Perhaps the trickiest and most technical aspect of Minnesota residential landlord-tenant law is the process by which a property owner evicts a tenant who is in breach of the lease. My June 28 Minnesota Home Talk provided a brief overview of the pertinent considerations. Here is a bit more of the black letter law on the subject.
A landlord is not permitted to engage in self-help eviction. Berg v. Wiley, 264 N.W. 2d 145 (Minn 1978). The unlawful detainer is a special summary proceeding created by statute that provides an alternative to the common law ejectment action. Minn. Stat. §504B.281-371. The action is for possession only and a landlord is required to bring an independent action for rent or damages. Cases involving questions of title or equity should be litigated in an ejectment action. Warnert v. MGM Properties, 262 N.W. 2d 364, 366 (Minn. Ct. App. 1985).
Pursuant to Minnesota Statute §504B.301, possession of the premises may be recovered when a person has made unlawful, forcible or peaceable entry into lands or tenements and detains said premises from the person entitled to possession. Unlawful detention includes a seizure on residential rental property of contraband or a controlled substance manufactured, distributed or acquired as provided by Minn. Stat. §609.5317.
Minnesota Statute §504B.285, Subd. 1 sets forth the grounds by which an eviction action can be brought. They include (a) one holding over after sale on an execution or judgment, expiration of the time for redemption following mortgage foreclosure or termination of a contract for deed; (b) against tenants holding over after sale, foreclosure or termination only if given one month notice of the termination of tenancy prior to commencement of an unlawful detainer action; (c) against one holding over after expiration of the lease term; (d) for non-payment of rent; and (e) against one holding over after termination by notice to quit.
The most technical aspect of an eviction action is the preparation and service of the summons and complaint. The summons shall be served in the manner provided for service of summons in civil cases in District Court (Minn. Stat. §504B.33; Minn R Civ. P. 4) and shall be served not less than seven nor more than fourteen days before the initial court appearance. Minn. Stat. §566.05. The time period excludes the date of service but includes the date of the initial hearing. Township Board v. Lewis, 305 Minn 488, 490-92, 234 N.W. 2d 815, 817-18 (Minn. 1975).
Minnesota Statute §504B.331 sets forth the permissible methods of service upon the defendant/tenant. Service may be accomplished by delivery to the defendant. Substituted service is permitted if the defendant cannot be found in the County and is accomplished by delivery at defendant’s residence to a family member or other person of suitable age and discretion residing at the defendant’s residence. Posting and Mailing. If service has been attempted at least twice on different days with at least one attempt between 6:00 and 10:00 P.M., the summons may be posted on the premises if an affidavit is filed with the court that the defendant cannot be found and a copy of the summons is mailed to the defendant.
The complaint must “state facts which authorize recovery.” Minn. Stat. §504B.321. In turn, a judgment against the tenant must be based upon the court’s finding that the factual allegations of the complaint are true. Mac-Du Properties v. LaBresh, 292 N.W. 2d 315, 318 (Minn. Ct. App. 1986); Minn Stat. §566.15. The complaint must contain a description of the premises adequate to indicate the proper court or division thereof in which the action should be brought and sufficiently precise to enable the sheriff to carry out the eviction at the correct location if the tenant loses. Minn. Stat. §504B.321. Rule 26.03 of the Housing Court Rules for Hennepin and Ramsey County require that the complaint state the legal owner of the property or other person entitled to possession of the premises.
The defendant/tenant in an eviction action is permitted to raise certain affirmative defenses to the complaint. The Minnesota Supreme Court specifically recognized the breach of statutory covenants of habitability as a defense in unlawful detainer action. Additionally, Minnesota Statute §504B.285, Subd. 2 provides a defense to an unlawful detainer proceeding where there has been a termination of tenancy by notice to quit if the termination was intended as a penalty for a tenant’s good faith attempt to secure or enforce defendant’s rights under a lease or under law. The statute also provides the defense if the act is in retaliation for a good faith report to a government authority of the plaintiffs violation of any health, safety, housing or building codes or ordinance. The law provides that if the notice is served within ninety days of such activity, the burden of proof is on the landlord to establish that the notice was not served for a retaliatory purpose.
A common mistake made by landlords is to accept a partial payment of past due rent without having a non-waiver clause in the lease, and then commence an eviction action. A landlord’s acceptance of rent with knowledge of the tenant’s breach of the rental agreement constitutes a waiver of the landlord’s right to maintain an unlawful detainer action based upon said breach. Priordale Mall Investors v. Farmington, 411 N.W. 2d 582 (Minn. Ct. App. 1987); Parkin v. Fitzgerald, 307 Minn. 423, 240 N.W. 2d 828, 833 (1976); Kenny v. Seu Si Lun, 101 Minn. 253, 112 N.W. 220 (1907). Non-waiver clauses in leases have been held valid and sufficient to defeat the defense of waiver. MCDA v. Powell, 352 N.W. 2d 532 (Minn. Ct. App. 1984).
As I’ve said in the past, as I said in my Legal Minute, bringing an eviction action involves highly technical aspects of the law, and it is crucial to consult with an attorney knowledgeable in the area. Otherwise, you may find yourself having to re-file, spend more money and lose more time in obtaining a new tenant.
Archived segments can be found on the Minnesota Home Talk page of my website, and be sure to tune in Saturdays at 7 am on 1500 ESPN to catch the show live.