I am often asked when a landlord should evict a tenant. The short answer is that the landlord can bring an eviction as soon as the tenant violates the lease, either by not paying rent or by violating some other term of the lease (staying apartment past the lease and date [the technical term is "holding over"], illegal activity, etc.). Regardless of the reason or reasons the landlord is bringing an eviction, the landlord will be well served to have everything carefully documented in writing.
As it seems there is with everything in the law, there are two exceptions. First, if the landlord is a mobile home park, then special rules apply. Please see my blog post on how a mobile home park eviction differs from a regular eviction. Here is a link to that post:
http://balandlaw.com/blog/what-is-different-about-a-manufactured-home-eviction
Second, if the landlord has accepted rent – even a partial payment – after the date of a violation, that gives the tenant a defense to an eviction, unless the landlord has certain "magic language" in the lease to the effect that the landlord does not waive the right to evict after accepting a partial payment. Here is the "magic language" from the statute:
the parties agree that 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.
Minn. Stat. 504B.291, subd. 1(c).
Whenever I represent a landlord, the first thing I ask is what the landlord wants to have happen. Is the landlord okay with having the tenant pay up and stay, and if so – how much time will the landlord give the tenant to pay? Perhaps the landlord just wants the tenant to move out. If the eviction has been brought for no other reason then nonpayment of rent, then the tenant has the right to "pay and stay." In other words, if there is no other reason in the complaint to evict other than the nonpayment of rent, then the tenant has the right to stay in the apartment by paying the unpaid rent. The judge can give the tenant up to seven days to do so, especially if the tenant has young children or an obvious physical or mental disability.
Once the landlord files an eviction, for whatever reason or reasons, the Court Administrator will schedule a hearing on that eviction within two weeks. The landlord is responsible for serving the tenant with notice of the eviction at lease seven days prior to the hearing and file proof of service with the Court Administrator.
At the hearing, one of four things can happen:
1. The tenant does not show up and the landlord wins by default;
2. The tenant shows up and the parties – the landlord and the tenant – are able to reach a settlement agreement. Most settlement agreements either involve the tenant paying a set amount of money according to a payment schedule or moving out by a certain date. If the tenant does not meet the requirements of the settlement agreement, then the landlord can get a writ of recovery – the order for the Sheriff to remove the tenant from the property;
3. The tenant shows up, but the parties are unable to reach a settlement agreement. In this case, if the tenant admits the allegations in the complaint, the judge will issue a writ, but can stay that writ for up to seven days; and
4. The tenant requests a trial. If the lease has been brought for unpaid rent alone, and there are no other allegations in the complaint other than unpaid rent, AND the tenant says that the reason they have not been paying rent is the condition of the premises, then the judge can require the tenant to deposit the amount of unpaid rent with the Court Administrator before getting a trial.
If the eviction has been brought for both unpaid rent and for some other reason, then the tenant does not have to pay rent into court to get a trial.
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 763-290-0445 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) 290-0445 to set up an appointment to discuss your situation.
As it seems there is with everything in the law, there are two exceptions. First, if the landlord is a mobile home park, then special rules apply. Please see my blog post on how a mobile home park eviction differs from a regular eviction. Here is a link to that post:
http://balandlaw.com/blog/what-is-different-about-a-manufactured-home-eviction
Second, if the landlord has accepted rent – even a partial payment – after the date of a violation, that gives the tenant a defense to an eviction, unless the landlord has certain "magic language" in the lease to the effect that the landlord does not waive the right to evict after accepting a partial payment. Here is the "magic language" from the statute:
the parties agree that 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.
Minn. Stat. 504B.291, subd. 1(c).
Whenever I represent a landlord, the first thing I ask is what the landlord wants to have happen. Is the landlord okay with having the tenant pay up and stay, and if so – how much time will the landlord give the tenant to pay? Perhaps the landlord just wants the tenant to move out. If the eviction has been brought for no other reason then nonpayment of rent, then the tenant has the right to "pay and stay." In other words, if there is no other reason in the complaint to evict other than the nonpayment of rent, then the tenant has the right to stay in the apartment by paying the unpaid rent. The judge can give the tenant up to seven days to do so, especially if the tenant has young children or an obvious physical or mental disability.
Once the landlord files an eviction, for whatever reason or reasons, the Court Administrator will schedule a hearing on that eviction within two weeks. The landlord is responsible for serving the tenant with notice of the eviction at lease seven days prior to the hearing and file proof of service with the Court Administrator.
At the hearing, one of four things can happen:
1. The tenant does not show up and the landlord wins by default;
2. The tenant shows up and the parties – the landlord and the tenant – are able to reach a settlement agreement. Most settlement agreements either involve the tenant paying a set amount of money according to a payment schedule or moving out by a certain date. If the tenant does not meet the requirements of the settlement agreement, then the landlord can get a writ of recovery – the order for the Sheriff to remove the tenant from the property;
3. The tenant shows up, but the parties are unable to reach a settlement agreement. In this case, if the tenant admits the allegations in the complaint, the judge will issue a writ, but can stay that writ for up to seven days; and
4. The tenant requests a trial. If the lease has been brought for unpaid rent alone, and there are no other allegations in the complaint other than unpaid rent, AND the tenant says that the reason they have not been paying rent is the condition of the premises, then the judge can require the tenant to deposit the amount of unpaid rent with the Court Administrator before getting a trial.
If the eviction has been brought for both unpaid rent and for some other reason, then the tenant does not have to pay rent into court to get a trial.
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 763-290-0445 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) 290-0445 to set up an appointment to discuss your situation.
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