Lawrence R. McDonough
Managing Attorney, Housing Unit Minneapolis Office, Mid-Minnesota Legal Aid
Adjunct Clinical Professor of Law, University of Minnesota School of Law
Adjunct Professor of Law, University of St. Thomas School of Law
Former Visiting Professor of Law, Hamline University School of Law
Former Adjunct Professor of Law, William Mitchell College of Law
Jazz Pianist and Composer
Landlord and Tenant Law, Who Cares?
 Are you or have you ever been a landlord or tenant (or
have family members or close friends who are or have
been)?
 Landlord and tenant law affects almost everyone at
one time or another.
 Many attorneys called upon to provide advice or
representation to landlords or tenants with little
notice or preparation.
 Landlord and tenant law is a complex mixture of
property, contracts, torts, constitutional,
administrative, consumer, poverty, disability,
regulatory, and legislative law.
Why uniformity?
 Metropolitan areas that straddle states:
 1) New York-Newark-Bridgeport, NY-NJ-CT-PA - 21,976,224
 3) Chicago-Naperville-Michigan City, IL-IN-WI - 9,725,317
 4) Washington-Baltimore-Northern Virginia, DC-MD-VA-
WV - 8,211,213
 5) Boston-Worcester-Manchester, MA-RI-NH - 7,465,634
 7) Philadelphia-Camden-Vineland, PA-NJ-DE-MD 6,382,714
 10) Atlanta-Sandy Springs-Gainesville, GA-AL - 5,478,667
 15) Minneapolis-St. Paul-St. Cloud, MN-WI - 3,502,891
 19) St. Louis-St. Charles-Farmington, MO-IL - 2,858,549
 22) Sacramento--Arden-Arcade--Truckee, CA-NV 
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2,211,790
23) Charlotte-Gastonia-Salisbury, NC-SC - 2,191,604
24) Portland-Vancouver-Beaverton, OR-WA - 2,137,565
25) Cincinnati-Middletown-Wilmington, OH-KY-IN 2,147,617
27) Kansas City-Overland Park-Kansas City, MO-KS 2,034,796
The 30 Largest Metropolitan Areas in the United States,
http://geography.about.com/od/lists/a/csa2005.htm
 So do landlords, tenants, and attorneys
Then
 The Uniform Residential Landlord and Tenant Act of
1972, 1974
 The Summary
http://uniformlaws.org/ActSummary.aspx?title=Resid
ential%20Landlord%20and%20Tenant%20Act
 “Landlords and tenants in most states today carryon
their disputes in a maze of disjointed and
contradictory legislation, ordinances, administrative
regulations and court decisions. All of these are based,
or overlaid, on a system of "common law" devised to
meet the needs of a feudal society in which noble
landowners rented out their property to commoner
farmers.”
 “[B]oth sides tend to view each other with suspicion.
Misunderstandings fester into accusations and
arguments which can, and often do, result in violence.
Most police departments list landlord-tenant problems
as second only to "family matters" as a case of violent
incidents. This is not surprising when we consider that
a man's home usually ranks second only to his family
as his most prized possession.”
 "‘[R]eform’ legislation should ...
 Equalize the bargaining positions of landlords and
tenants.
 Force landlords to meet minimum standards for
providing safe and habitable housing.
 Spell out the responsibilities of tenants for
maintaining the quality of their housing units.
 Insure tenants the right to occupy a dwelling as long as
they fulfill their responsibilities.”
The Act
 http://www.uniformlaws.org/shared/docs/residential
%20landlord%20and%20tenant/urlta%201974.pdf
Landlord and Tenant Obligations
 § 1.403. [Prohibited Provisions in Rental Agreements]
 § 2.101. [Security Deposits; Prepaid Rent]
 § 2.102. [Disclosure]
 § 2.104. [Landlord to Maintain Premises]
 § 3.101. [Tenant to Maintain Dwelling Unit]
 § 3.102. [Rules and Regulations]
 § 3.103. [Access]
Tenant Remedies
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§ 4.101. [Noncompliance by the Landlord – In General]
§ 4.102. [Failure to Deliver Possession]
§ 4.103. [Self-Help for Minor Defects]
§ 4.104. [Wrongful Failure to Supply Heat, Water, Hot
Water, or Essential Services]
§ 4.105. [Landlord’s Noncompliance as Defense to Action
for Possession or Rent]
§ 4.106. [Fire or Casualty Damage]
§ 4.107. [Tenant’s Remedies for Landlord’s Unlawful
Ouster, Exclusion,
or Diminution of Service]
Landlord Remedies
 § 4.201. [Noncompliance with Rental Agreement;
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Failure to Pay Rent]
§ 4.202. [Failure to Maintain]
§ 4.203. [Remedies for Absence, Nonuse and
Abandonment]
§ 4.204. [Waiver of Landlord’s Right to Terminate]
§ 4.205. [Landlord Liens; Distress for Rent]
§ 4.206. [Remedy after Termination]
§ 4.207. [Recovery of Possession Limited]
Other Remedies and Retaliation
 § 4.301. [Periodic Tenancy; Holdover Remedies]
 § 4.302. [Landlord and Tenant Remedies for Abuse of
Access]
 § 5.101. [Retaliatory Conduct Prohibited]
Bold and Relevant?
