Unlawful Exclusions and
Emergency Cases
March 13, 2015
Lawrence McDonough
Pro Bono Counsel
Dorsey and Whitney, LLP
Suite 1500
50 South Sixth Street
Minneapolis, MN 55402-1498
612-492-6795
McDonough.Lawrence@Dorsey.com
http://dorsey.com/
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 14day 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 Problems
http://www.lawhelpmn.org/issues/housing/condemn
ation-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 Forms
http://www.mncourts.gov/selfhelp/?page=3520
In Forma Pauperis Fee Waivers
http://povertylaw.homestead.com/IFP.html
Notice of Removal
http://www.mncourts.gov/default.aspx?page=513&item=4
68&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 permanent
Lease termination
Consequential damages
Compliance hearings
See Residential Eviction Defense in Minnesota
http://povertylaw.homestead.com/files/Reading/Resi
dential_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 Forms
http://www.mncourts.gov/selfhelp/?page=3521
In Forma Pauperis Fee Waivers
http://povertylaw.homestead.com/IFP.html
Notice of Removal
http://www.mncourts.gov/default.aspx?page=513&item=4
68&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.1
http://povertylaw.homestead.com/files/Reading/Resi
dential_Eviction_Defense_in_Minnesota.htm#XII.B.
1
What about Damages?
Minn. Stat. § 504B.231 (formerly § 504.255) Damages
for Ouster
https://www.revisor.mn.gov/statutes/?id=504B.231
Minn. Stat. § 557.08 Forcible Eviction; Treble
Damages
https://www.revisor.mn.gov/statutes/?id=557.08
Minn. Stat. § 557.09 Eviction; Treble Damages
https://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.1
http://povertylaw.homestead.com/files/Reading/Residential_Eviction_Defe
nse_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 petition
http://povertylaw.homestead.com/EmergencyReliefandLockoutActio
ns.html
In Forma Pauperis Fee Waivers
http://povertylaw.homestead.com/IFP.html
Notice of Removal
http://www.mncourts.gov/default.aspx?page=513&item=468&itemTy
pe=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 petition
http://povertylaw.homestead.com/EmergencyReliefandLo
ckoutActions.html
Lawrence McDonough
Pro Bono Counsel
Dorsey and Whitney, LLP
Suite 1500
50 South Sixth Street
Minneapolis, MN 55402-1498
612-492-6795
McDonough.Lawrence@Dorsey.com
http://dorsey.com/