Representing Clients in Pro Bono Housing Repair Cases

1. Representing Clients in Pro Bono Housing Repair Cases Drew P. Schaffer, Staff Attorney Mid-Minnesota Legal Assistance

2. Minn. Stat. § 504B.161 • Minnesota law provides strong habitability protection for tenants. • Under Minn. Stat. § 504B.161, a tenant has the following rights: • To live in a home that is fit for the use intended by the landlord and tenant; • To live in a home that is in reasonable repair; • To live in a home that is maintained in compliance with applicable codes – e.g., municipal housing codes; and • To live in a home that is reasonably energy efficient.

3. Landlord Responsibility • Landlords have a mandatory obligation and duty to make repairs under Minnesota law. • A tenant may contract to do some repairs on her or his own in a conspicuous writing supported by adequate consideration. • However, the covenants of 504B.161 CANNOT be waived or modified.

4. Interdependence of Landlord and Tenant Obligations • Fritz v. Warthen,298 Minn. 48, 213 N.W.2d 339 (1973). • Under the holding in Fritz, a tenant’s common law covenant to pay rent is mutually interdependent with a landlord’s statutory covenants of habitability and repair. • If a landlord is not fulfilling the statutory covenants, then all or part of the tenant’s rent is not owed.

5. Habitability and Repair Problems in Rental Housing • Housing code, habitability, maintenance, and repair problems are very common in homes rented by low-income tenants. • Examples of common habitability problems: • Plumbing problems (leaking toilets, sinks, and pipes); • Infestations of bed bugs, cockroaches, mice, etc.; • Poorly installed or maintained windows and weather-stripping; • Insufficient heat in the winter; • Water intrusion and mold problems; • Ineffective fire and carbon monoxide detection; • Security issues (e.g., missing locks on exterior doors); and • Landlord’s failure to obtain a rental license.

6. Rental License Requirement • In most cities in Hennepin County, a landlord must have a valid rental license and pass a basic housing quality inspection to rent an apartment or house to any tenant. • Rental license requirements vary from city to city. A violation of the licensing ordinance is a misdemeanor in Minneapolis, Brooklyn Park, Brooklyn Center, and other municipalities. • Common law: A contractual obligation obtained in misdemeanor violation of the law is void and unenforceable. • Beaumia v. Eisenbraun, No. A06-1482, 2007 WL 2472298 (Minn. Ct. App. Sep. 4, 2007) • A tenant has no rental obligation during the period in which a rental property is not licensed under a municipal licensing ordinance.

7. Bed Bugs • Bed bugs are tiny insects that feed on human blood. • Bed bugs have gradually returned as a pest in the United States in hotels, movie theaters, houses, and apartment buildings after several decades of absence. • Infestations are widespread in the Twin Cities metropolitan area. • Humans have varying levels of reaction to bed bug bites, ranging from no reaction to severe skin irritation. • It is difficult, and often impossible, to trace the onset and source of a bed bug infestation in a multi-unit building. • Bed bugs hide in small spaces, cracks, and crevices, and they are not easy to see when they are not hiding. • Bed bugs can go many months without feeding. • An infestation can exist in a rental dwelling without detection through a series of tenants, depending on coin-flip odds.

8. Bed Bug Extermination • Responsibility for extermination • An infestation violates the covenants of Minn. Stat. § 504B.161. • It is a landlord’s responsibility to exterminate a bed bug infestation in rental housing. • Charging a tenant to fix a violation of Minn. Stat. § 504B.161 is barred by the statute, since it would waive and modify the landlord’s statutory duty. • Exception under Minn. Stat. § 504B.161 • The tenant’s willful, malicious, or irresponsible conduct caused the infestation. • Delamater v. Foreman, 184 Minn. 428, 239 N.W. 148 (1931) • In this pre-504B.161 case on the habitability of a bed bug-infested apartment in a multi-unit apartment building, the court held for the tenants on their claims for damages and constructive eviction.

9. Advising a Tenant on Repair Rights Enforcement • 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 severe and negative collateral consequences. • There are less risky legal options a tenant may use to resolve repair problems, while mitigating the risk of facing an eviction action.

10. Tenant-Initiated Legal Actions to Force Repairs There are three basic types of tenant-initiated court actions to enforce habitability and repair rights: • 1. ETRA – Emergency Tenant Remedies Action; • 2. Rent Escrow Action; and • 3. TRA – Tenant Remedies Action.

11. Emergency Tenant Remedies Action Minn. Stat. § 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.).

12. Emergency Tenant Remedies Action Minn. Stat. § 504B.381 • How to file an ETRA: • A tenant needs to give notice at least 24 hours before filing an ETRA. • Example: “The furnace isn’t working at my home. If you do not fix it within 24 hours, I will file an emergency court action against you.” • A tenant can give the required notice by calling the landlord, leaving a voicemail for the landlord, or telling the landlord in person. • If 24 hours passes without remedy of the emergency, a tenant can go to court to file a Petition. • http://www.mncourts.gov/forms/public/forms/Housing__Landlord-Tenant/Emergency_Relief/HOU602.pdf

13. 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 impaired use and enjoyment (discretionary); • Prospective rent abatement (until the problem is fixed); • Fines ($250 for first violation of court order for repairs, escalating to $500 for second violation and $750 for each violation thereafter); • Attorney’s fees and costs; and/or • Consequential damages (e.g., hotel costs) or other relief deemed just and proper.