 “The drafters of the URLTA recognized the
obsolescence of traditional landlord-tenant law;
consequently, they signalled for wholesale departures.”
B. Bagni, The Uniform Residential Landlord and Tenant
Act: Reconciling Landlord-Tenant Law with Modern
Realities, 6 Ind. L. Rev. 741, 752 (1973).
 “[It] comes close to enacting a Tenant's Bill of Rights.”
C. Berger, Hard Leases Make Bad Law, 74 Colum. L.
Rev. 791, 813 (1974).
 “Despite concerns that the URLTA was “decidedly pro-
tenant legislation,” it became the foundation for the
flood of comprehensive legislative reforms that
followed. By 1984, more than forty states had adopted
the implied warranty by statute.” M. Brower, The
"Backlash" of the Implied Warranty of Habitability:
Theory vs. Analysis, 60 DePaul L. Rev. 849, 860 (2011).
 See generally E. Rabin, The Revolution In Residential
Landlord-Tenant Law: Causes and Consequences, 69
Cornell L. Rev. 517 (1984).
The Enacting States
 Alabama, Alaska, Arizona, Connecticut, Florida,
Hawaii, Iowa, Kansas, Kentucky, Michigan,
Mississippi, Montana, Nebraska, New Mexico,
Oklahoma, Oregon, Rhode Island, South Carolina,
Tennessee, Virginia, Washington
 http://uniformlaws.org/Act.aspx?title=Residential%20
Landlord%20and%20Tenant%20Act
 Many others have similar provisions
Now
 Uniform Law Commission Drafting Committee on a
Revised Residential Landlord and Tenant Act
 http://www.uniformlaws.org/Committee.aspx?title=R
esidential%20Landlord%20and%20Tenant%20Act
Current Draft Revision
 September 17, 2012
 Definitions
 § 201 Expansion of definitions: Abandonment,
domestic violence, electronic notices, essential
services, normal wear and tear, periodic tenancies,
security deposit, subleases
 Landlord Obligations
 § 301 Disclosure of rules, conditions, contacts
 § 303 Maintenance: substantial standard regarding
codes, water and weather proofing, plumbing, running
water, heat, electricity, infestation, clean, receptacles,
good repair, doors and windows
 Tenant Obligations
 § 401 Maintenance: notice, restore when vacating
 Tenant Remedies
 § 501 Generally: terminate, rent abatement (value of use),
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injunctive relief, specific performance, minor repair and
deduct, essential service, substitute housing, willful
violations (consequential damages, costs and attorney
fees), tenant acts
§ 503 Repair and deduct up to $500
§ 504 Essential services damages
§ 505 Eviction defense: rent into court, repairs, damages
§ 508 Domestic violence termination: notice, evidence,
damages
§ 509 Domestic violence locks
§ 510 Exclusion of domestic violence perpetrator
 Landlord Remedies
 § 603 Abandonment: damages, mitigation examples,
 Tenancy Termination
 § 701 Weekly, monthly, early lease termination
(landlord sale, tenant employment, tenant death
 Retaliation
 No draft yet
 Security Deposits
 § 901 Nature: 1.5 x rent, nonrefundable fees, pets, prepaid
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rent,
§ 902 Tenant cannot use deposit for rent
§ 903 Safekeeping funds
§ 904 Return: 30 days, notice of withholding, 10 day
objection, penalties, costs and attorney fees
§ 905 Landlord’s successor
 Evictions
 No draft yet
Is the Draft as Bold and Relevant?
 Not yet but there is potential.
 This is a good start on property maintenance, domestic
violence, mitigation, and deposits
 More is needed to lead rather than just follow the
masses.
Habitability: Rent in Court
 Tenants should not have to pay rent into court to prove
they do not owe rent due to habitability or other
defenses.
 Most litigants are not required to place in the court’s
custody the property or money that is in dispute.
 Paying past rent into court creates a conflict for the
court between awarding rent abatement to the tenant
and holding funds for repairs.
 Many poor tenants are denied their day in court to
litigate habitability when they are unable to hold onto
all of the withheld rent.
 Several states do not require tenants to pay rent into
court.
 URLTA states: Kentucky, New Mexico, Oklahoma, and
Tennessee, Noble-Allgire Memo to Members of the
URLTA Drafting Committee, at 17 (Feb. 12, 2012)
 Other states: Massachusetts (future (not past) rent
into court after bench trial and only preceding trial if
by jury), Michigan (for jury trial), California, North
Carolina
Habitability Standard
 The landlord can evade obligations because of the double
negative: “premises are uninhabitable if any part of the
premises substantially: (1) fails to comply with applicable
building, housing, and health codes to the extent the
failures substantially affect the health and safety of the
tenant or an immediate family member; ....”
