Picture
Attorneys who represent landlords and eviction hearings in Minnesota are being sued under the fair debt collection practices act, or FDCPA for short. However, there are several steps that attorneys can take to protect themselves from an FDCPA lawsuit.

A complete discussion of the requirements of the FDCPA is beyond the scope of this article. However, the FDCPA requires that a third-party attempting to collect a debt provide a "mini-Miranda" warning at an initial meeting with the debtor and follow-up with a 30-day validation letter within five days.

The "mini-Miranda" should say something to the effect that the debtor is having a communication with a debt collector and that any information obtained can and will be used to collect the debt owed. Within five days of the date of the initial communication, you should follow up with a 30-day validation letter, giving the debtor 30 days to dispute the validity of the debt, or to request confirmation of the identity of the original creditor, if it is not already been provided.

The FDCPA does not apply to landlords attempting to collect their own debt. In other words, the landlord does not have to comply with the FDCPA is the landlord issues its own notices, demands, etc. However, if the landlord has hired a collection agency to collect unpaid rent or a property management company to manage the properties, collect rent, etc., then that collection agency or property management company is a third-party and must comply with the FDCPA.

Based on the research I have done so far, this theory of liability originated in a case decided by the Federal District Court in the Southern District of New York, and subsequently affirmed by the Second Circuit Appeals Court in 
Romea v. Heiberger & Associates, 163 F.3d 111 (2d Cir. 1998)

For attorneys who represent landlords in eviction hearings, the theory is that the preliminary court hearing in the eviction is a "communication" with the debtor. Attorneys who represent landlords potentially violate the FDCPA, the theory goes, by not providing the "mini-Miranda" warning or by following up within five days with a 30-day validation letter.

I think there is a good argument to be made that:

1. Romea only applies to evictions in the Second Circuit and does not apply to Minnesota evictions;
2. evictions are all about the right to possession, not money – and therefore the FDCPA does not apply; and
3. the payment or nonpayment of rent in Minnesota and the Minnesota eviction action does not affect interstate commerce in the least, and that therefore Congress – and the Minnesota federal courts – are without jurisdiction.

Brighter minds than mine will figure this out, but in the meantime, I am – out of an abundance of caution – going to comply with the FDCPA by providing a "mini-Miranda" warning at the court hearing and by following up within five days with a 30-day validation letter.. I do not want to risk an FDCPA lawsuit.

 Remember – the FDCPA does not apply to a landlord attempting to collect its own debt. As such, assuming that the landlord is the owner of the property, the landlord can continue to send notices and demands as always. The FDCPA comes into play only if the landlord hires a third-party, such as a property management company or debt collection agency.  Landlord attorneys who are served with an FDCPA lawsuit should immediately notify their malpractice carrier, and not attempt to defend the lawsuit on their own.

For more information about evictions and the FDCPA, I recommend that you visit:

https://sites.google.com/site/mnhousinglaw/ud-defense-manual/chapter-vi-defenses/e-nonpayment-of-rent/34-fair-debt-collection-practices-act-defenses

Thanks!

Every landlord – tenant situation is unique, and I recommend that landlords talk to an attorney experienced in evictions and landlord tenant law before taking action based on this blog post.  To that end, I invite landlords to give me a call at 763-450-9494 to discuss their unique situation. The first thing I will ask you is what you want to have happen because, ultimately, the landlord is in control. I have represented many landlords, but typically do not represent tenants.

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Tim is licensed to practice law only in Minnesota, and the information contained in this blog post may not apply to jurisdictions outside of Minnesota.  Further, reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  You should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation.




 
 
Picture
Tim is teaching the sections on evictions and companion animals at the landlord-tenant seminar organized by Sterling Education Services. The seminar will be held on April 19, 2017 at the Minneapolis Hilton Downtown (1101 4th Avenue South, Minneapolis, MN) from 8:30 AM – 4:30 PM.

From the program description:

Home ownership and rental vacancy rates haven’t been as low as they currently are for more than thirty years. That can be great news for landlords, but it also means that finding the best tenants for your property (and protecting yourself when bad tenants slip in) is more important than ever. Uncertain economic conditions and the influx of more baby boomers and families into the rental market mean that you and your clients need strategies in place to write solid leases, provide accommodations, and evict when necessary. Our faculty are familiar with the issues you’re facing every day, so put their knowledge and experience to work and make the most out of the growing rental markets. 

For more information and to register, please visit:

http://store.sterlingeducation.com/seminar/17MN04072-Landlord-Tenant-Law-Lease-Agreements-Defaults-and-Collections-Minneapolis-MN

Thanks!

