Proper Use And Benefits Of The Commercial Unlawful Detainer

December 20, 2009  |  Barna, Guzy & Steffen, Ltd.

Proper Use And Benefits Of The Commercial Unlawful Detainer
The legal action of “unlawful detainer” is brought for the purpose of removing a tenant who is in breach of a lease agreement. The breach can be the nonpayment of rent and operating expenses, or could be any breach of a lease such as a tenant who is using and improperly disposing of hazardous chemicals or due to a prohibited use of the space. The unlawful detainer entitles the landlord to a “writ of restitution” or return of the property. Self-help eviction of a tenant without an unlawful detainer is not allowed in Minnesota. The unlawful detainer only entitles the landlord to remove a tenant and retake possession of the rental property. The unlawful detainer court does not have authority to enter a judgment against the tenant and in favor of the landlord for the past due rent and operating expenses. That must be brought in a separate legal action in collection.
Barna, Guzy & Steffen represents many commercial property managers and property owners for their unlawful detainers and collection needs. Most often we can file an unlawful detainer for our clients within 24 to 48 hours after we obtain the information we need to do the Complaint in unlawful detainer. We require:

1. The name and address of the property manager;
2. A copy of the lease;
3. The proper names of the property owner if different than indicated on the lease;
4. The proper name of the tenant if different from the lease and a copy of any assignment;
5. A copy of any lease guarantees;
6. A print out showing the amount of the default; or other reason for default; and
7. A proper description by address and suite number of the lease space, if not provided completely in the lease.

In order to complete an unlawful detainer, the real estate legal experts and BGS prepare a Complaint, obtain the Summons from the Court with a hearing date, effect proper service or posting of the notice of the hearing, and represent the client at the unlawful detainer hearing or trial. Notice must be given to the tenant at least seven days before the hearing. Generally, the unlawful detainer is heard about two weeks after we have filed the Complaint. In order for the tenant to obtain a trial, the tenant must deny the default and request a trial. In some counties, such as Hennepin, the trial is held on the spot. Other counties schedule the trial for a few days later. Most tenants do not deny the allegations and do not request a trial.
After we have established the non-payment of rent or breach of the lease to the court, the Writ of Restitution is ordered by the court. We will then continue to represent the client in obtaining the execution of the Writ (the process of removing the tenant) and dealing with abandoned property, property left behind unintentionally, environmental hazards left behind and any other issues, as well as the follow up with a collection action against the tenant for past and future obligations and clean up costs allowable under the lease.
In many cases, the tenant will pay up and cure the default before the unlawful detainer and it can be cancelled. However, many leases provide that all attorney’s fees and all costs associated with the unlawful detainer must be paid by the tenant.
After the unlawful detainer process, we help you to make decisions about the costs versus benefits to bringing a collection action against the tenant for the past due amounts and remaining obligations under the lease. We help to discuss the collectability of the amounts from the tenant and any guarantors.
Our fees are reasonable and our turn around for unlawful detainers has been appreciated by our clients.
Joan M. Quade is the head of the Commercial Litigation/Business Litigatione section. This division of BGS handles all types of business litigation and property managers’ and owners’ commercial real estate litigation, including unlawful detainers and collection cases for numerous clients.
Please call Joan M. Quade at (763) 783-5138 or e-mail at jquade@bgs.com or contact any of the Commercial Litigation/Business Litigation team members if you have questions or would like to discuss your particular commercial property issues or other business litigation.