, developmental disability, and elderly waiver plans; adult companion services as defined under the brain injury, community access for disability inclusion, and elderly waiver plans; personal support as defined under the developmental disability waiver plan; 24-hour emergency assistance, personal emergency response; night supervision services as defined under the brain injury waiver plan; homemaker services as defined under the community access for disability inclusion, brain injury, community alternative care, developmental disability, and elderly waiver plans; individual community living support; intensive support services; with some exceptions. It does not cover does not apply to corporate or family child foster care homes that do not provide services licensed under Chapter 245D. Minn. Stat. § 245D.03.

 

            Chapter 245D makes no mention of Chapter 504B or tenants but does not preclude application of Chapter 504B to residences with services. However, the Chapter 504B definitions of residential tenant, residential building, and landlord might apply, making residents tenants. See discussion, infra, at I.E. Lockouts of tenants are prohibited and can subject the landlord to civil and criminal liability. See discussion, infra, at XII.B.1.

 

            Minn. Stat. § 245D.10, Subd. 3a provides for service termination, including a termination notice and right to appeal.

 

            Residents can complain to the Office of Health Facility Complaints of the Minnesota Department of Health, 651-201-4200 or 1-800-369-7994.

https://www.health.state.mn.us/facilities/regulation/ohfc/contohfc.html

 

            20.       Housing Support, Formerly Group Residential Housing

 

            Minn. Stat. Chapter 256I regulates Housing Support, Group Residential Housing (GRH). Chapter 256I makes no mention of Chapter 504B but does not preclude application of Chapter 504B to GRH. Chapter 256I does refer to tenancies as one of the factors for funding.

 

Minn. Stat. § 256I.03 Definitions.

 

Subd. 12. Professional statement of need.

 

"Professional statement of need" means a statement about an individual's illness, injury, or incapacity that is signed by a qualified professional. The statement must specify that the individual has an illness or incapacity which limits the individual's ability to work and provide self-support. The statement must also specify that the individual needs assistance to access or maintain housing, as evidenced by the need for two or more of the following services:

 

(1) tenancy supports to assist an individual with finding the individual's own home, landlord negotiation, securing furniture and household supplies, understanding and maintaining tenant responsibilities, conflict negotiation, and budgeting and financial education;

 

(2) supportive services to assist with basic living and social skills, household management, monitoring of overall well-being, and problem solving;

 

(3) employment supports to assist with maintaining or increasing employment, increasing earnings, understanding and utilizing appropriate benefits and services, improving physical or mental health, moving toward self-sufficiency, and achieving personal goals; or

 

(4) health supervision services to assist in the preparation and administration of medications other than injectables, the provision of therapeutic diets, taking vital signs, or providing assistance in dressing, grooming, bathing, or with walking devices.

 

Minn. Stat. § 256I.03, Subd. 12 (emphasis added).

 

Minn. Stat. § 256I.04 Eligibility for Housing Support Payment.

 

Subd. 1a.County approval.

(a) A county agency may not approve a housing support payment for an individual in any setting with a rate in excess of the MSA equivalent rate for more than 30 days in a calendar year unless the individual has a professional statement of need under section 256I.03, subdivision 12.

 

            The Chapter 504B definitions of residential tenant, residential building, and landlord might apply, making residents tenants. See discussion, infra, at I.E. Lockouts of tenants are prohibited and can subject the landlord to civil and criminal liability. See discussion, infra, at XII.B.1.

 

            Here is the agency website.

https://www.dhs.state.mn.us/main/idcplg?IdcService=GET_DYNAMIC_CONVERSION&RevisionSelectionMethod=LatestReleased&dDocName=DHS-293567

 

E.        Statutory Definitions

 

            The definitions of tenants and buildings that now are in Minn. Stat. § 504B.001 were formerly in Minn. Stat. § 566.18 of the Tenants' Remedies Act, and had been incorporated in the Rent Escrow Act, § 566.34, and applied by § 504.27 to the following statutes: §§ 504B.271 (formerly § 504.24) (property abandonment), 504B.204 (formerly § 504.245) (action for rental of condemned residential premises), 504B.225 (formerly § 504.25) (criminal unlawful eviction or termination of utilities), 504B.231 (formerly § 504.255) (unlawful eviction), 504B.221 (formerly § 504.26) (unlawful termination of utilities), and 504B.315 (formerly § 504.265) (restrictions on eviction due to familial status).

 

            1.         Residential tenant

 

            Minn. Stat. § 504B.001, Subd. 12 provides:

 

"Residential tenant" means any person who is occupying a dwelling in a building. . . under any agreement, lease, or contract, whether oral or written, and for whatever period of time, which requires the payment of money or exchange of services as rent for the use of the dwelling unit, and all other regular occupants of that dwelling unit, or any resident of a manufactured home park.

