Introduction
In Central Housing Associates, LP v. Olson, the Minnesota Supreme Court denied statutory retaliation protections to a tenant who sent his landlord a written complaint detailing discrimination and harassment by the landlord’s employees.1 Instead, the court established a new common law defense to retaliatory evictions when an eviction arises from a written tenant complaint to a landlord.2 The ruling, however, raises numerous issues by both inadequately defining who is protected by the new common law defense, and by poorly explaining how the defense works.3 The fragmentation of the law and its lack of clarity pose a serious hurdle for tenants, who are often unrepresented by attorneys,4 as well as for landlords, who are expected to act in a nonretaliatory manner. This Note seeks to address the issues posed by Central Housing in an era of landlord/tenant reform, and to highlight the need for a statutory scheme that promotes uniformity and simplicity in landlord/tenant cases while adequately protecting tenants from retaliatory evictions.
While the outcome of Central Housing was appropriate, i.e. the tenant was protected from an eviction which a jury found to be retaliatory and based on racial bias, the decision leaves Minnesota law on retaliatory eviction fragmented,5 and creates uncertainty about what constitutes protected tenant conduct, casting hardship on landlords and tenants alike.6 Consequently, both Central Housing and subsequent lower court cases leave unanswered the question of what type of tenant may avail themselves of the common law defense.7 The Central Housing decision leaves other interpretive questions unanswered, including: what constitutes a complaint to a landlord under the new common law rule,8 and how or why the statutory and common law retaliatory eviction protections involve different burdens of proof.9
Part I of this Note will seek to describe the Central Housing decision. In describing how Central Housing came to be, Part I will introduce the two Minnesota statutes that provide retaliatory eviction defenses. Part II will consider how Central Housing fits within the policy justifications for retaliatory eviction statutes and historical context of housing reform. Part II argues that retaliatory eviction protections are fundamental to housing codes, and they allow for the tenant enforcement of housing codes. Part II will summarize the state of Minnesota retaliatory eviction law, highlighting the lack of uniformity post-Central Housing and the unanswered facets of the common law defense. Part III will examine the sufficiency of Central Housing, and contrast Minnesota’s current laws with other approaches and model code provisions, while analyzing the difficulty of a legislative or judicial fix to the issues that remain unanswered by Central Housing.
This Note’s aim is to frame the Minnesota court’s novel approach in the context of other legal schemes that address retaliatory eviction,10 and to examine the potential effects of Central Housing and predict its ineffectiveness in determining future cases. This Note argues that Central Housing may have created as many problems as it sought to solve, as the uncertainty and fragmentation of the law will prove detrimental to both parties. Lastly, this Note asserts that clear definitions of protected tenant conduct are necessary for the enforcement of robust housing codes, as shown by the history and development of tenant protections during the tenant rights revolution of the mid-twentieth century.11
I. Background
A. Facts and Procedure
On May 1, 2016, Tenant (hereinafter Olson) and Landlord (Central Housing Association, hereinafter CHA) entered into a residential lease with a term of one year.12 Olson subsequently made several written complaints to his landlord about the conditions and repairs in the apartment and further complained that a staff member of CHA had harassed and discriminated against both himself and his minor daughter.13 In January 2017, CHA notified Olson the lease would be terminated early due to alleged breaches of the lease.14 After receiving the notice, Olson filed a report with the Minnesota Department of Human Rights (MNDHR), alleging discrimination, harassment, and retaliation.15 In the subsequent trial, a jury found that Olson had materially breached lease terms, and also that CHA’s eviction action was in retaliation for Olson’s complaints to CHA.16 The district court awarded possession of the apartment to Olson without specifying the statutory grounds of Olson’s retaliation defense.17
On appeal, CHA argued that both of the existing tenant-remedy statutes were inapplicable.18 Minnesota’s “penalty for complaint” statute protects tenants from eviction when the eviction is “intended as a penalty for the residential tenant’s or housing-related neighborhood organization’s complaint of a violation.”19 The Minnesota Court of Appeals interpreted the phrase “complaint of a violation” to mean, exclusively, a tenant-remedies action in court.20 Because Olson did not make a tenant-remedies complaint in court, his complaints were not protected by the provisions of the “penalty for complaint” statute.21
Minnesota’s other statutory retaliation provision is found in the “general eviction” statute, which provides protection to tenants whose tenancy is terminated either as “a penalty for the [tenant]’s good faith attempt to secure or enforce rights” or as “a penalty for the [tenant]’s good faith report to a governmental authority of the [landlord]’s violation . . . .”22 The Court of Appeals found that the “general eviction” statute was inapplicable because it only protects tenants evicted via notice to quit.23 Notices to quit are served to end the tenancies of tenants-at-will or holdover tenants,24 while notices to terminate are served to terminate the lease of (usually breaching) tenants.25 In sum, the Court of Appeals found that the “penalty for complaint” defense only protects tenants who have filed a complaint in district court, and the “general eviction” defense only protects tenants holding over after a “notice to quit” (ending their tenancy) or who otherwise do not have a lease.26
On appeal to the Supreme Court, Olson did not challenge the inapplicability of the “general eviction” statute, but argued that he was protected from a retaliatory eviction under either the “penalty for complaint” statute or the common law.27 Olson asserted that “complaint,” as found in the statute, is an inclusive term that encompassed complaints in a formal setting (to a court or city/state agency) and complaints to a landlord regarding a materially breached condition in the residence.28 CHA, conversely, argued that “complaint,” within the “penalty for complaint” statute, exclusively meant a complaint in the district court.29
B. Holding
