EXPUNGEMENT - Homestead

EXPUNGEMENT - Homestead

PERSONAL PROPERTY DISPUTES AFTER AN EVICTION JUDGMENT TENANTS OPTIONS FOR RELIEF ISSUES AND TOPICS IN THIS PRESENTATION An introduction to relevant statutes Statutory authority for mandatory writ execution notices, motions, and ouster claims Statutory requirements for property stored on-site Statutory requirements for property stored off-site Available relief Bass v. Equity Residential Holdings, L.L.C., 847 N.W.2d 89 (Minn. Ct. App. 2014) Other options for enforcement of personal property claims

BASIC EVICTION PROCESS The focus of this presentation is on tenants personal property at the end of the eviction process. General eviction process: Plaintiff files eviction action. The court holds a hearing within two weeks of filing. Plaintiff gets an order authorizing a writ of recovery or a judgment for a writ at the hearing or after breach of a court-approved settlement. Plaintiff pays for a writ of recovery and takes it to the Sheriff. Plaintiff pays the Sheriff to serve the writ of recovery. The Sheriff delivers the writ to the premises. If the tenant does not move within 24 hours, the Sheriff returns to execute the writ. AN INTRODUCTION TO RELEVANT STATUTES

There are two statutes in Chapter 504B that are primarily relevant to personal property disputes at the end of the eviction process: Minn. Stat. 504B.365 regulation of execution of writ of recovery Minn. Stat. 504B.271 regulation of retention and sale of personal property left behind by the tenant in any tenancy, including property stored at the premises following execution of writ of recovery There are separate statutes that govern the sale of personal property removed and stored in a place other than the premises.

Minn. Stat. 514.18-514.22 AN INTRODUCTION TO RELEVANT STATUTES If a writ of recovery is executed, which statutes apply depend on where personal property is being stored after execution of the writ. On the premises 504B.365 and 504B.271 In a place other than the premises 504B.365 and 514.18514.22. Premises not defined in Chapter 504B Blacks Law Dictionary definitions of premises: Lands and tenements; an estate; lands and buildings thereon; the subject matter of a conveyance. A distinct and definite locality . . . [this] may mean a room, shop, building, or other definite area.

Land, with its appurtenances. AN INTRODUCTION TO RELEVANT STATUTES Other statutes come into play if an eviction plaintiff takes a shortcut through Minn. Stat. 504B.365. Example: The landlord gets a writ and has the Sheriff deliver it to the premises. The tenant does not move within 24 hours. While the tenant is away, the landlord and handyman go to the premises, change the locks, and put all of the tenants belongings in a locked garage on the premises. The unlawful removal and exclusion prohibition and penalty statutes provide relief to an illegally evicted tenant. Minn. Stat. 504B.225, 609.606 criminalizes unlawful removal or exclusion of a tenant Minn. Stat. 504B.231 creates cause of action for tenant and claim

for treble damages and attorneys fees for bad faith unlawful removal or exclusion MANDATORY NOTICE REQUIREMENTS FOR EXECUTION OF WRIT OF RECOVERY 504B.365, subd. 3(g) The plaintiff shall notify the defendant of the date and approximate time the officer is scheduled to remove the defendant, family, and personal property from the premises. The notice must be sent by first class mail. In addition, the plaintiff must make a good faith effort to notify the defendant by telephone. The notice must be mailed as soon as the information regarding the date and approximate time the officer is scheduled to enforce the order is known to the plaintiff, except that the scheduling of the officer to enforce the order need not be delayed because of the notice requirement. The notice must inform the defendant that the defendant and the defendant's personal property will be removed

from the premises if the defendant has not vacated the premises by the time specified in the notice. MINN. STAT. 504B.365 AUTHORITY FOR MOTION IN EVICTION ACTION Subd. 4. Motions concerning removal or storage of personal property. The court hearing the eviction action shall retain jurisdiction in matters relating to removal of personal property under this section. If the plaintiff refuses to return the property after proper demand is made as provided in section 504B.271, the court shall enter an order requiring the plaintiff to return the property to the defendant and awarding reasonable expenses including attorney fees to the defendant.