 

            In Cocchiarella v. Driggs, 884 N.W.2d 621 (Minn. Aug. 31, 2016), Cocchiarella had entered into an oral lease agreement and had paid the security deposit and first month's rent, but the landlord refused to allow her to move into the apartment. Cocchiarella had a present legal right to possess the premises, but had not obtained a key, entered the dwelling, or placed any belongings there. The question presented on appeal was whether a person must physically occupy a dwelling in a residential building to qualify as a "residential tenant" under Minn. Stat. §504B.375, which protects tenants from unlawful exclusion or removal. The Minnesota Supreme Court reversed the District court and Court of Appeals and held that the legal right to present possession of the premises is sufficient to invoke the protections of the statute; physical occupancy is not required.

 

            2.         Person

 

Minn. Stat. § 504B.001, Subd. 10 provides:

 

"Person" means a natural person, corporation, limited liability company, partnership, joint enterprise, or unincorporated association.

 

            3.         Residential building

 

            Minn. Stat. § 504B.001, Subd. 11 provides:

 

"Residential building” means any building used in whole or in part as a dwelling, including single family homes, multiple family units such as apartments, and structures containing both dwelling units and units used for non-dwelling purposes, and also includes a manufactured home park.

 

            4.         Housing-related neighborhood organization

 

Minn. Stat. § 504B.001, Subd. 5 provides:

 

"Housing-related neighborhood organization" means a nonprofit corporation incorporated under chapter 317A that:

 

(1) designates in its articles of incorporation or bylaws a specific geographic community to which its activities are limited; and

 

(2) is formed for the purposes of promoting community safety, crime prevention, and housing quality in a nondiscriminatory manner.

 

For purposes of this chapter, an action taken by a neighborhood organization with the written permission of a residential tenant means, with respect to a building with multiple dwelling units, an action taken by the neighborhood organization with the written permission of the residential tenants of a majority of the occupied units.

 

            5.         Landlord

 

            Minn. Stat. § 504B.001, Subd. 7 provides:

 

“Landlord” means the owner or owners of the free hold of the premises or lesser estate therein, contract vendee, receiver, executor, trustee, lessee, agent, or any other person, firm or corporation directly or indirectly in control of a building.

 

            In Jacobson v. Meinen Holdings, LLC, No. 28-CV-16-645 (Minn. Dist. Ct. 3rd Dist., Houston County, Feb. 15, 2017) (Appendix 807) (Judge Sturino), the court ordered in a rent escrow action that the corporate veil was pierced to make the entity and the shareholder liable because the two were one and the same.

 

            In Miller v. AZ Flatts, No. 71-CV-16-653 (Minn. Dist. Ct. 10th Dist., Sherburne County, Jan. 31, 2017), (Appendix 725) (Judge Yunker), the district court found that two entities and one individual all were landlords under Minn. Stat. § 504B.001, Subd. 7 in the tenant’s civil action.

 

            In Otzin v. Smith, Washington, Dubra, Renters Warehouse, and Zupfer, No. 27-CV-HC-15-5433 (Minn. Dist. Ct. 4th Dist. April 6, 2016) (Appendix 804), the tenant of the property owners who rented the property to plaintiff later excluded the plaintiff without the participation of the owners. Neither the owners of their management company allowed the plaintiff to repossess the property. The court rejected the argument of the owners and their agent son that they were not liable for the exclusion because they did not rent to the plaintiff or initiate the exclusion. The court found plaintiff more credible than the owner on whether the owners and agent knew that the plaintiff was a tenant, and found that they participated in the exclusion by not taking action to end it. The court awarded damages for lost personal property of $2,900 and a penalty of $5,800 under Minn. Stat. § 504B.271, costs, and attorney's fees.

 

            In S&R Management v. _____, _____ v. Wones, Nos. HC-#1000621500 and HC #1000627901 (Minn. Dist. Ct. 4th Dist. July 25, 2000) (Appendix 677), in consolidated eviction and rent escrow actions, the court concluded property co-owner, management company, and property manager all were landlords as defined by Minn. Stat. § 504B.001, Subd. 7; the lease contained no conspicuous writing supporting landlord's claim that tenant was required to paint and clean property; failure of the tenant to give written notice of repairs does not waive the landlord's covenant of habitability but court may consider it in determining rent abatement. The court dismissed the eviction action; awarded rent abatement of $125 per month out of $525 rent for numerous violations; ordered the landlord to make repairs; while court made no findings on privacy violations, ordered the tenant to not unreasonably deny access and authorized the landlord the give 24 hour notices for visits; and retained jurisdiction and scheduled a compliance hearing.

 

E1.      Lease Requirements

 

            1.         Required Terms

 

            Minnesota law only requires a few lease provisions: (1) landlord contact disclosure, see discussion, infra, at VI.D.2.; (2) habitability, see discussion, infra, at VI.E.1.; and (3) unlawful activity, see discussion, infra, at VI.G.16.