The entirety of the Minnesota Supreme Court agreed that the “penalty for complaint” statute did not apply. However, the majority found that “complaint,” as used in the statute, means either a formal complaint to a court or a complaint to an agency, such as MNDHR.30 This interpretation rejected both Olson’s argument that any written complaint to a landlord qualified, and the Minnesota Court of Appeals’ ruling that “complaint” referred only to a tenant-remedies action in a district court.31 The majority opinion thoroughly examined the grammatical construction of the statute and parsed the definition of the word “complaint,” and ultimately found multiple reasonable definitions of “complaint” in the statute.32 Faced with an ambiguous text, the Minnesota Supreme Court turned to the use of canons of construction to determine the intent of the legislature, finding that the legislature’s intent was to protect tenants from retaliation when (and only when) they had filed a complaint in court or with a governmental agency.33 The supreme court concluded that the legislature did not intend to protect tenants if they had only written a complaint to their landlord.34 However, the majority disagreed with the interpretation of the court of appeals that tenants were only protected if they had filed suit in a district court.
As an alternative route to protect Olson, the majority established a common law defense of retaliatory eviction, allowing Olson to prevail.35 The majority described the common law remedy as a gap-filling provision fixing a potentially inadvertent failure of the legislature.36 However, the court failed to describe the remedy with much specificity, except as necessary to resolve the current case.37
Chief Justice Gildea, dissenting, disagreed with the majority on both statutory and common law grounds. Agreeing with the entirety of the court of appeals opinion, Chief Justice Gildea argued against the use of canons of construction to determine legislative intent in a clear case.38 On the issue of statutory interpretation, Chief Justice Gildea believed that the “penalty for complaint” statute is unambiguous, meaning only the commencing of a formal lawsuit.39 Further, Chief Justice Gildea argued that the expansion of common law remedies was unjustified.40
The result in Central Housing blurred the boundaries of protected tenant activity, depriving tenants and landlords of the security of certain legal footing and increasing the likelihood of tenant-right underutilization.41 With the original purpose for retaliatory eviction protections in mind, Central Housing’s result is counterproductive and confusing. As Minnesota faces a new wave of the tenant rights revolution, the courts and legislature must work together to provide tenants with a clear and usable protection from retaliation that abandons Central Housing and re-centers retaliation protections on their original purpose as a tenant tool for enforcing housing codes.
II. Analysis
A. Retaliatory Eviction: Historical Development and Reform
Retaliatory eviction,42 as a defense, was first recognized in the United States in Edwards v. Habib,43 a 1968 Washington, D.C. case involving a tenant who was evicted for complaining about their landlord’s housing code violations.44 During the second half of the twentieth century, cities and municipalities had developed increasingly complex housing codes in an attempt to protect growing numbers of apartment-dwelling tenants.45 Chief among these reforms was the development of the implied warranty of habitability,46 a non-waivable requirement that landlords maintain their rented properties at habitable conditions.47 The warranty of habitability and related reforms bolstered tenant rights on paper, but their result was largely mixed.48
Many landlords saw new tenant protections, especially the warranty of habitability, as a threat to profits and, in turn, attempted to pass their cost onto tenants.49 Without any retaliation protections, landlords could avoid code enforcement by evicting tenants who complained about violations.50 Common law protections offered tenants little recourse, so municipalities began adopting protections, akin to Edwards, which advanced the idea that courts should not assist a landlord in evicting a tenant who attempted to secure their legal rights through complaining of a housing code violation.51 The growth of tenant rights therefore necessitated retaliatory eviction protections,52 as without retaliation protections, newly enacted housing codes would become inoperative.53
Even after courts and legislatures enacted retaliation protections, loopholes remained, and there was extreme variance between the protections.54 One significant carve-out existed in many states wherein a landlord reserved the right to evict tenants,55 even retaliatorily, if there was a tenant breach of lease.56 Complaining tenants were also not protected when a landlord proved that no code-violating conditions existed, or when landlords proved their motives were not purely retaliatory.57 Eventually, however, many jurisdictions codified a retaliation defense broad enough to protect most tenants who made a formal complaint of violation of law or breach of lease.58
Like many other states, Minnesota first adopted a statute to prevent retaliatory evictions during the early 1970s.59 The current “general eviction” statute reproduces the original Minnesota statute, Section 566.03, without significant changes to the language.60 The Minnesota Supreme Court interpreted Section 566.03 in Parkin v. Fitzgerald, and characterized the retaliation defense it provided as broad and capable of giving life to Minnesota’s growing housing codes.61 Much like the Edwards court in Washington, D.C., the Parkin court understood retaliatory eviction protections as a necessary division of the State’s housing code enforcement.62 The Minnesota legislature’s “general eviction” statute, as interpreted by Parkin, overturned the common law, much like Edwards.63Minnesota common law clearly established that an uninhabitable premise, and by extension a complaint about an uninhabitable premise, was “no defense” to an eviction. See Peterson v. Kreuger, 70 N.W. 567, 567 (1897). In 1971, the Minnesota Supreme Court opted to not extend protections from retaliation to a tenant through the common law. See Olson v. Bowen, 192 N.W.2d 188 (Minn. 1971). Parkin noted three “important aspects” changed by Minn. Stat. § 566.03 (1971). 240 N.W.2d at 831–32. (“First, it encompasses a wide range of tenant activity, provided such activity is undertaken in good faith for the purpose of enforcing contractual or statutory rights. Second, it does not require an extraordinary burden of proof, but only the usual civil burden—proof by a fair preponderance of the evidence. Third, recognizing the difficulties of proof of matters of motive and purpose, it aids the tenant with a presumption of retaliation which the landlord must rebut if the notice to quit was served within 90 days of the tenant’s protected activity.”).
