Representing Tenants in Housing Repair Cases

Representing Tenantsin Housing Repair Cases

Drew P. Schaffer, Managing Attorney

Mid-Minnesota Legal Aid

2

Minn. Stat. § 504B.161

Minnesota law provides strong habitability protections for tenants.

Under Minn. Stat. § 504B.161, a tenant has the following rights: To live in a home that is fit for the use intended by the

landlord and tenant; To live in a home that is in reasonable repair; To live in a home that is maintained in compliance with

applicable codes – e.g., municipal housing codes; and To live in a home that is reasonably energy efficient.

3

Landlord Responsibility

A landlord has a mandatory obligation and duty to make repairs under Minnesota law. The covenants of 504B.161 CANNOT be waived or modified

by the parties to a lease. See Subd. 1. 504B.161 “shall be liberally construed.” See Subd. 3. “Tenant has inspected the premises and accepts the

premises as is” provision does not change the landlord’s duty to repair.

A tenant may contract to do some maintenance and repairs, but only in a conspicuous writing supported by adequate consideration. See Subd. 2.

4

Habitability and Repair Problems in Rental Housing

Housing code, habitability, maintenance, and repair problems are very common in homes rented by low-income tenants.

Examples of common habitability problems: Plumbing problems (leaking toilets, sinks, and pipes); Infestations of bed bugs, cockroaches, mice, etc.; Poorly installed or maintained windows and weather-stripping; Insufficient heat in the winter; Water intrusion and mold problems; Ineffective fire and carbon monoxide detection; Security issues (e.g., missing locks on exterior doors); and Landlord’s failure to obtain a rental license.

5

Rental License Requirement

In most cities in Hennepin County, a landlord must have a valid rental license and pass a basic housing quality inspection to rent an apartment or house to any tenant. Rental license requirements vary from city to city. A violation of

the licensing ordinance is a misdemeanor in many municipalities. Common law: A contractual obligation obtained in misdemeanor

violation of the law is void and unenforceable.

Beaumia v. Eisenbraun, No. A06-1482, 2007 WL 2472298 (Minn. Ct. App. Sep. 4, 2007) A tenant owes no rent during the period a rental property is not

licensed for rental in violation of a licensing ordinance.

Bed Bugs

Bed bugs are tiny insects that feed on human blood. Bed bugs are a pest in the United States in hotels, movie

theaters, houses, and apartment buildings after several decades of absence.

Humans have varying levels of reaction to bed bug bites, ranging from no reaction to severe skin irritation.

It is difficult, and often impossible, to trace the onset and source of a bed bug infestation in a multi-unit building. Bed bugs hide in small spaces, cracks, and crevices, and they

are not easy to see when they are not hiding. Bed bugs can go many months without feeding.

6

Bed Bug Extermination

Responsibility for extermination An infestation of residential rental housing violates the covenants of

Minn. Stat. § 504B.161. It is a landlord’s responsibility to exterminate an infestation. Making a tenant responsible for fixing an infestation violates Minn. Stat.

§ 504B.161, since it waives and modifies the landlord’s statutory duty. Exception under Minn. Stat. § 504B.161

The tenant’s willful, malicious, or irresponsible conduct caused the infestation.

Delamater v. Foreman, 184 Minn. 428, 239 N.W. 148 (1931) In this pre-504B.161 case on the habitability of a bed bug-infested

apartment in a multi-unit apartment building, the court held for the tenants on their claims for damages and constructive eviction.

7

Interdependence of Landlord and Tenant Obligations

Fritz v. Warthen, 298 Minn. 48, 213 N.W.2d 339 (1973).

Under the holding of Fritz, a tenant’s common law covenant to pay rent is mutually interdependent with a landlord’s statutory covenants of habitability and repair.

If a landlord is not fulfilling the statutory covenants, then all or part of the tenant’s rent is not owed.

A tenant has right to withhold rent.

8

9

Advising a Tenant on Repair Rights Enforcement

BUT DO NOT ADVISE A TENANT TO WITHHOLD RENT WITHOUT ACCOMPANYING ADVICE ABOUT THE RISKS AND CONSEQUENCES. A tenant’s withholding of rent can result in the filing of an

eviction action (also called an unlawful detainer or “UD”), with severe and negative collateral consequences.

