<![CDATA[Baland Law Office, P.L.L.C., (763) 450-9494 - Blog]]>Tue, 23 May 2017 05:55:16 -0700Weebly<![CDATA[What Should You Do If a Contract Vendee under a Contract for Deed Does Not Move Out After You Cancel the Contract?]]>Fri, 19 May 2017 13:56:17 GMThttp://balandlaw.com/blog/what-should-you-do-if-a-contract-vendee-under-a-contract-for-deed-does-not-move-out-after-you-cancel-the-contract
What do you do if you have sold real estate someone (the contract vendee) under a contract for deed who refuses to move out or pay up after you cancel the contract. In a contract for deed, the seller (vendor) provides financing to the buyer (vendee), but the vendor retains legal title and legal ownership of the property, but the vendee has equitable title – the right to occupy and be in the property.  Typically, the vendee seems trustworthy and solvent when you sign the contract, but then does not make payments due under the contract for whatever reason – loss of job, medical emergency, or some other reason.

The question becomes what do you do if a contract vendee is not making the payments due under the contract? The short answer is that the vendor has to cancel the contract for deed. There is a statutory notice of cancellation that gives the vendee 60 days to pay up, but the next question is what happens after those 60 days are up and the vendee has not paid up or moved out?

The contract vendor has to bring an eviction action against the contract vendee to remove the contract vendee from the property. Basically, the eviction complaint says just that – that the vendee is still on the property after 60 days from the date of cancellation.

After you file and serve the eviction, a hearing will be scheduled within 2 weeks. It is your responsibility as contract vendor to have the eviction served within one week of the date of the hearing. At the hearing, one of 4 things will occur:

1. The vendee does not show up, and you win by "default." In other words, you win because the vendee did not appear. In that case, the judge will issue a Writ of Recovery of the premises, which is an order of the court for the Sheriff to remove the vendee from the property.

2. 
The vendee does show up, and you are able to work out some sort of agreement – typically whereby the vendee either agrees to pay everything that they owe on an acceptable schedule to you or the vendee agrees to move out by a certain date that is acceptable to you.

3. The vendee does show up, and you are not able to work out any kind of agreement. In that case, you will appear before a judge. If the vendee admits that they were given proper notice and are still in the property, the judge will issue an order kicking them out (the writ of recovery). The judge has the authority to stay the writ of recovery for up to 7 days if there is a finding of substantial hardship – typically minor children or an obvious physical or mental disability. In practice, most judges will stay the writ for 7 days, although that varies from county to county.

4. The vendee shows up and asks for a trial on the validity of your cancellation. Basically, the vendee would argue (and would have to prove) that the notice you gave did not meet with the requirements of the statute authorizing you to cancel the contract for deed.

I generally advise clients not to enter into contracts for deed. What do you do if you have sold real estate someone (the contract vendee) under a contract for deed who refuses to move out or pay up after you cancel the contract. In a contract for deed, the seller (vendor) provides financing to the buyer (vendee), but the vendor retains legal title and legal ownership of the property, but the vendee has equitable title - the right to occupy and be in the property.  Typically, the vendee seems trustworthy and solvent when you sign the contract, but then does not make payments due under the contract for whatever reason - loss of job, medical emergency, or some other reason.

The question becomes what do you do if a contract vendee is not making the payments due under the contract? The short answer is that the vendor has to cancel the contract for deed. There is a statutory notice of cancellation that gives the vendee 60 days to pay up, but the next question is what happens after those 60 days are up and the vendee has not paid up or moved out?

The contract vendor has to bring an eviction action against the contract vendee to remove the contract vendee from the property. Basically, the eviction complaint says just that - that the vendee is still on the property after 60 days from the date of cancellation.In other words, the vendee is "holding over" on real property and can be evicted for that.

After you file and serve the eviction, a hearing will be scheduled within 2 weeks. It is your responsibility as contract vendor to have the eviction served within one week of the date of the hearing. At the hearing, one of 4 things will occur:

1. The vendee does not show up, and you win by "default." In other words, you win because the vendee did not appear. In that case, the judge will issue a Writ of Recovery of the premises, which is an order of the court for the Sheriff to remove the vendee from the property.