Post-Parkin, the general eviction defense has remained the same, protecting tenants from evictions “intended in whole or in part as a penalty for [a tenant]’s good faith attempt to secure or enforce rights under lease or contract . . . [or a] good faith report to a governmental authority of the plaintiff’s violation of a health, safety, housing, or building code.”64 Subsequently, a “penalty for complaint” statute was added, which protects any tenant from retaliation “for . . . [a] complaint of a violation.” 65 While not obvious on either statute’s face, the “penalty for complaint” defense applies to all tenants, while the “general eviction” defense only applies to notice to quit tenants.66 The Minnesota legislature may have intended this additional statute as a mechanism to provide a narrower protection for notice to terminate tenants while reserving discretion for landlords seeking to remove breaching tenants.67 Neither statute explicitly mentions protection for a complaint made directly to a landlord, but under the “general eviction” defense, a complaint directly to a landlord may be considered an attempt to secure or enforce rights “under the laws of the state.”68
Central Housing’s interpretation of the term “complaint” as used in the “penalty for complaint” statute is applicable to notice to terminate tenants—in other words, tenants who have allegedly breached. While the Minnesota Supreme Court believed both Olson and CHA offered reasonable interpretations of the term “complaint,” the Parkin and Edwards courts contextualized retaliation protections as important not only to protect specific tenant acts, but also to encourage landlord code compliance, and to arm tenants with that power. In this sense, CHA violated the statute’s aim (of protecting lawful tenant activity) by attempting to retaliate the lawful concerns raised in Olson’s “complaint” letter through an eviction. In practice, Central Housing’s statutory interpretation allows CHA-landlords to have eviction papers ready to serve on any notice to terminate a tenant who voices dissent, and, so long as that landlord beats them to court, the tenant has no statutory retaliation protections, and is left to use the common law. This formalistic and non-textual outcome weakens the law and undermines the justifications for retaliation protections found in the tenants-rights revolution cases.69
The housing reforms of the 1960s and 1970s have often been criticized as a failure for being insufficiently protective of tenants, being inefficient, or for limiting the supply of available housing.70 Likewise, retaliatory eviction doctrine has been blunted and weakened in the fifty years since its advent.71 However, the aims of the tenant-rights reform movement are again at the forefront of political discussion in the context of a severe housing crisis throughout the United States.72 The reemergence of the same issues that predicated the reforms has already spurred housing and property law changes in Minnesota and the rest of the Midwest.73 More revolutionary proposals to address this crisis include addressing housing as a right,74 overhauling and expanding federal public housing voucher programs,75 and eliminating no-cause evictions.76 To differing degrees, recent plans incorporating these ideas have made headway at both the state and national levels.77 Many of these proposals take the form and function of classic housing codes, such as those created in the revolution of the mid-twentieth century, albeit of a different scope.78 While this movement has its supporters, its work has also faced recurrent critiques since the mid-century reforms.79 Some scholarship posits that stronger protections from retaliation would curb many housing ills without unpalatable shifts in the balance of landlord-tenant rights.80
Regardless of the path forward, the stakes are clear: the housing crisis has produced more renters,81 rising rents and prices for lower values, a shortage of affordable homes,82 as well as more evictions.83 Estimates on the numbers of evictions in 2020, due to COVID-19, are sobering.84 The Twin Cities has been rankled by political fighting about affordable housing, including its ties to racial justice and reform in development and zoning.85 While both tenant rights and the quantity of affordable units are vital issues,86 uncontrolled retaliatory evictions pose a risk during periods of reform by allowing for a strengthening of on-paper rights of tenants without effectuating a change in enforcement. Across the country, as tenant rights improve,87 states will need to update the strength of their retaliatory eviction protections to ensure code viability.88 Lessons learned from the revolution of the landlord-tenant relationship during the 1960s and 1970s inform courts and policymakers about how retaliatory eviction protections can properly vest housing code enforcement power with tenants.89
