Evicting a Tenant

Tenants may be evicted when they breach a lease. If the breach constitutes only failure to pay rent (as opposed to some other breach, damage to property or illegal activity) then the tenant may pay the amount past due and remain in the Property.  Therefore, landlords should move quickly after non-payment of rent and plead all material breaches of the lease that have occurred.

  • Prerequisites to Eviction. Landlords must disclose to tenants information regarding the name and address of the person authorized to manage the premises and who is authorized to receive service of process for the landlord. Minn. Stat. § 504B.181.  Many jurisdictions also require a Landlord to be licensed prior to availing the eviction process.
  • Breach. Where a lease exists, if a tenant does not pay rent when it is due, the Landlord may bring an eviction action immediately unless the lease provides leeway or a notice period.  Generally, there is no waiting period and no notice required where a breach for non-payment of rent has occurred.  More common is a notice period, again contained in the lease, for other types of material lease violations.  The type of notice provided and the expiration of the time period is necessary to include in the eviction pleadings.
  • Terminating a Tenancy: No Breach. If the lease has not been breached but the landlord seeks possession of the property, the tenancy must be terminated before an eviction action can be filed. Your lease may provide an early termination provision, or, termination of the lease may not occur until the end of the lease term (assuming no breach of the lease by the tenant). In a holdover tenancy (month to month or otherwise), notice of not less than the interval between the time the rent is due or three months, whichever is less, is required. Minn. Stat. § 504B.135.
  • Commencing the Action. After I file an eviction action on your behalf an Eviction Summons will be issued the court.   The summons includes the date of the first hearing, which will be scheduled between 10 and 14 days from the date the complaint is filed.
  • Serving the Summons. The Summons must then be served at least seven days before the hearing. The method of service is governed by statute and requires multiple attempts at service and posting if personal service cannot be accomplished. Minn. Stat. § 504B.331. I use professional, competent, experienced process servers to make sure this vital requirement is fulfilled according to Minnesota Statutes.


  • First Appearance. In most Minnesota counties, the Court’s will schedule a first appearance with a trial set thereafter.  As most cases will resolve at the first appearance courts usually do not reserve sufficient time for trials at the first appearances. The first appearance generally involves settlement discussions and if the tenant presents defenses, they are generally presented at this stage. If the tenant answers the complaint, the answer may be filed at this time. Minn. Stat. § 504B.335 (governing answers and trials).
  • Tenant Defenses: Rent Deposit Required. If a tenant asserts non-monetary defenses-such as a landlord’s failure to repair or other rent escrow claims-the tenant is generally not entitled to a trial unless the tenant deposits any unpaid rent. Minn. Stat. 504B.385.
  • Tenant Defenses: No Rent Deposit. If a tenant asserts monetary defenses, such as the rent being claimed in the complaint has already been paid, then judges will not require the tenant to deposit the unpaid rent. If the eviction complaint does not allege the failure to pay rent, no rent deposit will be required from the tenant in order to proceed to trial.
  • Trial. Trials generally occur shortly after the first appearance, usually within days.  If a jury trial is requested, scheduling takes longer. By statute, continued trials must occur not later than six days after the first appearance unless all parties consent to a longer continuance. Minn. Stat. § 504B.341.
  • “Pay and Stay.” In cases where failure to pay rent is the only allegation by the landlord, even if the landlord prevails at trial and obtains a writ of recovery, the tenant can pay the amount due and continue possession of the Property.  To pay and continue the tenancy, the tenant must pay the rent that is past due, plus interest and late fees if contained in the lease, plus a $5 attorney fee if an attorney represented the landlord, and the costs of the action. Costs of the action include the filing fee (now about $302-$355) plus the process server fee, and witness fees if subpoenaed for trial.
  • Timing. Based on the statutory timing for filing, initial appearances and trials, the longest period of time between filing an Eviction Complaint and holding a trial on the merits should be 20 days.  However; most evictions do not involve a trial. If the landlord prevails at trial, a tenant may ask that the judge delay issuance of a writ of recovery for a reasonable period, not to exceed seven days. To obtain a stay, the tenant must show that immediate eviction would work a “substantial hardship” upon the tenant or the tenant’s family. Minn. Stat. § 504B.345. In general, an eviction from start to finish takes fewer than 30 days in Minnesota, but some cases do take longer.  A tenant can appeal and, under certain circumstances post a “bond” to continue tenancy during the appeal.
  • Writ of Recovery. If the landlord wins at trial, a writ of recovery is issued. To enforce the writ, the landlord delivers the writ to the local sheriff, who will serve the writ and, if necessary, remove the tenant. The deputy posts the writ at the property, which gives notice to the tenant that the tenant must be out in 24 hours. If the tenant is not gone in 24 hours, the officer may return any time after that and supervise the physical removal of the tenant from the property.
  • When tenants are forcibly removed by the Sheriff under the authority of the writ, tenants will oftentimes leave personal property behind.  When this occurs, landlords must store personal property in accordance with Minnesota law. This is a complicated process and you should consult with an attorney when this occurs.  Landlords have the right to take control of personal property in the following two circumstances: 1) when the tenant is evicted and has failed to make provisions to store the property or 2) when the tenant abandons the premises, leaving property behind. At times, there is overlap between these situations, and reference to the statutes is necessary in either case.