 

            2.         Prohibited Terms

 

            A number of statutes and some case law provide for tenant rights that cannot be waived, rendering lease provisions that violate those rights unenforceable. See discussion, infra, at VI.G.12.

 

            3.         Regulated Terms

 

            A few statutes regulate lease terms, including (1) habitability, see discussion, infra, at VI.E.1; (2) late fees, see discussion, infra, at VI.E.10; (3) manufactured home park tenancies, see discussion, infra, at VI.E.11, VI.F.7, VI.G.11; (4) utilities, see discussion, infra, at VI.E.18; (5) foreclosure, see discussion, infra, at VI.F.1.d.; (6) reentry, see discussion, infra, at VI.G.1.; (7) unlawful activity, see discussion, infra, at VI.G.16; (8) attorney’s fee, see discussion, infra, at VIII.E.4; (9) domestic violence, see discussion, infra, at VI.G.38; (10) redemption, see discussion, infra, at VIII.A; (11) abandoned property, see discussion, infra, at VIII.C.2; (12) lockouts, see discussion, infra, at XII.B.1; (13) privacy, see discussion, infra, at XII.B.2; and (14) security deposits, see discussion, infra, at XII.B.8.

 

            4.         Lease Forms

 

            The Minnesota Standard Residential Lease (Apartment) (RPF-41), drafted by the Residential Real Estate Committee, Real Property Section of the Minnesota State Bar Association, complies with Minnesota law.

http://my.mnbar.org/residentialrealpropertyforms/viewdocument/rpf41-minnesota-standard-residentia

 

F.        Manufactured (Mobile) Home Park Lot Tenancies

 

            Minn. Stat. Ch. 327C governs rental of lots in manufactured or mobile home parks. A manufactured home park is land on which two or more occupied manufactured homes are located and where facilities are open for more than three seasons. §§ 327C.01, subd. 5, 327.14. The rental agreement must be in writing and include elements required by statute. § 327C.02, subd. 1. 60 days notice is required to change any park rules. However, a rule adopted or amended after a resident initially enters into a rental agreement can be enforced against that resident only if the new or amended rule is reasonable and is not a substantial modification of the original agreement. § 327C.02, subd. 2. A park owner may terminate the tenancy only for cause. § 327C.09. For more information on defenses, see discussion at VI.E.1.u., VI.E.10.e., VI.E.11., VI.E.20.f., VI.E.28., VI.F.3.f., VI.F.4.b., VI.F.7., and VI.G.11.

 

G.        Public Housing and Other Government Subsidized Housing Tenancies

 

            Tenancies in public and government subsidized housing are a hybrid of traditional periodic and fixed term tenancies. On one hand, the tenancy has an indefinite term without an expiration date. On the other hand, the landlord cannot terminate the tenancy simply by giving notice; the landlord must have good cause to terminate the tenancy.

 

See generally HUD Housing Programs: Tenants' Rights (National Housing Law Project, 4th ed. 2012 and Supplements) (also known as the Green Book).

https://www.nhlp.org/trainings-publications/

 

See also Fred Fuchs, Defending Families and Individuals threatened with Eviction from Federally Subsidized Housing, HOME-Funded Properties, § 515 Rural Rental Housing, § 8 Moderate Rehabilitation, Shelter Plus Care Housing, Supportive Housing for the Elderly and Persons with Disabilities, Continuum of Care Housing, HOPWA, Tax Credit Housing, Section 8 Housing Choice Voucher Program, Public Housing, Project-Based Voucher Program, and Section 811 Project Rental Assistance (Texas RioGrande Legal Aid, Nov. 2015)

https://probonotexas.org/library/housing/defending-families-threatened-eviction-federal-housing-programs

 

            There are several categories of public and government subsidized housing. In each of these housing programs, the tenant's rent usually is based on a percentage of the tenant's adjustable income. First, public housing is owned and operated by local housing authorities with assistance from the federal government. The housing authority may terminate the tenancy for serious violations of a material lease term or other good cause.

 

            Second, a number of programs provide federal funds directly to landlords in connection with the building, renovation or operation of subsidized housing units. The landlord may terminate the tenancy for material noncompliance with the lease, material failure to meet obligations under state, landlord/tenant law or other good cause. These programs include Section 8 New Construction Substantial Rehabilitation, and Set-Aside; Section 8 administered by state housing finance agencies or owned and operated by the United States Department of Housing and Urban Development (HUD); and Section 236, 221 and 202 programs. Some of these programs, including the Section 8 Moderate Rehabilitation and Project Based Certificate programs, also provide for local housing authority inspection for compliance with its housing code, and allow the housing authority to terminate the tenancy if the unit is not in compliance. The Rural Housing Service of the United State Department of Agriculture funds similar projects.