MINN. STAT. 504B.365 AUTHORITY FOR OUSTER CLAIMS Subd. 5. Penalty; waiver not allowed. Unless the premises has been abandoned, a plaintiff, an agent, or other person acting under the plaintiff's direction or control who enters the premises and removes the defendant's personal property in violation of this section is guilty of an unlawful ouster under section 504B.231 and is subject to penalty under section 504B.225. This section may not be waived or modified by lease or other agreement. STATUTORY REQUIREMENTS FOR PERSONAL PROPERTY STORED ON THE PREMISES If a landlord stores the tenants personal property on the premises, then 504B.271 applies. See 504B.365, subd. 3(d).

This triggers mandatory duty to allow tenant to retake personal property within 24 hours of written demand. 504B.271, subd. 2. Landlord has a claim for costs of removal, storage, and care, but not a lien. Landlord can demand payment of costs but cant hold property. Penalties for violation under 504B.271, subd. 2 Double actual damages or $1,000, whichever is greater Reasonable attorneys fees Factors for determining damages

Nature and value of personal property Effect of deprivation on tenant Whether taking of personal property was unlawful Whether landlord or agent acted in bad faith STATUTORY REQUIREMENTS FOR PERSONAL PROPERTY STORED ON THE PREMISES During the execution of a writ of recovery, the law requires an officer-supervised inventory of personal property stored on the premises. Minn. Stat. 504B.365, subd. 3(d). Contents of inventory

List of items and condition Date, signature of plaintiff/agent, and contact information for person authorized to release property Name and badge number of officer Additional requirements Must be prepared in presence of officer Must be mailed to tenant to any address tenant provides or the tenants last known address STATUTORY REQUIREMENTS FOR PERSONAL PROPERTY STORED ON THE PREMISES

The law imposes a minimum 28-day period during which the landlord must care for the tenants personal property stored on the premises. Minn. Stat. 504B.271, subd. 1(b). The minimum period used to be 60 days the statute was changed in 2010. The period starts to run 28 days AFTER: Actual notice of abandonment, OR It reasonably appears to the landlord that the tenant has abandoned the property. STATUTORY REQUIREMENTS FOR PERSONAL PROPERTY STORED ON THE PREMISES After 28 days, the landlord can sell or dispose of the tenants personal property. The notice and procedure for the sale of personal property stored on the premises is governed by Minn.

Stat. 504B. 271, subd. 1(d). Basic notice and procedure: 14 days written notice to tenant Service of notice Personal service First class mail and certified mail, as well as posting of sale notice in conspicuous place at the premises Landlord can apply sale proceeds to reasonable costs of storage of property 504B.271, subd. 1(c) Remaining proceeds to tenant upon written demand

STATUTORY REQUIREMENTS FOR PERSONAL PROPERTY STORED OFF THE PREMISES If a landlord stores the tenants personal property off the premises, then Minn. Stat. 504B.271 does not apply. The process is outlined in Minn. Stat. 504B.365, subd. 3(a)-(c). The landlord pays for the removal of the personal property. The tenant must reimburse the landlord. If the tenant fails or refuses to pay the landlord, the landlord has a lien on all of the personal property for the reasonable costs and expenses of removal, storage, and care of the property. Landlord can enforce the lien by detaining the personal property until paid. STATUTORY REQUIREMENTS FOR PERSONAL

PROPERTY STORED OFF THE PREMISES After 60 days, the landlord can sell the tenants personal property at a public sale. NOTE: If the landlord removes personal property from the premises during execution of the writ of recovery, the landlords storage and care obligations are over twice as long as if the landlord stores the personal property on the premises. The notice and procedure for the sale of personal property stored off the premises is governed by Minn. Stat. 514.18-514.22. STATUTORY REQUIREMENTS FOR PERSONAL PROPERTY STORED OFF THE PREMISES Basic notice and procedure for sale: Service of notice Personal service

