Highland Management Group Inc., Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0574

Highland Management Group Inc.,
Appellant,

vs.

Joyce Moeller,
Respondent.

Filed January 21, 2020
Reversed and remanded; motion denied
Rodenberg, Judge
Concurring specially, Ross, Judge

Hennepin County District Court
File No. 27-CV-HC-19-994

Christopher T. Kalla, Douglass E. Turne r, Hanbery & Turner, P.A., Minneapolis,
Minnesota (for appellant)

Rebecca Stillman, Mary Kaczorek, Mid-Minneso ta Legal Aid, Minneapolis, Minnesota
(for respondent)

Considered and decided by Ross, Presid ing Judge; Rodenberg, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In this eviction action ba sed on holdover after expira tion of a lease, appellant-
landlord Highland Management Group, Inc., ch allenges the district court’s determination
that landlord violated the Fair Housing Act (FHA) and Minnesota Human Rights Act

2
(MHRA) and is thereby precluded from evicting respondent-tenant Joyce Moeller because
it refused to accommodate tenant’s disability. Landlord argues that (1) denial of a
reasonable accommodation is not an affirmativ e defense in a holdo ver-eviction action;
(2) tenant failed to request an accommodati on; and, (3) if tenant did request an
accommodation, tenant’s request was not reas onable. Because the record contains no
evidence to support the finding that tenant requested a reasonable accommodation during
the lease term, we reverse.
FACTS
Landlord owns the Edina Highland Village apartment complex in Edina. Tenant is
83 years old and has rented a market-rate Highland Village apartment from landlord since
2006 under a series of one-year leases, th e last of which was for the period ending
February 28, 2019.
In October 2018, landlord received several complaints from other tenants in the
complex regarding a horrible odor in the common hallway near tenant’s apartment. After
noticing that the smell was particularly strong around tenant’s door, landlord’s community
manager and maintenance technician entere d tenant’s apartmen t on October 15, 2018.
1
Upon entering, they discovered extreme clutter, decaying and rotting food in the
refrigerator, dirty water and unwashed dishes in the clogged kitchen sink, and mold on the
kitchen floor. Tenant’s refrigerator was turned off, and its rotting contents were determined
to be the source of the smell.

1 Appellant makes no claim that the entry violated Minn. Stat. § 504B.211, subd. 2 (2018),
or was otherwise unauthorized or illegal.

3
Landlord’s community manager promptly wrote tenant a letter informing her that
she needed to clean her apartment immediately, and suggested that tenant enlist the help of
a family member or other individual to assist with the cleaning. Tenant orally responded
by stating that she “[wi]ll have it cleaned up.” She did not request an accommodation.
On October 17, 2018, landlord wrote te nant a second letter captioned “lease
violation.” The letter indicated that tenant was in direct violation of the terms and
conditions of her lease and that the current stat e of tenant’s apartment was a fire hazard.
On October 23, 2018, landlord sent tenant a notice of lease nonrenewal and notice to vacate
the apartment upon the expira tion of her lease on February 28, 2019. Tenant did not
respond.
In mid-January 2019, landlord again receiv ed complaints about a foul smell coming
from tenant’s apartment. Landlord provided tenant with a letter dated January 25, 2019,
warning that landlord would commence an ev iction action against her if she did not
immediately clean her apartment.
On February 27, 2019, the day before her one-year lease was to end, tenant
requested that her tenancy be extended “until . . . August 31, 2019, because that’s when
[tenant] receives her rental re bate and [will] be able to affo rd movers.” Landlord denied
tenant’s request and commenced an eviction action against her on March 1, 2019, based on
a failure to vacate after expiration of the lease term.
Tenant appeared in the eviction action an d argued to the housing court referee that
she is disabled and entitled to protections under the FHA and MH RA, that landlord’s
decision not to renew tenant’s lease was rela ted to tenant’s disability, and that tenant