 

            Third, and similar to the second set of programs discussed above, the Federal Low Income Housing Tax Credit program provides assistance to landlords in connection with the building, renovation or operation of subsidized housing units. Most tenants may not know that they are in a low income housing tax credit project, because their rent may not be based on their income. The Minnesota Housing Finance Agency (MHFA), as well as redevelopment agencies in Minneapolis and St. Paul, have listings of low income housing tax credit projects. Recently, in Bowling Green Manor L.P. v. Kirk, the Ohio Court of Appeals held that the landlord could terminate the tenancy only for good cause, following a 30-day written notice of termination setting forth specific good cause for eviction. No. WD 94-125, 1995 WL 386,476, 1995 Ohio App. LEXIS 2707 (June 30, 1995) (Appendix 83).

 

            Fourth, some programs provide the tenant with a housing certificate or voucher, which allows the tenant to find a landlord willing to participate in the program. These programs include the Section 8 Existing Housing Certificate and Section 8 Voucher Programs. The housing authority sends a monthly rent subsidy to the landlord and the tenant pays the remaining share of the rent. The landlord may terminate the tenancy for serious or repeated violations of the lease, violation of federal, state, or local law which imposes an obligation on the tenant in connection with occupancy of the unit, or other good cause. Also, the housing authority can terminate the tenancy if the unit is not in compliance with its housing code.

 

            The Minnesota Housing Finance Agency (MHFA) administers the Rental Assistance for Family Stabilization (RAFS) Program in partnership with local housing organizations in Minnesota counties with high average housing costs as determined by the United States Department of Housing and Urban Development (HUD). In Minneapolis, the program is operated by the Section 8 Office of the Minneapolis Public Housing Authority (MPHA). The program is similar to the Section 8 Existing Housing Certificate and Voucher Programs, in that it provides subsidies to tenants who then use the subsidy in the private rental market. While the state subsidy in the RAFS Program are smaller than the federal Section 8 subsidies, the program follows many of the requirements of the Section 8 programs, including federal Housing Quality Standards (HQS) for apartment conditions, and the requirement that the landlord notify the Section 8 Office of termination of tenancy and eviction actions. See RAFS Owners Handbook (Minneapolis Public Housing Authority May 1, 1999) (Appendix 414).

 

            A table compares the different program. See Comparison of Minnesota Private Housing, Mobile Home Lot Rental, Public and Subsidized Housing Unlawful Detainer (Eviction) Action Defenses

in Addition to Minnesota Private Landlord-Tenant Law.

http://povertylaw.homestead.com/files/Reading/a0atenancytable.htm

 

            For more information on defenses, see discussion at VI.D.11., VI.E.1.h., VI.E.12., VI.F.10., and VI.G.10.

 

H.        Other Relationships

 

            1.         Tenant versus hotel guest

 

            A hotel is a building which is kept, used and advertised, or held out to the public as a place for sleeping or housekeeping accommodations or supplied for pay to guests for transient occupancy. Transient occupancy means occupancy when it is the intention of the parties that the occupancy will be temporary. There is a rebuttable presumption that, if the unit occupied is the sole residence of the guest, the occupancy is not transient. There also is a rebuttable presumption that, if the unit occupied is not the sole residence of the guest, the occupancy is transient. Minn. Stat. § 327.70, subds. 3, 5.

 

            In Gutierrez v. Eckert Farm Supply, Inc., No. C5-02-1900, 2003 WL 21500161 (Minn. Ct. App. July 1, 2003) (unpublished), the Court of Appeals affirmed conclusion that hotel resident was a tenant and not a hotel guest. See In re Mid-City Hotel Assoc., 114 B.R. 634 (D. Minn. 1990) (“Chapter 504 [now Chapter 504B], governing landlord-tenant relationship, does not in its own terms exclude the innkeeper-guest relationship from its governance; nor do MINN. STAT. §§ 327.01-.13, the statutes governing hotel operations, expressly exclude landlord-tenant relationships from their regulation.”).

 

            In Luten v. Salvation Army, No. UD-1860324520 (Minn. Dist. Ct. 4th Dist. March 24, 1986) (Appendix 603) even though the respondent considered itself a hotel and not a landlord, the court noted that the nature of the tenancy is created by the conduct of the parties, as well as the written documents, and concluded that the petitioner was a tenant where he paid monthly rent for two years and reasonably understood that he was a tenant.

