The eviction or “unlawful detainer,” (as it is referred to by judges, court administrators and lawyers who know what they’re talking about) is a summary proceeding that remains a mystery to many people (and to some lawyers).
Prerequisites to Eviction.
Landlords must disclose to tenants certain information about who is authorized to manage the premises and who is authorized to receive service of process for the landlord. Minn. Stat. ? 504B.181.
Right to Commence and Action: Breach.
Where a lease exists, if a tenant does not pay rent when it is due, the landlord may immediately bring an eviction action unless the lease provides otherwise. Unless the lease provides otherwise, there is generally no waiting period and no notice required where a breach has occurred.
Terminating a Tenancy: No Breach.
If the lease has not been breached but the landlord seeks possession of the property, the tenancy must be terminated before an eviction action can be pursued. Where the lease does not include early termination provisions, no termination or eviction action can occur until the end of the lease term, unless the tenant breaches the lease. In a periodic or holdover tenancy (month to month or otherwise), notice of not less than the interval between the time the rent is due or three months, whichever is less, is required. Minn. Stat. ? 504B.135.
Commencing the Action.
An Eviction Summons is issued by a court when an Eviction Complaint is filed with the court. A fee must also be paid at that time. The summons includes the date of the first hearing, which will be scheduled between seven and 14 days from the date the complaint is filed.
Serving the Summons.
The Summons must then be served at least seven days before the hearing. The method of service is governed by statute and requires multiple attempts at service and posting if personal service cannot be accomplished. Minn. Stat. ? 504B.331. Most Minnesota process servers are familiar with these requirements, particularly in the Twin Cities metro area.
In most Minnesota counties, the first appearance is scheduled as a trial, but it is not when the trial will occur because courts usually do not reserve sufficient time for trials during first appearances. The first appearance generally involves settlement discussions and if the tenant presents defenses, they are generally presented at this stage. If the tenant answers the complaint, the answer may be filed at this time. Minn. Stat. ? 504B.335 (governing answers and trials).
Tenant Defenses: Rent Deposit Required.
If a tenant makes an initial appearance and asserts non-monetary substantive defenses--such as a landlord's failure to repair or other defenses that could be pursued as claims in a rent escrow action--the tenant is generally not entitled to a trial unless the tenant deposits any unpaid rent. Minn. Stat. 504B.385.
Tenant Defenses: No Rent Deposit.
If a tenant makes an initial appearance and asserts monetary substantive defenses, e.g., the rent being claimed has already been paid, then most judges will not require the tenant to deposit the allegedly unpaid rent. Likewise, where the eviction action does not allege failure to pay rent, no rent deposit will be required from the tenant in order to proceed to trial.
Trials generally occur shortly after (hours or days) the initial "trial" appearance through a statutory continuance. If a jury trial is requested, scheduling takes longer. By statute, continued trials must occur not later than six days after the first appearance unless all parties consent to a longer continuance. Minn. Stat. ? 504B.341.
"Pay and Stay."
In cases where failure to pay rent is the only allegation by the landlord, even if the landlord prevails at trial and obtains a writ of recovery, the tenant can "pay and stay" if the tenancy has not ended and has not been timely terminated by the landlord. To pay and stay, the tenant must pay the rent that is past due (in arrears), plus interest (if charged), plus a $5 attorney fee if an attorney represented the landlord, and finally, any "costs of the action." Costs of the action include the filing fee (now about $320 - $355) plus the process server fee, plus a witness fees if one was subpoenaed (called) for trial.
Based on the statutory timing for filing, initial appearances and trials, the longest period of time between filing an Eviction Complaint and holding a trial on the merits should be 20 days at most, but may be as short as seven days from filing to trial. Most evictions do not involve a trial. If the landlord prevails at trial, a tenant may ask that the judge delay issuance of a writ of recovery for a reasonable period, not to exceed seven days. To obtain a stay, the tenant must show that immediate eviction would work a "substantial hardship" upon the tenant or the tenant's family. Minn. Stat. ? 504B.345. In general, an eviction from start to finish takes fewer than 30 days in Minnesota, but some cases do take longer.
Writ of Recovery.
If the landlord wins at trial, a writ of recovery is issued. To enforce the writ, the landlord delivers the writ to the local sheriff, who will enforce the writ. The deputy posts the writ at the property, which gives notice to the tenant that the tenant must be out in 24 hours. If the tenant is not gone in 24 hours, the officer may return any time after that and supervise the physical removal of the tenant from the property.
Don't Mess with that Security Deposit.
At times, landlords are tempted to inflate damage estimates in order to avoid returning a security deposit to a tenant. Minnesota law discourages this practice rather strongly. Minnesota law protects tenants from the wrongful withholding of their security deposits and imposes financial penalties on landlords who do not follow the law. Specifically, Section 504B.178 of the Minnesota Statutes provides that "within three weeks after termination of the tenancy," a landlord "shall . . . return the deposit to the tenant, with interest . . . or furnish to the tenant a written statement showing the specific reason for the withholding of the deposit or any portion thereof." Minn. Stat. ? 504B.178, subd. 3 (2013). A penalty of $500.00 is also imposed where any portion of a security deposit is withheld in bad faith. Bad faith is presumed if a landlord fails to return a deposit within two weeks after commencement of an action by the tenant to recover the withheld deposit.
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