4
therefore has the right to request and rece ive a reasonable accommodation. Landlord
argued that there is no denial-of-a-reasona ble-accommodation affirmative defense in a
holdover-eviction action, and that, even if such an affirmative defense is available, tenant
failed to inform landlord that she was di sabled and failed to request a reasonable
accommodation.
Following a two-day eviction hearing, th e housing court referee determined that
tenant is disabled and entitled to protections under the FHA and MHRA, that tenant is
entitled to a reasonable accommodati on, and that landlord failed to provide tenant with a
reasonable accommodation. The referee recommended that tenant remain in possession of
the apartment “provided she ma intains her apartment in ac cordance with [landlord’s]
housekeeping standards.” It also recommended that “[t]enant must provide to [l]andlord
. . . a detailed written proposal . . . requesting a reasonable accommodation” within 15 days.
The written proposal was required to include, among other things, “[ a] description of
[t]enant’s physical limitations and what services [t]enant will need to have to ensure her
apartment is kept clean and sanitary.” The referee’s recommended findings and order were
adopted by a district court judge.
Landlord’s appeal from the judgment followed.
D E C I S I O N
At the outset, we reject landlord’s argument on appeal that we should consider this
case as one involving lease nonrenewal resulting from tenant’s material breach of the lease.
Landlord’s notices to tenant were all prem ised on nonrenewal. The record contains no
indication that landlord alleged or argued that tenant co mmitted a material breach of the

5
lease as a ground for eviction, and nothing in the district court’s order indicates that it
addressed this issue in dismissing landlord’s eviction action. We “must generally consider
only those issues that the record shows were presented and considered by the trial court in
deciding the matter before it.” Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988)
(quotation omitted). The case as presented below was limited to landlord’s contention that
tenant failed to vacate the apartment at the end of her lease.
Similarly, we do not consider the argum ent advanced by amicus curiae Minnesota
Elder Justice Center that requiring tenant to move may cause tenant “transfer trauma,” or
that the lease nonrenewal was discriminatory and void as a matter of law. The record does
not indicate that these arguments were made by tenant to the housing court. We therefore
decline to further address this argument. Id.
We also disregard landlord’s contention at oral argument that we should ascribe
significance to the fact that landlord has prevailed in a second eviction action that followed
after this action was dismissed. Landlord now contends that the district court’s decision in
that second case has some bearing on the issues in this appeal. We decline to consider the
later action and we instead review the record as it existed when the district court made its
findings and order in this case. The later fa ctual and legal developments cannot logically
show error during the earlier case. See Plowman v. Copeland, Buhl & Co. , 261 N.W.2d
581, 583 (Minn. 1977) (establishing principle that appellate courts will not base decisions
on matters outside the record submitted on appe al). And an eviction appeal is not moot
when the tenant vacates the property involuntarily. Real Estate Equity Strategies, LLC v.
Jones, 720 N.W.2d 352, 355 (Minn. App. 2006).

6
The district court did not err in allowing tenant to assert denial of a reasonable
accommodation as a defense under the circumstances of this case.

Tenant argued to the district court, and the district court held, that a landlord’s
failure to reasonably accommoda te a tenant’s disability is an available defense in a
holdover eviction. Landlord argu es on appeal that reversal is required because a tenant
may not assert entitlement to a reasonable ac commodation as an affirmative defense to a
holdover eviction.
“We review a district court’s ap plication of the law de novo.” Harlow v. State,
Dep’t of Human Servs., 883 N.W.2d 561, 568 (Minn. 2016).
There is no published authority in Minne sota that directly addresses whether a
failure to reasonably accommodate a tenant’s disability is av ailable as a defense to an
eviction action where the tenant holds over at the end of the lease. Although not binding
on this court, caselaw in other jurisdictions is instructive. See Hunt v. Almco Properties,
L.P., 814 F.3d 1213, 1223 (11th Cir. 2016) (determining that “the FHA protects renters . . .
from eviction”); United States v. California Mobile Home Park Mgmt. Co., 29 F.3d 1413,
1416 (9th Cir. 1994) (holding that the FHA “imposes an affirmative duty upon landlords
reasonably to accommodate the needs of handicapped persons”); Jankowski Lee & Assoc.
v. Cisneros, 91 F.3d 891, 895 (7th Cir. 1996) (providing that the FHA affords handicapped
tenants accommodation to their disabilities in rules, practices, policies, and services).
In Schuett Inv. Co. v. Anderson, this court held that a tenant may raise the defense
of a landlord’s failure to reasonably accommodate a tenant’s disability if the reason for the
lease violation on which the unl awful detainer action was based is causally related to the
tenant’s disability. 386 N.W.2d 249, 253 (Minn. App. 1986). However, the facts in Schuett