2. The vendee does show up, and you are able to work out some sort of agreement – typically whereby the vendee either agrees to pay everything that they owe on an acceptable schedule to you or the vendee agrees to move out by a certain date that is acceptable to you.

3. The vendee does show up, and you are not able to work out any kind of agreement. In that case, you will appear before a judge. If the vendee admits that they were given proper notice and are still in the property, the judge will issue an order kicking them out (the writ of recovery). The judge has the authority to stay the writ of recovery for up to 7 days if there is a finding of substantial hardship – typically minor children or an obvious physical or mental disability. In practice, most judges will stay the writ for 7 days, although that varies from county to county.

4. The vendee shows up and asks for a trial on the validity of your cancellation. Basically, the vendee would argue (and would have to prove) that the notice you gave did not meet with the requirements of the statute authorizing you to cancel the contract for deed.

I generally advise clients not to enter into contracts for deed. If the potential buyer is unable to obtain financing from a third-party such as a bank, credit union, or other mortgage provider, there is probably a good reason why they were unable to obtain such financing. You are not a lender – rather, you are a seller.  You should not provide financing to a potential buyer who cannot obtain financing from a third-party lender.

However, there are some circumstances when it makes sense to enter into a contract for deed. I would recommend that you vet any potential contract for deed vendee to make sure they have a long employment history and solid credit score. If you are going to provide the financing, you want as little risk as possible.

If you have a contract for deed vendee who is not making payments, or if you have canceled a contract for deed according to statute but the vendee is still in the property, then I recommend that landlords talk to an attorney experienced in evictions before taking action based on this blog post.  To that end, you should give me a call at 763-450-9494 to discuss your situation. The first thing I will ask you is what you want to have happen because, ultimately, the you are in control..

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.


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<![CDATA[Tim Teaches Free Seminar on What Every Landlord Needs to Know about Evictions, Security Deposits, Abandoned Tenant Property, and Landlord-Tenant Law]]>Thu, 04 May 2017 15:44:42 GMThttp://balandlaw.com/blog/tim-teaches-free-seminar-on-what-every-landlord-needs-to-know-about-evictions-security-deposits-abandoned-tenant-property-and-landlord-tenant-law
Tim is teaching a free seminar on what every landlord needs to know about evictions, security deposits, abandoned tenant property, and landlord-tenant law. The seminar will be held on Thursday, May 18, 2017 from noon – 1 PM at Tim's office, 2140 4th Avenue North, Anoka Minnesota 55303.

This seminar is intended for landlords, property managers, attorneys who represent them, and anyone interested in knowing more about landlord-tenant law. From the event 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.

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-34323536622

Thanks!
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<![CDATA[WARNING: Attorneys Who Represent Landlords Being Sued under the Fair Debt Collection Practices Act]]>Tue, 25 Apr 2017 20:04:08 GMThttp://balandlaw.com/blog/warning-attorneys-who-represent-landlords-being-sued-under-the-fair-debt-collection-practices-actPicture
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.




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<![CDATA[Tim Teaches Sections on Evictions and Companion Animals at April 19, 2017 Landlord-Tenant Seminar Organized by Sterling Education Services]]>Thu, 13 Apr 2017 15:15:21 GMThttp://balandlaw.com/blog/tim-teaches-sections-on-evictions-and-companion-animals-at-april-19-2017-landlord-tenant-seminar-organized-by-sterling-education-servicesPicture
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!

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<![CDATA[Tim Teaches "Landlording 102" Community Education Course]]>Fri, 17 Feb 2017 18:00:25 GMThttp://balandlaw.com/blog/tim-teaches-landlording-102-community-education-coursePicture
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/

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<![CDATA[Should A Landlord Feel Badly about Evicting a Tenant?]]>Tue, 07 Feb 2017 20:11:44 GMThttp://balandlaw.com/blog/should-a-landlord-feel-badly-about-evicting-a-tenantPicture
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.

