Representing Clients in Pro Bono Housing Repair Cases

1. Representing Clients in Pro Bono Housing Repair Cases Drew Schaffer, Staff Attorney Legal Aid Society of Minneapolis

2. Legal Aid • We assist low-income tenants with housing repair problems through both offensive and defensive court action. • Our goal is to provide safe and suitable housing for low-income tenants and to improve the housing stock in Hennepin County. • We also do outreach and tenant education classes to help educate people about their rights.

3. Under Minn. Stat. § 504B.161, Tenants have the following rights: • To live in a home that is in reasonable repair; • To live in a home that is fit for a tenant’s use – a home that is in good condition and safe to live in; • To live in a home that is maintained in compliance with applicable codes – e.g., health codes, housing codes, etc.; and • To live in a home that is reasonably energy efficient.

4. Many tenants live in homesthat need repairs. • Repairs come in all different degrees from cosmetic (surface) to serious. • Tenants can assert their rights to get repairs made in different ways. • Always encourage tenants to talk to their landlords as a first step – open lines of communication are very important.

5. Landlord responsibility • Landlords have a mandatory obligation and duty to make repairs in a tenant’s home under Minnesota law unless a tenant contracts to do some repairs on her or his own (504B.161).

6. Landlord responsibility (cont.) • However, the covenants of repair and habitability (living in a home that is habitable) CANNOT be waived or modified (504B.161). • In most cities in Hennepin County, landlords must have a valid rental license and pass inspections to rent an apartment or house to any tenant. Rental license requirements vary from city to city.

7. How to Advise a Tenant if a Landlord is not making repairs • DO NOT ADVISE A TENANT TO WITHHOLD RENT WITHOUT ACCOMPANYING ADVICE ABOUT THE RISKS AND CONSEQUENCES – a tenant’s withholding of rent can result in the filing of an eviction action (also called an unlawful detainer or UD), with severely negative consequences. • There are less risky legal options for resolving repair problems that come with protection against the filing of an eviction action/UD.

8. How to Advise a Tenant if a Landlord is not making repairs There are three general types of repair cases: • 1. ETRA – Emergency Tenant Remedy Action; • 2. Rent Escrow Action; and • 3. TRA – Tenant Remedy Action.

9. ETRA – Emergency Tenant Remedy Actions (504B.381) Provides relief for: • 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.).

10. ETRA – Emergency Tenant Remedy Actions (504B.381) • How to file an ETRA: • A tenant needs to try to give notice at least 24 hours before filing the action in Court. • The tenant can do this by calling or visiting the landlord in person. • After 24 hours passes, a tenant can go to Court to file a Petition.

11. Relief Available in an ETRA: • Ex parte order to remedy emergency problem, along with scheduling order for hearing on the Petition; • Retroactive rent abatement based on diminished use and enjoyment (discretionary); • Prospective rent abatement (until the problem is fixed); • Fines; • Attorney’s fees and costs; and/or • Consequential damages or other relief deemed just and proper.

12. Rent Escrow Action (504B.385) • A Rent Escrow Action is a court action in which a tenant can request repairs and pay all of the unpaid rent into Court at the time of filing and while the action is pending. • Tenants should NOT file a rent escrow if they do not have all of the rent that is unpaid. • A Rent Escrow Action is good for a tenant with non-emergency repair issues, if the tenant has paid all of her or his rent or can put all the rent money that is unpaid into Court at the time of filing.

13. Rent Escrow Action (504B.385) • How to file a Rent Escrow Action: • 1. A tenant can write a repair request letter to a landlord, listing all repair problems in detail with the date and tenant’s signature and wait 14 days to see if the landlord makes any repairs, OR • 2. Call 311 (in Minneapolis) and schedule an inspection; if the inspector issues orders, wait until the deadlines set by the inspector expire.

14. Rent Escrow Action (504B.385) • How to file a rent escrow action (cont.): • 3. After the 14 days OR the inspector’s deadlines have passed and the landlord has not made repairs, the tenant can file the case in Court.

