By Joel Van Nurden
Mary is a widow in her mid-70s.1 She has worked hard all her life, paid off her mortgage, and lives frugally on Social Security and her modest savings. She was looking forward to spending her golden years relaxing in her humble, post-World War II ranch-style home in the suburbs. Then the pandemic hit and Mary’s daughter lost her job. Mary converted her sewing room back to a bedroom and welcomed her daughter, son-in-law, and their two teenage sons into her home. Mary had expected it would be for a month or so until the pandemic passed and her daughter found work.
Mary almost immediately regretted her act of compassion. Her daughter started drinking and became verbally abusive. Mary suspects, but cannot confirm, that her oldest grandchild is doing drugs. The whole family takes Mary for granted—calling her horrible names, speaking down to her, and at the same time expecting her to cook and clean for them. It has gotten to the point where Mary is afraid in her own home. Moreover, her retirement savings are quickly disappearing as she pays for extra food and higher utility bills. It has been seven months now with no real end in sight.
Mary never considered her daughter’s family “tenants” or herself a “landlord.” There is no written lease and Mary never asked her daughter’s family to pay rent, only to help out around the house. Nevertheless, under Executive Order 20-792 (Minnesota’s eviction moratorium), Mary is treated no differently than a sophisticated investor leasing large apartment buildings for profit. In other words, she cannot use self-help (change the locks); she cannot bring an eviction in court; and she cannot even give her daughter notice to leave the property.
The current eviction moratorium, with all its good intentions, has caused unjust harm to landlords, particularly nonprofessional or “accidental” landlords. The governor should rescind Executive Order 20-79 and either replace it with something similar to the Centers for Disease Control’s (CDC) nationwide eviction moratorium or, better yet, simply let the CDC’s moratorium take effect in Minnesota.
Minnesota’s eviction moratorium
In response to the covid-19 pandemic, Gov. Tim Walz declared an immediate peacetime emergency on March 13, 2020.3 This was followed 10 days later by Executive Order 20-14 suspending residential evictions throughout the duration of the emergency.4 After clarifying the parameters of the eviction moratorium with Executive Order 20-73 on June 5,5 Walz signed the currently operative moratorium as part of Executive Order 20-79 on July 14.6
Executive Order 20-79 prohibits, with very few exceptions, all residential evictions in Minnesota. This prohibition is not limited to evictions based on nonpayment of rent. It also specifically bans evictions based on the termination or expiration of a lease and—even more restrictive—forbids evictions based on material violations of a lease.7 Not only does the order ban most evictions; it criminalizes even notifying a tenant that their lease is ending or not being renewed.8
Exceptions to the eviction moratorium include cases where a tenant seriously endangers the safety of other residents,9 or violates specific laws involving drugs, guns, stolen property, or prostitution at the property.10 In addition, a landlord may bring an eviction if the tenant seriously endangers the safety of non-residents or significantly damages property.11 But as we shall see, these latter two exceptions must also be material violations of the lease.12 Finally, a landlord may end a lease and bring a subsequent eviction if the landlord or a family member needs to move into the property.13
While the intent of the eviction moratorium is certainly laudable, it has resulted in unintended consequences and has caught unsuspecting and accidental landlords, like our friend Mary, in its dragnet. These are often older individuals who allow down-on-their-luck family members to move in temporarily. Unfortunately, some of these arrangements do not work out as planned. Perhaps the promised help around the house does not materialize; the originally contemplated stay of a few weeks turns into months; or, in some instances, the “tenants” become verbally, emotionally, or financially abusive. Sometimes these relationships become so toxic the owner does not even feel safe in her own home. The eviction moratorium makes no exception for these “landlords.”
One could argue the family member exception provides such landlords relief.14 But that exception, as written, presupposes the landlord is not already living at the property. Furthermore, exactly what constitutes a “need” for the landlord or family member to live at the property is an open and likely contested question. Tenants’ attorneys could successfully argue that the landlord does not “need” to move in because he or she is already living at the property. The family exception, they could persuasively argue, contemplates a situation where the landlord is essentially homeless.
Even if this exception does apply, a guest living rent free is entitled to over three months’ notice to vacate before anything can be done—at least according to some Minnesota court rulings.15 Unfortunately, and perhaps unavoidably, a lack of clarity plagues Executive Order 20-79. Moreover, the fluidity of the situation and the often expedited need for relief render appellate review impractical. Not surprisingly, there have been no appellate decisions dealing with this, or any other, exception to the eviction moratorium.
