Birnberg Minnesota Legislative Newsletter

Housing and Redevelopment Authority of St. Cloud v. Royston, 990 N.W.2d 730 (Minn. App. May 1, 2023), rev. denied (August 22, 2023) construed the service-by-posting-an-eviction-actions-summons part of Minn. Stat. § 504B.331. The court held that the order of mailing the summons, making two attempts at personal service, posting the summons, and filing the affidavit of not found & mailing did not matter so long as all were done at least 7 days prior to the initial hearing.

I think this holding was wrong. The statute requires posting to be done after filing the affidavit of not found & mailing (and by inference after the mailing). I explain why in this essay (in PDF and in Word with links to cited materials).

Part II of the essay shows why the Royston court’s holding conflicts with the language of the statute.

Part III reviews the legislative history of Minn. Stat. § 504B.331. It derives from a 1909 session law. The 1909 law, in turn, was based on an existing law that had been construed by the Minnesota Supreme Court. That construction would require filing the affidavit of not found & mailing before posting. This part references two appendices. Appendix 1 contains copies of every version of the eviction-action service statute from Territorial days through now. Appendix 2 is a detailed legislative history of 1909 Minn. Laws ch. 496.

Part IV reviews a 2023 session law amending Minn. Stat. § 504B.331 effective 1/1/2024. The session law may have abrogated Royston.

Part V discusses the practical effects of Royston – real but relatively small – and suggests litigation strategies for eviction-action defendants.

Full disclosure: I have a personal stake in the issue decided in Royston. I believe I developed the defense Mr. Royston raised. This is explained in Motion of Paul Birnberg for Leave to File a Brief as Amicus Curiae in Royston. My motion was denied when the supreme court denied review.

This essay is a three-part commentary about Quinn v. LMC NE Minneapolis Holdings, LLC, 972 N.W.2d 881 (Minn. Ct. App. 2022), rev. granted (June 29, 2022), rev. dismissed (Feb. 17, 2023).

Kera Quinn was a long-time roommate of Janice Smith in an apartment managed by LMC. Smith was the only leaseholder. When the lease ended, Smith vacated but Quinn did not. LMC locked out Quinn, who then brought an anti-lockout petition under Minn. Stat. § 504B.375.  The trial court ruled that Quinn was an “other regular occupant” under Minn. Stat. § 504B.001 and therefore could not be ousted without a court order; it ordered LMC to reverse the lockout by giving her the needed key. LMC appealed to the Court of Appeals, which affirmed the trial court.

Part 1

This precedential opinion construed the phrase “other regular occupants” in Minn. Stat. § 504B.001 as it applies to a lockout petition brought under Minn. Stat. § 504B.375.

The court’s analysis was based on dictionary definitions of “regular” and on a 1946 hotel-guest-versus-boarder case. In Part 1 of this essay, I analyze the same issue by reviewing the history of the 1970s session laws underlying section 504B.375. I do so because section 504B.375 derives from Minn. Stat. § 566.175, which was first enacted in 1975. This history provides a different reason to reach the same result as the court’s.

Part 2

In Part 2, I review the supreme court’s decision to dismiss the case as moot after first accepting review of the court of appeals’ decision. I conclude that this decision seems odd (even though I think the decision by the court of appeals was correct).

Part 3

In Part 3, I discuss some of the practical implications of this case for landlords and invitees. I also conclude that the case’s construction of “residential tenant” and “other regular occupant” is not inconsistent with the other statutes in Minn. Stat. Chap. 504B.

The essay is available in PDF and in Word. The Word version has links to cited materials.

When a landlord files an eviction action against a tenant, his process server must serve the summons and complaint at least 7 days prior to the hearing. Service can be direct (personally handing the summons and complaint to the tenant or handing them to her roommate at her home). Alternatively, it can be by “posting” – mailing a copy to her by First Class Mail and affixing one to her home (often called “nail and mail”).

The theory behind the nail-and-mail procedure is that even if the affixed copy blows away or is ripped off, the mailed documents will get to her quickly, and thus she’ll still get a few days to prepare. However, USPS mail service has degraded. If posting is common, many tenants are not getting much time to prepare and in some cases no notice at all.

