Author: prbirnberg

Minn. Stat. § 504B.375 is a court procedure that allows dwelling tenants and also “other regular occupants” to get a court order restoring them to their home after a lockout.

The first section-504B.375 appellate case won by an “other regular occupant” was Quinn v. LMC, 972 N.W.2d 881 (Minn. App. 2022). Kera Quinn lived for two years with Jamie Smith in an apartment owned by LMC and rented to Smith. Quinn repeatedly interacted with building staff. Quinn and Smith shared Smith’s key fob. Smith moved out on the last day of her lease but Quinn did not. LMC then deactivated the key fob to lock out Quinn. The court ruled that Quinn was an “other regular occupant” and ordered LMC to end the lockout. The ruling was based on a totality of the circumstances – LMC’s knowledge of Quinn’s occupancy, the length of the occupancy, and that the apartment was Quinn’s only home – despite the fact that Smith’s lease forbid other occupants.

In a recent case, Traore v. Sissoho, Terra Pointe Apartments et al, File No. A24-1204 (Minn. App. Mar. 3, 2025)(nonprecedential), Sissoho rented an apartment from Terra Pointe. Traore lived in Sissoho’s apartment for five months and made sporadic “rent” payments in return for living with Sissoho until they had an argument about how much rent was due. Sissoho ordered Traore to move out. Traore didn’t move. Sissoho then told Terra Pointe’s manager that Traore was an unwanted guest and should have his key fob deactivated. The manager complied and Traore was locked out. Traore sued both Sissoho and Terra Pointe under Minn. Stat. § 504B.375 but only prosecuted his claim against Terra Pointe.

The district court ruled that Traore did not meet the Quinn standard since [1] Terra Pointe knew nothing of Traore until Sissoho reported him as a guest, [2] Sissoho’s lease forbid other occupants, and [3] Traore’s occupancy was five months and not two years. The court of appeals affirmed the dismissal of Traore’s complaint.

I think Traore essentially sued the wrong entity. Unlike in Quinn, where tenant Smith was out of the picture, here Sissoho was the center of the picture.  Sissoho knew about Traore, he made the agreement with Traore, Traore paid rent or rent-like payments to Sissoho, and Traore lived with Sissoho for 5/12 of Sissoho’s year-long lease.

As discussed in this essay (in Word with links to cited materials and PDF) Traore had a good case against Sissoho while his case against Terra Pointe was weak. First, Traore was a subtenant or a licensee of Sissoho, but not of Terra Pointe. Second, Traore’s other-regular-occupant claim under the Quinn rule was stronger against Sissoho than against Terra Pointe. By prosecuting Terra Pointe instead of Sissoho he created an uphill battle that others in his shoes should not replicate; they should prosecute their case against the tenant/roommate who instigates a lockout.

Finally, I review HOU702, the Minnesota Judicial Branch’s form complaint for Minn. Stat. § 504B.375 lawsuits. The form induces someone in Traore’s situation to sue the “owner” instead of the roommate. I suggest amendments to the form.

On March 29, 2021 I gave a CLE seminar entitled “Almost Everything You Wanted to Know About Minnesota Residential Security Deposits.” No doubt the title exaggerated the seminar’s value. However, the seminar did provide a considerable number of useful legal citations and (I think) some helpful detailed discussion of security-deposit law and of Minn. Stat. § 504B.178, the state’s security-deposit statute.

This blog post presents that same material in essay form. It includes some extra material, including some additional citations to statutes & case law plus expanded discussions of tax issues, the “fiduciary” clause in Minn. Stat. § 504B.178, subd. 2, and Minn. Stat. § 504B.178, subd. 4. It is available here in Word (Updated in August 2025) and here in PDF (Updated in August 2025). The Word version includes hyperlinks to all the cited statutes, cases, regulations, and IRS materials. Some of the cited materials are also available in these Appendices.

The essay was edited on 3/23/2022. The discussion of “other funds due to the landlord pursuant to an agreement” was expanded.

Last year I updated the essay to include a discussion of session laws enacted in 2023 and 2024. The 2024 law was just a non-material change included in the Revisor’s bill. The 2023 session law created an obligation on the landlord to afford the tenant joint move-in and move-out inspections. This essay also discusses a 2024 nonprecedential court of appeals case about the meaning of “written statement”.

