Insights
MINNESOTA EVICTIONS, PLAIN AND SIMPLE, SORT OF . . .
Very few people are confused about what it means to be “evicted” from property. If you are like me, you envision an “eviction” involving an angry sheriff’s deputy who presides over your physical extraction from the property, together with all of your belongings, which are dumped unceremoniously onto the curb, spilling out into the street at precisely the right moment so they can be run over by a passing city bus as it strikes a strategically-placed mud puddle, which adds insult to injury, soaking you to the bone and ruining your favorite starch-white recliner. I might be overdoing it a little (with the story and the hyphenation), but for most people, even the thought of an eviction is cringe-worthy. What will the neighbors think? But most eviction proceedings do not end in such dramatic fashion, perhaps because most tenants do not wish to experience what might be a very unpleasant and public introduction to homelessness.
The eviction or “unlawful detainer,” (as it is referred to by judges, court administrators and lawyers who know what they’re talking about) is a summary proceeding that remains a mystery to many people (and to some lawyers).
What are my options if a tenant refuses to pay rent or violates the lease?
How long does the eviction process take?
Was I still supposed to be paying rent if my apartment was infested with cat-sized rats?
Why can’t I get a judgment in an unlawful detainer for the rent I am owed by this deadbeat tenant?
What occurs at the first appearance, or at an unlawful detainer trial?
What if the tenant leaves a recliner at the property, or 30 bags of garbage in the garage?
What if I threw away “garbage” consisting of some very valuable vintage action figures that my tenant had devoted his life to collecting?
Why is it so important for a landlord to accurately account for withholding some or all of a former tenant’s security deposit?
If a tenant sues me, when might I have to pay his/her attorneys’ fees?
Many of these questions are answered in this article. Some are not (If your question is about cat-sized rats, please call us, because we would like to put that video on YouTube). For everyone else, we hope you find this article helpful. And don’t worry, the rest of this article is much more boring and informative than the introduction.
The Minnesota Legislature has been very busy updating many statutes that apply to landlord and tenant rights and responsibilities. Cities have also enacted local rules and regulations for landlords that may provide further responsibilities beyond what is stated in state statutes. Whether you are a landlord or tenant, it is important to know how these statutes apply to your unique situation. The information below is provided for general guidance. For legal advice regarding your unique situation, schedule a consultation with one of our attorneys.
Evicting a Tenant
Tenants may be evicted when they breach a lease. However, if the breach constitutes only failure to pay rent, as opposed to some other breach, e.g., illegal activity, then the tenant may “pay and stay” if the term of the tenancy has not expired. Therefore, landlords should always plead all material breaches of the lease, both monetary and non-monetary, to the extent they have occurred.
Prerequisites to Eviction. Landlords must disclose to tenants certain information about who is authorized to manage the premises and who is authorized to receive service of process for the landlord. Minn. Stat. § 504B.181. Some cities require this information to be posted at the rental residence. It is also important to include such information in the written lease agreement.
Right to Commence an Action: Breach. Where a lease exists, if a tenant does not pay rent when it is due, the landlord may bring an eviction action unless the lease provides otherwise. Before bringing an eviction action alleging nonpayment of rent or other unpaid financial obligation in violation of the lease, the landlord must provide a written notice to the residential tenant specifying the basis for the action. The updated statute includes specific information that must be included in this notice. Minn. Stat. § 504B.321. In some cases, tenants can obtain emergency funding to pay their rent. Recent legislative updates provide opportunities for tenants to redeem by obtaining a written guarantee from an agency and providing that guarantee in writing to the landlord. Minn. Stat. § 504B.291.
Terminating a Tenancy: No Breach. The relationship between a tenant and landlord is contractual. This means that many of the terms of the agreement between the parties can be defined in a written lease. If the lease has not been breached but the landlord seeks possession of the property, the tenancy must be terminated before an eviction action can be pursued. Where the lease does not include early termination provisions, no termination or eviction action can occur until the end of the lease term, unless the tenant breaches the lease. In a periodic or holdover tenancy (month to month or otherwise), notice of not less than the interval between the time the rent is due or three months, whichever is less, is required. Minn. Stat. § 504B.135.
Commencing the Action. An Eviction Summons is issued by a court when an Eviction Complaint is filed with the court. A fee must also be paid at that time. The summons includes the date of the first hearing, which will be scheduled between seven and 14 days from the date the complaint is filed. Recent legislative updates have heightened the pleading standard for unlawful detainer complaints. Minn. Stat. § 504B.321.
Serving the Summons. The Summons must then be served at least 7 days before the hearing. The method of service is governed by statute and requires multiple attempts at service and posting if personal service cannot be accomplished. Minn. Stat. § 504B.331. Most Minnesota process servers are familiar with these requirements, particularly in the Twin Cities metro area.