To determine whether posting is common, I obtained a random sample of eviction cases filed between June 1, 2022 and December 31, 2022 and used court records to determine the frequency of posting. Posting was very common, representing a majority of all cases, and a strong majority of cases in the Twin Cities area (76% in Hennepin County, 59% in Ramsey County, and 56% in Anoka, Carver, Dakota and Washington Counties combined).

As a side result, I discovered that expungement of eviction cases occurs quite frequently – in 10-15% of cases outside of Hennepin County. In Hennepin, the figures were remarkable; 37% of all cases were expunged and 43% of cases heard by the court were expunged (some cases were dismissed by the landlord before the court date).

In this essay, available in PDF or Word, I present the methods I used and the resulting data, and I propose some changes to the mailing part of the service statute (Minn. Stat. § 504B.331). The proposals include doing some or all of the following: allowing tenants to require mailing to include email as well as USPS mail, increasing the mailing time from 7 days to 10 days, and requiring Priority Mail instead of First Class Mail.

The Word version has links to cited materials. Footnotes 4-5 include citations to a variety of evidence of poor mail service. The raw data is available in an Excel spreadsheet, Table RD.

I thank HOME Line’s staff for generating the sample of eviction cases.

Yusar Said v. Old Home Management, File No. A21-1676 (Minn. Ct. App. Dec. 19, 2022) (nonprecedential) involved some unusual facts and a construction of the punitive-damages clause of Minn. Stat. §504B.271 that I think is incorrect.

In mid June 2019, Ms. Said packed her smaller belongings in boxes and put them beside her furniture in anticipation of moving out at the end of her lease on June 30. On June 25 she left her Minneapolis apartment for an overnight visit with her daughter in Burnsville. When she came back the next day, the apartment was empty and the walls repainted. She soon learned that her landlord’s managers had somehow decided that she had abandoned her home & personal property and that they had thrown everything away. Unbeknownst to them, one of her dressers contained about $46,000 worth of gold jewelry.

She had several meetings with management and orally discussed what they did but she never made a written demand for return of her personal property. She sued for money and eventually the district court awarded her damages of $58,668 for the loss of her furnishings and jewelry plus another $58,668 as punitive damages under Minn. Stat. § 504B.271, subd. 2. The issue at the Court of Appeals was whether awarding the punitive-damages award was allowed without a written demand for return of personal property. The Court of Appeals ruled that such a demand was not needed; a demand for money in the form of a lawsuit for money was enough.

In this essay (available in PDF and Word), I discuss why I think this ruling was wrong because the language of the statute says that punitive damages require a written demand for return of the personal property.

That said, good policy says punitive damages should be available anytime the landlord disposes of property before the end of the required 28-day hold period, refuses to return property upon demand, or otherwise violates the statute. I discuss this and several other gaps and glitches in the statute that should be fixed.

The Word version of the essay has links to cited materials. Also available are these five appendices:

Appendix 1 reviews some suspicions I have about the jewelry, and makes some comments about how Old Home seems to have repeatedly made things worse for itself via penny pinching.

Appendix 2 gathers all versions this statute from its original version of Minn. Stat. § 504.24 (1975) through Minn. Stat. § 504B.271 (2022) plus associated session laws.

Appendix 3 is a detailed legislative history of the session law behind Minn. Stat. § 504.24 (1975), 1975 Minn. Laws ch. 410, s. 1.

Appendix 4 is a detailed legislative history of the 2010 amendments to Minn. Stat. § 504B.271 (2008).

Appendix 5 is a collection of conciliation- and district-court pleadings plus the appellate briefs in this case. This is a Word file consisting of links to PDF images of the collected pleadings.

Under Minn. Stat. § 504B.321, the complaint in an Eviction Action must “describe[] the premises of which possession is claimed”. There is only one Minnesota appellate case — Lewis v. Steele, decided by the Territorial court — stating what the description must entail. As discussed in this essay (in PDF and Word versions), the description must be definitive on the face of the complaint. Two Hennepin County trial court decisions are in accord, enforcing this rule as well as a Housing-Court rule requiring a correct street address.