Another problem under the eviction moratorium arises when a landlord has no written lease. This, again, often affects accidental and nonprofessional landlords. Such tenancies frequently involve either nontraditional landlord-tenant relationships or are conducted with a handshake. In fact, Minnesota law does not require written leases except for residential buildings with 12 units or more.16 Even written leases, in the absence of a clause stating otherwise, are of no effect upon their expiration. This becomes a problem because of Executive Order 20-79’s seemingly pro forma stipulation that “[n]othing in this Executive Order creates grounds for eviction or lease termination beyond what is provided for by Minnesota Statutes.”17 What this means in a practical sense is that even the limited bases for evictions seemingly allowed under the order (i.e. serious endangerment and significant property damage) are unavailable unless a written lease makes such actions “material violations.”
In fact, landlords without written leases face two distinct barriers to evicting a tenant who seriously endangers the safety of others or significantly damages property. First, with no written lease there is no right-of-reentry clause. Without such a clause, at least according to some tenants’ rights attorneys,18 there can be no eviction for material breach. Even if a right-of-reentry clause is not required to bring an eviction (as some nonprecedential case law has held),19 an oral lease will have no specific provisions regarding serious endangerment of others or significant damage to property. Even many written leases do not specifically include such language. And there can be no material violation of nonexistent lease terms. Consequently, tenants occupying any property without a written lease may not be evicted for seriously endangering the safety of others20 or significantly damaging property.
Prior to the eviction moratorium, if a landlord without a written lease were having trouble with a tenant, the landlord could simply give notice and the tenant would generally have a month to leave or be subject to an eviction. Under the current executive order, these landlords are stuck with dangerous and problematic tenants. Adding insult to injury, such tenants are generally not paying rent. Meanwhile, landlords are still required to pay taxes, rental licensing fees, the mortgage (in many cases), and keep the rental properties maintained to oftentimes unreasonable standards. If they do not, they are liable to be sued by that same tenant for violating the implied covenants of habitability.21
The CDC’s eviction moratorium
So what is the solution? How do we, as Gov. Walz has put it, “strike a balance between the crucial importance of maintaining public health and stability for residential tenants, the economic impacts of the covid-19 pandemic on tenants, and the interest of housing providers to maintain and protect their properties”?22 First and foremost, if the government is going to enforce eviction moratoriums, it must also provide landlords with real financial assistance. What such assistance would look like is beyond the scope of this article.
Second, the governor should rescind Order 20-79 and rely on the federal eviction moratoriums already in place, as well over half the states do currently.23 In addition to nationwide eviction bans applicable to properties with federally backed mortgages,24 in early September the Centers for Disease Control and Prevention (CDC) issued its own nationwide eviction moratorium.25 Much like Executive Order 20-79, the CDC’s order seeks to protect residential tenants from being evicted during the covid-19 pandemic. But unlike the governor’s order, the CDC’s moratorium is narrowly tailored to remedy the evil it claims to address.
Under the CDC’s agency order, tenants are protected from eviction if they (1) have used their best efforts to obtain government assistance for housing; (2) are unable to pay their full rent due to a substantial loss of income; (3) are making best efforts to make partial payments of rent; and (4) would likely become homeless or move into close-quarters congregate living if evicted.26 In addition to these requirements, the CDC’s order includes appropriate income restrictions.27 Tenants must also sign a declaration under penalty of perjury attesting that they meet these criteria and provide this declaration to their landlord.28
Finally, the CDC moratorium only bans evictions for nonpayment of rent. This makes sense. After all, this is by far the most common basis for evictions.29 While we can all understand the financial difficulty currently faced by millions of Americans, there is no reason to let tenants materially breach leases or otherwise violate their obligations in addition to not paying rent.
Some might argue the CDC’s requirements place the onus on tenants to affirmatively seek eviction protection, but it actually requires very little when considering the extraordinary relief tenants are being afforded. They are being allowed to indefinitely occupy private property without the requirement they provide any remuneration in return. It is true that both the governor’s and the CDC’s orders do not abolish the requirement to pay rent. But they have removed a landlord’s best and sometimes only means of enforcing their right to receive rent. Yes, landlords could bring lawsuits against tenants for back rent, but in most cases this is an exercise in futility. A judgment against a tenant who has been unable or unwilling to pay rent is often worthless. And because landlords have been unable to bring evictions for such an extended period of time, many will be forced to bring costly district court claims, since their losses will exceed the $15,000 conciliation court jurisdictional limit.30
While the CDC’s eviction moratorium is not perfect, it is a vast improvement over the moratorium set forth in Executive Order 20-79. It would give accidental landlords a fighting chance to take back control of their homes by letting them terminate “leases” they never knew existed. It would require some proof of good-faith effort on the part of tenants, and it would only ban evictions for nonpayment of rent. No one wants people thrown into the streets because they cannot pay their rent. At the same time, COVID must not be used as an opportunity to take advantage of landlords—particularly if such landlords are simply family members who were just trying to do the right thing.
