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socrateaser
socrateaser, Lawyer
Category: Family Law
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Experience:  Retired (mostly)
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We contacted you previously regarding a dog incident. The tenant

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We contacted you previously regarding a dog incident. The tenant has refused to return at least 4 phone calls to us, has used excessive profanity when we tried to resolve another issue to the point where it could not be discussed with that language and there have been several incidents of domestic issues that have disrupted other tenants. We would like to send them a letter informing them to vacate by August 1. Our concern is if this is retaliatory or if we are in our legal rights to
do so
Submitted: 1 year ago.
Category: Family Law
Expert:  socrateaser replied 1 year ago.
Hello,

Under Minn. Stat 504B.285 Subd. 2:
  • It is a defense to an action for recovery of premises following the alleged termination of a tenancy by notice to quit for the defendant to prove by a fair preponderance of the evidence that:

  • (1) the alleged termination was intended in whole or part as a penalty for the defendant's good faith attempt to secure or enforce rights under a lease or contract, oral or written, under the laws of the state or any of its governmental subdivisions, or of the United States; or

  • (2) the alleged termination was intended in whole or part as a penalty for the defendant's good faith report to a governmental authority of the plaintiff's violation of a health, safety, housing, or building code or ordinance.

  • If the notice to quit was served within 90 days of the date of an act of the tenant coming within the terms of clause (1) or (2) the burden of proving that the notice to quit was not served in whole or part for a retaliatory purpose shall rest with the plaintiff.


Subsection (1), above, is poorly drafted. It is not clear from the statute or case law, whether or not retaliation must relate to the lease contract, or whether it must only relate to the law of Minnesota or the USA. Given this uncertainty, you would be well served to wait 90 days before tendering a notice to quit -- because if the judge decides that the law should be interpreted in favor of the tenant's right to sue you for negligence or on some other legal theory not associated with the lease agreement, then your actions will be found to be retaliatory.

 

Note, that if the tenant has not actually served you with a summons and complaint from the court, nor made a written demand for damages, then your actions would not be retaliatory, because you would not be responding to the tenant's actual attempts to enforce his/her rights under the lease. The tenant must act before you do -- otherwise there is no retaliation.

 

Hope this helps.

socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 33551
Experience: Retired (mostly)
socrateaser and 2 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.


We have not received any notice yet. I can assume from yout last paragraph that it is ok to send the letter?

Customer: replied 1 year ago.


I asked a question an hour ago bout sending the letter. Are you there/

Expert:  socrateaser replied 1 year ago.
Sorry for the delay. I have the flu. Lucky for you, that's the one virus that can't be transmitted across the internet.

Anyway, if you haven't received any actual notice of the neighbor's intent to sue, then your notice of termination would not be retaliatory.

Hope this helps.

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