This essay reviews the legislative history of Minn. Stat. § 504B.321 and its predecessor statutes. It discusses the history and functioning of the Territorial courts, and whether Territorial court decisions are binding precedent on Minnesota State courts. I conclude that such decisions are not binding but that the legislative history of Minn. Stat. § 504B.321, a Wisconsin case like Lewis v. Steele, and the rules of statutory construction together make Lewis v. Steele good law.

The Word version of the essay has links to cited materials, including some interesting (at least to me) materials about the Minnesota Territory and its courts.

I thank Lee Bennin for helpful hints about how to decide if Territorial cases are binding precedent.

Minn. Stat. § 504B.331 governs service of process in an Eviction Action and permits three service methods. One is nail and mail. When nail and mail is used, after the Summons and Complaint is mailed, the process server must post it “in a conspicuous place on the property”. On rare occasions when the tenant lives in a multi-unit building, a lazy or sly process will post the Summons and Complaint on the main door of the building instead of the tenant’s own door. Is this permitted by section 504B.331? Doing so seems absurd but the current language of section 504B.331 is a tad unclear.

As shown in this essay (in Word and in PDF), the statute’s legislative history shows that the Summons and Complaint must be posted on the tenant’s own unit, not on the main building door. Posting only on the main building door is not just absurd but violates Minn. Stat. § 504B.331. The Word version of the essay includes hyperlinks to cited statutes, cases, and other legal materials.

In March 2020 I posted an essay entitled Renters Insurance Helps a Residential Tenant When He Accidentally Burns His Apartment but Not When He Accidentally Floods His Apartment. Full Coverage Should Be Mandated by Statute. The Minnesota House considered such a bill this past session. The bill was passed by the Commerce committee and advanced to the House floor but without a companion Senate bill it died there.

The insurance-industry lobbyist made a common argument in committee – that the bill would have the unintended consequence of raising premiums and forcing tenants to give up renters insurance. Part of his assertion was predicated on the idea that Melrose Gates, LLC v. Chor Moua, 875 N.W.2d 814 (Minn. 2016) combined with requiring water-damage coverage would decrease landlords’ insurance premiums and raise tenants’ premiums.

I decided to test the assertions in two ways: [1] I obtained quotes for a typical renter’s policy from the companies with water coverage and those without. [2] I reviewed insurance-company filings with the Minnesota Department of Commerce post Moua.

Although the difference was not statistically significant, the average premium for policies with water coverage was actually slightly lower than for those without coverage. And the filings with the Commerce Department indicated a very slight effect of adding water coverage; adding water coverage increased renter’s insurance premiums between zero and 42¢ per month.

In short, as discussed fully in this essay in Word and in PDF, the claim that requiring water-damage coverage would harm rather than help tenants appears unfounded.

Two appendices and a graph referenced in the essay are available here: Appendix 1, Appendix 2, and Graph 1 (and by links in the Word version).

Recently while I was volunteering at HOME Line, I joined with one of its attorneys, Samuel Spaid, to do a study of the type of incidents that led to the enactment of Minnesota’s Tenant’s Right to Privacy law, Minn. Stat. § 504B.211, and what light those incidents cast on the meaning of “substantially violates” in the remedies clause of section 504B.211.

Our resulting article, HOME Line Records Support Court of Appeals’ Ruling That Minn. Stat. § 504B.211 Penalizes Both Severe and Minor Entries Made Without Notice, is available here .

Below is a summary of the article (this is the summary which HOME Line posted on its website at this link):

Privacy violations are one of the most common reasons residential tenants call HOME Line for legal advice. In Minnesota, residential landlords may only enter the tenant’s unit if they have a reasonable business purpose and have provided the tenant with reasonable notice in advance (except for certain emergencies). If a landlord violates this right to privacy, a tenant may sue the landlord for several types of relief.  

Recently, the Court of Appeals in Ryan Rentals LLC v. Ta found that the landlord violated a tenant’s right to privacy by entering the tenant’s apartment for a non-emergency purpose without any prior notice. Because the landlord violated the tenant’s privacy, the District Court terminated the tenant’s lease (at the tenant’s request), returned the tenant’s security deposit, fined the landlord, and awarded the tenant her attorney fees, and the Court of Appeals affirmed this outcome on appeal. 

