Richard Whitman, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A24-1459

Richard Whitman,
Respondent,

vs.

Highland Management Group Inc.,
Appellant.

Filed July 7, 2025
Affirmed
Wheelock, Judge

Hennepin County District Court
File No. 27-CV-HC-24-4357

Mark W. Vyvyan, Maliya G. Rattliffe, Devin T. Driscoll, Fredrikson & Byron, P.A.,
Minneapolis, Minnesota (for respondent)

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

Considered and decided by Ross, Presiding Judge; Frisch, Chief Judge; and
Wheelock, Judge.
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
A district court determined that the apartment unit that appellant Highland
Management Group Inc. rented to respondent Richard Whitman was uninhabitable due to
a bed-bug infestation, granted Whitman’s request for rent abatement, and awarded him
2
partial recovery of expenses that he incurred as a result of paying for alternative housing
during the period the apartment was uninhabitable. We affirm.
FACTS
When Whitman signed his lease with Highland in October 2023, his apartment was
in acceptable condition.1 For several months, Whitman paid his monthly rent of $1,175 on
time and lived in his apartment without issue. But on May 6, 2024, Whitman notified
Highland that he had discovered bed bugs in his apartment. Highland responded that same
day, informing Whitman that pest control would be dispatched two days later, on May 8,
2024. Pest control did not visit Whitman’s apartment until May 10, 2024.
When the technician arrived for the inspection during the day on May 10, he opened
the door to Whitman’s apartment and immediately saw bed bugs, which are typically active
at night, crawling on the wall by the door. The technician determined that Whitman’ s
apartment was “extremely infested with bedbugs” and later opined that the infestation was
an eight out of ten on a scale of severity and one of the worst infestations he had seen in
his long career managing bed bugs. Specifically, he said, “I probably have seen worse over
the years, but not a whole lot worse.” Pest control then left without applying any treatment
for the bed bugs. Whitman contacted Highland numerous times, and Highland repeatedly
told Whitman that it was trying to schedule an extermination treatment. On June 6, 2024—
29 days after Whitman notified Highland of the issue—pest control applied the first heat
treatment to Whitman’s apartment.

1 We accept the factual findings of the district court, which neither party contests on appeal.
3
During the weeks following his discovery of bed bugs, Whitman attempted to live
in his apartment notwithstanding the infestation, but to no avail. He stopped sleeping in
his bed, then moved to a recliner, and finally tried to sleep on a chair in his office, but he
was unable to do so without the bed bugs crawling on him. Eventually, Whitman felt the
infestation had become so intolerable that he had to leave his apartment. On May 27, 2024,
Whitman moved into the first of a series of hotels at which he stayed until he finally
returned to his apartment on July 9, 2024.
While staying at the hotels, Whitman visited his apartment on several occasions.
After pest control applied the initial heat treatment on June 6, 2024, Whitman visited his
apartment and saw bed bugs still present. He notified Highland that the bed bugs were still
present, and Highland responded by telling Whitman that pest control would apply another
treatment three weeks after the initial treatment. On June 26—20 days after the heat
treatment and within the three-week period Highland had indicated— pest control applied
a chemical treatment to the apartment. On June 27, Whitman notified Highland that bed
bugs were still present in his apartment.
The last living bed bug was discovered on July 12—6 7 days after Whitman first
notified Highland of the problem. Throughout this ordeal, Whitman continued to pay rent
to Highland.
On June 28, 2024, two days after the second treatment failed to correct the bed-bug
infestation, Whitman filed an affidavit of rent escrow with the district court pursuant to
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Minn. Stat. § 504B.385 (2024).2 In the affidavit, he alleged that bed bugs had been present
in his apartment since May 6, that he notified Highland about the bed bugs on that date,
that Highland did not treat the apartment until June 6, and that he still had bed bugs as of
June 21. He deposited his August 2024 rent with the district court and requested that the
district court provide him relief by ordering any number of the following options: directing
Highland to fix the problems, allowing Whitman to fix the problems and to deduct the cost
for resolving the issue from his rent, directing Highland to pay a rent refund for the months
during which the apartment was not fixed, directing Highland to reduce his rent each month
until the repairs were completed, or directing Highland to pay for hotel costs and Uber fees
from the hotel to his apartment. On July 11, 2024, Whitman and Highland attended a
hearing at which Highland denied that it had violated any of the covenants codified in
Minn. Stat. § 504B.161 (2022).3 The district court scheduled a hearing on issues of rent
escrow and defenses for July 26, 2024, on which date the district court continued the matter
until August 9, 2024.