I have now updated the essay to include a short discussion of a recent case, State v. Auleciems in the “Repeat offender landlords” section. I’ve also corrected a few typos.

On August 6, 2025 I edited the essay again. I made some minor stylistic changes and added discussions of Peebles v. JRK Property (Mass. Aug. 1, 2025) and Steiner v. Campbell Prop Mgt (Minn. App. July 21, 2025).

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.

This blog post is essentially the same as the one posted in 2020. However, the 2023 legislature amended Minn. Stat. § 504B.301 by deleting its second sentence. This amendment is not material to the subject of the blog post but I decided to update the blog post by making minor changes to the blog post consistent with the amendment as well as fixing a few typos.

Minn. Stat. § 504B.285, subd. 1(a) allows a landlord to file an eviction action against a tenant for nonpayment of rent, breach of lease, holding over past the end of a lease, or holding over past a valid notice to quit. Minn. Stat. § 504B.291, subd. 1(a) amplifies the basis to evict for non payment. Thousands of these cases are filed each year by Minnesota landlords. However, a few landlords want to oust tenants for other reasons – such as the fact that the landlord has no rental license – and try using Minn. Stat. § 504B.301 instead, figuring it is a catchall statute to evict tenants. As this PDF essay shows, Minn. Stat. § 504B.301 is not a vehicle to evict tenants other than for possession of large amounts of contraband. Instead, Minn. Stat. § 504B.301 is a vehicle for evicting squatters and other persons who entered the premises illegally on Day One.

The essay is also available in Word. The Word version includes links to several products of my legal research. Three of these products, not available elsewhere, are available here as Appendix 1a, Appendix 2 (pretty large file, 6 MB), and Appendix 3 (large file, 30 MB). Appendix 4 consists of copies of the briefs in Berg v. Wiley I, 303 Minn. 247, 226 N.W.2d 904 (1975). These shed a bit more light on the meaning of Minn. Stat. § 504B.301, although nothing dramatically new.

This essay is about an obscure issue that got me interested. A while ago, a Virginia attorney posed a question on a list serve about the reach of the foreclosure clause in 26 U.S.C. § 42(h)(6)(E)(i)(I), part of the Low Income Housing Tax Credit (“LIHTC”) program. Under this clause, when a LIHTC building is acquired by foreclosure, the (new) landlord is excused from the Extended Use Period, a 15-year period that normally extends LIHTC tenant protections from the initial 15 years to a total of 30 years. The question was whether a property-tax forfeiture acts like a foreclosure.

Eventually the Virginia dispute resolved on other grounds, but in the meantime I’d gathered some material on the issue. I combined it with LIHTC materials I’d put together over the years, and provided some advice.

While the issue is unusual, I’d spent a considerable amount of time gathering the material. Therefore, I decided to present my findings and thinking in this essay, available in Word and in PDF. I conclude that tax forfeiture does not provide the new landlord with the foreclosure escape hatch.

The Word version of the essay has links to cited materials. The end of the essay is a two-part Appendix with links to materials not generally available on the Internet, some cited in the essay plus a couple of others that also relate to the issue.

On March 29, 2021 I gave a CLE seminar entitled “Almost Everything You Wanted to Know About Minnesota Residential Security Deposits.” No doubt the title exaggerated the seminar’s value. However, the seminar did provide a considerable number of useful legal citations and (I think) some helpful detailed discussion of security-deposit law and of Minn. Stat. § 504B.178, the state’s security-deposit statute.

This blog post presents that same material in essay form. It includes some extra material, including some additional citations to statutes & case law plus expanded discussions of tax issues, the “fiduciary” clause in Minn. Stat. § 504B.178, subd. 2 and Minn. Stat. § 504B.178, subd. 4. It is available here in Word (updated) and here in PDF (updated). The Word version includes hyperlinks to all the cited statutes, cases, regulations, and IRS materials. Some of the cited materials are also available in these Appendices.

The essay was edited on 3/23/2022. The discussion of “other funds due to the landlord pursuant to an agreement” was expanded.

I have now updated the essay to include discussion of session laws enacted in 2023 and 2024. The 2024 law was just a non-material change included in the Revisor’s bill. The 2023 session law created an obligation on the landlord to afford the tenant joint move-in and move-out inspections. This essay also discusses a 2024 nonprecedential court of appeals case about the meaning of “written statement”. Finally, I’ve made a few minor grammatical changes.

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.