7
differ from this case in that the landlord in Schuett received federal funds under the Housing
and Community Development Act housing program. Id. Here, landlord is a private
management group and receives no federal funding. Additionally, Schuett did not involve
a holdover situation, and instead involved the landlord’s claim of a material lease violation.
Id. at 250-51. As discussed above, this case involves landlord’s claim that it is entitled to
evict tenant because tenant failed to vacate the leased premises at the end of the lease
period. This is not a material-breach eviction.
Landlord argues that “[e]viction actions have limited statutory defenses available,”
citing Kleinman Realty Co. v. Talbot , No. A10-1132 2011 WL 1938184 (Minn. App.
May 23, 2011), review denied (Minn. Aug. 16, 2011). Similar to the facts in this case, the
tenant in Kleinman argued—in the context of a holdove r-eviction action—that the denial
of a reasonable accommodation was an available defense. 2011 WL 1938184, at *3. The
landlord appealed, asserting that the distri ct court erred in accepting the tenant’s
reasonable-accommodation argument as an affirmative defense to the eviction action. Id.
at *5. Ruling for the landlord, this court re versed the district court, observing that the
tenant offered no authority to support th e argument that a failure to reasonably
accommodate is an available defense in th e context of a holdove r eviction action. Id. at
*7.
As noted by the district court here, Kleinman “is unpublished and has no
precedential value.” See Minn. Stat. § 480A.08, subd. 3(c) (2018) (“Unpublished opinions
of the court of appeals are not precedential.”). The district court therefore declined to apply
the Kleinman holding here. The cited cases with precedential value all state that the issue

8
of reasonable accommodation can be addressed in an eviction action. The district court
concluded that, had Kleinman been a published opinion, it likely would have found in favor
of landlord.
We acknowledge the possible c onflict between our holdings in Schuett and
Kleinman and between our holding in Kleinman and the authorities in other jurisdictions,
as discussed above. We are also mindful of the recent decision of the Minnesota Supreme
Court in Cent. Hous. Assoc. v. Olson , 929 N.W.2d 398 (Minn. 2019), recognizing a new
common-law defense to breach-of-lease evictions.
Moreover, we agree with the district court that Kleinman is at odds with the apparent
purpose of the FHA and MHRA to require reasonable accommodation for disabled persons.
At least in the factual circumstances here, the housing court did not err in concluding that
a tenant may assert the denial of a reasona ble accommodation as a defense to a holdover-
eviction action. But this case does not presen t the occasion for establishing a rule of law
concerning the parameters of that defense be cause, even assuming the availability of a
failure-to-reasonably-accommodate affirmative defense to a holdover eviction, the record
here is insufficient to support the defense. See Lawrence R. McDonough, To Be or Not to
Be Unpublished: Housing Law and the Lost Precedent of the Minnesota Court of Appeals,
35 Hamline L. Rev. 1, 2-16 (2012) (expre ssing the author’s opinions both that Kleinman
should have been published and was erroneously decided).

9
The record does not support the district court’s determination that tenant proved the
four required elements to support a finding of a failure to reasonably accommodate
a disability for purposes of the FHA and MHRA.