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<![CDATA[Tim Teaches FREE Seminar/CLE on How Evicting a Tenant from a Manufactured Home Park Differs from a Regular Eviction]]>Wed, 25 Jan 2017 21:45:54 GMThttp://balandlaw.com/blog/tim-teaches-free-seminarcle-on-how-evicting-a-tenant-from-a-manufactured-home-park-differs-from-a-regular-evictionPicture
Tim is teaching a FREE seminar/CLE on how evicting a tenant from a Manufactured Home Park (or mobile home community) differs from a regular eviction. The seminar will be held on Thursday, February 9, 2017 from 9 AM – 10 AM at Tim's office, 2140 4th Ave., Anoka, MN 55303.

From the seminar description:

In this FREE seminar, we will discuss the differences between evicting a tenant from a Manufactured Home Park and a regular eviction. You will take away from this seminar a knowledge of the reasons that you can evict a tenant from a Manufactured Home Park, possible defenses that you might face, the laws governing security deposits and abandoned tenant property, what to do if a tenant abandons a manufactured home on your property, and other laws pertaining to Manufactured Home Parks and the landlord-tenant relationship.

This seminar is geared toward landlord-owners of Manufactured Home Parks, property managers, and attorneys who represent them, as well as other persons who might be interested in learning more about the law governing evictions from Manufactured Home Parks.

ATTORNEYS: One standard CLE credit has been applied for.

Space is limited, so advance registration is required. For more information or to register, please visit: https://www.eventbrite.com/e/how-evicting-a-tenant-from-a-manufactured-home-park-differs-from-a-regular-eviction-tickets-31496376510


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<![CDATA[Tim Is a 2017 University of Minnesota Extension Master Gardener Intern]]>Thu, 19 Jan 2017 19:29:03 GMThttp://balandlaw.com/blog/tim-is-a-2017-university-of-minnesota-extension-master-gardener-internPicture
I do not normally post personal information on my business blog, but I wanted to let you know that I am a 2017 University of Minnesota Extension Master Gardener Intern. As an intern, I have to complete a "core course" that runs on Fridays and Saturdays through February 10, 2017 and volunteer 50 hours of service.

If you would like more information on the Master Gardener program, please visit this website:

http://www.extension.umn.edu/garden/master-gardener/about/

Thanks!

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<![CDATA[What Is Independent Professional Advice?]]>Fri, 16 Dec 2016 17:03:39 GMThttp://balandlaw.com/blog/what-is-independent-professional-advicePicture
I am often asked what is Independent Professional Advice? You have probably been told that you need to get Independent Professional Advice if you want to sell your right to receive payments due to you under a structured settlement. A structured settlement is a way to settle a lawsuit, typically a personal injury claim, without giving all of the money to the plaintiff – call the annuitant in the structured settlement – at once.  Typically, a structured settlement says that an annuitant will receive certain amounts on a monthly basis, or in a certain year. For example, a structured settlement might call for the annuitant to receive monthly monthly payments of X dollars and annual payments of Y dollars, and lump-sum payments of Z dollars every five years until the total amount of the settlement is paid in full.

Under Minnesota law, and annuitant has the right to sell payments due to the annuitant under the structured settlement, but a judge must the annuitant's request to sell all or a portion of their structured settlement. In addition to satisfying a number of other requirements, the annuitant must obtain Independent Professional Advice – or IPA, for short. IPA is advice that the annuitant receives from a an independent professional advisor (usually an attorney, accountant, or financial advisor) about the legal, tax, financial, and other implications of the sale of your right to receive structured settlement payments.

Tim provides Independent Professional Advice and has several contacts at different factoring companies that purchase the right to receive payments due under a structured settlement.  As such, Tim encourages anyone who needs Independent Professional Advice or would like to sell payments due under a structured settlement to contact him directly at 763-450-9494. If you need independent professional advice or want to sell all or a portion of your structured settlement, please call..


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.

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<![CDATA[Should a Landlord Hold off on Evicting a Tenant until after the Holidays?]]>Tue, 13 Dec 2016 22:10:37 GMThttp://balandlaw.com/blog/should-a-landlord-hold-off-on-evicting-a-tenant-until-after-the-holidaysPicture
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.



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