march 13, 2015 lawrence mcdonough pro bono counsel dorsey and whitney, llp suite 1500 50 south sixth...

March 13 , 2015

Lawrence McDonoughPro Bono Counse l

Dorsey and Whi tney, LLPSui te 1500

50 South S ix th StreetMinneapol i s , MN 55402-1498

612-492-6795McDonough.Lawrence@Dorsey.com

http : / /dorsey.com/

Unlawful Exclusions and Emergency Cases

Tenant Options for Repair Problems

1. Moving: This often leads to the landlord withholding the security deposit or suing for rent. The tenant can defend the action with the constructive eviction or habitability defense. 2. Withholding rent: This often leads to the landlord filing an eviction action. The tenant can defend the action with the habitability defense. The tenant probably will have to pay withheld rent into court.

Tenant Options for Repair Problems

3. Rent Escrow Action filed by the tenant: This is better for non-emergency repairs, based on tenant 14-day letter or inspection report. The tenant will have to pay withheld rent into court. 4. Tenant Remedies Action (TRA) filed by the tenant, city, or nonprofit: This is better for non-emergency multi-unit property repairs, based on 14-day letter or inspection report. The tenant probably will have to pay withheld rent into court.

Emergency Tenant Remedies Action (ETRA)

This also is called an action for emergency relief. This is better for emergency repairs, based on a tenant 24 hour notice. The tenant might have to pay withheld rent into court. For a summary, see Emergency Repair Problemshttp://www.lawhelpmn.org/issues/housing/condemnation-law

Minn. Stat. § 504B.381

Emergency Tenant Remedies Action(formerly Minn. Stat. § 566.205)https://www.revisor.mn.gov/statutes/?id=504B.381

Minn. Stat. § 504B.425

Judgment(formerly Minn. Stat. § 566.25)https://www.revisor.mn.gov/statutes/?id=504B.425

Precondition

Minn. Stat. § 504B.381  Subd. 4. Notice. The petitioner must attempt to notify the landlord, at least 24 hours before application to the court, of the petitioner's intent to seek emergency relief. An order may be granted without notice to the landlord if the court finds that reasonable efforts, as set forth in the petition or by separate affidavit, were made to notify the landlord but that the efforts were unsuccessful.

Petition

Minn. Stat. § 504B.381  Subd. 3. Petition information. The petitioner must present a verified petition to the district court that contains:(1) a description of the premises and the identity of the landlord;(2) a statement of the facts and grounds that demonstrate the existence of an emergency caused by the loss of essential services or facilities; and(3) a request for relief.

Filing

Court Formshttp://www.mncourts.gov/selfhelp/?page=3520 In Forma Pauperis Fee Waivershttp://povertylaw.homestead.com/IFP.html Notice of Removalhttp://www.mncourts.gov/default.aspx?page=513&item=468&itemType=formDetails Filing: (1) in person if pro see, and (2) e-filing if represented

Prehearing Procedure

Minn. Stat. § 504B.381  The statute does not provide for a prehearing procedure other than tenant service of court orders. A common practice is for the court to issue an order requiring the landlord to remedy the emergency, scheduling a hearing to determine compliance and damages and hear defenses, and providing a deadline for service of the petition and order on the defendant.

Hearing Procedure

The statute does not provide for a hearing procedure.  The tenant has the burden of proof, even if the court has ordered the landlord to remedy the emergency: (1) emergency, (2) tenant not responsible, (3) impact on tenant, and (4) relief requested.

Remedies

Minn. Stat. § 504B.425 (b) … remedy the violation or violations (c) … tenant to remedy the violation or violations … and deduct the cost from the rent (d) … appoint an administrator (e) … find the extent to which any uncorrected violations impair the residential tenants' use and enjoyment of the property contracted for and order the rent abated accordingly. (g) … any other relief it deems just and proper, including a judgment against the landlord for reasonable attorney fees, not to exceed $500

Any Other Relief It Deems Just and Proper

Relocation, temporary or permanentLease terminationConsequential damagesCompliance hearings See Residential Eviction Defense in Minnesotahttp://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#XII.B.3.b

Lockouts (Actual and Constructive)

Wrongful eviction is prohibited by common law and by statute. Berg v. Wiley, 264 N.W.2d 145, 149 (1978); Minn. Stat. § 504B.281 (formerly § 566.01).  A tenant who has been wrongfully evicted may petition to recover possession of the premises and sue for treble damages or $500.00 in statutory damages, and reasonable attorney's fees. Minn. Stat. §§ 504B.375 (formerly § 566.175), 504B.231 (formerly § 504.255), 557.08, 557.09.

A lockout also constitutes a misdemeanor under Minn. Stat. §§ 504B.225, 609.606. The tenant can call the police, although police responses to lockouts vary considerably.