There are less risky legal options a tenant may use to resolve repair problems, while mitigating the risk of facing an eviction action.

10

Tenant-Initiated Legal Actions to Force Repairs

There are three basic types of tenant-initiated court actions to enforce habitability and repair rights:

1. ETRA – Emergency Tenant Remedies Action;

2. Rent Escrow Action; and

3. TRA – Tenant Remedies Action.

11

Emergency Tenant Remedies Action Minn. Stat. § 504B.381

Provides relief for: Loss of heat; Loss of sanitary facilities; Loss of running water; Loss of hot water; or Loss of “other essential services or facilities” (e.g.,

hazardous electrical wiring, a gas leak, a lack of locks/security, a non-functioning stove or oven, a municipal condemnation or order to vacate, etc.).

12

Emergency Tenant Remedies Action Minn. Stat. § 504B.381

How to file an ETRA: A tenant needs to give notice at least 24 hours

before filing an ETRA. Example: “The furnace isn’t working at my home. If you do

not fix it within 24 hours, I will file an emergency court action against you.”

A tenant can give the required notice by calling the landlord, leaving a voicemail for the landlord, or telling the landlord in person.

If 24 hours passes without remedy of the emergency, a tenant can go to court to file a Petition. http://www.mncourts.gov/forms/public/forms/Housing__La

ndlord-Tenant/Emergency_Relief/HOU602.pdf

13

Relief Available in an ETRA

Ex parte order to remedy emergency problem, along with scheduling order for hearing on the Petition;

Retroactive rent abatement based on impaired use and enjoyment (discretionary);

Prospective rent abatement (until the problem is fixed); Fines ($250 for first violation of court order for repairs,

escalating to $500 for second violation and $750 for each violation thereafter);

Attorney’s fees and costs; and/or Consequential damages (e.g., hotel costs) or other relief

deemed just and proper.

14

Rent Escrow Action Minn. Stat. § 504B.385

A Rent Escrow Action is a court action in which a tenant seeks a court order for a landlord to make repairs and to obtain other relief for non-emergency violations of Minn. Stat. § 504B.161 and other provisions of the lease and Minnesota law.

A tenant must pay into court any unpaid rent at the time of filing and any rent that accrues while the action is pending.

A tenant should NOT file a rent escrow if the tenant does not have all of the rent that is unpaid or will not be able to pay rent each month while the action is pending.

15


It is illegal for a landlord to retaliate against a tenant for asserting habitability and repair rights.

BUT a landlord can counterclaim to evict a tenant in a Rent Escrow Action if the tenant fails to deposit all of the unpaid rent into court at the start of the case.

AND any non-rent breaches of the lease by the tenant may serve as a basis for a separate eviction action by a landlord.

16


Rent Escrow Action – Alternative Notice Preconditions:

1. A tenant can write a repair request letter to a landlord, dating the letter and specifically listing all habitability and repair problems in detail; AND/OR

2. A tenant can call a municipal inspector (“311” in Minneapolis) and schedule an inspection for the inspector to observe conditions and to cite any violations of the applicable housing maintenance code.

17


Rent Escrow Action – Alternative Notice Preconditions (cont.): 3. If the landlord fails to make repairs within 14 days

after the date of a tenant’s repair request letter OR by the deadline for repairs ordered in a housing inspector’s report, the case is ripe.

Rent Escrow Action Minn. Stat. 504B.385

A Rent Escrow Action is a relatively simple vehicle for court enforcement of a tenant’s habitability and repair rights.

The scope of the case is confined to issues and problems raised in a tenant’s 14-day letter and/or expired repair orders issued by a housing inspector.

Affidavit of Rent Escrow http://www.mncourts.gov/forms/public/forms/Housing__Landlord-

Tenant/Rent_Escrow/HOU302_Dist4_Affidavit_of_Rent_Escrow.pdf 18

19


When a tenant files a Rent Escrow Action, the tenant MUST pay the full amount of unpaid rent into court at the same time the case is filed.