 The obligation should be positive and not modified by the
term “substantial”: “A landlord’s mandatory duty under
subsection (a) includes the following obligations of
maintenance and repair at the premises: (1) to comply with
applicable building, housing, and health codes to the
extent the failures affect the health and safety of the tenant
or an immediate family member; ....”
Habitability Waiver
 It should be carefully limited
 “The landlord or licensor may agree with the tenant or
licensee that the tenant or licensee is to perform
specified repairs or maintenance, but only if the
agreement is supported by adequate consideration and
set forth in a conspicuous writing. No such agreement,
however, may waive the provisions of subdivision 1 or
relieve the landlord or licensor of the duty to maintain
common areas of the premises.” Minn. Stat.
§ 504B.161, Subd. 2
Habitability Tort Liability
 The original Act and present Draft do not discuss tort
liability for habitability violations.
 The States: “A substantial number of jurisdictions have
permitted the recovery of tort damages ....Alaska,
Delaware, Florida, Georgia, Hawaii, Indiana, Louisiana,
Mississippi, Montana, New Jersey, Ohio, Oregon,
Pennsylvania, South Carolina, Washington, West Virginia,
Wisconsin, and Wyoming allow some form of tort damages
for the breach of the warranty of habitability. Arizona,
California, Idaho, Maine, Massachusetts, Missouri, Nevada,
New Hampshire, New York, Tennessee, Utah, and Vermont
have permitted recovery of damages under negligence or
other tort theories.” Noble-Allgire Memo to Members of
the URLTA Drafting Committee, at 33-34 (Feb. 12, 2012)
Why Tort Liability?
 States without liability provide no redress for serious
injury and death resulting from violations.
 Nationwide tort liability could lead the insurance
industry to create different rates for compliant and
noncompliant landlords.
 Differing insurance rates could create a financial
incentive to maintain rental property.
What Standard?
 “A landlord is subject to liability for physical harm
caused to the tenant and others upon the leased
property with the consent of the tenant or his
subtenant by a dangerous condition existing before or
arising after the tenant has taken possession, if he has
failed to exercise reasonable care to repair the
condition and the existence of the condition is in
violation of: (1) an implied warranty of habitability; or
(2) a duty created by statute or administrative
regulation.” Restatement (Second) of Property § 17.6
(1977)
Domestic Violence
 Include Sexual Violence: Washington State
 Eviction Defense: District of Columbia
Other Protections for Tenants
 Application Fee Regulation: Massachusetts, Minnesota
 Attorney Fees: As an alternative to the Act prohibition
of attorney fees in leases, requiring an attorney fee
provision to create a reciprocal attorney fee claim for
tenants: Minnesota, New York
 Caretakers Having the Rights of Tenants: Minnesota
 Drug Use off of the Property Prohibited as a Basis for
Eviction: Minnesota
 Early Lease Termination for Persons Going to Nursing
Homes: New York
 Expungement or Sealing Eviction Court Records:
Minnesota
 Foreclosure Disclosure to Prospective Tenants, and
other Foreclosure Protections for Tenants:
http://www.nlchp.org/content/pubs/12.17.12%20Evicti
on%20Without%20Notice%20FINAL.pdf
 Late Fees Regulation: Iowa, Massachusetts, Minnesota
 Police Calls Alone Prohibited as a Basis for Eviction:
Minnesota
 Pre-lease Deposits Regulation: Minnesota
 Receipts for Rent Required: Cleveland, Minnesota,
New York
 Residential Hotels, Shelters and Halfway Houses
Treated like Landlords: District of Columbia,
Massachusetts, and Minnesota
 Shared Utility Metering Regulation: Cleveland,
Massachusetts, Minnesota
 Tenant Screening Agencies Regulation: R. Kleysteuber,
Tenant Screening Thirty Years Later: a Statutory
Proposal to Protect Public Records, 116 Yale L.J. 1344
(2007)
 Waiver of Eviction for Rent by Acceptance of Part
Payment of Rent: Minnesota
Have Comments for the Committee?
 Go to
http://www.uniformlaws.org/Committee.aspx?title=R
esidential%20Landlord%20and%20Tenant%20Act
 Sign Up to follow Residential Landlord and Tenant Act
Committee: committee@uniformlaws.org
Lawrence R. McDonough
Managing Attorney, Housing Unit
Minneapolis Office, Mid-Minnesota Legal Aid
(formerly Legal Aid Society of Minneapolis)
430 First Avenue North, Suite 300
Minneapolis, MN 55401
612.746.3633 Phone and Fax
lrmcdonough@mylegalaid.org
mcdon056@umn.edu
Poverty Law http://povertylaw.homestead.com
Housing Law Clinic http://www.minnhousingclinic.homestead.com
Jazz http://www.larrymcdonoughjazz.homestead.com