First Appearance. The first appearance generally involves settlement discussions and if the tenant presents defenses, they are generally presented at this stage. If the tenant answers the complaint, the answer may be filed at this time. Minn. Stat. § 504B.335 (governing answers and trials). New legislation provides a right to counsel for tenants in cases involving public housing. Minn. Stat. § 504B.268. Many jurisdictions hold unlawful detainer hearings via zoom. There will be multiple other cases calendared at the same time. Court administration or legal staff will ask tenants if they wish to apply for legal counsel or speak in a zoom breakout room with legal experts. The parties will also be encouraged to engage in settlement discussions.
Trial. Trials generally occur shortly after (hours or days) the initial “trial” appearance through a statutory continuance. If a jury trial is requested, scheduling takes longer. By statute, continued trials must occur not later than 6 days after the first appearance unless all parties consent to a longer continuance. Minn. Stat. § 504B.341. Many times, the parties are at the mercy of the court’s availability. Everyone is typically encouraged to continue engaging in settlement discussions between the first hearing and the trial if the court’s calendar cannot accommodate enough time for the parties to be heard.
Tenant Defenses: cat-sized rats. In cases where tenants allege violations of the covenant of habitability, a tenant has the right to bring a separate Rent Escrow Action. This is a separate action from an unlawful detainer. It is important for a tenant to communicate with their landlord if they have maintenance concerns about their rental property so the landlord can properly remedy the issues. In Rent Escrow actions, the tenant still needs to pay rent but rather than paying the landlord or landlord’s agent, rent is paid to the court and held pending the adjudication (decision) of the action. Minn. Stat.. § 504Bb.385. Many instances of rent escrow actions stem from a breakdown in communication. Whether you are a landlord or tenant, we encourage you to clearly communicate concerns with one another and provide documentation of any issues so problems may be resolved expediently and without the need for court proceedings.
“Pay and Stay.” In cases where failure to pay rent is the only allegation by the landlord, even if the landlord prevails at trial and obtains a writ of recovery, the tenant can “pay and stay” if the tenancy has not ended and has not been timely terminated by the landlord. To pay and stay, the tenant must pay the rent that is past due (in arrears), plus interest (if charged), plus a $5 attorney fee if an attorney represented the landlord, and finally, any “costs of the action.” Costs of the action include the filing fee (now about $320 – $355) plus the process server fee, plus a witness fee if one was subpoenaed (called) for trial.
Timing. Based on the statutory timing for filing, initial appearances and trials, the longest period of time between filing an Eviction Complaint and holding a trial on the merits should be 20 days, but may be as short as 7 days from filing to trial. Most evictions do not involve a trial. If the landlord prevails at trial, a tenant may ask that the judge delay issuance of a writ of recovery for a reasonable period. To obtain a stay, the tenant must show that immediate eviction would place a “substantial hardship” upon the tenant or the tenant’s family. Minn. Stat. § 504B.345. In general, an eviction from start to finish takes fewer than 30 days in Minnesota, but some cases do take longer. This does not mean that if you are a landlord and you retain an attorney to evict a tenant that they will be out in less than 30 days. Due to the new heightened pleading standard for eviction complaints and the early notice requirement, an unlawful detainer action may take longer than 30 days. If you retain one of our attorneys, you can reasonably expect to provide documentation including the lease agreement, detailed accounting (if the allegation is nonpayment of rent), and any other supporting documentation.
Writ of Recovery. If the landlord wins at trial, a writ of recovery is issued. To enforce the writ, the landlord delivers the writ to the local sheriff, who will enforce the writ. The deputy posts the writ at the property, which gives notice to the tenant that the tenant must be out in 24 hours. If the tenant is not gone in 24 hours, the officer may return any time after that and supervise the physical removal of the tenant from the property.
WHAT TO DO WITH “THE STUFF”
Tenants do not always clean up after themselves when they leave the property. At times, they will vacate the property and leave behind a significant mess for the landlord to clean up. When this occurs, landlords must be careful to handle this “personal property” in accordance with Minnesota law. While the statutes ultimately govern (and should of course be deferred to instead of this article), a brief summary of the rules is discussed below.
Landlords have the right to take control of personal property in the following two circumstances: 1) when the tenant is evicted and has failed to make provisions to store the property; or 2) when the tenant abandons the premises, leaving property behind. At times, there is overlap between these situations, and reference to the statutes is necessary in either case.
Removal and Storage of Property Upon Eviction – Minn. Stat. § 504B.365.
Before any removal occurs, the tenant must be notified by first class mail of the date and approximate time the officer is scheduled to remove the tenant, family and personal property from the premises. It is a good idea to send this correspondence as soon as the writ is served. If the officer provides an estimated return time, that information can be included in the letter. The notice must inform the tenant that the tenant and his/her personal property will be removed from the premises if the tenant has not vacated by the time specified in the notice. A landlord must also make a good faith effort to notify the tenant by telephone.
Storage at different location; removal of property; costs. If the tenant’s personal property is to be stored in a place other than the premises, the officer shall remove all personal property of the defendant at the expense of the landlord. Minn. Stat. § 504B.271. The tenant must pay these costs immediately. Failure to do so results in a lien on all the personal property for the reasonable costs and expenses incurred in removing, caring for, storing, and transporting it to a suitable storage place. To enforce the lien, a landlord may keep the property until the bill is paid. If no payment is made within the statutory timeframe, then the landlord is entitled to hold a public sale.