Landlord argues that, even if a failu re-to-reasonably-accommodate defense is
available to tenant, the district court clearly erred when it found that tenant proved that
landlord failed to reasonably accommodate tenant’s disability. We agree.
When reviewing a district court’s findi ngs in an eviction proceeding, appellate
courts defer to a district court’s findings of fact and credibility determinations, and review
the factual findings for clear error. Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790,
797 (Minn. 2013). Appellate courts will not determine that a district court’s finding is
clearly erroneous “absent a clea r demonstration that it is w ithout substantial evidentiary
support or that it was induced by an erroneous view of the law.” Schuett, 386 N.W.2d at
252 (quotation omitted).
The FHA was enacted by Congress to promote “fair housing throughout the United
States.” 42 U.S.C § 3601 (2012).2 It prohibits discrimination in the rental of housing, and
makes it unlawful “to otherwise make unavaila ble or deny[] a dwelling to any . . . renter
because of a handicap of that . . . renter.” 42 U.S.C. § 36 04 (f)(1)(A) (2012). There are
three ways to prove actionabl e discrimination under the FHA: refusal to reasonably
accommodate, disparate impact, and disparate treatment. Hinneberg v. Big Stone Cty.
Hous. & Redevelopment Auth. , 706 N.W.2d 220, 225 (Minn. 2005). Tenant here argues
only that landlord refused to reasonably accommodate her disability.

2 We cite to the 2012 version of the statute because the statute has not been amended since
the 2012 printing of the United States Code which, for the sections of Title 42 cited herein,
is the most-recent printing.

10
A tenant must plead and prove four elem ents to succeed on a failure-to-reasonably-
accommodate claim: (1) she must be a person with a disability recognized under the FHA;
(2) she must have requested a reasonable accommodation for the disability; (3) the landlord
must have refused to make the accommodation; and (4) the requested accommodation must
be shown to have been necessa ry to afford tenant an oppo rtunity to use and enjoy the
dwelling. 42 U.S.C. § 3604 (f)(3) (2012); see Hunt, 814 F.3d at 1225; see also Hinneberg,
706 N.W.2d at 226 ( holding that a tenant must e xplicitly request a reasonable
accommodation in a failure-to-reasonably-accommodate claim).
The record supports the district court’s findings that tenant is a person with a
disability and that landlord knew or re asonably should ha ve known of that
disability.

Landlord does not appear to dispute that tenant is disabled and physically impaired,
but asserts that it was unaware of tenant’s disability before it commenced this action. The
record supports the district court’s finding that tenant is disabled and that landlord knew or
reasonably should have known of the disability.
When an individual’s disability is not open or obvious, the initial burden is on the
individual seeking a reasonable accomm odation to make known the disability. Taylor v.
Principal Fin. Grp., Inc., 93 F.3d 155, 165 (5th Cir. 1996). The FHA defines “handicap”3 as a
person with “a physical or mental impairment which substantially limits one or more of
such person’s major life activities.” 42 U.S.C. § 3602 (h)(1) (2012).

3 Because tenant refers to herself as “d isabled,” we use “handicap” and “disability”
synonymously under the FHA for purposes of this opinion.

11
Tenant asserts that her disability was “rea dily apparent” to landlord. The district
court so found, reasoning that landlord should have known tenant was disabled because of
her frail appearance in court. The district court also accepted as accurate tenant’s testimony
that “her hip hurts, her hands shake, she can’t bend, and has trouble walking.”
At the eviction hearing, landlord’s commun ity manager testified that she “noticed
[tenant is] slower with walkin g.” She testified that, after she discovered the condition of
tenant’s apartment, she called the Edina Seni or Center to “try to find resources for
[tenant],” and to find someone “that coul d help [tenant] with the condition of her
apartment.” Landlord’s awareness of tenant ’s disability is further evidenced by an
October 15, 2018 letter to tenant from landlord that states “I am concerned about you living
in the apartment in [its] current condition.” The record also shows that tenant is 83 years
old, walks with the assistance of a cart, and that landlord’s employees have witnessed her
walking with the cart.
We defer to the housing court’s superior position to determine whether tenant is a
person with a physical or ment al impairment that substantially limits a major life activity
and whether landlord knew or should have known of that disability.
The record does not support the district court’s finding that tenant requested a
reasonable accommodation during the term of the lease.