In order to reach this outcome, the Court of Appeals decided, correctly in HOME Line’s opinion, that the landlord’s actions substantially violated the law. More importantly, the court ruled that “substantially violates” means essentially violates instead of seriously violates. In other words, it ruled that “substantially violates” may include both minor and severe incursions without notice.

The Court’s analysis of section 504B.211 was rather brief. We decided to review the statute’s legislative history in order to see if that history supported or contradicted the Ryan Rental Court’s conclusion. A key part of the legislative history was the original purpose behind the law, especially what sort of concerns tenants had regarding landlords’ entries into their homes. In fact, HOME Line’s testimony in favor of the bill that became section 504B.211 referred in general terms to the many tenants who called HOME Line’s tenant hotline reporting about and asking for legal advice regarding  privacy violations. 

Therefore, we reviewed the files of all of our privacy calls from that time period (from 1992, when HOME Line started, until the law was enacted in May 1995). Of these calls, 77% involved minor (non-serious) incursions and about a third of those involved landlords who only entered once without notice. This supports the idea that section 504B.211 was aimed both at serious and at minor violations, in accord with the holding of the Ryan Rentals LLC court. 

We also reviewed more recent privacy calls to determine how effective the law has been. We conclude that the law has resulted in a modest reduction in landlords’ disturbing tenants’ privacy.

The full report is available here: HOME Line Records Support Court of Appeals’ Ruling That Minn. Stat. § 504B.211 Penalizes Both Severe and Minor Entries Made Without Notice. The report should help parties litigating privacy cases plus the judges hearing the cases to understand the reach of section 504B.211.

Given the review’s finding that Minnesota’s residential tenant privacy statute has had a modest impact in reducing intrusions into the homes of renters, HOME Line reiterates the need for state legislators to modernize this law. An excellent start would be to adopt the privacy provisions of bills currently introduced at the State Legislature: HF 399/SF 773. The changes in these bills would clarify what a “reasonable” advance notice is, and update the civil penalty to a more reasonable amount (a brief summary of the bills is here).

Minn. Stat. § 504B.211, Minnesota’s Tenant’s Right to Privacy statute that requires landlords to give residential tenants notice of a non-emergency entry, has an unusual remedies clause. It requires the tenant to sue via an Emergency Tenant Remedies Action, a Rent Escrow lawsuit, or a Tenant Remedies Action. These laws were designed to help tenants whose landlords were not making needed repairs – i.e. problems that can be fixed – and so are ill-fitted for an illegal entry, a problem that cannot be fixed since the harm is done once the entry has occurred. This essay, available in PDF and in Word, shows how the exact language of section 504B.211 allows the tenant to file the needed lawsuit by following ten specific procedural requirements in the Emergency Tenant Remedies Action, Rent Escrow and Tenant Remedies Action statutes.

Part of the essay discusses a detailed legislative history of this law. It is available here.

This spring the Minnesota Supreme Court issued an opinion written by Justice Paul Thissen construing Minn. Stat. § 504B.231, specifically what the statute means by a landlord locking out a tenant “in bad faith”, Reimringer v. Anderson, — N.W.2d — (Minn. June 16, 2021).  As discussed here in Word, its definition of “bad faith” as “dishonest or dubious” is the opposite of a bright-line rule. The court’s definition leaves both landlords and tenants in doubt as to what sorts of landlord behavior are in bad faith. Furthermore, following Justice Thissen’s own view of the best way to construe ambiguous statutes as set out in an article he wrote as well as in my view, “bad faith” should have been defined as a landlord using self help instead of the court system to oust a tenant. A straightforward solution is for the legislature to amend the statute accordingly.

My discussion is based partly on a complete written legislative history of the original law, Appendix LH 231, and on efforts to obtain oral history from some of the legislators and lobbyists involved when the law was enacted in 1984.

The essay is also available here in PDF. Unlike the Word version, the PDF version does not have links to the cited materials.

Justice Thissen’s article is available here.