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Lawrence R. McDonough Managing Attorney, Housing Unit Minneapolis Office, Mid-Minnesota Legal Aid Adjunct Clinical Professor of Law, University of Minnesota.

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Presentation on theme: "Lawrence R. McDonough Managing Attorney, Housing Unit Minneapolis Office, Mid-Minnesota Legal Aid Adjunct Clinical Professor of Law, University of Minnesota."— Presentation transcript:


2 Lawrence R. McDonough Managing Attorney, Housing Unit Minneapolis Office, Mid-Minnesota Legal Aid Adjunct Clinical Professor of Law, University of Minnesota School of Law Adjunct Professor of Law, University of St. Thomas School of Law Former Visiting Professor of Law, Hamline University School of Law Former Adjunct Professor of Law, William Mitchell College of Law Jazz Pianist and Composer

3 Landlord and Tenant Law, Who Cares? Are you or have you ever been a landlord or tenant (or have family members or close friends who are or have been)?

4 Landlord and tenant law affects almost everyone at one time or another. Many attorneys called upon to provide advice or representation to landlords or tenants with little notice or preparation. Landlord and tenant law is a complex mixture of property, contracts, torts, constitutional, administrative, consumer, poverty, disability, regulatory, and legislative law.

5 Why uniformity? Metropolitan areas that straddle states: 1) New York-Newark-Bridgeport, NY-NJ-CT-PA - 21,976,224 3) Chicago-Naperville-Michigan City, IL-IN-WI - 9,725,317 4) Washington-Baltimore-Northern Virginia, DC-MD-VA- WV - 8,211,213 5) Boston-Worcester-Manchester, MA-RI-NH - 7,465,634 7) Philadelphia-Camden-Vineland, PA-NJ-DE-MD - 6,382,714 10) Atlanta-Sandy Springs-Gainesville, GA-AL - 5,478,667

6 15) Minneapolis-St. Paul-St. Cloud, MN-WI - 3,502,891 19) St. Louis-St. Charles-Farmington, MO-IL - 2,858,549 22) Sacramento--Arden-Arcade--Truckee, CA-NV - 2,211,790 23) Charlotte-Gastonia-Salisbury, NC-SC - 2,191,604 24) Portland-Vancouver-Beaverton, OR-WA - 2,137,565 25) Cincinnati-Middletown-Wilmington, OH-KY-IN - 2,147,617 27) Kansas City-Overland Park-Kansas City, MO-KS - 2,034,796 The 30 Largest Metropolitan Areas in the United States,

7 So do landlords, tenants, and attorneys

8 Then The Uniform Residential Landlord and Tenant Act of 1972, 1974 The Summary ential%20Landlord%20and%20Tenant%20Act ential%20Landlord%20and%20Tenant%20Act

9 “Landlords and tenants in most states today carryon their disputes in a maze of disjointed and contradictory legislation, ordinances, administrative regulations and court decisions. All of these are based, or overlaid, on a system of "common law" devised to meet the needs of a feudal society in which noble landowners rented out their property to commoner farmers.”

10 “[B]oth sides tend to view each other with suspicion. Misunderstandings fester into accusations and arguments which can, and often do, result in violence. Most police departments list landlord-tenant problems as second only to "family matters" as a case of violent incidents. This is not surprising when we consider that a man's home usually ranks second only to his family as his most prized possession.”

11 "‘[R]eform’ legislation should... Equalize the bargaining positions of landlords and tenants. Force landlords to meet minimum standards for providing safe and habitable housing. Spell out the responsibilities of tenants for maintaining the quality of their housing units. Insure tenants the right to occupy a dwelling as long as they fulfill their responsibilities.”

12 The Act %20landlord%20and%20tenant/urlta%201974.pdf %20landlord%20and%20tenant/urlta%201974.pdf

13 Landlord and Tenant Obligations § 1.403. [Prohibited Provisions in Rental Agreements] § 2.101. [Security Deposits; Prepaid Rent] § 2.102. [Disclosure] § 2.104. [Landlord to Maintain Premises] § 3.101. [Tenant to Maintain Dwelling Unit] § 3.102. [Rules and Regulations] § 3.103. [Access]

14 Tenant Remedies § 4.101. [Noncompliance by the Landlord – In General] § 4.102. [Failure to Deliver Possession] § 4.103. [Self-Help for Minor Defects] § 4.104. [Wrongful Failure to Supply Heat, Water, Hot Water, or Essential Services] § 4.105. [Landlord’s Noncompliance as Defense to Action for Possession or Rent] § 4.106. [Fire or Casualty Damage] § 4.107. [Tenant’s Remedies for Landlord’s Unlawful Ouster, Exclusion, or Diminution of Service]