In Hennepin County, tenants can pay any unpaid rent into Court in the following ways: Cash Cashier’s check or certified check.

NO personal checks, money orders, or credit cards.

20


After a tenant files a rent escrow action: The court undertakes service by mail unless the alleged

cost of repairs exceeds $10,000. A first appearance is set within 10-14 days – this is a

brief, preliminary hearing. The court will decide if the landlord needs to make repairs

or if there are factual disputes that require a trial. If the court orders repairs, then the court may schedule a

compliance hearing to check on the status of repairs. If the landlord finishes the repairs, the court decides what

happens with the rent on deposit with the court, usually after a trial or evidentiary hearing to evaluate any claim asserted by the tenant for rent abatement.

21


Relief available in a Rent Escrow Action: Order for repairs; Retroactive rent abatement based on impaired use

and enjoyment of the property (could be awarded as a prospective rent credit);

Prospective rent abatement; Fines; Attorney’s fees and costs; and/or Other relief the Court deems just and proper.

22


Benefits of a Rent Escrow Action: The court holds rent money until repairs are

completed, motivating the landlord to fix problems.

The action mitigates the risk of an eviction action filing against tenant for withheld rent if tenant has deposited all of the unpaid rent with the Court.

If a tenant wins her or his case, the Court MAY give the tenant some rent money back in the form of rent abatement.

23

Tenant Remedies Action Minn. Stat. § 504B.395

A Tenant Remedies Action may be brought by any of the following: A residential tenant living in a building where a housing

violation exists; Any housing-related neighborhood organization with the

written permission of a residential tenant living in a building; Any housing-related neighborhood organization located in an

area where there is an unoccupied residential building where a housing violation exists; or

A state, county, or local department or authority, charged with the enforcement of codes relating to health, housing, or building maintenance.

24

Tenant Remedies Action Minn. Stat. § 504B.395

A tenant does not have to pay rent into court at the time the tenant files a TRA. BUT it is within the court’s discretion to order a tenant to pay

rent into court. A tenant should save any withheld rent if he or she wants to

pursue a TRA. A tenant must complete and file a Complaint with the

court. A tenant must have a disinterested third party serve the

Summons and Complaint on the defendant-landlord or effect statutory service by certified mail and posting.

After filing and service, the process and relief in a TRA is similar to that available in a Rent Escrow Action.

25

Eviction Actions (UDs) with Habitability Defenses

If a landlord files an eviction action based solely on nonpayment of rent before a tenant is able to start an ETRA, Rent Escrow Action, or TRA, the tenant has a defense to the landlord’s claim under Fritz v. Warthen, 298 Minn. 48, 213 N.W.2d 339 (1973).

Under the procedure set out in Fritz, the tenant must bring the full amount of the unpaid rent to deposit into court as a precondition to litigating a habitability defense in an eviction action.

26

Eviction Actions (UDs) with Habitability Defenses

Although a tenant generally must deposit the full amount of unpaid rent to litigate a defense under Fritz, a tenant may argue that less than the full amount of the unpaid rent should be deposited under the circumstances of the case. See Minn. Gen. R. Prac. 608.

Many tenants face eviction because they withheld their rent and no longer have the rent required for deposit with the court to litigate habitability.

The generally less risky method for a tenant to deal with repair problems is to pay the rent directly to the landlord as it comes due under the lease and then to file an ETRA, Rent Escrow Action, or TRA, as appropriate.

27

Relief to Request in a Fritz Defense to an Eviction Action

Court-ordered repairs, enforceable through a future hearing on compliance;

Retroactive rent abatement;

Prospective rent abatement;

Prevailing party costs with dismissal of the landlord’s case or judgment for possession on the merits; and

Expungement of the eviction case court file.

28

Contact Information

Drew P. Schaffer, Managing Attorney Phone/Fax: (612) 746-3644 [email protected]

Mid-Minnesota Legal Aid Client Intake: (612) 334-5970

PowerPoint Presentation by

D. Lynne Daniels, Larry McDonough, and Drew P. Schaffer

Documents

Representing Tenants in Housing Repair Cases