Despite complex housing codes and growing tenant protections, tenants remain largely unaware of their rights under existing laws and often are unrepresented in housing court.90 This prevents tenants from making knowledgeable decisions about when to fight for possession and when to concede leased residences to the landlord.91 Failing to ameliorate this phenomenon through clear laws, tenant representation, and/or public education would risk repeating the policy failures of a generation ago.92 Because of the enforcement function of retaliation protections and a general lack of tenant representation, this Note argues that retaliation protections are only useful when they are accessible or usable to tenants.93
B. State of Minnesota Retaliatory Eviction Law
Central Housing’s holding, that Olson was not protected by either statute but was protected by the common law, opened up a core confusion in Minnesota law. Minnesota now recognizes three routes for tenants who wish to assert a defense of retaliatory eviction: (i) the “general eviction” statute;94 (ii) the “penalty for complaint” statute, 95 and (iii) the common law rule of Central Housing. The exact situations that place a tenant into any of these three categories is yet to be fully defined. Neither has any source so far established the State’s need for three different protections, when many states have just one.96
Of these legal “routes” to retaliation protection, the most straightforward defense is found in the “general eviction” statute,97 which protects tenants whose tenancies end via notice to quit.98 In this section, the legislature created a ninety-day burden-shifting provision which prevents a tenant from having to prove retaliatory intent when the termination occurs within ninety days of the attempt by the tenant to exercise their rights.99 In Central Housing, the ninety-day burden-shifting provision was not necessary,100 but in many situations, the burden-shifting provision is the only way in which a tenant can successfully contest an eviction as retaliatory.101 The “general eviction” defense, therefore, provides a presumption to the tenant and uses broad language protecting a large range of tenant activities, but is only available to tenants without a lease.102
The second route for a Minnesota tenant contesting an eviction is the “penalty for complaint” statute.103 The “penalty for complaint” statute was definitively construed in Central Housing, which held that a tenant is protected by the “penalty for complaint” statute if the tenant, or a housing-related neighborhood organization, has made a complaint to a housing authority, court, or another governmental body.104 This section also uses a ninety-day burden-shifting mechanism.105 The “penalty for complaint” statute does not protect tenants who face retaliation for any good-faith attempts that do not constitute a “complaint” of a violation.106
C. Function of the Common Law Remedy
Central Housing’s second holding provides a tenant facing a retaliatory eviction the protection of a common law defense, described as a gap-filler protection that does not replace either existing statute.107 Central Housing expressly allows the common law defense to protect a defendant who has a lease, has complained (in some manner) to a landlord, has breached their lease, and has been served with a notice to terminate.108 This defense is not so obviously available to any other tenant. Timberland Partners v. Liedtke, the first appeals court case to interpret Central Housing, makes clear that the Central Housing common law defense would not be available to a month-to-month tenant served with a notice to quit, who had complained directly to a landlord.109 This Note will attempt to address two threshold questions regarding the common law protection: who is protected by the defense; and how will the defense function.
1. Scope of the Common Law Remedy
If and how lower courts will use the common law retaliation eviction defense created by the Central Housing court is largely left to be seen. While the case is full of dicta, and itself unpublished, Liedtke is relevant insofar as it shows the Minnesota Court of Appeals limiting the Minnesota Supreme Court’s new defense to residential breach-of-lease eviction actions, signaling further fracturing of the law.110 While there are significant differences between Liedtke and Central Housing, including the believability of the retaliation claim,111 Liedtke signals that if a landlord were to terminate a month-to-month residential tenancy, for example, in retaliation for a written complaint to a landlord, the tenant would not be protected by the new common law defense.112 While not explicit, Liedtke also forecasts the lack of common law protections for commercial tenants.
