Birnberg Minnesota Legislative Newsletter

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.

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

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 and here in PDF. 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 same CLE is now available (as a recording) as an On-Demand CLE via this webpage of the Hennepin County Bar Association, https://www.mnbar.org/ProductCatalog/Product?ID=4649. It has been approved for 1.0 hour of standard CLE credit by the Minnesota State Board of Continuing Legal Education and is assigned the Event Code 347211.

Minn. Stat. § 504B.211, the Tenant’s Right to Privacy statute that governs landlord notice prior to entering the tenant’s home, is out of sync with comparable statutes in other states. This essay, in PDF and in Word, includes a survey of the privacy statutes in all 50 states + the District of Columbia. Relevant provisions of each statute are shown in Chart 1. A summary of how the states deal with five issues – [a] limiting the tenant to a specific kind of law suit (only Minnesota prohibits suits in small claims court); [b] the cap on damages (Minnesota’s “up to .. $100” is at the low end); [c] specificity in the amount of notice (e.g. “24 hours”) & [d] the time of entry (e.g. “9 am to 5 pm”) where section 504B.211 is not specific; and [e] whether notice must be written – is provided in Chart 2. I suggest improvements to section 504B.211.

On 12/2/2021 I revised the essay slightly by adding a new paragraph about filing a section-504B.211 case in the last few days of the tenancy. This paragraph is marked with a red asterisk and is on page 3 of the essay.

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 of the essay includes links to several products of my legal research. Three of these products, not available elsewhere, are available here as Appendix 1, Appendix 2 (pretty large file, 6 MB), and Appendix 3 (large file, 30 MB).

Minor update 7/8/2021: New 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.

Collecting judgments for unreturned security deposits or other small judgments against landlords can be difficult. This is especially true with smaller or disreputable landlords who shuffle bank accounts and otherwise hide assets. Their one regularly available asset is their rent roll, but garnishing or levying on rent paid by incumbent tenants faces a significant hurdle. The window to garnish or levy on rent is very tight. It must be done after rent it due but before the tenant has paid the rent. This is unlike another common periodic income stream — wages, where the garnishment or levy attaches for 90 days after service of the garnishment or levy. New legislation applying the same 90-day rule to garnishment and levy of rent is needed as discussed here.

When a residential tenancy of a group of roommates ends, the landlord has to decide to whom to return the security deposit. Three common issues arise: [1] sometimes his decision is complicated by new roommates moving in and replacing old roommates during the tenancy; [2] sometimes by the original deposit being paid by a third party (like a tenant’s parent); and [3] sometimes by the roommates not agreeing on delivery instructions for return of the deposit.

In this essay (in PDF and in Word with hyperlinks), I explain why the answers to the first two issues are clear to me: The final tenants get the deposit. The actual tenants, not the third party, get the deposit.

I’m not sure about the final question. I think there may be no right thing for the landlord to do and so I suggest legislation that could resolve the problem.

My suggestion is that the rule for dividing up the rent paid on Certificates of Rent Paid be used as a model for dividing up the deposit when all the roommates did not agree on how to return the deposit. The rule would be added to Minn. Stat. Sec 504B.178. I think my idea makes sense but am more than open to alternative ideas, especially ones that make better sense.

The Mitchell Hamline Law Journal of Public Policy and Practice just published a set of law review articles about various aspects of eviction. Along with Samuel Spaid, the primary author, I co-authored one of them entitled Not with Strong Hands, nor with a Multitude of People: The Statutory History of the Eviction Procedure in Minnesota. The article gives citations to virtually all the Minnesota eviction statutes from the first ones in 1851 (the Territorial statutes) through 2019. It should provide a good starting point for identifying the derivation of current statutes.

The same issue of the journal includes nine other articles about eviction, most related to Minnesota practice but also including an excellent article by Judith Fox with a national perspective.

The article I coauthored is available here. The entire set of articles is available at this link (Volume 41, Issue 3). A pair of charts depicting some of the information in my law review but displayed in a different manner are available at these links – Chart 1 (conversion of old to new statutes) and Chart 2 (conversion of new to old statutes).

In the last couple of years the landscape of Minnesota landlord-tenant anti-retaliation law has changed. In Cent. Hous. Assocs. v. Olson, 929 N.W.2d 398 (Minn. 2019) the state supreme court slightly limited the reach of Minn. Stat. § 504B.441 but also promulgated a new common-law anti-retaliation rule. Therefore I put together this review (in PDF and in Word) of current Minnesota anti-retaliation law.

The review refers to three appendices, Appendices 1-3, that include difficult-to-obtain court records about the federal district court case underlying Cloverdale Foods v. Pioneer Snacks, 580 N.W.2d 46 (Minn. App. 1998) (“difficult” meaning time consuming, not requiring rocket-scientist reasoning). It also refers to Appendix 4, which gathers the characteristics and limitations of the various anti-retaliation laws into one chart.

The four appendices are available via these links: Appendix 1, Appendix 2, Appendix 3, Appendix 4

This essay derives in large part from a Continuing Legal Education seminar I gave in September 2019. The CLE is now available for viewing in on-demand mode for 1.0 hour of Minnesota CLE credit via the Hennepin County Bar Association website, see https://www.mnbar.org/members/cle-events/hcba-on-demand-cle.

Most Minnesota residential renters insurance policies protect the tenant when he damages his apartment by accidentally starting a fire but not when he damages his apartment by another type of carelessness, such as the fairly common mistake of letting pipes freeze and burst. As discussed in this essay legislation mandating that renters insurance policies insure (indemnify) tenants who accidentally damage their rented homes by any non-intentional means, not just by fire, needs to be enacted.

The essay incorporates a survey of renters insurance policies filed with the Minnesota Department of Commerce. The actual policies are copied and are available via this collection of links: (in Word as Link 2a and in PDF as Link 2b). They are summarized on this spreadsheet.

When the only adult tenant dies (or all adult tenants die together) without a will, he usually leaves behind not just a lot of personalty – furniture, pots and pans, etc – but a legal headache for the landlord who wants to obey the law but also wants to re-rent the apartment as soon as possible. If there are no known heirs or an unreachable heir or competing heirs, the problems compound. Heirs also might have problems. As discussed here, there are gaps in the law making it unclear what steps the landlord or the heirs can take, especially rapid steps. This essay also proposes possible legislative fixes for the problems.

By Paul Birnberg, paulrainerbirnberg@gmail.com

When a residential tenant moves out at the end of the lease and gives the landlord a delivery address the landlord has a three-week deadline under Minn. Stat. § 504B.178 to return or account for the security deposit. Most practitioners, including tenant advocates, have assumed that the three-week clock starts after both of the following two things have happened — the tenancy has terminated and the landlord has received the delivery address.

On June 17, in an unpublished case but one of first impression, Mungall v. Garry, the Minnesota Court of Appeals ruled that the landlords missed the deadline when they waited exactly three weeks (21 days) after receiving the tenant’s delivery address but 26 days after the termination of her tenancy.

As discussed at length here (with five appendices) I believe the court was wrong. Its construction of section 504B.178 leads to illogical results and flies in the face of the statute’s legislative history. The clock should not start until 21 days after both of the following have occurred: the tenancy terminated AND the tenant gave the landlord delivery instructions for return of the deposit.

In March 2026 I edited part of the legislative-history discussion (pages 10-12 between the green stars) to fix some possible mistakes. The edits clarify the legislative history but do not change the argument.

The appendices are here: Appendix 1 , Appendix 2 , Appendix 3 , Appendix 4, Appendix 5.

Originally posted 7/22/2019