HRA of St. Cloud v. Royston Construed the Nail-and-Mail Part of Minn. Stat. § 504.331 and Got It Wrong (updated after 2024 amendment to statute)

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).

Part II of this essay (in PDF and in Word with links to cited materials) 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, is 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. This is set out in my Motion of Paul Birnberg for Leave to File a Brief as Amicus Curiae in Royston. The motion was denied when the supreme court denied review.

Update 2/25/2025: In 2024, the Minnesota legislature amended section 504B.331 and recodified it as Minn. Stat. § 504B.332. 2024 Minn. Laws ch. 118 s. 27 . The new law made a number of changes to the nail-and-mail procedure. One of the changes effectively codified the holding in Royston. Under section 504B.332, subd. 4, the order of mailing, posting the summons & complaint and making two attempts at personally serving the tenant does not matter so long as all occur 7 days prior to the initial hearing; also, the plaintiff’s affidavits must be filed 3 days before the hearing.

In most cases, this effectively shortens the minimum mailing time by a day. When filing the affidavit of mailing had to precede posting the summons & complaint, without semi-fancy electronic drafting and filing of affidavits, the mailing usually had to be done at least 8 days out. I wish the tenant advocates had lobbied for changing the mailing time to 8 days under the new law. As discussed in another of my blog posts, mailing efficiency isn’t what it used to be, so 8 days of mailing time now is no better than 7 days mailing time a decade ago.