Liedtke’s conclusion that the common law protection only applies to tenants who have made complaints to their landlord directly and have breached their lease raises questions about why exactly the Central Housing court took the drastic step of creating a new common law defense.113 The Supreme Court describes the context of the new relief as an extension of protection against the serious harms caused by a family’s eviction.114 This concern is not only exclusive to this class of tenants; all tenants suffer harm from evictions.115 The law’s disparate treatment between tenants who have leases (and have breached), tenants who have leases (and have not breached), and tenants who do not have leases creates confusion more than anything else.116 More importantly, the difference in statutory protections between classes of tenants unnecessarily complicates the law. The Central Housing court failed to read the existing statutes broadly, despite clear public policy reasons to do so (to align Minnesota law with the public policy objectives behind retaliation protections).117 On the other hand, they failed to read the statutes narrowly, a route to preserving a two-statute system. Instead, the court adopted a third defense in the form of a common law solution contradicting existing precedent.118
One way in which the Central Housing decision is justifiable is that it introduces change to a stagnant area of law. Despite the existence of the current statutes, publicized cases seem to suggest that Minnesota landlords have overseen systemic code violations and retaliation.119 And yet, tenants remain unlikely to avoid eviction.120 While most American states have statutory schemes that protect tenants from landlord retaliation, provide remedies for dangerous or discriminatory conditions, and allow for retaliation-free reporting of conditions to government bodies,121 few states protect tenants from landlord retaliation through the common law.122 In whole, very few states have a stand-alone defense to retaliatory eviction under the common law, unless a common law defense arose before any retaliation statute was codified.123 No other state has explicitly adopted a separate common law remedy when there exists one or multiple statutory defenses. In general, very few states rely heavily on common-law development in landlord/tenant law.124
2. Mechanism of the Common Law Protection
Despite the seeming breadth of the combined statutes, Central Housing created a common law function separate from either statue. The main difference between the common law and the statutes is that the common law defense requires the tenant alleging retaliation to shoulder the burden of proving a retaliatory motive.125 While the original retaliation statute provided a clear, albeit limited, defense to retaliatory evictions, tenants in Olson’s situation now (facing retaliatory evictions due to alleged breaches) have to rely on the common law.126 Even if these tenants have not substantively lost rights, their burden of proof is now higher. If the Minnesota Supreme Court had ruled that a tenant who complains directly to a landlord of a violation were protected from retaliation under either statute, these tenants would have access to a burden-shifting mechanism with a ninety-day period of presumptive retaliation.127 However, in “filling” the statutory gap, the court left Olson-class tenants to prove a retaliatory motive on their own. When there is a documented complaint, the presumption that an eviction is retaliatory is a vital tool in assisting tenants in asserting a retaliation claim.128 The Central Housing ruling does not grant those presumptions under the common law.
3. Practical Problems with Administration
The Court’s common law remedy also has an undefined scope and focus.129 It is unclear whether the common law remedy is intended to effect the intention of the legislature (correcting a mistake) or public policy goals (protecting vulnerable tenants); and whether it protects a broad swath of tenants or tenants in only the specific circumstances in Central Housing.130 Central Housing additionally raises questions about the new burden of proof and what issues might reach a jury. These practical considerations will drastically affect and influence whether the combined retaliation protections of Minnesota law are effective in protecting tenants from retaliation and whether those protections will adequately regulate the conduct of potentially retaliatory landlords.
One issue in administration that the court may have to consider is the use of juries. In Minnesota, as in many states, certain housing issues reach a jury.131 With the new Central Housing common law defense, it is unclear what aspects, if any, will reach a jury. The factual determination of whether or not a complaint was actually made could theoretically be tried before a jury rather than a judge. Despite this, the court in Central Housing did not address what may be a huge diversity of direct complaints to a landlord. There is no clear description in Central Housing of what constitutes a complaint to the landlord under the common law.132 If an Olson-class tenant expressed verbal dissatisfaction to a landlord, the tenant may ask a jury to decide if the complaint was sufficient to trigger protection from retaliation.133 Because electronic communication is ubiquitous in modern landlord-tenant relationships, some of the concerns which could justify a limitation on non-written complaints may be allayed by technology.134 It may be increasingly easy for a tenant to provide evidence of an electronic complaint via text or email to a landlord or building supervisor. If a jury is to decide whether or not a tenant made a protected complaint to a landlord based on electronic records, landlords may justifiably worry about and limit the types of communication that could trigger retaliation protections. However, Central Housing does not raise these issues, and tenants who electronically complain to their landlord may or may not be protected under the ruling. Under the common law, therefore, Central Housing could broaden the definition of “complaint” to any expression of dissatisfaction.135
A second administrative problem for the common law defense is the odd incentive structure for landlords who wish to avoid a tenant receiving a presumption of retaliation.136 Because landlords who wish to retaliate can shirk the applicability of one statutory defense by alleging breaches, there is little reason why a landlord would not always attempt to allege breaches and seek to evict via notice to terminate.137 If a landlord can get a notice to terminate to court before the tenant makes a complaint to a government agency, the tenant will be forced to argue the difficult common law defense.138 Shrewd landlords might respond to any worrisome tenant complaint by alleging breaches, forcing a tenant to bear the burden of an affirmative defense.139 While this incentive is not new, tenants’ lack of access to a presumption of retaliation under the common law defense only exacerbates the incentive.140 Landlords will correctly determine that the optimal strategic route is to force tenants to defend through the common law.
III. Argument
A. Fragmentation and the Purpose of Retaliatory Eviction Protections
This Note posits that Central Housing may have caused more problems than it solved. The court’s creation of a new common law defense leaves open new questions and uncertainties that the court does not answer.141 This Section seeks to examine the fundamental issues with fragmentation in landlord/tenant law. This concern builds on existing and identified concerns about the need for administratively clear standards in the largely unrepresented field of tenant defense.142 In sum, these concerns highlight how the law, as it is, undermines the purpose of retaliation defenses generally and lacks the clarity and straightforwardness necessary to be effectively utilized (in litigation) or relied on (in shaping conduct).