 

            2.         Licenses versus profit a prendres

 

            The Court of Appeals discussed the difference between licensees and guests in Lee v. Regents of the University of Minnesota, 672 N.W.2d 366 (Minn. Ct. App. 2003):

 

If a licensee has property on the premises in question, she is entitled to "reasonable notice" of the revocation of her right to use the premises. Ingalls v. St. Paul, Minneapolis & Manitoba Ry. Co., 39 Minn. 479, 481, 40 N.W. 524, 525 (1888). Here, the district court ruled that appellant was a "guest" but applied the licensee "reasonable notice" analysis. The facts of this case make it clear that the appellant was a licensee rather than a guest. Compare Black's Law Dictionary 932 (7th ed.1999) (defining licensee as "[o]ne who has permission to enter or use another's premises, but only for one's own purposes and not for the occupier's benefit"), with Black's Law Dictionary 714 (7th ed.1999) (defining guest as "[a] person who is entertained or to whom hospitality is extended"). Therefore, while the district court incorrectly labeled appellant's status, it used the correct notice analysis by concluding appellant was entitled to reasonable notice.

 

Id. at 373-74.

 

            In Minnesota Valley Gun Club v. North Line Corp., 207 Minn. 126, 290 N.W. 222 (1940), the court addressed the distinctions between licenses and profit a prendres, neither of which are tenancies.

 

While there are divers kinds of licenses, it is sufficient to now state that a license is not an estate but a permission giving the licensee a personal legal privilege enjoyable on the land of another. 2 Tiffany, Real Property (2 ed.) § 349, p. 1201. It is destroyed by an attempted transfer if the licensor so elects. Cameron v. Chicago etc. Ry., 60 Minn. 100, 61 N.W. 814. It is revocable at the licensor's will, see 4 Dunnell, Minn. Dig. (2 ed. & Supps.) § 5576, and cases, or by his death, see Little v. Willford, 31 Minn. 173, 17 N.W. 282. Normally payment of consideration does not render it irrevocable. City of Hutchinson v. Wegner, 157 Minn. 41, 195 N.W. 535.

 

A profit a prendre is more substantial. It gives a right enforceable against others. 2 Tiffany, Real Property (2 ed.) § 381, p. 1391. If in gross (i.e. a profit which is held by one independently of his ownership of other land) it is generally transferable and inheritable. Id. p. 1393. Since a profit a prendre is an interest in realty, it must be created, in contrast to a license, by a properly executed writing. 2 Mason's Minn. St.1927, § 8459. One ancient form of profit a prendre is the granting of hunting rights. Council v. Sanderlin, 183 N.C. 253, 111 S.E. 365, 32 A.L.R. 1527; St. Helen Shooting Club v. Mogle, 234 Mich. 60, 207 N.W. 915; 12 R.C.L. p. 689; note 40 L.R.A.,N.S., 300. While it is true that wild life is not part of the soil as many common forms of profits a prendre are, yet the right to hunt and take game appertains to the land and is a profit flowing from the ownership. It is an incorporeal right allied so closely to the fee, probably for historical reasons, that it justifiably can be regarded as a profit a prendre. This is true although wild life is a subject of ownership only when reduced to possession, Liesner v. Wanie, 156 Wis. 16, 145 N.W. 374,50 L.R.A.,N.S., 703; see Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 384, 64 L.Ed. 641, 11 A.L.R. 984 (Holmes, J., ‘* * * possession is the beginning of ownership.’) While title is in the state as trustee, 1 Mason's Minn. St.1927, § 5496, the owner of the land has a qualified property interest in that it is he who has the exclusive right to reduce game to possession. L. Realty Co. v. Johnson, 92 Minn. 363, 100 N.W. 94, 66 L.R.A. 439, 104 Am.St.Rep. 677; Lamprey v. Danz, 86 Minn. 317, 90 N.W. 578.

 

            ....

 

Although customary words of grant are absent, it must be remembered the draftsman was a layman. The confusing use of ‘landlord,’ ‘license,’ ‘indenture,’ ‘right’ and ‘privilege’ leaves little to rely upon as a basis for decision. In addition, it is a persuasive reason why too much reliance cannot be placed upon the language employed. Reading the instrument as a unit, it satisfactorily conveys the conception that a more substantial relationship was intended than defendant concedes. The particular items mentioned, on the whole, lead to the conclusion that a profit a prendre was granted.

 

Id. at 128-29, 290 N.W. 224-25. The notice to terminate a license should be reasonable. City of Hutchinson v. Wegner, 157 Minn. 41, 47, 195 N.W. 535, 538 (1923). See generally 11A Dunnell Minn. Digest Licenses in Real Property.

 

            Some landlord tenant statutes specifically include licenses. See e.g. Minn. Stat. §§ 504B.161 (formerly § 504.18) (covenants of habitability), 504B.171 (formerly § 504.181) (covenant not to manufacture or traffic drugs).

 

            3.         Caretakers as employees, tenants and landlords

 

            Caretakers traditionally were reviewed as occupying the premises incidentally to the caretaker's employment, and once the landlord terminated the employment, the employee who did not vacate immediately became a trespasser who could be evicted without court process. See Lighbody v. Truelsen, 39 Minn. 310, 40 N.W. 67 (1888); Trustees v. Froislie, 37 Minn. 447, 35 N.W. 216 (1887).

