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Eviction Defense during the Pandemic February 19, 2021 Presented by: Muria Kruger and Beth Kelly, Volunteer Lawyers Network Purpose of Training • Broad overview - Prepare volunteers to issue spot • Generate interest in our initial appearance clinics • Not a comprehensive training of all eviction defenses

2.19.21 Eviction Defense During the Pandemic

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Page 1: 2.19.21 Eviction Defense During the Pandemic

Eviction Defense

during the Pandemic

February 19, 2021

Presented by:Muria Kruger and Beth Kelly, Volunteer Lawyers Network

Purpose of Training

•Broad overview - Prepare volunteers to issue spot

•Generate interest in our initial appearance clinics

•Not a comprehensive training of all eviction defenses

Page 2: 2.19.21 Eviction Defense During the Pandemic

What we will cover today

Overview of the Eviction Process

Common Eviction Defenses during the Moratorium

Settlement Provisions

Clinic Services at the Initial Appearance Calendar

Additional Resources

Volunteer Lawyers

Network

• Mission is to promote and protect the legal rights of low-income Minnesotans through the power of volunteers.

• Housing Program:• Eviction Expungement Clinics• Phone advice• Initial Appearance Clinics

• We serve low-income tenants and landlords.• Landlords must qualify income-wise

AND be seeking services with an owner-occupied unit.

Page 3: 2.19.21 Eviction Defense During the Pandemic

Eviction Process

Notice of Intent to Evict

(new)

Filing of Eviction Action

Service of Eviction Action

Initial Appearance

Discovery Deadline

& Trial

Judge Review and

Appeal

Issuance of Writ

& Execution of

Writ

Eviction actions are:• Summary proceedings that move quickly• Action to recover possession• Landlords cannot forcibly remove tenants

outside of an eviction action• Governed by Minn. Stat. 504B, Minn. Rules of

Practice 601-612 in Hennepin and Ramsey Counties.

First Appearance Calendar

• Parties meet at court for the first time

• Clinic in Three Counties• Hennepin, Ramsey and Anoka

Counties• Lawyers, Mediators and Financial

Assistance

• Potential outcomes• One party wins (Default/Dismissal)• Case Continued• Settled• Set for Trial

Page 4: 2.19.21 Eviction Defense During the Pandemic

Common Eviction Defenses during the Pandemic

• Defenses we want to make sure all cases are screened for before engaging in negotiations with landlords.• Eviction Exceptions under Minnesota’s

moratorium, EO 20-79• Service• Pre-conditions to Recovery• Others

Minnesota’s Eviction MoratoriumExecutive Order 20-79

• Came into effect on August 4, 2020.• Rescinded EO 20-14, which had halted most

evictions starting March 24, 2020, and EO 20-73.

• Remains in effect until:• Peacetime emergency is terminated, or

• Must be renewed every 30 days, Legislature can override

• Rescinded by property authority• Legislature can pass laws changing moratorium

Page 5: 2.19.21 Eviction Defense During the Pandemic

Grounds for Eviction Under Executive Order 20-79

• Executive Order 20-79 prohibits evictions except when tenants are:• Seriously endangering the safety of other

residents;• Violating Minn. Stat. 504B.171, subd. 1;• Remaining on the property after receiving a

notice to vacate or non-renewal where the property owner or property owner’s family member needs to move in within 7 days of tenant leaving.

• Materially violating the lease by (a) seriously endangering the safety of others or (ii) significantly damaging property. These actions must occur on the premises, including the common areas and curtilage.

• Does not permit eviction for non-payment of rent, but rent is still due.

CDC Eviction Moratorium

• National moratorium on eviction for non-payment of rent where tenant provides landlord with a signed declaration stating they:• Have used "best efforts" to obtain govt. rental assistance or housing;• Meet financial criteria;• Unable to pay full rent due to income loss or extraordinary medical bills;• Are making "best efforts" to make partial payments as close to full

payment as possible under the circumstances; and• Likely to become homeless, or forced into congregate living, if evicted.