Because retaliatory eviction protections serve a code-enforcement function, a set of retaliation defenses that do not adequately prevent or deter landlord misconduct will prove inadequate to the purpose of retaliation law altogether.143 Two major problems with the legal framework post-Central Housing threaten the value and usefulness of the state’s retaliatory eviction protections in a broad sense. First, the inconsistent defense mechanisms may lead to inconsistent outcomes. Second, the complexity of multiple defenses will have a negative effect on the certainty of legal outcomes for both tenants and landlords.144 These factors together will diminish the conduct-regulating power of the retaliation provisions.
Consider the following three hypothetical tenants who each face retaliation from a landlord. Tenant A is faced with an eviction initiated via notice to quit, in retaliation for A’s complaint to the MNDHR about the landlord’s illegal harassment based on race/religion (as in Central Housing). Tenant B, also a victim of harassment, committed the sort of breaches discussed in Central Housing, previously ignored by the landlord, but tallied within the weeks following Tenant B’s complaint to the MNDHR. Tenant B is then served with a notice to terminate for breach of lease. Tenant C, a tenant at will, is faced with an eviction in retaliation for her written complaint to the landlord about the same harassment suffered by Tenants A and B.
The questionable approach that the Minnesota courts and legislature have patched together may force each of the three hypothetical tenants to assert a different retaliatory defense to their respective evictions. Tenant A could avail himself of the retaliatory eviction protection found in the “general eviction” statute.145 Tenant B would be forced to assert a defense under the penalty for complaint statute,146 as B is foreclosed from using the “general eviction” statute because B was served a notice to terminate.147 Tenant C may be able to utilize the “general eviction” statute, but would likely need to rely on a Minnesota court’s application of the common law.148
If the mechanics of the retaliatory eviction protections were fully equivalent, the variance in the above-mentioned routes would be a mere oddity without real potential for undermining legal uniformity. However, because each tenant would have to assert a different burden in their defense, one of these three unrepresented tenants is much more likely to face an eviction. Under the “general eviction” statute, Tenant A may assert that their eviction is retaliatory for any of a broad range of reasons.149 Tenant B may only prevail in their retaliation defense if the eviction, or decrease in service or increase of obligations, was in response to a complaint of a violation (and not because of their breaches).150 Tenant C would be required to show that their complaint to the landlord had alleged “material violations . . . of state or local law, residential covenants, or the lease.”151
In the hypothetical above, tenants may be responsible for different legal burdens despite the similarity of their situations. Tenant C would have to prove their case by a preponderance of evidence, without the assistance of a presumption.152 Tenants A and B would have the benefit of a ninety-day presumption that an eviction was retaliatory.153 This presumption would allow the tenants, who may be unrepresented, to allege that they made a protected “complaint,” and force their landlord to rebut the presumption.154 When faced with a presumption of retaliatory motive, landlords may be more willing to settle cases out of court,155 or avoid evicting tenants altogether.156
However, when the issue of tenant breach affects whether a tenant can use a presumption to defend against retaliatory acts, a landlord is incentivized to attempt to sidestep the presumption altogether. Tenant breaches may be inconsistently monitored by landlords, and treating breaching tenants different than non-breaching tenants can incentivize this inconsistency.157 In other words, because the general eviction statute is the most protective of tenant activity, an alleged breach will immediately force the tenant to choose between a confusing common law defense and the penalty for complaint statute: a weaker statutory provision (read narrowly by the Central Housing court).
Like Olson, many tenants have to prevail on the issue of their own breach in order to assert their own defense of retaliation.158 In Minnesota, landlords can benefit from sidestepping tenant protections by tallying breaches in preparation for an eviction action (or other retaliatory conduct), forcing a tenant into a weaker retaliation defense.159 For example, where a tenant’s lease is nearly complete and a landlord seeks to retaliatorily not renew it, a landlord is incentivized to file a breach of lease action instead of simply not renewing. While the legislature may have intended for separate defenses when a tenant has a lease versus when they do not,160 it seems counterintuitive that a landlord may be able to avoid having to rebut a presumption of retaliation by filing for a breach-of-lease eviction. Further, it is not clear what and how much evidence would be required to show that an eviction was in retaliation for a complaint absent any presumption.
