Many are familiar with the “Minnesota nice” stereotype that was long ago coined to describe the demeanor of Minnesotans. With hats, t-shirts, and movies highlighting this slogan, it is fair to say that Minnesotans are proud of this portrayal. Regardless of the truth of this aphorism, you could find yourself in a bind if your Minnesota niceness results in a guest overstaying their welcome. In this post, we will discuss some of the ways to deal with an unwanted guest and the pitfalls that may arise in trying to have that person removed from your home.

The unwanted guest problem can arise in many contexts. Perhaps an acquaintance recently went through a break up and had to move out in a rush and they needed a place to stay temporarily. In more unfortunate and volatile situations, extended family members or former significant others refuse to leave after being told to vacate. When that person refuses to leave, dealing with their exit often requires delicate dealings and familiarity with the law. It is important to note that this post deals with guests, not tenants. An eviction will have the tenant removed by law. Unfortunately, homeowners are unable to apply the eviction statute to guests.

Mediation or Mutual Resolution.

There are multiple ways to approach the individual who won’t leave. In many cases, the homeowner has a prior relationship with the guest so there are non-legal factors that influence their decisions. If a homeowner can work with the guest to agree on a date that the guest will leave, the homeowner will save money, time, and perhaps what is left of the relationship with the guest. In the long term, it may even be cost effective for the homeowner to provide a monetary incentive for the guest to leave. It if helps get the guest out, paying for the U-Haul could save more money than taking legal action.

Contact Local Law Enforcement.

When the guest refuses to leave or work out an arrangement with the homeowner, it may be appropriate to contact your local law enforcement agency. When you do, you want to have documents ready to show your ownership interest. If the responding officers believe the person to be a trespasser, they could have the guest removed.

In many instances, law enforcement will be hesitant to remove a person from property when there is a question about whether the guest has a right to stay. Guests may receive mail at your home. They could have a room set up with all their belongings. From the outside looking in, this creates an objective appearance that the person is more than a temporary guest. For good reasons, officers will avoid making a judgment call and will tell the homeowner that it is a civil matter, not criminal.

If the guest has been violent or threatening, then you should consider whether you want file for a harassment restraining order (HRO) or order for protection (OFP). If the Court grants your request for an HRO or OFP, the officers may remove the unwanted guest pursuant to the Court order.

A Riskier Option – Try to Create a Tenancy, Then Eviction.

If the above resolutions fail, some homeowners will demand that the guest start paying rent. Though the immediate cash is nice, these problems are generally not about the money. Once the homeowner accepts payment from the guest, they may have unintentionally created a tenancy and afforded the guest the tenant protections found in Minnesota Statutes Chapter 504B. If the guest continues to pay each month and the homeowner accepts the payments, the homeowner will have to file an eviction action and ask the Court to issue a writ to have the person removed.

Some homeowners don’t mind this outcome as it can be quicker than the final option discussed below. A homeowner may even make a written demand to the guest to pay rent with the hope that the person will pay, which could establish a presumptive tenancy. If the guest transforms into a tenant, depending upon which county you live, it can take several weeks or a few months to have the tenant evicted in housing court. Know that the landlord-tenant statutes are procedurally rigid and some judges may refuse to acknowledge jurisdiction when the statutory elements required for an eviction are not present. If you get to this stage, it is recommended that you contact an attorney to ensure that you make your strongest case for eviction.

District Court Action for Trespass and Ejectment.

When the first three alternatives mentioned above fail, the homeowner may be wondering what can possibly be done to solve the unwanted guest problem. If you have not contacted an attorney yet, now would be the time. As a fourth option, the homeowner can file a district court lawsuit against the guest for trespass or ejectment. This will generally be the most expensive and longest option to pursue.

In a civil trespass action, the homeowner must show a right to possession of the home and a wrongful or unlawful entry by the trespasser. All Am. Foods, Inc. v. Aitkin Cty., 266 N.W.2d 704, 705 (Minn. 1978). Many guests will argue that they did not trespass because they had permission to be at the home. To foreclose this defense, homeowners would be wise to revoke any consent or permission previously provided to the guest. Note that there is also criminal trespass, which is not addressed in this post.

Ejectment actions predate the current landlord-tenant statutes as a means of removing someone from property. Therefore, when you enter a gray area in which the eviction statutes are unavailable, you revert to common law ejectment. The homeowner will have to convince the Court that they have a present or immediate right to possession of the home and a legal estate in the property they are trying to recover. Levine v. Twin City Red Barn No. 2, Inc., 296 Minn. 260, 263, 207 N.W.2d 739, 741 (1973). Homeowners will want to dig up their deed to show ownership under the ejectment elements.

The purpose of trespass and ejectment claims is to have a Court prohibit the unwanted guest from continued occupation of your property.

In certain cases, homeowners file a motion for an injunction right away to ask the Court to have the guest removed from the property during the pendency of the lawsuit. This type of motion is very fact specific, so it is important to explain your situation to an attorney in great detail.

When you have an unwanted guest in your home, there is no one-size-fits-all answer to dealing with that person. However, contacting competent counsel early may help alleviate some of the stress.

 

This post was created by Christopher Boline, a commercial and real estate attorney at Dudley and Smith, P.A. Mr. Boline has worked with homeowners, landlords, and tenants in a variety real estate matters. If you have questions about real estate or landlord-tenant law, please contact Mr. Boline at 651-291-1717 or by email at cboline@dudleyandsmith.com. Dudley and Smith, P.A. is a full service law firm with offices in St. Paul, Bloomington, Burnsville, Chanhassen, White Bear Lake, and Woodbury.

 

The law is continually evolving and Dudley and Smith, P.A.’s blog posts should not be relied upon as legal advice, nor construed as a form of attorney-client relationship. Postings are for informational purposes and are not solicitations, legal advice, or tax advice. A viewer of Dudley and Smith, P.A.’s blog should not rely upon any information in the blog without seeking legal counsel.

 

May 5, 2016