 
 
Picture
Tim is teaching a class called "Landlording 102" through Anoka Hennepin Community Education. The class will be held on Tuesday, February 28, 2017 at 6:30 PM at the Staff Education Center (enter through door 7) at 2727 Ferry St., Anoka, MN 55303.

From the course description:

Discuss evictions and landlord-tenant law, including security deposits, lockouts, and abandoned tenant property. Interactive class, with plenty of time for questions, for new as well as more experienced landlords, property managers, and anyone else interested in learning more about being a landlord. Instructor is an attorney who represents primarily landlords and specializes in evictions and landlord-tenant law.Class fee: $25.

For more information and to register, please visit:

https://anokahennepin.cr3.rschooltoday.com/public/costoption/class_id/22698/public/1/sp/

 
 
Picture
I am often asked if a landlord should feel badly about evicting a tenant. The short answer is no. After all, the landlord is in the business of providing housing in exchange for the payment of rent, and the tenant signed a contract saying that they were going to pay rent in exchange for a place to live.

As such, I have absolutely no hesitation in recommending that a landlord evict a tenant who is not paying rent. If the tenant is not paying rent, then the tenant is of no use to the landlord.It is important for all landlords to remember that being a landlord is a business. A tenant who does not pay rent is taking advantage of the landlord's generosity, and that is something that I do not tolerate.

In Minnesota, a judge can give a tenant up to 7 days to pay up or move out – but the judge has to find that the tenant will suffer substantial hardship before granting extra time.  However, the landlord and tenant can agree on a longer period of time – more than 7 days –for the tenant to pay up or move out. If the landlord and tenant agree, a judge will probably sign off on that agreement.

Every landlord – tenant situation is unique, and I recommend that landlords talk to an attorney experienced in evictions and landlord tenant law before taking action based on this blog post.  To that end, I invite landlords to give me a call at 763-450-9494 to discuss their unique situation. The first thing I will ask you is what you want to have happen because, ultimately, the landlord is in control. I have represented many landlords, but typically do not represent tenants.

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Tim is licensed to practice law only in Minnesota, and the information contained in this blog post may not apply to jurisdictions outside of Minnesota.  Further, reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  You should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation.

 
 
Picture
I am often asked whether a landlord should hold off on evicting a tenant until after the holidays. The short answer is no, the landlord should bring an eviction as soon as possible.  A landlord will do well to remember that being a landlord is a business. The landlord is in the business of providing housing, and those persons who do not pay their monthly rent should leave, and be replaced with tenants who actually pay their rent on time.

A tenant always has to meet their obligations under the lease to pay rent, even if there is a holiday. The landlord is under no obligation to give the tenant a gift of free rent for a month or two. Indeed, a tenant might get use to not paying rent, and then expect to stay for free. A tenant who does not pay rent is not meeting their obligation under the lease, and should be evicted.

Still, I understand that certain landlords would prefer not to bring an eviction so close to the holidays. However, if the landlord files an eviction now (December 13, 2016), the hearing on that eviction will likely not take place until the last week of the month, or possibly early in 2017. As such, I would recommend that a landlord bring an eviction sooner rather than later, even if we are in the midst of a holiday season.

Every landlord – tenant situation is unique, and I recommend that landlords talk to an attorney experienced in evictions and landlord tenant law before taking action based on this blog post.  To that end, I invite landlords to give me a call at 763-450-9494 to discuss their unique situation. The first thing I will ask you is what you want to have happen because, ultimately, the landlord is in control. I have represented many landlords, but typically do not represent tenants.

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Tim is licensed to practice law only in Minnesota, and the information contained in this blog post may not apply to jurisdictions outside of Minnesota.  Further, reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  You should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation.



 
 
Picture
Tim is teaching a FREE seminar/CLE on evictions and landlord-tenant law. The seminar is called "What Every Landlord Needs to Know," and and will be held on Thursday, December 15, 2016 at 9 AM at Tim's office, 2140-4th Ave., Anoka, MN 55303

From the course description:

In this FREE seminar, we will cover the legal aspects of the landlord-tenant relationship, including how to handle evictions, security deposits, and tenant property remaining in the premises after the tenant moves out.  This seminar is geared for landlords, property managers, and attorneys who represent them.

ATTORNEYS: One standard CLE credit has been applied for.

