Development of Property in Minnesota with Wetlands

Did you know that if you are developing property in Minnesota you may need to work around the topography.  If there are existing wetlands you may be able to develop the property, but may need to replace disturbed wetlands.  Such development issues are covered by the Wetland Conservation Act (Minn. Stat. §§103G.221 - .2373; Minn. R. ch. 8420).

The Wetland Conservation Act protects all types of wetlands and prohibits draining unless it can be replaced by an area of equal or greater value.

A well written lease makes good landlords and tenants

Did you know that a lease can be either oral or written.  State Statute defines a lease as "an oral or written agreement creating a tenancy in real property".  Minn. Stat. §504B.001

.  Regardless, not only is it best practice to have any lease in writing, if a lease is for a fixed term greater than 1 year it must be in writing.  Minn. Stat. §513.05.  Failure to have such a writing will void the lease.  Id.  This requirement for a writing is called the “Statute of Frauds”.  The purpose of the Statute of Frauds is to provide reasonable safeguards and ensure honest dealing.  Doyle v. Wohlrabe, 243 Minn. 107, 66 N.W.2d 757 (1954). 

What does it mean to be joint tenants?

My current focus will be talking about types of interest that people can have in real property.  The next series of blog entries will explore ownership of real property by people at the same time. 

If you purchase a house with two or more persons your ownership is by tenants in common and not joint tenancy, unless expressly declared to be a joint tenancy.  This declaration is usually done in the conveying deed.  This is important because under a joint tenancy, if one of the joint tenants dies that person’s ownership interest in the house passes to the surviving joint tenants.  For example, if John, his wife Sarah, his brother Jim and his wife Rebbecca own a cabin in Brainerd as joint tenants.  Just recently John passed away.  Because the ownership of the cabin is in joint tenancy, John’s ownership passes to the remaining owners.  If the ownership was as tenants in common, John’s ownership would have been as asset that he could bequeath to another under his Will.  It should be noted that a joint tenancy does not exist in Minnesota between a husband and wife solely by virtue of the marital relationship, but it may exist by virtue of express grant or devise.  Wilson v. Wilson, 43 Minn. 398, 45 N.W. 710 (1890).  However, in Minnesota, a surviving spouse does have certain protections in homestead property regardless of joint tenancy.  I will be exploring this issue in later blog entries.

Take care of your property or it may cost you

Minn. Stat §429.101 grants the government the ability to collect unpaid special/service charges as a special assessment against the property benefited for all or any part of the cost of:

(1) snow, ice, or rubbish removal from sidewalks;

(2) weed elimination from streets or private property;

(3) removal or elimination of public health or safety hazards from private property;

(4) installation or repair of water service lines, street sprinkling or other dust treatment of streets;

(5) the trimming and care of trees and the removal of unsound trees from any street;

(6) the treatment and removal of insect infested or diseased trees on private property, the repair of sidewalks and alleys;

(7) the operation of a street lighting system;

           

(8) the operation and maintenance of a fire protection or a pedestrian skyway
             system;

(9) inspections relating to a municipal housing maintenance code violation;

(10) the recovery of disbursements for payment of utility bills and other services, even if provided by a third party, necessary to remedy violations; or

(11) the recovery of delinquent vacant building registration fees under a municipal program designed to identify and register vacant buildings.

This means, for example, if you allow weeds to grow in your lawn in violation of city code the city can specially assess your property for the cost of the removal.

Don't be surprised by a Homeowner's Association

Did you know that if you fail to pay a homeowner’s association (“HOA”) monthly dues the amount owing becomes a lien on your property.  As a lien, the HOA has the right to foreclose in the same manner as a mortgage.  The HOA does not need court approval to start the foreclosure. The HOA lien is superior to all other liens except:

1.         any document recorded against the property before the HOA declaration was recorded (this is the document creating the HOA);

2.         liens for real estate taxes; and

3.         a recorded first mortgage. 

So, if you fail to pay even 1 month of dues the HOA has the right to commence a foreclosure be serving papers and proceeding to a sheriff’s sale.  Also, similar to a mortgage, the unit owner is personally liable to the HOA for payment of the dues.  This means the HOA can also bring a court action for recovery of the money - they can sue you.  The HOA can choose to foreclose, bring a lawsuit or both.  Also, just because the HOA picks only one method of recovery does not mean it is barred from pursuing the other method at a later date. 

Tenant Issues Can Be a Minefield, Don’t Go It Alone

The 4 corners of a contract prevailed this past Monday.  A landlord had entered into a settlement agreement with a tenant.  The court upheld an eviction based on a breach of the settlement agreement.  Don't go it alone if you are a landlord with tenant issues.  I can guide you through the intricacies of landlord/tenant law. 

In the case of Kleinman Realty Co. v. Talbot, 2011 WL 1938184 (Minn. Ct. App. May 23, 2011), the Court of Appeals determined that, in a landlord/tenant situation, the express words of a settlement agreement govern.  This is in spite of the Court's sympathies to the tenant for her situation and recognition that the district court approached this case in a spirit of charity.  The Court stated:

It is awkward for us to describe the district court's abundance of compassion with the usual legal tags of "erroneous" or "abuse of discretion."  But our mandate is to correct legal errors, and we are bound here to conclude that the district court made a decision more generous toward a tenant than the law allows.

If you rent make sure you have your license

Certain cities require a license if you desire to rent all or part of your property.  For those cities that require a license the property must continually meet the conditions of the license.  If you rent your property and do not have a required license you could be subject to criminal prosecution and a civil lawsuit.  Call me if you intend to or do rent your property and I can assist in determining that you are in compliance with local, state and federal regulations.

The variance rollercoaster ride may be at an end

Cities have the authority to adopt zoning ordinances that regulate the use of land within the city.  This means that a city can regulate, among other things, the size and location of structures.  Sometimes a property owner wants to make improvements that are not allowed by a city's regulations, e.g., making a deck of a house bigger.  If the zoning code does not allow the deck to be any bigger a variance is needed (a variance requires City Council approval).  In the last year the laws that govern when a variance can be granted have been on a wild rollercoaster ride and that ride may have finally come to an end.

A property owner has a duty to use reasonable care to ensure the safety of guests

In the recent Minnesota Court of Appeals unpublished case of Pape v. Macks, LLC, 2011 WL 1466433 (Minn. Ct. App. April 19, 2011), the Court of Appeals reviewed whether a hotel owner is negligent for an injury to a guest.  In this case the guest was taking a shower when he slid the shower door, it cracked and the entire pane fell onto his foot.  The hotel owner indicated that its staff conducted routine checks of rooms after guest checkout and no defects or problems were noticed.  Further, the guest indicated that he had taken previous showers without noticing any defect.  The guest brought an action against the hotel owner for, among other things, negligence.  Although summary judgment is seldom granted on negligence issues, the District Court granted summary judgment in favor of the hotel owner.  The guest appealed.  The Court of Appeals found that in this instance the hotel owner was not negligent.