15 Landlord Remedies § 4.201. [Noncompliance with Rental Agreement; Failure to Pay Rent] § 4.202. [Failure to Maintain] § 4.203. [Remedies for Absence, Nonuse and Abandonment] § 4.204. [Waiver of Landlord’s Right to Terminate] § 4.205. [Landlord Liens; Distress for Rent] § 4.206. [Remedy after Termination] § 4.207. [Recovery of Possession Limited]

16 Other Remedies and Retaliation § 4.301. [Periodic Tenancy; Holdover Remedies] § 4.302. [Landlord and Tenant Remedies for Abuse of Access] § 5.101. [Retaliatory Conduct Prohibited]

17 Bold and Relevant? “The drafters of the URLTA recognized the obsolescence of traditional landlord-tenant law; consequently, they signalled for wholesale departures.” B. Bagni, The Uniform Residential Landlord and Tenant Act: Reconciling Landlord-Tenant Law with Modern Realities, 6 Ind. L. Rev. 741, 752 (1973). “[It] comes close to enacting a Tenant's Bill of Rights.” C. Berger, Hard Leases Make Bad Law, 74 Colum. L. Rev. 791, 813 (1974).

18 “Despite concerns that the URLTA was “decidedly pro- tenant legislation,” it became the foundation for the flood of comprehensive legislative reforms that followed. By 1984, more than forty states had adopted the implied warranty by statute. ” M. Brower, The "Backlash" of the Implied Warranty of Habitability: Theory vs. Analysis, 60 DePaul L. Rev. 849, 860 (2011). See generally E. Rabin, The Revolution In Residential Landlord-Tenant Law: Causes and Consequences, 69 Cornell L. Rev. 517 (1984).

19 The Enacting States Alabama, Alaska, Arizona, Connecticut, Florida, Hawaii, Iowa, Kansas, Kentucky, Michigan, Mississippi, Montana, Nebraska, New Mexico, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Virginia, Washington Landlord%20and%20Tenant%20Act Landlord%20and%20Tenant%20Act Many others have similar provisions

20 Now Uniform Law Commission Drafting Committee on a Revised Residential Landlord and Tenant Act esidential%20Landlord%20and%20Tenant%20Act esidential%20Landlord%20and%20Tenant%20Act

21 Current Draft Revision September 17, 2012 Definitions § 201 Expansion of definitions: Abandonment, domestic violence, electronic notices, essential services, normal wear and tear, periodic tenancies, security deposit, subleases

22 Landlord Obligations § 301 Disclosure of rules, conditions, contacts § 303 Maintenance: substantial standard regarding codes, water and weather proofing, plumbing, running water, heat, electricity, infestation, clean, receptacles, good repair, doors and windows Tenant Obligations § 401 Maintenance: notice, restore when vacating

23 Tenant Remedies § 501 Generally: terminate, rent abatement (value of use), injunctive relief, specific performance, minor repair and deduct, essential service, substitute housing, willful violations (consequential damages, costs and attorney fees), tenant acts § 503 Repair and deduct up to $500 § 504 Essential services damages § 505 Eviction defense: rent into court, repairs, damages § 508 Domestic violence termination: notice, evidence, damages § 509 Domestic violence locks § 510 Exclusion of domestic violence perpetrator

24 Landlord Remedies § 603 Abandonment: damages, mitigation examples, Tenancy Termination § 701 Weekly, monthly, early lease termination (landlord sale, tenant employment, tenant death Retaliation No draft yet

25 Security Deposits § 901 Nature: 1.5 x rent, nonrefundable fees, pets, prepaid rent, § 902 Tenant cannot use deposit for rent § 903 Safekeeping funds § 904 Return: 30 days, notice of withholding, 10 day objection, penalties, costs and attorney fees § 905 Landlord’s successor Evictions No draft yet

26 Is the Draft as Bold and Relevant? Not yet but there is potential. This is a good start on property maintenance, domestic violence, mitigation, and deposits More is needed to lead rather than just follow the masses.

27 Habitability: Rent in Court Tenants should not have to pay rent into court to prove they do not owe rent due to habitability or other defenses. Most litigants are not required to place in the court’s custody the property or money that is in dispute. Paying past rent into court creates a conflict for the court between awarding rent abatement to the tenant and holding funds for repairs. Many poor tenants are denied their day in court to litigate habitability when they are unable to hold onto all of the withheld rent.