Mail to any known address of tenant three weeks before sale, as well as newspaper publication for three successive weeks Contents of notice The time and place of sale The amount which will be due on the date of sale exclusive of the expenses of advertising and sale The grounds of the lien, giving a general description of the property to be sold The statute authorizes the sale of enough of the personal property to satisfy the amount due at the time of sale, including expenses. Minn. Stat. 514.22. AVAILABLE RELIEF There are revised and updated motion forms regarding personal property after eviction.

Basic relief available for property stored on the premises: Return of the personal property Unlawful personal property retention penalties double damages or $1,000, whichever is greater, plus reasonable attorneys fees Unlawful ouster penalties treble damages or $500, whichever is greater, plus reasonable attorneys fees Enjoinment of pending sale of the personal property AVAILABLE RELIEF Basic relief available for property stored off the premises: Joinder of third party conducting sale of personal property as a necessary party E.g., a storage or warehousing company

Enjoinment of pending sale of the personal property in dispute Return of the personal property Unlawful ouster penalties treble damages or $500, whichever is greater, plus reasonable attorneys fees BASS V. EQUITY RESIDENTIAL HOLDINGS, L.L.C., 847 N.W.2D 89 (MINN. CT. APP. 2014) Last year, the Court of Appeals issued a reported decision involving a landlords illegal eviction of a tenant and the equally illegal trashing of her belongings. Basic facts:

The landlord filed an eviction action for nonpayment of rent, and the tenant asserted defenses. The court ordered the tenant to deposit rent with the court, subject to judgment for the landlord and the issuance of a writ of recovery if the tenant failed to post the rent. The tenant failed to post the rent. The court issued an order for judgment for the landlord, authorizing the issuance of a writ of recovery upon the landlords payment of the writ fee. The landlord did not pay a fee to get a writ. Instead, while the tenant was at work, the landlord threw all of her belongings in dumpsters and changed the locks on her apartment door. BASS V. EQUITY RESIDENTIAL HOLDINGS, L.L.C., 847 N.W.2D 89 (MINN. CT. APP. 2014) The tenant brought claims for penalties for the unlawful exclusion from her apartment and punitive damages for the landlords failure

to store and care for her property. The district court awarded the tenant treble damages of over $9,000 under Minn. Stat. 504B.231 and a $1,000 penalty under Minn. Stat. 504B.271. The landlord appeal, challenging the district courts jurisdiction to award monetary damages and penalties. The Court of Appeals affirmed the district court, holding that the Housing Court division of the District Court of Hennepin County has jurisdiction to award monetary damages and penalties in posteviction judgment lockout and personal property disputes. OTHER OPTIONS FOR ENFORCEMENT OF PERSONAL PROPERTY CLAIMS While the district court has jurisdiction to hear a motion relating to the removal of personal property during the writ execution process, a tenant may seek relief in another forum or in another manner. Available options:

Action for replevin in Conciliation Court or district court, with ouster and personal property retention claims. Longer timeframe than motion in eviction action Viable option if the tenant is concerned only about monetary claims and has other claims against the landlord (e.g., security deposit, rent abatement, single-metered utility billing, etc.) Unlawful removal or exclusion action see Bass v. Equity Residential Holdings, L.L.C. (started with 504B.375 petition). Motion for relief from an eviction judgment under Minn. R. Civ. P. 60.02 CONTACT INFORMATION Drew P. Schaffer, Managing Attorney

Mid-Minnesota Legal Aid 430 First Avenue North, Suite 300 Minneapolis, MN 55401-1780 Electronic Mail: [email protected] Telephone: 612.746.3644 Facsimile: 612.746.3644 Legal Aid Intake: 612.334.5970

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