Transcript Housing Repair: How To Assert Your Rights

Representing Clients in
Pro Bono Housing
Repair Cases
Drew P. Schaffer, Staff Attorney
Mid-Minnesota Legal Assistance
Minn. Stat. § 504B.161
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Minnesota law provides strong habitability protection for
tenants.
Under Minn. Stat. § 504B.161, a tenant has the following
rights:
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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.
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Landlord Responsibility
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Landlords have a mandatory obligation and
duty to make repairs under Minnesota law.
A tenant may contract to do some repairs on
her or his own in a conspicuous writing
supported by adequate consideration.
However, the covenants of
504B.161 CANNOT be
waived or modified.
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Interdependence of Landlord
and Tenant Obligations
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Fritz v. Warthen, 298 Minn. 48, 213 N.W.2d 339
(1973).
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Under the holding in Fritz, a tenant’s common law
covenant to pay rent is mutually interdependent with
a landlord’s statutory covenants of habitability and
repair.
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If a landlord is not fulfilling the statutory covenants,
then all or part of the tenant’s rent is not owed.
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Habitability and Repair
Problems in Rental Housing
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Housing code, habitability, maintenance, and repair
problems are very common in homes rented by lowincome tenants.
Examples of common habitability problems:
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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.
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Rental License Requirement
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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.
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Rental license requirements vary from city to city. A violation of
the licensing ordinance is a misdemeanor in Minneapolis,
Brooklyn Park, Brooklyn Center, and other 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)
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A tenant has no rental obligation during the period in which a
rental property is not licensed under a municipal licensing
ordinance.
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Bed Bugs
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Bed bugs are tiny insects that feed on human blood.
Bed bugs have gradually returned as a pest in the United
States in hotels, movie theaters, houses, and apartment
buildings after several decades of absence.
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Infestations are widespread in the Twin Cities metropolitan area.
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.
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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.
An infestation can exist in a rental dwelling without detection through a
series of tenants, depending on coin-flip odds.
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Bed Bug Extermination
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Responsibility for extermination
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Exception under Minn. Stat. § 504B.161
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An infestation violates the covenants of Minn. Stat. § 504B.161.
It is a landlord’s responsibility to exterminate a bed bug infestation in
rental housing.
Charging a tenant to fix a violation of Minn. Stat. § 504B.161 is barred by
the statute, since it would waive and modify the landlord’s statutory duty.
The tenant’s willful, malicious, or irresponsible conduct caused the
infestation.
Delamater v. Foreman, 184 Minn. 428, 239 N.W. 148 (1931)
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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.
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Advising a Tenant on Repair
Rights Enforcement
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DO NOT ADVISE A TENANT TO WITHHOLD
RENT WITHOUT ACCOMPANYING ADVICE
ABOUT THE RISKS AND CONSEQUENCES.
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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.
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Tenant-Initiated Legal Actions
to Force Repairs
There are three basic types of tenant-initiated
court actions to enforce habitability and repair
rights:
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1. ETRA – Emergency Tenant Remedies Action;
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2. Rent Escrow Action; and
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3. TRA – Tenant Remedies Action.
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Emergency Tenant Remedies Action
Minn. Stat. § 504B.381
Provides relief for:
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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.).
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Emergency Tenant Remedies Action
Minn. Stat. § 504B.381
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How to file an ETRA:
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A tenant needs to give notice at least 24 hours
before filing an ETRA.
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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.
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http://www.mncourts.gov/forms/public/forms/Housing__L
andlord-Tenant/Emergency_Relief/HOU602.pdf
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Relief Available in an ETRA
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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.
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Rent Escrow Action
Minn. Stat. § 504B.385
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A Rent Escrow Action is a court action in which a tenant
seeks a court order for the landlord to make repairs and
to obtain relief for non-emergency violations Minn. Stat.
§ 504B.161 and other provisions of the lease and
Minnesota law.
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A tenant must pay into court any unpaid rent at the time
of filing and any rent that accrues while the action is
pending.
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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.
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Rent Escrow Action
Minn. Stat. § 504B.385
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It is illegal for a landlord to retaliate against a tenant
for asserting habitability and repair rights.
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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.
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AND any non-rent breaches of the lease by the
tenant may serve as a basis for a separate eviction
action by a landlord.
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Rent Escrow Action
Minn. Stat. § 504B.385
Rent Escrow Action – Alternative
Notice Preconditions:
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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.
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Rent Escrow Action
Minn. Stat. § 504B.385
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Rent Escrow Action – Alternative Notice
Preconditions (cont.):
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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.
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Rent Escrow Action
Minn. Stat. 504B.385
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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
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http://www.mncourts.gov/forms/public/forms/Housing__LandlordTenant/Rent_Escrow/HOU302_Dist4_Affidavit_of_Rent_Escrow.
pdf
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Rent Escrow Action
Minn. Stat. § 504B.385
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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.
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In Hennepin County, tenants can pay any unpaid
rent into Court in the following ways:
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Cash
Cashier’s check or certified check.
NO personal checks, money orders, or credit cards.
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Rent Escrow Action
Minn. Stat. § 504B.385
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After a tenant files a rent escrow action:
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The court undertakes service by mail unless the alleged
cost of repairs exceeds $10,000.
A first appearance is set – 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 at any phase of the case, then
the court may schedule a compliance hearing to see if
the landlord has made the repairs ordered by the court.
If the landlord finishes the repairs at any phase, 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.
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Rent Escrow Action
Minn. Stat. § 504B.385
Relief available in a Rent Escrow Action:
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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.
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Rent Escrow Action
Minn. Stat. § 504B.385
Benefits of a Rent Escrow Action:
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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.
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Tenant Remedies Action
Minn. Stat. § 504B.395
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A Tenant Remedies Action may be brought by
any of the following:
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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,
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or building maintenance.
Tenant Remedies Action
Minn. Stat. § 504B.395
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A tenant does not have to pay rent into court at the time
the tenant files a TRA.
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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 fill out a Complaint and file it 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.
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Eviction Actions (UDs) with
Habitability Defenses
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If a landlord files an eviction action based solely on
nonpayment of rent before a tenant with habitability
and repair problems files 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).
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Under Fritz, the tenant must bring the full amount of
unpaid rent to deposit into Court as a precondition to
litigating a repair/habitability defense.
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Eviction Actions (UDs) with
Habitability Defenses
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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.
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Relief to Request in a Fritz
Defense to an Eviction Action
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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.
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Contact Information
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Drew P. Schaffer, Staff Attorney
 Phone/Fax: (612) 746-3644
 [email protected]
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Mid-Minnesota Legal Assistance
 Client Intake: (612) 334-5970
PowerPoint Presentation by
D. Lynne Daniels, Larry McDonough, and Drew P. Schaffer
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