Storage at same location; removal of property; costs. The plaintiff must prepare an inventory and mail a copy of the inventory to the prior tenant’s last known address or, if the defendant has provided a different address, to the address provided. The inventory must be prepared, signed, and dated in the presence of the officer and must include the following:
a list of the items of personal property and a description of their condition;
the date, the signature of the plaintiff or the plaintiff’s agent, and the name and telephone number of a person authorized to release the personal property; and
the name and badge number of the officer.
The officer must retain a copy of the inventory. The landlord is responsible for the proper removal, storage, and care of the tenant’s personal property and is liable for damages for loss of or injury to it caused by the landlord’s failure to exercise the same care that a reasonably careful person would exercise under similar circumstances.
Removal and Storage of Abandoned Property – Minn. Stat. § 504B.271.
If a tenant abandons the premises, the landlord may take possession of the tenant’s personal property left behind. The landlord is also obligated to store and care for the property. The landlord then has a claim against the tenant for reasonable costs and expenses incurred in removing the tenant’s property and for storing and caring for the property.
Twenty-eight days after 1) actual notice that the tenant has abandoned or 2) it reasonably appears the tenant has abandoned, the landlord may sell or dispose of the personal property. Proceeds from the sale may be applied to the landlord’s removal, care, and storage costs. Any remaining proceeds of any sale shall be paid to the tenant upon written demand.
Before the landlord sells the personal property, the landlord must make reasonable efforts to notify the tenant at least 14 days before the sale. If notification by mail is used, the 14-day period begins on the day the notices are placed in the mail. (We call this the “Mailbox Rule”.)
DON’T MESS WITH THAT SECURITY DEPOSIT
At times, landlords are tempted to inflate damage estimates in order to avoid returning a security deposit to a tenant. Minnesota law discourages this practice rather strongly.
Minnesota law protects tenants from the wrongful withholding of their security deposits and imposes financial penalties on landlords who do not follow the law. Specifically, § 504B.178 of the Minnesota Statutes provides that “within three weeks after termination of the tenancy,” a landlord “shall . . . return the deposit to the tenant, with interest . . . or furnish to the tenant a written statement showing the specific reason for the withholding of the deposit or any portion thereof.” Minn. Stat. § 504B.178, subd. 3 (2013). Failing to provide notice as to why a deposit has been withheld may result in a judgment for the full deposit, plus a penalty equal to the amount of the deposit. In other words, landlords that fail to follow the law can be held liable for twice the amount of the deposit. A penalty of $500.00 is also imposed where any portion of a security deposit is withheld in bad faith.
Documenting the condition of a property at move-in and move-out is strongly encouraged. Creating “proof” that a property was damaged during a tenancy is important to reduce miscommunication and refute potential claims that a deposit was wrongfully withheld.
Recent legislative updates now require landlords to provide the tenant with a notice of an initial inspection or move-out inspection. Minn. State § 504B.182. A landlord must complete an initial inspection and move-out inspection when requested by the tenant. Minn. Stat. § 504B.178.
WATCH OUT FOR LANDLORD-FAVORABLE ATTORNEY FEE PROVISIONS
More often than not, landlord-drafted leases contain provisions that allow landlords to collect attorneys’ fees if a tenant breaches a lease. These fee clauses are sometimes one-sided, favoring only the landlord. Landlords sometimes develop an artificial sense of insulation from paying a tenant’s attorneys’ fees because they rely on the contract, without considering recent changes to Minnesota law.
Recognizing that tenants usually do not have the power to negotiate these fee-shifting clauses, the Minnesota legislature decided to apply all landlord-favorable fee clauses to tenants as well. Specifically, the statute reads as follows:
If a residential lease specifies an action, circumstances, or an extent to which a landlord, directly, or through additional rent, may recover attorney fees in an action between the landlord and tenant, the tenant is entitled to attorney fees if the tenant prevails in the same type of action, under the same circumstances, and to the same extent as specified in the lease for the landlord.
Minn. Stat. § 504B.172.
The message to landlords is this: think very carefully about including a fee-shifting provision in your lease, especially if you plan to improperly withhold security deposits or allow the property to remain in a state of disrepair (which of course you should never be doing anyway).
For more information about drafting leases, please see our article: REAL ESTATE – THE MINNESOTA LEASE: PLAN AHEAD TO AVOID PROBLEMS LATER.
ABOUT THE AUTHORS
Matthew Schaap is a litigation attorney who lives and works in Apple Valley. He provides services for a wide variety of personal and business litigation matters. He has been with Dougherty Molenda since 2004.
Melanie Finley is an associate litigation attorney who works in Apple Valley. She provides a wide variety of services for civil litigants, including in connection with unlawfuil detainer cases.
Attorney Melanie R. Finley — Dougherty, Molenda, Solfest, Hills & Bauer P.A. (dmshb.com)