2 We cite the most recent version of Minn. Stat. § 504B.385 because it has not been
amended in relevant part. See Interstate Power Co. v. Nobles Cnty. Bd. of Comm’rs,
617 N.W.2d 566, 575 (Minn. 2000) (stating that, generally, “appellate courts apply the law
as it exists at the time they rule on a case”). For the same reason, we also cite the current
versions of other statutes cited in this opinion unless otherwise noted.

3 “The covenants of habitability . . . are codified at section 504B.161.” Ellis v. Doe,
924 N.W.2d 258, 261 (Minn. 2019).
In 2024, the legislature amended Minn. Stat. § 504B.161, subd. 1(a)(2), to
specifically require the “extermination of insects, rodents, vermin, and other pests on the
premises.” 2024 Minn. Laws ch. 118, § 11, at 6. This amended language became effective
as of January 1, 2025. 2024 Minn. Laws, ch. 118, § 32, at 21. Because the relevant events
here occurred before the effective date, we review the decision under the 2022 statute.
5
On August 9, 2024, a referee held a hearing to take evidence on Whitman’s
rent-escrow action. The referee heard testimony from Whitman, two other witnesses on
Whitman’s behalf, the pest-control technician, and a Highland building manager. The
referee admitted into evidence records of email exchanges between Whitman and
Highland, including his May 6 notification of the bed-bug problem, Whitman’s receipts for
his hotel stays, and invoices for the visits made by pest control to Highland properties,
including Whitman’s apartment. The district court adopted the referee’s recommendations
in full.4
In addition to the above undisputed findings of fact, the district court made several
determinations. First, Whitman experienced diminished use and enjoyment of the
premises. Second, Whitman reasonably believed that his apartment was uninhabitable and
that he had to seek alternative accommodations. Third, Whitman warranted no recovery
of transportation costs because there was insufficient evidence in the record for the district
court to make findings about the reasonableness of any expenditures. Therefore, the district
court ordered Highland to pay Whitman $2,112.85, which was half of the total amount
($4,225.69) Whitman spent on hotel accommodations during the time his apartment was

4 A referee conducted the proceedings, made the factual findings, applied the relevant law,
and made the legal determinations. See Minn. Stat. § 484.013, subds. 2-4 (2024). The
district court confirmed the referee’s findings and order, at which point they became the
findings and order of the district court. See Minn. Stat. § 484.70, subd. 7(c) (2024); Griffis
v. Luban, 601 N.W.2d 712, 715 (Minn. App. 1999); see also Minn. R. Civ. P. 52.01 (“The
findings of a referee, to the extent adopted by the court, shall be considered as the findings
of the court.”).
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uninhabitable. The district court also ordered that Whitman was entitled to full rent
abatement in the amount of $2,356.43 for a 61-day period.
Highland appeals.
DECISION
Highland argues that the district court was not authorized by statute to grant rent
abatement or award partial recovery of alternative housing costs because Highland did not
violate the statutorily implied covenants of habitability. Highland asserts that it did not
cause the conditions and had timely and effectively corrected the m and thus that it was
never in breach of the covenants. Whitman responds that the district court properly granted
him rent abatement and awarded partial recovery of expenses incurred because Highland
violated its covenants of habitability by not ensuring that the apartment was fit for its
intended use of habitation and failing to keep the premises in reasonable repair, which
caused him to incur the cost to live elsewhere.
Certain covenants of habitability are incorporated into every residential lease in the
state “not . . . by agreement between the parties but by statutory mandate.” Fritz v.
Warthen, 213 N.W.2d 339, 340-41 (Minn. 1973); Minn. Stat. § 504B.161, subd. 1. Among
these are the covenants “that the premises . . . are fit for the use intended by the parties”
and that the landlord will “keep the premises in reasonable repair . . . except when the
disrepair has been caused by the willful, malicious, or irresponsible conduct of the tenant.”5
Minn. Stat. § 504B.161, subd. 1(a)(1)-(2). These covenants may not be waived or modified