Minn. Stat. § 504B.375

Unlawful Exclusion or Removal; Action for Recovery of Possession(formerly § 566.175)https://www.revisor.mn.gov/statutes/?id=504B.375

Precondition

Minn. Stat. § 504B.375

Nothing

Petition

Minn. Stat. § 504B.375 (b) The residential tenant shall present a verified petition to the district court of the judicial district of the county in which the premises are located that:(1) describes the premises and the landlord;(2) specifically states the facts and grounds that demonstrate that the exclusion or removal was unlawful, including a statement that no writ of recovery of the premises and order to vacate has been issued under section 504B.345 in favor of the landlord and against the residential tenant and executed in accordance with section 504B.365; and(3) asks for possession.

Filing

Court Formshttp://www.mncourts.gov/selfhelp/?page=3521 In Forma Pauperis Fee Waivershttp://povertylaw.homestead.com/IFP.html Notice of Removalhttp://www.mncourts.gov/default.aspx?page=513&item=468&itemType=formDetails Filing: (1) in person if pro see, and (2) e-filing if represented

Procedure

The court can order relief without a hearing. Minn. Stat. § 504B.375 (c) … immediately order that the residential tenant have possession of the premises.(d) The residential tenant shall furnish security, if any, that the court finds is appropriate under the circumstances

Procedure

Minn. Stat. § 504B.375 (e) … sheriff shall execute the order immediately by making a demand for possession on the landlord, if found, or the landlord's agent or other person in charge of the premises. If the landlord fails to comply with the demand, the officer shall take whatever assistance may be necessary and immediately place the residential tenant in possession of the premises. If the landlord, the landlord's agent, or other person in control of the premises cannot be found and if there is no person in charge, the officer shall immediately enter into and place the residential tenant in possession of the premises. The officer shall also serve the order and verified petition or affidavit immediately upon the landlord or agent, in the same manner as a summons is required to be served in a civil action in district court.

Procedure

Minn. Stat. § 504B.375 Subd. 2. Motion for dissolution or modification of order. The landlord may, by written motion … obtain dissolution or modification of the order for possession issued under subdivision 1, paragraph (c), unless the residential tenant proves the facts and grounds on which the order is issued.

Procedure

A common practice is for the court to issue an order requiring the landlord to remedy the lockout, scheduling a hearing to determine compliance and damages and hear defenses, and providing a deadline for service of the petition and order on the defendant.

Hearing Procedure

The statute does not provide for a hearing procedure.  The tenant has the burden of proof, even if the court has ordered the landlord to remedy the lockout: (1) tenancy, (2) lockout or exclusion, (3) impact on tenant, and (4) relief requested.

Remedy

Restore possession

See Residential Eviction Defense in Minnesota at XII.B.1http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#XII.B.1

What about Damages?

Minn. Stat. § 504B.231 (formerly § 504.255) Damages for Ousterhttps://www.revisor.mn.gov/statutes/?id=504B.231 Minn. Stat. § 557.08 Forcible Eviction; Treble Damageshttps://www.revisor.mn.gov/statutes/?id=557.08 Minn. Stat. § 557.09 Eviction; Treble Damageshttps://www.revisor.mn.gov/statutes/?id=557.09

Comparison of Statutes

Minn. Stat. § 504B.231: bad faith, $500 or treble damages, and attorney’s fees

Minn. Stat. § 557.08: force required, bad faith not required, treble damages, but no $500 or attorney’s fees

Minn. Stat. § 557.09: put out required, bad faith not required, treble damages, but no $500 or attorney’s fees

Damages can be sought in a separate action, or can be included in the action to restore possession, but the court form does not prompt the tenant to include damages.

See Residential Eviction Defense in Minnesota at XII.B.1http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defense_in_Minnesota.htm#XII.B.1

Combined Action

Why? Failing to remedy an emergency repair problem can constitute constructive removal. A lockout can be an emergency loss of essential services: housing. A combined action can combine remedies.

Combined Procedure

Precondition: Notice before filing Filing: Combined petitionhttp://povertylaw.homestead.com/EmergencyReliefandLockoutActions.html In Forma Pauperis Fee Waivershttp://povertylaw.homestead.com/IFP.html Notice of Removalhttp://www.mncourts.gov/default.aspx?page=513&item=468&itemType=formDetails Filing: (1) in person if pro see, and (2) e-filing if represented

Combined Procedure

A common practice is for the court to issue an order requiring the landlord to remedy the violations, scheduling a hearing to determine compliance and damages and hear defenses, and providing a deadline for service of the petition and order on the defendant.

Combined Procedure

The statutes do not provide for a hearing procedure.  The tenant has the burden of proof, even if the court has ordered the landlord to remedy the violations: (1) tenancy, (2) 24 hour notice, (3) emergency, lockout or exclusion, (3) impact on tenant, and (4) relief requested. Remedies: Combined petitionhttp://povertylaw.homestead.com/EmergencyReliefandLockoutActions.html

Lawrence McDonoughPro Bono CounselDorsey and Whitney, LLPSuite 150050 South Sixth StreetMinneapolis, MN 55402-1498612-492-6795McDonough.Lawrence@Dorsey.comhttp://dorsey.com/