14. Rent Escrow Action Minn. Stat. § 504B.385 • A Rent Escrow Action is a court action in which a tenant seeks a court order for the landlord to make repairs and to obtain relief for non-emergency violations Minn. Stat. § 504B.161 and other provisions of the lease and Minnesota law. • A tenant must pay into court any unpaid rent at the time of filing and any rent that accrues while the action is pending. • A tenant should NOT file a rent escrow if the tenant does not have all of the rent that is unpaid or will not be able to pay rent each month while the action is pending.

15. Rent Escrow Action Minn. Stat. § 504B.385 • It is illegal for a landlord to retaliate against a tenant for asserting habitability and repair rights. • BUT a landlord can counterclaim to evict a tenant in a Rent Escrow Action if the tenant fails to deposit all of the unpaid rent into court at the start of the case. • AND any non-rent breaches of the lease by the tenant may serve as a basis for a separate eviction action by a landlord.

16. Rent Escrow Action Minn. Stat. § 504B.385 • Rent Escrow Action – Alternative Notice Preconditions: • 1. A tenant can write a repair request letter to a landlord, dating the letter and specifically listing all habitability and repair problems in detail; AND/OR • 2. A tenant can call a municipal inspector (“311” in Minneapolis) and schedule an inspection for the inspector to observe conditions and to cite any violations of the applicable housing maintenance code.

17. Rent Escrow Action Minn. Stat. § 504B.385 • Rent Escrow Action – Alternative Notice Preconditions (cont.): • 3. If the landlord fails to make repairs within 14 days after the date of a tenant’s repair request letter OR by the deadline for repairs ordered in a housing inspector’s report, the case is ripe.

18. Rent Escrow Action Minn. Stat. 504B.385 • A Rent Escrow Action is a relatively simple vehicle for court enforcement of a tenant’s habitability and repair rights. • The scope of the case is confined to issues and problems raised in a tenant’s 14-day letter and/or expired repair orders issued by a housing inspector. • Affidavit of Rent Escrow • http://www.mncourts.gov/forms/public/forms/Housing__Landlord-Tenant/Rent_Escrow/HOU302_Dist4_Affidavit_of_Rent_Escrow.pdf

19. Rent Escrow Action Minn. Stat. § 504B.385 • When a tenant files a Rent Escrow Action, the tenant MUST pay the full amount of unpaid rent into court at the same time the case is filed. • In Hennepin County, tenants can pay any unpaid rent into Court in the following ways: • Cash • Cashier’s check or certified check. • NO personal checks, money orders, or credit cards.

20. Rent Escrow Action Minn. Stat. § 504B.385 • After a tenant files a rent escrow action: • The court undertakes service by mail unless the alleged cost of repairs exceeds $10,000. • A first appearance is set – this is a brief, preliminary hearing. • The court will decide if the landlord needs to make repairs or if there are factual disputes that require a trial. • If the court orders repairs at any phase of the case, then the court may schedule a compliance hearing to see if the landlord has made the repairs ordered by the court. • If the landlord finishes the repairs at any phase, the court decides what happens with the rent on deposit with the court, usually after a trial or evidentiary hearing to evaluate any claim asserted by the tenant for rent abatement.

21. Rent Escrow Action Minn. Stat. § 504B.385 Relief available in a Rent Escrow Action: • Order for repairs; • Retroactive rent abatement based on impaired 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.

22. Rent Escrow Action Minn. Stat. § 504B.385 Benefits of a Rent Escrow Action: • The court holds rent money until repairs are completed, motivating the landlord to fix problems. • The action mitigates the risk of an eviction action filing against tenant for withheld rent if tenant has deposited all of the unpaid rent with the Court. • If a tenant wins her or his case, the Court MAY give the tenant some rent money back in the form of rent abatement.

23. Tenant Remedies Action Minn. Stat. § 504B.395 • A Tenant Remedies 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; • 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.

24. Tenant Remedies Action Minn. Stat. § 504B.395 • A tenant does not have to pay rent into court at the time the tenant files a TRA. • BUT it is within the court’s discretion to order a tenant to pay rent into court. • A tenant should save any withheld rent if he or she wants to pursue a TRA. • A tenant must fill out a Complaint and file it with the court. • A tenant must have a disinterested third party serve the Summons and Complaint on the defendant-landlord or effect statutory service by certified mail and posting. • After filing and service, the process and relief in a TRA is similar to that available in a Rent Escrow Action.

25. Eviction Actions (UDs) with Habitability Defenses • If a landlord files an eviction action based solely on nonpayment of rent before a tenant with habitability and repair problems files an ETRA, Rent Escrow Action, or TRA, the tenant has a defense to the landlord’s claim 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. Eviction Actions (UDs) with Habitability Defenses • Although a tenant generally must deposit the full amountof unpaid rent to litigate a defense under Fritz, a tenant may argue that less than the full amount of the unpaid rent should be deposited under the circumstances of the case. See Minn. Gen. R. Prac. 608. • Many tenants face eviction because they withheld their rent and no longer have the rent required for deposit with the court to litigate habitability. • The generally less risky method for a tenant to deal with repair problems is to pay the rent directly to the landlord as it comes due under the lease and then to file an ETRA, Rent Escrow Action, or TRA, as appropriate.

27. Relief to Request in a Fritz Defense to an Eviction Action • 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.

28. Contact Information • Drew P. Schaffer, Staff Attorney • Phone/Fax: (612) 746-3644 • dpschaffer@midmnlegal.org • Mid-Minnesota Legal Assistance • Client Intake: (612) 334-5970 PowerPoint Presentation by D. Lynne Daniels, Larry McDonough, and Drew P. Schaffer