Besides the issues of inequitable or nonsensical results, the non-uniformity and complexity of retaliatory eviction defenses increases the likelihood that unrepresented tenants will not know when their landlord has acted in an unprotected, retaliatory manner.161 This issue is made worse by the lack of representation in most landlord-tenant cases.162 As a result, it may be impossible for a tenant to make an efficient or informed decision about their odds in fighting an eviction. The cost and strain on limited housing court lawyers may become an inefficient use of resources over often small monetary sums or non-monetary vindications of tenant rights.163 This may discourage tenants from using retaliatory eviction protections or showing up to court altogether.164
B. Comparing Solutions
In response to the concerns noted above, both the Minnesota courts and the Minnesota legislature should consider steps to clarify the bounds of the statute. This Note does not explicitly draft or endorse a comprehensive statute for the Minnesota legislature,165 rather, it suggests there already exist well-considered doctrines of retaliatory eviction law that can help produce more logical protections than current Minnesota law. This Section elaborates on four such considerations that Minnesota lawmakers (and judges) should weigh as they address the issues raised by Central Housing: (i) ways in which Minnesota Courts can fix ambiguities; (ii) the benefits of a clearer elaboration of the type of tenant activities protected from retaliation; (iii) an argument for a universal burden of proof amongst all classes of tenants who allege retaliation; and (iv) reasons Minnesota should consider the legal guidelines encoded in the Uniform Residential Landlord Tenant Act (URLTA).166 This Note further suggests the benefit of a new statute can be observed in the solutions of other jurisdictions. Any reforms should be undertaken with corresponding investments in public education regarding prohibited landlord conduct to provide both clarity and predictability for tenants, and efficient conduct regulation of landlords.167
1. Rewriting Central Housing
While the legislative role provides the most direct solution to the problems of Central Housing, there are interpretations that rewrite Central Housing’s common law ruling to effectuate a clearer outcome and guide for future cases. This analysis relies on both the existing precedents of Minnesota cases, and the cases of other states. Courts in other states, such as Illinois, have interpreted retaliation statutes liberally, with a preference for tenant relief.168 The Court in Central Housing could have found a similar public policy justification in the history and purpose of retaliatory eviction protections. This may have adjusted Central Housing’s statutory ruling, justifying protection through the intent of the statute without resorting to a common law solution.169 This would have produced an approach to deter landlord retaliation with fewer gaps in tenant protection, and would have simultaneously reduced the confusion of multiple retaliation routes.170 This approach also would be consistent with the history and precedent of Minnesota landlord-tenant law.171
In opting to call the protection granted a gap-filling remedy, the court forecasted the defense’s limited applicability. This limitation was not necessitated by the circumstance; rather, the court was empowered to develop the common law in such a way that it could encompass or overlap with the statutory scheme.172 Creating separate standards for both a common law defense and two statutory defenses raises the likelihood of confusion, misapplication, or inequitable application.173 In this regard, the existence of additional defenses should not be understood as Minnesota having more tenant protection from retaliation than other states.174 Many states protect tenants more clearly and in more settings than the combined remedies of Minnesota law.175 If the supreme court sought to use Central Housing to provide a comprehensive solution to the complicated law of landlord retaliation, the court should have either read the statutory protections differently,176 or created a broad common law remedy.
2. Type of Tenants and Tenant Activity Protected
In mounting any legal defense, there is benefit to identifying the individuals who are intended to be protected by it.177 Landlord-tenant law is no different. While recent counts reflect that most states have statutes prohibiting retaliation based on tenant action, many do not protect a tenant when they have only complained to a landlord and not to a governmental authority.178 Some states have statutory language which explicitly finds that a complaint directly to a landlord triggers a retaliatory eviction defense.179 Some state statutes go further and protect tenants from retaliation based on activities outside of the landlord/tenant relationship; such as joining a tenant union or other political activity.180 A few states do allow for a common law retaliation defense, including some that are predicated on language even less clear than Central Housing itself.181
This plethora of other legal routes may be part of the reason why a relatively ambiguous statute with common law discretion may have been an attractive compromise for Minnesota lawmakers when they drafted the first retaliation defense in the 1970s.182 Regardless of the reason, as long as the ambiguous statutes remain, the best opportunity for clarification is when the statutes are examined by the Minnesota Supreme Court. After Central Housing, there seems to be no clearly defined set of protected tenants under the common law except for the specific tenant (Olson) in Central Housing.183 Other model statutes, such as the Restatement of Property, which may not generally provide as many robust protections as Minnesota has in its comprehensive tenants’ rights statutes, give more clear and concrete answers about protected tenant conduct.184 Because knowledge about whether their conduct is protected is necessary for tenants to use retaliation protections,185 it is vital that Minnesota clarify the law to make it accessible to the often unrepresented tenant or, alternatively, provide legal aid to more tenants facing eviction.186 This clarity could be achieved by a simple statutory provision listing protected tenant behavior.