• Effective September 4, 2020, renewed until at least March 31, 2021• Does not apply in states with moratoriums that provide the same or great

protection.• In general, not applicable now.

Page 6: 2.19.21 Eviction Defense During the Pandemic

Notice Requirement under E0 20-79

• E0 20-79 provides that property owners must provide at least a 7-day Notice of Intent to Evict unless the lease specifies a notice period that is longer.• Eviction cannot be filed until after the notice has

elapsed.• Notice must state which specific grounds under

EO 20-79 for the eviction.• Of note: Federal CARES Act 30-day notice

required for “covered” properties.• See Coronavirus Aid, Relief, and Economic

Security Act (CARES Act) Pub.L.116-136, §4034; see also 10.23.20 VLN Practice Tip (https://www.vlnmn.org/volunteer/housing/practice_tips)

• Enforced unevenly in differing jurisdictions

Violating Minn. Stat. 504B.171, subd. 1

• Minn. Stat. 504B.171, subd. 1 permits eviction when the tenant allows the following activities on the premises, common areas or curtilage:• Controlled substances;• Prostitution or prostitution-related activity as defined by Minn. Stat. 617.80, subd. 4;• Allows the unlawful use or possession of a firearm in violation of Minn. Stat. 609.66,

subdivision 1a, 609.67 or 624.713;• Allows stolen property or property obtained by robbery

• Points to consider:• Landlord must prove all elements of violation by preponderance of the evidence.• Tenant must have known or had reason to know that there was unlawful activity

on the property.• Tenant could not prevent illegal drugs from being brought on the property (Minn.

Stat. 609.5317, subd. 3).

Page 7: 2.19.21 Eviction Defense During the Pandemic

Breach of Lease: Endangering Others/Damage to Property

• Must occur on the rental property• Lease must be attached to the complaint• Lease must have a “right of re-entry” clause• The landlord must reasonably accommodate a tenant’s disability• Must be "seriously endangering" others

• Yellling? Latent threats?

• Damage to property must be “significant”• Repaired damage, small value damage

Property Owner or Family Member Needs to Move In

• Exception where the property owner “issues a termination of lease or non-renewal of lease due to the need to move the property owner or property owner’s family member(s) into the property and where the property owner or property owner’s family member(s) move into the property within 7 days after it is vacated by the tenant.”

• Factors to consider:• Has the tenancy/lease been properly terminated?• Is property owner “need” demonstrated?• Is the property owner a business?• Does the property owner have other properties?• What is the relationship of the family member that needs to move in?

Practice tip: Include language in the settlement saying that landlord will move in by a certain date.

Page 8: 2.19.21 Eviction Defense During the Pandemic

Service

• Minn. Stat. § 504B.331• Strict compliance required. Koski v.

Johnson, 837 N.W.2d 739 (Minn. Ct. App. 2013).

• Every case should be analyzed for service defects.• If errors, request dismissal and

expungement.• Actual notice not required• Service must be completed at least 7 days

before the initial appearance.• May not be served on legal holidays

• Must be completed by a non-party

3 Types of Service

Personal Service

Substitute Service•If Defendant cannot be found, someone else can

be served if that person:•Resides at the defendant's last usual place of

abode; and•Is of a reasonable age and discretion.

Alternative Service (Mail and Post)•Two attempts to personally serve defendant, one

between the hours of 6-10pm•File affidavit saying the defendant cannot be

found•Mail summons and complaint

•File affidavit of service by mail•Then, post summons and complaint on door

•File affidavit of posting

Page 9: 2.19.21 Eviction Defense During the Pandemic

Pre-Conditions to Recovery

Action must be commenced by the person entitled to the premises or an authorized agent of the owner.