5 Highland does not argue that Whitman engaged in willful, malicious, or irresponsible
conduct.
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and must be liberally construed. Id., subds. 1(b), 3. And a “violation” of either of these
covenants is a defined as a “violation” for the purposes of chapter 504B of the Minnesota
Statutes. Minn. Stat. § 504B.001, subds. 1, 14(2) (2022).6
The interpretation of a statute and the application of statute to undisputed facts are
legal questions that we review de novo. City of Morris v. Sax Invs., Inc., 749 N.W.2d 1, 5
(Minn. 2008). The first step in statutory interpretation is to determine whether the statute
is ambiguous on its face, and “[i]f a statute is unambiguous, we apply the statute’ s plain
meaning.” Floding v. Gillespie, 866 N.W.2d 905, 909 (Minn. 2015) (construing
child-support statutes). Highland does not contend that Minn. Stat. § 504B.161 is
ambiguous, and we see no ambiguity on the face of the statute; therefore, we apply the
statute’s plain meaning.
Under Minnesota law, if a tenant believes his landlord is violating a covenant of
habitability codified in section 504B.161, and if the tenant first gives the landlord notice
of the violation and the violation is not corrected within 14 days, the tenant may deposit
the rent and an affidavit specifying the violation with the district court. Minn. Stat.
§ 504B.385, subd. 1(c). Pursuant to Minn. Stat. § 504B.385, subd. 9(a)(1), if the district
court determines that the landlord violated a statutory covenant of habitability as defined
in section 504B.001, subdivision 14(2), the district court may order relief as provided in