Space is limited, so advance registration is required. To register, please visit:

https://www.eventbrite.com/e/what-every-landlord-needs-to-know-about-evictions-security-deposits-abandoned-tenant-property-and-tickets-29863493513

 
 
Picture
I am often asked what a landlord should do is a tenant dies.  If a tenant dies and was not married, I generally recommend that a landlord bring an eviction action against that tenant by name, and against the estate of that tenant, if only to get the rental unit back. That way, the landlord will have the legal right to rent the unit again and dispose of any personal property remaining there.

In the event of the death of a tenant, the landlord has three primary concerns: what happens to the lease, dealing with the tenant's personal property, and dealing with the security deposit. I will now address each of these concerns in turn.

Lease

What happens to the lease upon the death of a tenant is governed by Minn. Stat. 504B .265. Basically, the lease continues in force, until the landlord or the tenant (or the tenant's estate) provide notice that the lease has terminated.

The statute provides that either the landlord or the tenant can terminate the lease by providing written notice at least 60 days in advance. In other words, the notice must be given at least two full rental periods in advance. For example, notice given sometime in the month of September actually terminates the lease as of the end of November, and the tenant's estate is on the hook for rent from the date of the notice through the end of the lease.

However, the tenant's estate remains liable for unpaid rent and other amounts due and owing under the lease through the date of the lease termination. The landlord still has to deal with the deceased tenant's personal property as well as the security deposit, but can sue the tenant's estate in conciliation court for the amounts due and owing under the lease, including unpaid rent, unpaid utilities, and damages to the rental unit beyond ordinary wear and tear.

Personal Property Belonging to the Deceased Tenant

The landlord has the duty under Minn. Stat. 504B.271 to secure the tenant's property. This can be most easily accomplished by either changing the locks, if the property is going to be stored in the unit, or moving the property to a no other secured location on site, such as a lockable garage.  Once it becomes apparent to the landlord that the tenant has abandoned the property, the landlord has to secure it, as described above. The landlord has to store the property for 28 days if the property is to be stored on site.

After the property is secured, the landlord has to conduct an inventory of the property. The easiest way to do the inventory is to take digital photographs or a video of the property, accompanied by a list describing the specific items. Big-ticket items, such as a television, should be listed separately, but general categories are okay for other items, such as furniture, electronics, clothing, etc.

The landlord has to mail a copy of the inventory to the tenant (or the estate of the tenant at the tenant's last known address), which is probably the apartment. I recommend posting a sign on the door indicating that property appears to be abandoned to the landlord, the landlord has secured the tenant's personal property and that the landlord may be contacted to set up an appointment to provide access.

The landlord should only provide access to the personal property of a deceased tenant to someone who is named as a personal representative in the tenant's will.   If the tenant died intestate – that is, without a will – I would be very cautious about providing access to the property to a person who is not named or has been appointed as a personal representative. After all – the landlord does not want to be liable to the tenant's estate for improperly disposing of the tenant's personal property.

For more information on dealing with a tenant's personal property, please see my previous blog post on the subject:

http://www.balandlaw.com/3/post/2016/02/what-should-a-landlord-do-with-personal-property-that-a-tenant-leaves-behind-when-the-tenant-moves-out.html

Security Deposit

Security deposits in Minnesota are governed by Minn. Stat. 504B .178. The landlord has to return the security deposit to the tenant within 21 days after termination of the tenancy, with interest, less the amount of damages to the landlord beyond ordinary wear and tear.  When a tenant dies, the security deposit becomes the property of the tenant's estate. The landlord should return any deposit remaining, with appropriate interest, to either the named or appointed personal representative or to the estate of the tenant at the tenant's last-known address, which is probably the rental unit.

For more information on dealing with the security deposit, please see my previous blog post on the subject:

http://www.balandlaw.com/3/post/2016/02/how-should-a-landlord-handle-a-tenants-security-deposit-after-the-tenant-moves-out.html

The death of a tenant presents a complicated situation to the landlord, and every landlord-tenant situation is unique. For that reason, I recommend that landlords talk to an attorney experienced in evictions and landlord tenant law before taking action based on this blog post.  To that end, I invite landlords to give me a call at 763-450-9494 to discuss their unique situation. I typically do not represent tenants.

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Tim is licensed to practice law only in Minnesota, and the information contained in this blog post may not apply to jurisdictions outside of Minnesota.  Further, reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  You should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation.

 
 
Picture
Tim is teaching at the third annual Residential Landlord Law seminar sponsored by Sterling Education Services. The seminar will be held on Tuesday, December 6, 2016, starting at 8:30 AM, and will be held at The Tuscan Center, 3333 West Division #116, St. Cloud, MN 
320/251-2393 Tim is scheduled to teach the sessions on the eviction process, collecting back rent and damages, and ethical considerations in landlord-tenant law.