Landlord next argues that tenant failed to request an accommodation. Alternatively,
landlord argues that, if tenant did make a ny request for accommoda tion, her request was
not reasonable.
Tenant argues that she sufficiently reque sted an accommodation from landlord. The
record is unclear concerning when, or if, an accommodation of tenant’s disability was

12
requested. In the fact section of her brief to this court, tenant asse rts only that “[i]n her
Answer as well as at the first appearance [i n housing court, tenant] asserted that she is
disabled and entitled to protections under th e FHA and MHRA, including the right to a
reasonable accommodation.” Of course, the an swer and first hearing occurred after the
lease period had ended and tenant was already holding over. At her eviction hearing, tenant
testified to the following:
Q: Have you ever asked your property manager for more time
to clean your apartment?
A: Yes, I sure did . . .
Q: And how many times have you asked for more time?
A: Several times. Several tim es, and it’s a week or two and
then I can’t get it done in that.

Tenant’s testimony relates not to accomm odating her disability but to extending her
tenancy. The only wr itten request for an accommodation in the record is contained in
tenant’s answer to landlord’s eviction complaint, which was after the end of the lease.
Landlord’s community manager testified th at tenant made no contact with landlord
regarding an accommodation after she was notif ied of the nonrenewal of the lease in
October 2018 and before the end of the lease. We see no contrary evidence in the record.
And, as discussed, landlord did not seek to evict tenant because of the condition of her
apartment being a material breach of the lease. It appears that the housing court, too, was
confused about whether tenant requested an accommodation. It found as a fact that tenant
“is seeking a reasonable accommodation.” (E mphasis added.) It ordered (when the
referee’s recommendation was adopted by the district court) that “Tenant must provide to
Landlord on or before 15 da ys from the date of this orde r a detailed written proposal to
Landlord requesting a reasonable accommodation.” (Emphasis added.)

13
Even if tenant did in some manner reque st an accommodation before the end of the
lease period, any such request was insufficiently specific on this record to be interpreted as
a request for reasonable accommodation of tenant’s disability.
Tenant had leased the apartm ent under a series of one-year leases. On February 27,
2019, one day before her lease expired, tenant requested to remain in her apartment for an
additional six months. Nothing in the record shows that tenant re quested to sign a new
lease, and tenant made no claim at trial that she communicated a desire to enter into a new
lease agreement. The record contains no evidence of a request by tenant during the lease
term that she needed a ssistance to clean her ap artment. In fact, at the eviction hearing,
tenant testified at length about assistance sh e had available to her—and of which she had
availed herself in the past. Her testimony wa s consistent with landlord’s position that
tenant did not request any accommodation to assist with cleaning her apartment. Tenant’s
unequivocal testimony was that she had adequate help with basic household chores without
assistance from landlord and that her friends and others in the building and community had
been an “absolutely wonderful” help to her.
Tenant asked landlord to stay past the end of the lease “until . . . August 31, 2019,
because that’s when she receives her rental reba te and [will] be able to afford movers.”
Tenant explained at the eviction hearing that she needed movers to move her piano from
the apartment and testified as follows:
Q: And are [cleaners] going to help you move things out of
your apartment?
A: They can help me—They could help me move some things:
I have a piano that’s old, the movers—and I have to say, oh,
here, the movers, it’s so heavy.

14
Tenant’s request, in short, was not to continue to lease the apartment with a
reasonable accommodation. Instead, tenant as ked that she be allowed to stay in the
apartment until August without renewing the lease.
The housing court concluded th at “landlord should have . . . at least allowed Tenant
an opportunity to seek help to clean her apartment.” But it is undisputed that tenant had
approximately four months before the expirati on of her lease to clean her apartment after
the problem with the foul smell coming fro m her apartment was discovered. Tenant
received notice of her lease nonrenewal on Oc tober 23, 2018, and was not required to
vacate her apartment until February 28, 2019. Tenant produced no evidence that she
requested accommodation during that four-month period. We see no evidence in the record
that tenant requested any assi stance before her lease expired. Her only oral request of
landlord was to continue to hold over. This is not a request for reasonable accommodation
of a handicap or disability.
Tenant’s request to remain in the apartment for an additional six months and her not
having requested any accommodation during the more-than-four-month notice period
between October 2018 and the end of February 2019 defeats any claim that tenant either
requested accommodation for a disability or that any accommoda tion request would
reasonably have been understood by landlor d. Even the housing court was unable to
discern from the record any reasonable-accomm odation request. It ordered that tenant
make such a request within 15 days.
Because tenant failed to request a reas onable accommodation during the lease term,
we need not address whether tenant successf ully proved the remaining required elements

