Slide 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 Slide 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)? Slide 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. Slide 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 Slide 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,
http://geography.about.com/od/lists/a/csa2005.htm
http://geography.about.com/od/lists/a/csa2005.htm Slide 7 So do
landlords, tenants, and attorneys Slide 8 Then The Uniform
Residential Landlord and Tenant Act of 1972, 1974 The Summary
http://uniformlaws.org/ActSummary.aspx?title=Resid
ential%20Landlord%20and%20Tenant%20Act
http://uniformlaws.org/ActSummary.aspx?title=Resid
ential%20Landlord%20and%20Tenant%20Act Slide 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. Slide 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.
Slide 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. Slide 12 The Act
http://www.uniformlaws.org/shared/docs/residential
%20landlord%20and%20tenant/urlta%201974.pdf
http://www.uniformlaws.org/shared/docs/residential
%20landlord%20and%20tenant/urlta%201974.pdf Slide 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] Slide 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. [Landlords
Noncompliance as Defense to Action for Possession or Rent] 4.106.
[Fire or Casualty Damage] 4.107. [Tenants Remedies for Landlords
Unlawful Ouster, Exclusion, or Diminution of Service] Slide 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 Landlords
Right to Terminate] 4.205. [Landlord Liens; Distress for Rent]
4.206. [Remedy after Termination] 4.207. [Recovery of Possession
Limited] Slide 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] Slide
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). Slide 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). Slide
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
http://uniformlaws.org/Act.aspx?title=Residential%20
Landlord%20and%20Tenant%20Act
http://uniformlaws.org/Act.aspx?title=Residential%20
Landlord%20and%20Tenant%20Act Many others have similar provisions
Slide 20 Now Uniform Law Commission Drafting Committee on a Revised
Residential Landlord and Tenant Act
http://www.uniformlaws.org/Committee.aspx?title=R
esidential%20Landlord%20and%20Tenant%20Act
http://www.uniformlaws.org/Committee.aspx?title=R
esidential%20Landlord%20and%20Tenant%20Act Slide 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 Slide 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 Slide 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 Slide 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
Slide 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 Landlords
successor Evictions No draft yet Slide 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. Slide 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
courts 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. Slide 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 Slide 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
landlords 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;.... Slide 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 Slide 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)
Slide 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. Slide 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) Slide 34
Domestic Violence Include Sexual Violence: Washington State
Eviction Defense: District of Columbia Slide 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 Slide 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:
http://www.nlchp.org/content/pubs/12.17.12%20Evicti
on%20Without%20Notice%20FINAL.pdf Late Fees Regulation: Iowa,
Massachusetts, Minnesota Slide 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 Slide
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
Slide 39 Have Comments for the Committee? Go to
http://www.uniformlaws.org/Committee.aspx?title=R
esidential%20Landlord%20and%20Tenant%20Act
http://www.uniformlaws.org/Committee.aspx?title=R
esidential%20Landlord%20and%20Tenant%20Act Sign Up to follow
Residential Landlord and Tenant Act Committee:
[email protected]@uniformlaws.org Slide 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 [email protected]
[email protected] Poverty Law http://povertylaw.homestead.com
Housing Law Clinic http://www.minnhousingclinic.homestead.com Jazz
http://www.larrymcdonoughjazz.homestead.com
[email protected]
[email protected]://povertylaw.homestead.comhttp://www.minnhousingclinic.homestead.comhttp://www.larrymcdonoughjazz.homestead.com