 

            However, Section 504B.001 (formerly § 566.18) now includes caretakers in the definition of tenant. See discussion, supra, at I.D.15.

 

            4.         Constructive trusts and property interests

 

            In Shustarich v. Fowler, UD 1960604520 (Minn. Dist. Ct. 4th Dist. July 5, 1996) (Appendix 176), Plaintiff and defendant first lived in defendant's home. Then plaintiff and defendant moved from her home to a second property, and the parties then living at the second property moved to defendant's old home. Plaintiff took title to the new property, and defendant contributed several thousand dollars from the sale of her home to a new roof and appliances. The parties kept separate expenses. After defendant obtained an order for protection, plaintiff gave notice and filed an unlawful detainer action. The court concluded that plaintiff failed to establish a landlord-tenant relationship, defendant was entitled to assert an interest in the premises, and an unlawful detainer action was a summary remedy inappropriate to try issues of title or to substitute for an action in ejectment, and denied restitution of the premises. See In re Estate of Ericksen, 337 N.W.2d 671 (Minn. 1983). But see Stock v. Beaulieu (Minn. Dist. Ct. 9th Dist. Mar. 9, 1995) (Appendix 140) (domestic partners were in landlord-tenant relationship; plaintiff retaliated against defendant for reporting a crime of domestic abuse committed by the plaintiff in which the defendant was the victim).

 

            In Deems v. Gustafson, No. C1-96-827 (Minn. Dist. Ct. 9th Dist. Nov. 26, 1997) (Appendix 324) (Rasmussen, J.), the plaintiff's mother, who also was the defendant's late wife, initially owned the property. Through several transactions, plaintiff acquired title to the property, but reserving a life estate for her mother, who later made a handwritten note stating that defendant could live on the property past her death. Following her mother's death without a will, plaintiff gave a one month notice to defendant and filed an unlawful detainer (now called eviction) action. The court amended the action to be an action for a ejectment. The court found that it would be a hardship for the defendant to move from his home of 22 years, where he had no substantial savings or resources and was close to his relatives, while on the other hand, plaintiff would be unjustly enriched by dispossessing the defendant where she had contributed little to the property. The court concluded that the property would be subject to constructive trust by the defendant for the remainder of his life or as long as he occupied the property on the condition that he maintain the property in good condition, be responsible for utilities and routine maintenance, and pay plaintiff $100 per month for taxes and insurance.

 

            In In re Estate of Murphy, 2017 Minn. App. Unpub. LEXIS 27 (Minn. Ct. App. Jan. 9, 2017) (unpublished), the appellant argued that he had a one-half ownership in the house titled in the name of his late girlfriend. He argued that he bought a house with the decedent as joint tenant and signed (with her) six mortgages on the home over the subsequent years. He added that in 2002 he signed a quitclaim deed conveying his interest in the home to decedent and did not dispute the fact that decedent issued him certificates of rent paid so that he could receive rent-related tax refunds for the years of 2008-2014. But he questioned the lack of such certificates prior to 2008. The decedent's will did not dispose of the home other than through a residuary clause. When decedent's son, the appointed personal representative, attempted to sell the home, the appellant objected claiming his one-half interest. The decedent's soon argued that he personally paid sewer, water, and homeowner's insurance costs and that the estate was not unjustly enriched because the appellant benefitted from the contributions he made in the form of an improved residence in which he continued to live despite not being the owner of record. The district court found that the appellant had not presented clear and convincing evidence that unjust enrichment justified imposition of a constructive trust or that he was entitled to other equitable relief. He moved for a new trial or amended findings, which the district court denied. He then appealed. The Court of Appeals held that the district court did not err in declining to grant equitable relief and in finding that the appellant and decedent had a landlord/tenant relationship and that, in the absence of unjust enrichment, equity did not support the imposition of a constructive trust.

 

            5.         Post Dissolution

 

            An eviction (formerly unlawful detainer) action is available to enforce a change in occupancy mandated by a dissolution decree. In Swanson v. Wenzel, Nos. C1-97-2185 and C5-97-1881 (Minn. Ct. App. May 26, 1998) (Appendix 369) (Unpublished), the decree provided that the parties would own the homestead as joint tenants but would sell it by July 6, the appellant was entitled to exclusive occupancy, but if the property was not sold by July 6, the respondent would be entitled to exclusive occupancy and would have the obligation to resell it. After the parties did not sell the property and the appellant refused to move, respondent brought an unlawful detainer (now called eviction) action and was awarded a judgment of restitution. The court affirmed the decision, concluding that strict construction of the sale provision in the decree was proper.

 

I.         Tax forfeited property

 

            See O'Connor v. Miller, UD-1940211505 (Minn. Dist. Ct. 4th Dist. Mar. 24, 1994) (Appendix 178) (tax forfeiture extinguishes prior leases; rent collection attempts created new leases).