3. Burden of Proof
The Minnesota legislature should further simplify retaliation protections by treating all tenants the same way if they can show that there has been a good faith complaint; it can do this by unifying a burden of proof and presumption mechanism for proving retaliatory eviction.187 This lower and uniform bar would create a more equitable balance for often-unrepresented tenants and their often-represented landlords. Changing the burden could remove questionable incentive structures and better incentivize more constructive tenant-landlord relationships.188
In treating tenants who complain directly to their landlords differently from tenants who complain to housing authorities, the court is also disincentivizing the type of landlord-tenant contact that could avoid the largely one-sided setting of housing court.189 After Central Housing, a well-informed tenant still should not go directly to their landlord with a complaint, as opposed to a court or agency, because they may be forfeiting a presumption of retaliation if the landlord retaliates. Tenants who now go to government organizations to receive protection from retaliation may create unnecessary resentment from landlords who may feel blindsided by complaints never raised in person.190 This result is contrary to the stated aims of Central Housing, but is to be expected by the particulars of the varied burden of proof.191
4. Uniform Residential Landlord Tenant Act
The Minnesota legislature could also look at both the content and structure of the URLTA in drafting a new retaliatory eviction statute.192 While not universally acclaimed,193 the advent of the URLTA was seen as a landmark step in the tenant’s rights revolution of the 1960s and 1970s.194 The 1972 Act, developed by academics who advocate for state law reform and uniformity, protects tenant complaints to governmental agencies, complaints made directly to landlords, and tenant organizing more broadly.195 The URLTA’s retaliation protections are also applicable to all tenants, whether or not they have a lease.196
The URLTA also uses much clearer statutory language than current Minnesota retaliatory eviction law,197 and was developed with the understandings of the tenants’ rights revolution of the mid-twentieth century. In other words, the provision was designed to actually provide practical and clear tenant protections, both substantively and procedurally. This remains true even if the URLTA requires some adjustment for Minnesota’s use.198 The URLTA goes a long way in clarifying the behaviors for which tenants are protected, while also providing a presumption that adverse landlord conduct after a complaint, within an entire year, is retaliatory.199
After the URLTA’s drafting, many of the provisions were adopted in whole or in part by state legislatures.200 Since that era, Minnesota’s comparatively weak protections have invited comparison to the retaliatory protections provided in the URLTA.201 In 2015, the URLTA was revised to update its provisions after nearly fifty years.202 The fragmented and confusing state of Minnesota law after Central Housing provides a unique opportunity for the Minnesota legislature to adopt the revised provisions relating to retaliation. The revised URLTA keeps many of the provisions of the original URLTA and would comprehensibly address the problems with Central Housing.203 The revised URLTA may also be more palatable for landlords, as it introduces punishments for tenants who make bad faith complaints and shortens the presumptive period in the original URLTA to six months.204 Nonetheless, both versions of the URLTA, however, represent uniformity and universality unachieved by the fractured state of Minnesota law.
C. The Possibility of Legislative Adjustment
The majority, foreseeing the possibility that the legislature might take notice of the decision in Central Housing and find its new defense inadequate, was reassured in its predictions for easy legislative adjustment.205 While the ease of such adjustment is arguable, the legislature can and should take multiple steps of reform, with or without adopting another state’s statute or a model law.206
If the legislature were to attempt to narrow or clarify the common law remedy, it might require a rewrite or consolidation of the two statutes.207 An alternative possibility is that the legislature could add a definition of “complaint” to the definitions listed in the tenant remedies section of the Minnesota Code.208 The legislature could also limit or eliminate the use of this common law defense if it disapproves of Central Housing altogether.209 Because of the rarity of Minnesota Supreme Court landlord-tenant cases, it is unlikely that the Supreme Court will address the issues remaining any time soon. Therefore, the legislature is best positioned to revisit the state’s confusing schema for tenant retaliation protections. Even without larger rewrites of the code sections handling retaliatory eviction,210 the legislature could revisit the principles of Central Housing by limiting the Minnesota Supreme Court’s powerful use of the common law in landlord-tenant circumstances.211 While this solution might slow the development of law in this field, it might also grant more clarity.
While legislative adjustment to retaliation protection for tenants is possible, especially as part of large scale changes to housing law,212 the changes to retaliatory eviction protections must be tailored for the purposes elaborated in Edwards. Without connection to the history of housing codes and their enforcement problems, Minnesota risks having a buffet of protections for tenants without any real clarity for them, and without conduct regulation on landlords.213 Statutes from numerous states reflect this fundamental enforcement concern, and Minnesota should consider following suit.214
Conclusion
Minnesota must evaluate its landlord-tenant laws to provide more stable and logical protections to tenants facing retaliatory eviction. These protections are necessary for the continued viability of housing codes, prohibitions against unlivable premises, and housing discrimination regulations. Keeping multiple approaches to determining the nature of a retaliatory action serves no purpose, and the lack of clarity in defining the extent of the new protections has the potential to reduce the State’s capacity for regulating the conduct of landlords.215 The complex solution presented in Central Housing will make the law more complicated and less accessible to the tenants in the best position to benefit from the legal protection. Landlords also deserve a clean and logical statement of their rights regarding eviction proceedings. Legal uncertainty about the rights of tenants also wastes landlord time and money without any clear gain.
With or without radical, overarching solutions to housing issues in the state and country, the Minnesota legislature must recognize that retaliation protections are a vital piece of functioning housing codes.216 As such, prohibitions on retaliatory conduct need to effectuate legitimate protections, and should not be so complex that tenants and landlords cannot understand whether and when their acts are protected. The majority’s opinion in Central Housing may prove inadequate on both fronts. These issues should prod the legislature to take action and smooth over the differences between the routes of retaliatory eviction protection in Minnesota. The legislature would be wise to take notice of the URLTA (both versions) and the approaches of other states to fashion a single statute which encompasses retaliatory eviction, with the original enforcement purpose of Edwards in mind. By providing a holistic solution to stem retaliatory evictions, the legislature will additionally be assisting the enforcement of housing codes and anti-discrimination laws that already exist to protect tenants.217 This step is necessary for the success of any further solutions regarding the severe housing affordability and equity crises facing Minnesota and the country.