Renting: Can landlord evict despite earlier agreement?

  • Article by: KELLY KLEIN , Renting and the law
  • Updated: October 13, 2012 - 10:30 AM

Q I have an agreement to pay $300 in rent every other week. The landlord now says that this arrangement is not working for her, and she wants all the back rent and this month's rent now, or I will be evicted. I need to know if the landlord can go back on the agreement. The agreement was in writing, and I have the letter from the first time we signed it, but I did not get the letter from the second time, as she was supposed to mail it to me and I never received it. If the landlord does have me served with an eviction notice, how soon do I have to be out?

A It sounds like you are paying back rent in addition to your regular rent, pursuant to an agreement you worked out with your landlord. In essence you are making a partial payment of the total outstanding balance every month. Under Minnesota law, a landlord needs to have a written agreement signed by both parties to the lease indicating that the landlord's acceptance of these partial payments does not constitute a waiver of the landlord's right to bring an eviction action during the month that the rent was accepted. What this means is that if you made a $300 payment this month, and it was accepted (i.e., check was cashed), the landlord is precluded from bringing an eviction action this month. If you have not made a payment, then the landlord can bring an eviction action for all the unpaid amounts, absent some written agreement indicating that she is willing to accept the amounts over time.

It sounds like there is not only one written agreement, but two. Let's call them the First Agreement and the Second Agreement. The Second Agreement, if it is a letter signed by your landlord that evidences an agreement with respect to back rent, would be controlling if it existed. If the letter exists, and the secretary never sent it, then you may be able to get a copy by asking now or requesting that the court order it to be produced if an eviction is filed. If there is no written evidence of a Second Agreement, then it can still be proven by course of conduct -- for example, if the landlord accepted $300 on the second payment when it used to accept $200. But if you can't demonstrate that there was a Second Agreement, then you are both locked into the First Agreement. If you are currently in violation of that First Agreement, and you can't show that there is a Second Agreement, then the landlord may be able to bring an eviction action, saying that you have failed to pay the back rent as agreed, and that you need to be evicted (assuming that the landlord hasn't accepted any payments from you this month).

Of course, if you are in compliance with the Second Agreement (if it exists) or the First Agreement (if the Second Agreement does not exist), then the landlord cannot bring an eviction against you for nonpayment even if she has accepted your rent, because both landlords and tenants are legally bound by their written agreements.

If the landlord has sent you by mail a notice to vacate that is not a court document, then you can rely on the date contained in that notice if you just choose to move. However, a landlord need not give the tenant a written notice to vacate for nonpayment of rent. Instead, the landlord can just file an eviction action with the court. A summons on a nonpayment of rent can be held no less than seven and no more than 14 days from the date of service. Most often, the documents are served about 10 days before the hearing. One important issue to consider is that if the landlord alleges nonpayment, you have the right to come to court and pay all outstanding rent. If you do so, the eviction action will be dismissed and you will be allowed to stay. There are some social service agencies that may be willing to help if you are financially unable to pay the outstanding amount owed.

If you believe that you have fulfilled the First Agreement or the Second Agreement, if it exists, then you have the right to a hearing to determine how much rent is owed. If you then pay the outstanding amount, if any, the action is dismissed. However, it is very difficult to find a place to rent when a landlord has brought an eviction action against you. If you can work something out with your landlord in advance, that is your best option.

Kelly Klein is a Minneapolis attorney. Participation in this column does not create an attorney/client relationship with Klein. Do not rely on advice in this column for legal opinions. Consult an attorney regarding your particular issues. E-mail renting questions to kklein@kleinpa.com. Information provided by readers is not confidential.

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