 

J.         Forms

 

            During 1996 and 1997 the Pro Se Housing Court Subcommittee of the Conference of Chief Judges Pro Se Committee developed for various types of summary housing actions, including unlawful detainer (eviction), lock out, rent escrow, tenant remedies, and emergency tenant remedies actions. The Subcommittee also developed instructions for the forms. All of the forms and instructions were mailed to all of the district court administrators around the state.

 

            The courts website contains housing forms.

http://www.mncourts.gov/GetForms.aspx?cat=Housing+-+Landlord-Tenant

 

            The Poverty Law website contains forms drafted by the author.

http://povertylaw.homestead.com/ResidentialUnlawfulDetainer.html

 

K.        Ethics Issues in Landlord and Tenant Representation

 

            Ethical issues for attorneys advising or representing landlord or tenants includes legal advice clinics, conflicts, diminished capacity, and competence. See L. McDonough, “Ethical Representation of Landlords and Tenants.”

http://povertylaw.homestead.com/files/Reading/ETHICAL_CONCERNS_IN_REPRESENTING_LANDLORDS_AND_TENANTS_REVISED.pptx

 

Chapter II: Summary Proceeding

 

A.        Summary Proceeding to Replace Self-help Eviction

 

            Self-help evictions are prohibited. Berg v. Wiley, 264 N.W.2d 145, 149-51 (Minn. 1978) (Berg II). See also Minn. Stat. §§ 504B.101 (formerly § 504.01), 504B.225 (formerly § 504.25), 504B.231 (formerly § 504.255), 504B.281 (formerly § 566.01), 504B.301 (formerly § 566.02), 504B.375 (formerly § 566.175).

 

            The unlawful detainer (eviction) action is a summary proceeding, created by statute, which provides an alternative to the common law ejectment action. Minn. Stat. §§ 504B.301 (formerly § 566.02) et. seq. Warnert v. MGM Properties, 362 N.W.2d 364, 366-67 n.1 (Minn. Ct. App. 1985) (“The unlawful detainer is not designed for extensive litigation, and the proceeding should not be used as a substitute for the common-law remedy of ejectment. The issues of abandonment and surrender raised in this case are clearly not amenable or appropriate to a summary detainer proceeding. The postural difficulties presented in this case demonstrate the wisdom of this rule. Plaintiff's proper remedy was an ejectment action, where necessary legal procedures and equitable remedies were available and the right to possession and damages could be resolved in one action.”). The action is for possession of the premises, and not for damages. Minn. Stat. §§ 504B.301 (formerly § 566.02), 504B.285 (formerly § 566.03).

 

B.        Action Not Appropriate for Certain Types of Litigation

 

            1.         Parallel or complex litigation

 

            In Rice Park Properties v. Robins, Kaplan, Miller & Ciresi, 532 N.W.2d 556 (Minn. 1995), the Minnesota Supreme Court decision reversed the Court of Appeals and affirmed the district court decision to stay an unlawful detainer (now called eviction) action pending final disposition of a related and earlier filed declaratory judgment action commenced by the tenant. In Stein v. J.D. White, Inc., No. CO-91-2164 (Minn. Ct. App. Apr. 21, 1992), Finance & Commerce at B24 (April 24, 1992) (App. 0.F) (unpublished), the commercial tenant brought a declaratory judgment, breach of contract and misrepresentation action against the landlord to determine responsibility for payment of utilities under the lease. The landlord then filed an unlawful detainer action against the tenant alleging breach of the lease by failure to pay a share of the utility bill. The court affirmed dismissal of the action, noting that when a pending parallel action will properly resolve the dispute which has been incorrectly brought as an unlawful detainer action, trial courts may grant procedural dismissals without ruling on the merits. The court noted that in "[i]nterpretations of complex lease provisions, particularly when collateral to the basic rent obligation, are not a amenable or appropriate to the type of summary disposition envisioned by the unlawful detainer act." Id. (citing Berg v. Wiley, 303 Minn. 247, 250, 226 N.W.2d 904, 906-07 (1975)). The court added that decisions on the merits merely determine the right to present possession of the property and do not determine the ultimate rights of the parties. Id. (citing William Weisman Holding Co. v. Miller, 152 Minn. 330, 188 N.W. 732 (1922)). See Bjur v. Burgmeier, No. C2-92-409 (Minn. Ct. App. Aug. 18, 1992), Finance & Commerce at B45 (Aug. 21, 1992) (unpublished: because plaintiff, as the mortgagee's assignee, has presumptively good title and because defendants cannot litigate title in an unlawful detainer action, defendants are foreclosed from challenging plaintiff's title by reference to their collateral litigation) (Appendix 0.H).