JOEL VAN NURDEN litigates real estate, business, and trust and estate disputes. He frequently represents landlords in evictions and other litigated matters as part of his solo practice at Van Nurden Law, PLLC in Minneapolis.
1 This opening story is based upon an actual client. Names and minor facts have been changed to protect confidentiality.
2 Emergency Executive Order 20-79 (7/14/2020). At the time this article is going to print, the peacetime emergency along with the attendant eviction moratorium is set to expire on 12/14/2020. It is expected the peacetime emergency will be extended.
3 Emergency Executive Order 20-01 (3/13/2020).
4 Emergency Executive Order 20-14 (3/23/2020).
5 Emergency Executive Order 20-73 (6/5/2020) (clarifying the applicability of Executive Order 20-14 to situations where a tenant seriously endangers the safety of others who are not residents).
6 Emergency Executive Order 20-79 (7/14/2020).
7 Unless the material violation also seriously endangers the safety of others or significantly damages property, see id. ¶ 2d.
8 Id. ¶¶ 3, 10.
9 Id. ¶ 2a.
10 Id. ¶ 2b (citing to Minn. Stat. §504B.171, subd. 1).
11 Id. ¶ 2d.
12 Id.
13 Id. ¶¶ 2c, 4.
14 Id.
15 See Minn. Stat. §504B.135; Tich v. Williams, 27-CV-HC-20-1651 (Hennepin County District Court 11/16/2020) (“under Minn. Stat. §504B.135, a tenancy at will in which no rent is due may be terminated only upon notice of at least three months to the tenant”).
16 Minn. Stat. §504B.111.
17 Emergency Executive Order 20-79 ¶ 12.
18 See Lawrence R. McDonough, Wait a Minute! Residential Eviction Defense in 2009 Still is Much More than “Did You Pay the Rent?”, 35 William Mitchell Law Rev. 762 (2009).
19 See C&T Props. v. McCallister, No. C9-98-940 1999 WL 10262 (Minn. Ct. App. 1/12/1999).
20 Except for other occupants of the property.
21 See Minn. Stat. §§504B.161, 504B.375-471.
22 Emergency Executive Order 20-79 p. 1.
23 Ann O’Connell, Emergency Bans on Evictions and Other Tenant Protections Related to Coronavirus, Nolo (11/30/2020) https://www.nolo.com/legal-encyclopedia/emergency-bans-on-evictions-and-other-tenant-protections-related-to-coronavirus.html; Emily Benfer, COVID-19 Housing Policy Scorecard, Eviction Lab https://evictionlab.org/covid-policy-scorecard/ (last visited 12/2/2020).
24 See United States Dept. of Housing and Urban Development, Extension of Foreclosure and Eviction Moratorium in Connection with the Presidentially–Declared COVID–19 Emergency, Mortgagee Letter (8/27/2020); Federal Housing Finance Agency, FHFA Extends Foreclosure and REO Eviction Moratoriums, (8/27/2020). https://www.fhfa.gov/Media/PublicAffairs/Pages/FHFA-Extends-Foreclosure-and-REO-Eviction-Moratoriums.aspx
25 Centers for Disease Control and Prevention; Department of Health and Human Services; Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55,292 (9/4/2020). At the time this article went to print the CDC’s eviction moratorium was scheduled to end 12/31/2020. As things look now, it is likely this will be extended. Even if the CDC eviction moratorium is allowed to expire, it is this author’s opinion that the State of Minnesota would do well to at least modify its own moratorium to align with the CDC’s.
26 Centers for Disease Control and Prevents, supra.
27 Id. To qualify for protection a tenant must (1) expect to make less than $99,000 ($198,000 for married couples) in 2020; (2) had low enough income not to have reported in 2019, or; (3) received a stimulus check under the CARES Act.
28 Centers for Disease Control and Prevents, supra.
29 Andrea Palumbo & Karmen McQuitty, Tenant Rights in the Era of COVID-19, Bench & Bar of Minnesota 36 (May/June 2020).
30 See Minn. Stat. §491A.01, subd. 3a