15. Rent Escrow Action (504B.385) (cont.) • When tenants file, they MUST pay the full amount of unpaid rent into Court at the same time the case is filed. • In Hennepin County, tenants can pay rent into Court in the following ways: • Cash, and • Cashier’s check or certified check. • NO money orders or credit cards are accepted.

16. Rent Escrow Action (504B.385) • After a tenant files a rent escrow action: • A first appearance is set – this is a brief, preliminary hearing where the Court will decide if the landlord needs to make repairs or if there are factual disputes that need to be resolved in a trial. • If the Court orders repairs, then a compliance hearing is set – this is to see if the landlord has made the repairs ordered by the Court. • If the landlord finishes the repairs at any phase, the Court can decide what happens with the rent on deposit, usually after an evidentiary hearing.

17. Rent Escrow Action (504B.385)(cont.) • A Rent Escrow Action can protect a tenant from facing an eviction/UD – a landlord may not legally retaliate against a tenant for asserting repair and habitability rights. • BUT a landlord can counterclaim for possession in a Rent Escrow Action if a tenant has not deposited all of the unpaid rent into Court at the start of the case – the counterclaim provided by statute allows a landlord to ask that the tenant be evicted.

18. Rent Escrow Action (504B.385) (cont.) Relief available in a Rent Escrow Action: • Order for repairs; • Retroactive rent abatement based on diminished 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.

19. Rent Escrow Action (504B.385) Benefits of a Rent Escrow Action: • The Court holds rent money. • NO eviction/UD risk if tenant has paid all the rent. • If a tenant wins her or his case, the Court MAY give the tenant some money back (this is called rent abatement).

20. TRA – Tenant Remedies Action (504B.395) • This action may be brought by any of the following: • 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 where a housing violation exists;

21. TRA- Tenant Remedies Action (504B.395) • 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, or building maintenance.

22. TRA- Tenant Remedies Action (504B.395) • How to file: • To file a TRA, seek the assistance of an attorney, a housing-related neighborhood organization, or a state, county, or local department or authority.

23. TRA- Tenant Remedies Action (504B.395) • Tenants do NOT have to pay rent into Court to file a TRA • BUT it is within the Court’s discretion to order tenants to pay rent into Court. • Tenants should save any withheld rent if they want to file a TRA. • Tenants have to fill out a Complaint and file it with the Court. • Tenants need representation to file a TRA.

24. TRA- Tenant Remedies Action (504B.395) • After a TRA is filed: • A first appearance is set – this is a brief, initial hearing where the Court will decide if the landlord needs to make repairs or if there are disputes that require further hearing. • If the Court orders repairs, then a compliance hearing is set – this to see if a landlord has made the repairs ordered by the Court. • The Court can also set a hearing date to hear arguments about other issues, including potentially the appointment of an administrator.

25. Evictions/UDs with Repair and Habitability Defenses • If a landlord files an eviction case based solely on nonpayment of rent before a tenant with repair issues in her or his home is able to file an ETRA, Rent Escrow Action, or TRA, the tenant has a valid defense on the merits under Fritz v. Warthen,298 Minn. 48, 213 N.W.2d 339 (1973). • 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.

26. Unlawful Detainers/Evictions with Repair Defenses • Under the holding in Fritz, the tenant’s common law covenant to pay rent is mutually interdependent with the landlord’s statutory covenants of repair and habitability. • If the landlord is not fulfilling the statutory covenants, all or part of the rent is not owed. • 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 all of the unpaid rent should be deposited in some cases.

27. Unlawful Detainers/Evictions with Repair Defenses • Many tenants face eviction because they withheld their rent and no longer have the rent to deposit with the Court. • The least risky way for a tenant to deal with repair problems is to pay the rent directly to the landlord and then to file an ETRA, Rent Escrow Action, or TRA, as appropriate.

28. Relief Available in Fritz Defense to an Eviction Case: • 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.

29. Contact Information • Drew Schaffer, Attorney • (612)-746-3644 • dpschaffer@midmnlegal.org • Legal Aid Society of Minneapolis, Southside Office • (612)-332-1441 PowerPoint Presentation by D. Lynne Daniels, Larry McDonough, and Drew P. Schaffer