 

            In Amresco Residential Mortgage Corp. v. Stange, 631 N.W.2d 444 (Minn. Ct. App. 2001), the trial court ruled that it could not consider mortgage defects in the eviction action. On appeal, the court held that rather than order the trial court to hear the issues or convert the action to an ejectment action, the appellants could seek to enjoin prosecution of the eviction action in the separate proceeding in which they sought to set aside respondent's foreclosure which they commenced after dismissal of their counterclaims in the eviction action. While the court affirmed dismissal of the counterclaims, it ordered that the court's stay of the writ of restitution during the appeal be continued for a reasonable period of time in which appellants can assert, and the district court can determine in their pending proceeding, whether their right of possession should be protected by enjoining the writ until the court rules on their title claims.

 

            In Fraser v. Fraser, 642 N.W.2d 34 (Minn. Ct. App., 2002), the husband's father, who sold house to husband and wife under contract for deed, gave notice of cancellation of contract after husband brought dissolution action. The wife sought to enjoin cancellation as part of dissolution proceedings, which was granted and later vacated. The father then brought an eviction action against wife, and the district court ruled in father's favor. The wife appealed in both cases and they were consolidated. The court held that there was no jurisdiction in the dissolution action jurisdiction to enjoin cancellation of contract for deed. In the eviction action, the court held that the trial court was not bound by findings on the contract for deed service from the dissolution action, given the lack of jurisdiction in the latter. As to whether the wife could litigate equitable real estate issues in the eviction case, relying on Amresco Residential Mortgage Corp. v. Stange, 631 N.W.2d 444 (Minn. Ct. App. 2001), the court held that if she has the ability to litigate her equitable mortgage and other claims and defenses in alternate civil proceedings where she could enjoin the eviction action, it would be inappropriate for her to seek to do so in the eviction action. However, since the court could not determine whether the eviction action was wife's only opportunity to address her claims and defenses, it remanded the case for the district court to address wife's service claims, address the propriety of entertaining wife's equitable defenses in the eviction action or in an alternate proceeding; and, if appropriate, decide the equitable defenses.

 

            2.         Domestic partners

 

            Domestic partners may or may not be in a landlord-tenant relationship, and if not, an unlawful detainer (eviction) action not be an appropriate forum to determine their possessory interests in the property. In Shustarich v. Fowler, U.D. 1960604520 (Minn. Dist. Ct. 4th Dist. July 5, 1996) (App. 176), Plaintiff and defendant first lived in defendant's home. Then plaintiff and defendant moved from her home to a second property, and the parties then living at the second property moved to defendant's old home. Plaintiff took title to the new property, and defendant contributed several thousand dollars from the sale of her home to a new roof and appliances. The parties kept separate expenses. After defendant obtained an order for protection, plaintiff gave notice and filed an unlawful detainer action. The court concluded that plaintiff failed to establish a landlord-tenant relationship, defendant was entitled to assert an interest in the premises, and an unlawful detainer action was a summary remedy inappropriate to try issues of title or to substitute for an action in ejectment, and denied restitution of the premises. See In re Estate of Ericksen, 337 N.W.2d 671 (Minn. 1983). But see Stock v. Beaulieu (Minn. Dist. Ct. 9th Dist. Mar. 9, 1995) (Appendix 140) (domestic partners were in landlord-tenant relationship; plaintiff retaliated against defendant for reporting a crime of domestic abuse committed by the plaintiff in which the defendant was the victim).

 

 

Chapter III: Subject Matter Jurisdiction

 

A.        Minn. Stat. § 504B.285: Holding Over, Breach, and Rent

 

            Minn. Stat. § 504B.285 (formerly § 566.03), Subd. 1 provides the most common basis for subject matter jurisdiction:

 

            1.         Holding over after sale on an execution or judgment, expiration of the redemption period following mortgage foreclosure, or termination of a contract for deed.

 

            2.         Holding over after expiration of the term of the lease.

 

            3.         Breach of lease.

 

            4.         Nonpayment of rent.

 

            5.         Holding over after termination of the tenancy by notice to quit.

 

            The landlord may combine actions for nonpayment of rent and material lease violations under § 504B.285 (formerly § 566.03), subd. 5. These claims shall be heard as alternative grounds. The hearing is bifurcated to first cover 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 claim. If the court reaches the nonpayment of rent claim, the tenant shall be permitted to present defenses. The tenant shall be given up to seven days to pay any rent and costs determined by the court to be due, either into court or to the landlord.

 

            A tenant cannot bring an unlawful detainer (eviction) action against the landlord who has wrongfully reentered the premises. The tenant's remedy is provided by the lockout statute, Minn. Stat. § 504B.375 (formerly § 566.175). Berg v. Wiley, 303 Minn. 247, 250-51, 226 N.W.2d 904, 906-07 (1975). (Berg I).

 

            A state court does not have jurisdiction