Removal and Storage of Property – Minn. Stat. § 504B.365.

Before any removal occurs, the tenant must be notified by first class mail of the date and approximate time the officer is scheduled to remove the tenant and personal property.  This information should be mailed when available even if the notice will arrive after the scheduled moveout.  A Landlord should make a good faith attempt to telephone (leave a message), email or communicate in some way the moveout information to the tenant.  Document this contact or attempted contact.

  1. Storage at different location; removal of property; costs. If the tenant’s personal property is to be stored in a place other than the premises, the officer shall remove all personal property of the defendant at the expense of the landlord. Minn. Stat. § 504B.271. The tenant must pay these reasonable costs to obtain his/her property. Failure to do so results in a lien on all the personal property for the reasonable costs and expenses incurred in removing, caring for, storing, and transporting it to a suitable storage place. To enforce the lien, a landlord may keep the property until the bill is paid. If no payment is made for 60 days after execution of the writ, then the landlord is entitled to hold a public sale.
  2. Storage at same location; removal of property; costs. The Landlord must prepare an inventory and mail a copy of the inventory to the defendant’s last known address or, if the defendant has provided a different address, to the address provided. The inventory must be prepared, signed, and dated in the presence of the officer and must include the following:

(1) a list of the items of personal property and a description of their condition;

(2) the date, the signature of the plaintiff or the plaintiff’s agent, and the name and telephone number of a person authorized to release the personal property; and

(3) the name and badge number of the officer.

The officer must retain a copy of the inventory. The landlord is responsible for the proper removal, storage, and care of the tenant’s personal property and is liable for damages for loss of or injury to it caused by the plaintiff’s failure to exercise the same care that a reasonably careful person would exercise under similar circumstances.  Although not required, it is wise to video or photograph the Property that is stored to show the items left and their present condition.

Removal and Storage of Abandoned Property – Minn. Stat. § 504B.271.

If a tenant abandons the premises, the landlord may take possession of the tenant’s personal property at the premises. The landlord is also obligated to store and care for the property. The landlord then has a claim against the tenant for reasonable costs and expenses incurred in removing the tenant’s property and for storing and caring for the property.

28 days after the latter of 1) actual notice that the tenant has abandoned or 2) it reasonably appears the tenant has abandoned the property, the landlord may sell or dispose of the personal property. Proceeds from the sale may be applied to the landlord’s removal, care, and storage costs. Any remaining proceeds of any sale shall be paid to the tenant upon written demand.

Before the landlord sells the property, the landlord must make reasonable efforts to notify the tenant of the sale at least 14 days before the sale, by personal service in writing or sending written notification of the sale by first class and certified mail to the tenant’s last known address or usual place of abode, if known by the landlord, and by posting notice of the sale in a conspicuous place on the premises at least two weeks prior to the sale. If notification by mail is used, the 14-day period begins on the day the notices are placed in the mail.

Security Deposits

Minnesota law protects tenants from the wrongful withholding of their security deposits and imposes financial penalties on landlords who do not follow the law. Make sure to document time, material and expenses associated with the tenant’s damage to the premises.  Section 504B.178 of the Minnesota Statutes provides that “within three weeks after termination of the tenancy,” a landlord “shall . . . return the deposit to the tenant, with interest . . . or furnish to the tenant a written statement showing the specific reason for the withholding of the deposit or any portion thereof.” Minn. Stat. § 504B.178, subd. 3 (2013). Failing to provide notice of why a deposit has been withheld may result in a judgment for the full deposit, plus a penalty equal to the amount of the deposit. In other words, landlords that fail to follow the law can be held liable for twice the amount of the deposit. A penalty of $500.00 is also imposed where any portion of a security deposit is withheld in bad faith. Bad faith is presumed if a landlord fails to return a deposit within two weeks after commencement of an action by the tenant to recover the withheld deposit.

Lease Attorney Fee Provisions

Be aware that even if an attorney fee provision only favors the Landlord, Minnesota Statutes requires such provisions to be interpreted reciprocally.  In other words, to the extent that a Landlord is entitled to recover attorney fees from a tenant, a tenant is also entitled to recover attorney fees from the Landlord no matter the specific language of your lease.  Minn. Stat. § 504B.172.