6 In 2024, the legislature amended Minn. Stat. § 504B.001, subd. 14(2), to expand the scope
of violative conduct to cover “a violation of [Chapter 504B].” See 2024 Minn. Laws, ch.
118, § 4, at 1942-43. This amended language became effective as of January 1,ss 2025.
2024 Minn. Laws, ch. 118, § 32, at 1957. Again, because the relevant events here occurred
before the effective date, we review the decision under the 2022 statute.
8
Minn. Stat. § 504B.425 (2024), which includes rent abatement. See Minn. Stat.
§ 504B.425(e) (providing rent abatement as a remedy). We review the decision to grant or
deny rent abatement for abuse of discretion. Scroggins v. Solchaga, 552 N.W.2d 248, 251-
52 (Minn. App. 1996), rev. denied (Minn. Oct. 29, 1996); see Minn. Stat. § 540B.385,
subd. 9(a)(1) (stating that, “[u]pon finding that a violation exists, the court may, in its
discretion . . . order . . . retroactive rent abatement” (emphasis added)).
The district court’s findings, which Highland does not challenge on appeal, include
that Whitman followed the rent-escrow procedure established by statute. The district court
credited Whitman’s testimony that he notified Highland of the bedbug problem on May 6,
2024, and evidence in the record demonstrates that Whitman also notified Highland of the
problem in writing on May 15. Whitman filed his affidavit of rent escrow with the district
court on June 28, 2024, much later than 14 days after he notified Highland. He had already
paid his July rent by the time he filed his affidavit, and he deposited his August rent with
the district court before his August 29, 2024 rent-escrow hearing.
Following the rent-escrow hearing, the district court determined that Highland
violated the statutory covenants of habitability. The district court made findings that the
bed-bug issue had not been addressed within 14 days of May 6, 2024, the date on which
Whitman notified Highland of the issue ; that Whitman left his apartment on May 27 and
began living in hotels because he could not sleep in his apartment without bed bugs
crawling on him; and that Highland had not corrected this problem by June 7—in fact, it
did not correct the problem until July 12. The district court therefore determined that,
because the statutory covenants require that the landlord ensure “that the premises and all
9
common areas are fit for the use intended by the parties” and “keep the premises in
reasonable repair during the term of the lease, ” Minn. Stat. § 504B.161, subd. 1(a)(1)-(2),
and because the bed-bug infestation was not eliminated for over two months after Whitman
notified Highland of the problem and was severe enough to cause Whitman to vacate the
apartment, Highland violated two of the covenants of habitability.
The district court’s findings support its determination that the premises were not fit
for Whitman’s intended use and were not in reasonable repair as required by Minn. Stat.
§ 504B.161, subd. 1(a)(1)-(2). The record contains testimony from Whitman and the
pest-control technician that supports the district court’s findings that an extreme bed-bug
infestation existed in Whitman’s apartment from May 6 to July 12 , that Whitman gave
Highland notice of the infestation on May 6, that the bed-bug infestation was not eliminated
for over two months after Whitman notified Highland of the problem, and that the problem
was so severe that Whitman could not sleep in his apartment without bed bugs crawling on
him. The record also shows that Whitman intended to use the apartment as a living space,
including for nightly sleep. But a tenant cannot use an apartment for nightly sleep when
that sleep is constantly interrupted by bed bugs crawling on the tenant, and we conclude
that the presence of bed bugs can render a property
not “fit for the use intended by the
parties” or not kept “in reasonable repair.” Therefore, based on the plain meaning of the
statute, we conclude that Highland violated the covenants of habitability.
Based upon its determination that the bed-bug infestation impaired the use and
enjoyment of the apartment for which Whitman contracted, the district court order ed rent
abatement pursuant to Minn. Stat. § 504B.425(e).
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If the district court grants the residential tenant rent abatement, it “may grant any
other relief it deems just and proper.” Minn. Stat. § 504B.425(g) (emphasis added); see
also Murphy v. Aeon, No. A24- 1159, ___ N.W.3d ___, ___, 2025 WL 1679852, at *8
(Minn. App. June 16, 2025) (holding that district courts may award alternative housing
costs and emphasizing the discretionary nature of remedies under section 504B.425(g)).
The relief the district court grants is purely discretionary. See Minn. Stat. § 504B.385,
subd. 9(a)(1) (“Upon finding that a violation exists, the court may, in its
discretion . . . order relief as provided in section 504B.425, including retroactive rent
abatement . . . .” (emphasis added)). Here, the district court determined that rent abatement
was available for a 61-day period and that Whitman lived out of various hotels at his own
expense because of his need for alternative accommodations while his apartment was
uninhabitable. In addition to ordering rent abatement, the district court ordered Highland
to pay Whitman partial recovery of the hotel expenses incurred for the period Whitman
was displaced. The district court did not award Whitman full recovery of the incurred
lodging expenses, reasoning that to award Whitman full recovery would simply be “a
windfall” under the circumstances. The district court also declined to award any recovery
for transportation expenses because Whitman did not provide evidence justifying each
expense and because Highland did not have input into Whitman’s chosen lodgings and so
did not have input into the transportation expenses to be incurred. Highland challenges
only the district court ’s legal authority to issue this order but does not challenge the
payment amount ordered. We conclude the award was just and proper and conclude that
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the district court did not abuse its discretion when it awarded Whitman partial recovery of
his incurred expenses.
In sum, the district court correctly interpreted and applied the statutory rent-escrow
provisions to Whitman’s circumstances and did not abuse its discretion by granting
Whitman’s request for rent abatement and awarding partial recovery of incurred expenses.
Affirmed.