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Notice is Given: Strict Compliance Required for Serving Eviction Summons
By Ryan Dreyer & Eric Nasstrom
Ryan Dreyer and Eric Nasstrom practice real estate and construction litigation at Morrison Sund PLLC where they represent lenders, title insurers, property owners, developers, contractors and others with their litigation needs. T: (952)975-0050 www.Morrisonsund.com.
EVICTIONS What is the law?
In Koski v. Johnson, the Minnesota Court of Appeals recently held that service of an eviction summons must strictly comply with Minn. Stat. § 504B.331(d)(2), overruling its prior holding in Times Square Shopping Center, LLP v. Tobacco City, Inc. where it allowed substantial compliance with the predecessor statute governing service. The Koski opinion serves as a forceful message to practitioners that service of process requirements in eviction actions must be followed to a tee.
Section 504B.331 governs service of summons in eviction actions. Minn. Stat. § 504B.331. Where the tenant cannot be found in the county, service may be made by posting the summons in a conspicuous place on the property for not less than one week if the property is residential and personal service has been attempted at least twice on different days, with one attempt being made between 6:00 p.m. and 10:00 p.m. Id. § 504B.331(b)(d). The plaintiff or the plaintiff ’s attorney must sign and file with the court an affidavit stating that the affiant believes that the tenant is not in the state, and affirming that a copy of the summons has been mailed to the defendant at the defendant’s last known address. Id. § 504B.331(d)(2)(i)(ii).
In Koski, the plaintiff landlord hired the Hennepin County sheriff to serve the eviction summons. Koski, 837 N.W.2d at 741. After attempting service at the property twice, the deputy sheriff completed an affidavit of not found unlawful detainer and posted the summons on the property. The summons correctly listed the hearing date as Oct. 15, 2012. The deputy sheriff, rather than the plaintiff or plaintiff ’s attorney, signed the affidavit stating that the tenant could not be found, and no one mailed a copy of the summons to the tenant. Otherwise, service strictly complied with section 504B.331. The tenant appeared in housing court on Oct. 15, 2012, filed an answer and moved for dismissal or summary judgment arguing that the landlord failed to properly serve the summons. Id. at 741-42. It was undisputed that the tenant saw the summons and appeared at the scheduled hearing, pretrial and trial. Id.
The trial court ruled that the landlord “substantially complied” with section 504B.331 and ordered a writ of recovery to be issued. Id. at 742. The tenant appealed pro se and the court of appeals reversed, holding that “section 504B.331 requires strict compliance, not merely substantial compliance” and expressly overruled the Times Square decision applying a substantial compliance standard to service of eviction summons. Id. at 744. Importantly, the Koski court also ruled that the “actual notice” exception applicable to substituted service pursuant to Minn. R. Civ. P. 4.03(a) does not apply to eviction actions governed by statute.
The Koski opinion continues Minnesota courts’ consistent refrain requiring parties to comply strictly with unambiguous statutes regardless of whether prejudice is shown. The record in Koski illustrates why requiring strict compliance proves frustrating to practitioners and seemingly places form over substance. But Minnesota appellate courts consistently hold the line and require parties to strictly follow statutory requirements. Accordingly, landlords are best advised to comply strictly with statutes governing service in eviction actions rather than trying to convince courts to ignore service deficiencies, even where it appears tenants suffer no harm.