Here is a description of the program from the brochure:

Staying on top of legislative developments and current practices is one of the most important things you can do for yourself or your clients. Whether you own or manage the property or counsel those who do, you can’t afford to be left behind by the changes that are happening in residential landlord-tenant law every day, especially when economic tensions are making relations more volatile than ever. At this seminar, time-tested professionals will help you sort through the issues and walk you through the process from beginning to end, allowing you to reduce your risk and make the most of your rental property.
This is my second time teaching at the seminar, and I am really excited at the opportunity to share my knowledge with other attorneys, landlords, property managers, and anybody else who attends.  Please contact Tim directly for a special promotional code that will get you a $50 discount off of the standard rate when registering.

For more information, or to register, please visit: http://store.sterlingeducation.com/seminar/16MN12326-Residential-Landlord-Tenant-Law-Rentals-and-Remedies-St-Cloud-MN

Thanks!
 
 
Picture
I am often asked whether a landlord should accept rent from a tenant after starting an eviction against that tenant. The short answer is no, probably not – unless the landlord has language in their lease that allows the landlord to proceed with an eviction even if the tenant makes a partial payment.

By accepting a partial payment when the landlord knows that the tenant actually owes more or has violated the lease in other ways, the landlord waives the right to bring an eviction against that tenant for those reasons.  The "magic language" that needs to be included in a lease for the landlord to accept a partial payment is found in Minn. Stat. 504B.281, subd. 1 (C):

partial payment of rent in arrears which is accepted by the landlord prior to issuance of the order granting restitution of the premises pursuant to section 504B.345 may be applied to the balance due and does not waive the landlord's action to recover possession of the premises for nonpayment of rent.
The above language should be included in every lease, so that the landlord cannot bring an eviction action, even if the landlord accepts partial payment. If the above language is not included in the lease and the landlord accepts a partial payment, then a judge is likely to dismiss the eviction and award the tenant $200 in costs pursuant to Minn. Stat. 549.02, subd. 1. This means that the landlord will have to pay $200 to the tenant if the eviction is dismissed.  As such, a landlord should not accept a partial payment unless the "magic language" is in the lease.

After the landlord starts an eviction against a tenant for nonpayment of rent or for any other reason, the landlord should not accept partial payment. Indeed, the landlord should only accept payment in full of the amounts owing, plus the filing fee and the cost of service. Failure to do so risks dismissal of the eviction, and a judgment against the landlord in favor of the tenant for $200 in costs.

The question becomes what should the landlord do with a partial payment, whether that payment is made by way of cashier's check, money order, personal check, or cash? The answer is that the landlord must return the partial payment to the tenant. I would recommend that the landlord enclose a letter to the tenant stating that the landlord cannot accept partial payment, can only accept payment in full, and provide the total amount due and owing. If the tenant makes a partial payment by way of cash, the landlord has to give the tenant a receipt for the cash, return it in the same way (although I would recommend returning it personally to the tenant), and get a receipt from the tenant that the cash has been returned. Getting a receipt will avoid the key-said she-said in court.

Every landlord – tenant situation is unique, and I recommend that landlords talk to an attorney experienced in evictions and landlord tenant law before taking action based on this blog post.  To that end, I invite landlords to give me a call at 763-450-9494 to discuss their unique situation. The first thing I will ask you is what you want to have happen because, ultimately, the landlord is in control. I have represented many landlords, but typically do not represent tenants.

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Tim is licensed to practice law only in Minnesota, and the information contained in this blog post may not apply to jurisdictions outside of Minnesota.  Further, reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  You should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation.
 
 
Picture
Tim is teaching a free seminar/CLE on evictions and landlord-tenant law, including security deposits and abandoned tenant property. The seminar will be held on Thursday 10/6/16 from 9 AM – 10 AM at Tim's office, 2140 – 4th Ave., Anoka, MN 55303.

Here is the official description of the seminar:

In this FREE seminar, we will cover the legal aspects of the landlord-tenant relationship, including how to handle evictions, security deposits, and tenant property remaining in the premises after the tenant moves out.  This seminar is geared for landlords, property managers, and attorneys who represent them.

ATTORNEYS: One standard CLE credit has been applied for.

Space is limited, so advance registration is required. For more information and to register, please visit https://www.eventbrite.com/e/what-every-landlord-needs-to-know-about-evictions-security-deposits-abandoned-tenant-property-and-tickets-27957113479

Alternatively, you can also call Tim directly at 763-450-9494 to register.

Thanks!