28 Several states do not require tenants to pay rent into court. URLTA states: Kentucky, New Mexico, Oklahoma, and Tennessee, Noble-Allgire Memo to Members of the URLTA Drafting Committee, at 17 (Feb. 12, 2012) Other states: Massachusetts (future (not past) rent into court after bench trial and only preceding trial if by jury), Michigan (for jury trial), California, North Carolina

29 Habitability Standard The landlord can evade obligations because of the double negative: “premises are uninhabitable if any part of the premises substantially: (1) fails to comply with applicable building, housing, and health codes to the extent the failures substantially affect the health and safety of the tenant or an immediate family member;....” The obligation should be positive and not modified by the term “substantial”: “A landlord’s mandatory duty under subsection (a) includes the following obligations of maintenance and repair at the premises: (1) to comply with applicable building, housing, and health codes to the extent the failures affect the health and safety of the tenant or an immediate family member;....”

30 Habitability Waiver It should be carefully limited “The landlord or licensor may agree with the tenant or licensee that the tenant or licensee is to perform specified repairs or maintenance, but only if the agreement is supported by adequate consideration and set forth in a conspicuous writing. No such agreement, however, may waive the provisions of subdivision 1 or relieve the landlord or licensor of the duty to maintain common areas of the premises.” Minn. Stat. § 504B.161, Subd. 2

31 Habitability Tort Liability The original Act and present Draft do not discuss tort liability for habitability violations. The States: “A substantial number of jurisdictions have permitted the recovery of tort damages....Alaska, Delaware, Florida, Georgia, Hawaii, Indiana, Louisiana, Mississippi, Montana, New Jersey, Ohio, Oregon, Pennsylvania, South Carolina, Washington, West Virginia, Wisconsin, and Wyoming allow some form of tort damages for the breach of the warranty of habitability. Arizona, California, Idaho, Maine, Massachusetts, Missouri, Nevada, New Hampshire, New York, Tennessee, Utah, and Vermont have permitted recovery of damages under negligence or other tort theories.” Noble-Allgire Memo to Members of the URLTA Drafting Committee, at 33-34 (Feb. 12, 2012)

32 Why Tort Liability? States without liability provide no redress for serious injury and death resulting from violations. Nationwide tort liability could lead the insurance industry to create different rates for compliant and noncompliant landlords. Differing insurance rates could create a financial incentive to maintain rental property.

33 What Standard? “A landlord is subject to liability for physical harm caused to the tenant and others upon the leased property with the consent of the tenant or his subtenant by a dangerous condition existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and the existence of the condition is in violation of: (1) an implied warranty of habitability; or (2) a duty created by statute or administrative regulation.” Restatement (Second) of Property § 17.6 (1977)

34 Domestic Violence Include Sexual Violence: Washington State Eviction Defense: District of Columbia

35 Other Protections for Tenants Application Fee Regulation: Massachusetts, Minnesota Attorney Fees: As an alternative to the Act prohibition of attorney fees in leases, requiring an attorney fee provision to create a reciprocal attorney fee claim for tenants: Minnesota, New York Caretakers Having the Rights of Tenants: Minnesota Drug Use off of the Property Prohibited as a Basis for Eviction: Minnesota

36 Early Lease Termination for Persons Going to Nursing Homes: New York Expungement or Sealing Eviction Court Records: Minnesota Foreclosure Disclosure to Prospective Tenants, and other Foreclosure Protections for Tenants: on%20Without%20Notice%20FINAL.pdf Late Fees Regulation: Iowa, Massachusetts, Minnesota

37 Police Calls Alone Prohibited as a Basis for Eviction: Minnesota Pre-lease Deposits Regulation: Minnesota Receipts for Rent Required: Cleveland, Minnesota, New York Residential Hotels, Shelters and Halfway Houses Treated like Landlords: District of Columbia, Massachusetts, and Minnesota

38 Shared Utility Metering Regulation: Cleveland, Massachusetts, Minnesota Tenant Screening Agencies Regulation: R. Kleysteuber, Tenant Screening Thirty Years Later: a Statutory Proposal to Protect Public Records, 116 Yale L.J. 1344 (2007) Waiver of Eviction for Rent by Acceptance of Part Payment of Rent: Minnesota

39 Have Comments for the Committee? Go to esidential%20Landlord%20and%20Tenant%20Act esidential%20Landlord%20and%20Tenant%20Act Sign Up to follow Residential Landlord and Tenant Act Committee:

40 Lawrence R. McDonough Managing Attorney, Housing Unit Minneapolis Office, Mid-Minnesota Legal Aid (formerly Legal Aid Society of Minneapolis) 430 First Avenue North, Suite 300 Minneapolis, MN 55401 612.746.3633 Phone and Fax Poverty Law Housing Law Clinic Jazz mcdon056@umn.eduhttp://povertylaw.homestead.comhttp://www.minnhousingclinic.homestead.com

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