•Minn. Stat. 504B.285, subd. 1(a)

Name of person authorized to manage the property and physical address for service (not P.O) must have been posted on the property or proof that it was disclosed to the tenant for at least 30 days prior to the eviction filing.

•Minn. Stat. 504B.181

Complaint must state facts supporting the basis for recovery of the premise.

•Minn. Stat. 504B.321

Artificial entities, such as corporations and LLCs, must be represented by attorneys – except in Hennepin and Ramsey Counties.

•Minn. Gen. R. Prac. 603; The Community Cares v. Faulkner, 949 N.W.2d 296 (Minn. 2020)

Other Defenses

• Landlord must be properly licensed by city.• Tenant is victim of domestic abuse.

• Minn. Stat. 504B.285, Subd. 1; 504B.206, Subd. 1(a)

• Landlord is retaliating against tenants for complaining to enforce their rights under the lease, state or local law or residential covenants.• Cent. Housing Assoc., LP v. Olson, 929 N.W.2d 398 (Minn. 2019)

• Is the tenant behavior based upon a disability? Request a reasonable accommodation under the Fair Housing Act.

• Tenant called the police or emergency assistance.• Minn. Stat. 504B.205

Page 10: 2.19.21 Eviction Defense During the Pandemic

Settlement

• Provisions can include• Move out date• Rent forgiveness/rent payment• Expungement (including index and caption

change immediately)• Neutral reference• Repairs to be completed by landlord• Last chance agreement• Payment to tenant to move (“cash for keys”)• Owner to move in by a certain date (moratorium

exception)• Others?

• Security deposit• Be creative!

Clinic Services at the Initial Appearance

Calendar

Page 11: 2.19.21 Eviction Defense During the Pandemic

Where, When, and Who

• Initial Appearance Calendars• Anoka County (Wednesdays AM)• Hennepin County (Tuesdays and

Thursdays AM)• Ramsey County (Tuesdays or

Thursdays AM)• Court, parties, and attorneys all

appear via Zoom• Legal Aid partners, mediation,

financial services also attend• VLN Staff member always at

calendar

VLN Provides Volunteers

Zoom links

• For Ramsey and Hennepin: Court link where services and Court occur

• For Anoka: Two links, one for services and one for Court appearances

Copy of Court calendar before Court

When a client asks for legal services, VLN will provide our volunteer with copies of documents filed with Court including complaint and service documents

VLN Staff attorney available for consultation

Page 12: 2.19.21 Eviction Defense During the Pandemic

Types of Services provided by VLN Volunteers

ADVICE ONLY (CAN REFER TO MEDIATION FOR NEGOTIATION)

LIMITED REPRESENTATION (NEGOTIATION OF SETTLEMENT, MAKE COURT APPEARANCE)

FULL REPRESENTATION OR FULL REP REFERRALS TO VLN

Providing Services

during Court over Zoom

• Multiple Break-out Rooms:• Waiting Room/Check-in Room• Court• VLN attorney and client have their

own zoom breakout room• Breakout rooms available for

negotiation for settlement with the other side

• Volunteer reviews case for defenses, advises tenant, and answers questions

• Digital signature service available to sign rep agreements with client

Page 13: 2.19.21 Eviction Defense During the Pandemic

Helpful Resources

• VLN’s Housing Program Website (www.vlnmn.org/volunteer/housing)• Eviction Defense Checklist• Instructions for Volunteering at a Remote

Housing Clinic• Commonly used forms by VLN volunteers• Trainings

• Eviction Basics – highly recommended for all volunteers!

• This training to be added shortly!• Larry McDonough’s Poverty Law Website

(www.povertylaw.homestead.com)• Eviction Answer (can be used as a more in-

depth check-list)• Numerous trainings on Eviction Defense during

the pandemic• Residential Eviction Defense Manual (treatise of

Minn. Eviction law)

THANK YOU!•We do what we do through you!•VLN cannot assist clients without your help.

Page 14: 2.19.21 Eviction Defense During the Pandemic

Questions?