15
to support a finding that landlord failed to reasonably accommodate tenant’s disability for
purposes of the FHA and MHRA. We reverse the district court’s judgment granting tenant
continued possession of the premises and rema nd for further proceedings consistent with
this opinion as may appear appropriate.4
Reversed and remanded; motion denied.

4 After this appeal was submitted for decision, tenant moved to dismiss the appeal as moot.
Tenant argues that, in subseque nt eviction proceedings in dist rict court while this appeal
proceeded, landlord pursued ev iction based only on breach of lease and nonpayment of
rent. Tenant argues that, because these grounds for eviction are inconsistent with holdover,
landlord waived its holdover pos ition and there is no relief th at this court can grant.
Landlord timely responded to tenant’s motion to dismiss, arguing that the appeal is not
moot and that the arguments now made by te nant ought properly to have been made by
way of a notice of related appeal or an earlier motion.

The mootness doctrine “requires that [courts ] decide only actual controversies and
avoid advisory opinions.” In re McCaskill, 603 N.W.2d 326, 327 (Minn. 1999). When a
decision on the merits is no longer necessary or an award of effective relief is no longer
possible, an appellate court shoul d dismiss an appeal as moot. Dean v. City of Winona ,
868 N.W.2d 1, 5 (Minn. 2015) (citing In re Minnegasco , 565 N.W.2d 706, 710 (Minn.
1997)). But the mootness doctr ine is not a mechanical rule that courts invoke
automatically; rather, it is a “flexible discretionary doctrine.” Id. at 4 (citing State v. Rud,
359 N.W.2d 573, 576 (M inn. 1984)). Generally, an evic tion appeal becomes moot when
possession of the premises is relinquished voluntarily. See Real Estate Equity Strategies,
LLC, 720 N.W.2d at 355 (concluding that tenant’s move from property was not voluntary
when precipitated by eviction judgment, issuance of writ of recovery, and tenant’s inability
to meet the conditions of a stay); Lanthier v. Michaelson , 394 N.W.2d 245, 246 (Minn.
App. 1986) (concluding that because the appellant left the property voluntarily, an unlawful
detainer appeal was moot), review denied (Minn. Nov. 26, 1986).

We decline to address tenant’s mootne ss argument for reasons similar to those
underlying our disregard of la ndlord’s arguments concerning the eviction action(s) that
followed after this one. Tenant’s motion to dismiss relies on information not part of the
record in this appeal, which appears to us to have been known well before this matter was
submitted. The motion to dism iss is denied. The district court may consider arguments
concerning mootness in addition to any other legal issues the parties raise on remand.

CS-1

ROSS, Judge (concurring specially)
I write separately to express my comple te agreement with the majority’s well-
supported conclusion that, “even assuming the availability of failure-to-reasonably-
accommodate affirmative defense to a holdover eviction, the record here is insufficient to
support the defense.” I therefore likewise also agree with the majority that “this case does
not present the occasion for esta blishing a rule of law concer ning the parameters of that
defense.” For those reasons, I concur in the re sult, reversing the district court’s decision.
But I do not believe we have any cause to go any further so as to render additional holdings
unnecessary to decide this appeal. So I decline to join the majority’s reflections about the
availability of the defense gene rally or to offer my view ab out the majority’s application
of those reflections so as to conclude that “[t]he district court did not err in allowing tenant
to assert denial of a reasonable accommodation as a defense.”