This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







Anoka County Community Action Program,





James David Allen,



Filed February 27, 2001


Willis, Judge


Anoka County District Court

File No. C6004666



Malcolm P. Terry, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Coon Rapids, MN  55433 (for respondent)


James C. Skoog, 2599 Mississippi Street, New Brighton, MN  55112 (for appellant)


            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            In this unlawful-detainer action, appellant challenges the district court’s determinations that (1) after his initial one-year lease term expired, his lease was month-to-month; (2) respondent’s notice of lease non-renewal was not defective; and (3) respondent, by accepting rent, did not waive its right to rely on appellant’s material non-compliance with his lease as a basis for not renewing his tenancy.  Appellant also argues that the court should have found that respondent improperly terminated his lease in retaliation for his requests for repairs and complaints about health and safety concerns.  Because we conclude that the lease was month-to-month, that the non-renewal notice was effective,  that waiver is not at issue here, and that appellant did not show that respondent’s decision not to renew his lease to be retaliatory, we affirm.



In 1996, appellant James David Allen moved into the Pines, an apartment building owned and managed by respondent Anoka County Community Action Program (“ACCAP”).  Allen lived at the Pines under a series of leases, the last of which he signed in March 1998.  Because Allen’s rent payments were subsidized through the Section 8 Tenant-Based Assistance Rental Certificate Program, his lease incorporated a U.S. Department of Housing and Urban Development Lease Addendum (“HUD Addendum”).  His lease also incorporated the Pines’ house rules.

On March 14, 2000, ACCAP’s property manager, Carrie Kopacek, informed Allen in writing that ACCAP had decided not to renew his lease and that he had until April 30 to vacate.  Allen’s social worker requested that ACCAP give him extra time to move out.  On April 25, ACCAP sent Allen a second non-renewal letter, which gave him until May 31 to vacate.  The second letter stated that “we are not renewing your lease due to the numerous noise complaints.”  Allen did not move out, and in early June, ACCAP filed an unlawful-detainer complaint.  Shortly thereafter, Allen wrote to Kopacek requesting that ACCAP grant him “reasonable accommodation for [his] disabilities.”  Attached to Allen’s letter was a 1996 note from a psychologist, which stated, “Mr. Allen [is] clinically depressed with paranoid trends.  He is also hearing-impaired and has palsy.”[1] 

At the unlawful-detainer hearing, Kopacek testified that she and ACCAP management had decided not to renew Allen’s lease because he harassed other tenants, was uncooperative with management, and failed to clean up his dog’s excrement in the yard.  She also testified that she had written to Allen on more than one occasion regarding cleaning up after his dog and that she had also spoken with him about the dog and several other problems.  These included: (1) taking pictures of other tenants, (2) yelling at other tenants, (3) pounding on his apartment’s floor and walls, (4) playing his stereo and television loudly, and (5) not allowing contractors into his apartment to install new flooring.  Allen testified that except for a general notice regarding noise levels in the building, which was sent to all tenants, he never received any noise complaints.  He admitted that he received Kopacek’s letters regarding his failure to clean up after his dog but denied that she had ever spoken with him about that or any other problems with his tenancy.

            The district court, finding that ACCAP was justified in not renewing Allen’s tenancy due to his “material non-compliance,” granted ACCAP’s requested writ of restitution.  Allen appealed.


Unlawful detainer is a civil proceeding, and generally the only issue for determination is whether the facts alleged in the complaint are true.  Minneapolis Cmty. Dev. Agency v. Smallwood, 379 N.W.2d 554, 555 (Minn. App. 1985), review denied (Minn. Feb. 19, 1986).  Therefore, our standard of review is whether the district court's findings of fact are clearly erroneous.  Id.  But appellate courts are not bound by and need not give deference to the district court’s decisions on purely legal issues.  Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).  A lease is a form of contract.  Minneapolis Pub. Hous. Auth. v. Lor, 591 N.W.2d 700, 704 (Minn. 1999).  And interpretation of a contract is a question of law, which we review de novo.  Veerkamp v. Farmers Coop. Creamery, 573 N.W.2d 715, 717 (Minn. App. 1998).


1.         Lease Term


Allen argues that the district court erred in concluding that, following an initial one-year term, his lease was month-to-month.  First, he points to language in the lease providing that it is a “calendar month-to-month contract (unless otherwise indicated above)” and notes that in a preceding section, which states “Month to Month (strike if not applicable),” the words “Month to Month” are crossed out and “1 year” is written in and initialed by Kopacek.  Second, he notes that the HUD Addendum requires “automatic renewal for successive definite terms.”  Based on these provisions, he concludes that when his one-year lease expired in April 1999, it automatically renewed for another one-year term. 

But the lease also provides that it “will be considered automatically renewed for consecutive calendar month periods.”  (Emphasis added.)  And although the HUD Addendum requires that the lease provide for automatic renewal after an initial term of at least one year, it does not require that successive terms be of the same duration as the initial term.  Rather, the lease may provide for “automatic renewal for successive definite terms (e.g. month-to-month or year-to-year).”  The district court did not, therefore, err in determining that Allen’s lease provided for an initial term of one year and automatic renewal for successive month-to-month terms.


2.         Effectiveness of Notice

Allen argues that ACCAP’s notice of non-renewal was defective.  He asserts that ACCAP was required to give him written notice describing the reasons for termination with enough specificity to enable him to remedy them.  The lease provides that

if this Lease is for a term of one year or less, should Tenant neglect or fail to perform and observe any of the terms of this Lease, Landlord shall give Tenant written notice of such breach requiring Tenant to remedy the breach and/or vacate the premises on or before a date of at least 5 days after the giving of such notice, and if Tenant fails to comply with such notice, Landlord may declare this tenancy terminated and institute action to expel Tenant from the leased premises.


Based on this language, Allen argues that ACCAP’s notice was defective because it did not give him written notice of a breach or an opportunity to remedy any such breach.  This provision creates an expedited procedure whereby the landlord can terminate the lease during the lease term due to a breach.  But it is not the only method allowed for in the lease by which the landlord or the tenant can end the tenancy.  The lease also provides that after the initial one-year term ends, it renews automatically for consecutive calendar month periods.  To not renew the lease, either party need only provide “one calendar month plus one day” notice to the other party.  Allen’s initial one-year lease term expired in April 1999.  ACCAP sent Allen its first non-renewal letter on March 14, 2000, and gave him until April 30 of that year to vacate.  Its second non-renewal letter, dated April 25, 2000, gave him until May 31 to vacate.  Because ACCAP sent its non-renewal letters after the end of the initial one-year term, and because both non-renewal letters gave Allen more than one calendar month plus one day to vacate, ACCAP’s notice was not defective.

Allen also argues that the Pines’ house rules, which are described in the lease as a binding “permanent, legal part of this Lease,” place limitations on ACCAP’s ability to not renew the lease.[2]  The house rules provide:

The Landlord may terminate this lease at the end of any calendar month period by giving advance written notice to the tenant of at least one calendar month and one day for “Material Non-Compliance” with the lease or for “Other Good Cause.”


“Material Non-Compliance” on the part of the Tenant is defined as one or more substantial violations of this lease which disrupt the livability of the program; adversely affects the health and safety of any person in the program/housing; interfering with the Landlord in the management of the program/housing; or, have an adverse financial effect on the program/housing


“Other Good Cause” is defined as failure to adhere to the guidelines in the lease or addendum, or misrepresentation of eligibility, income, employment status, or household composition.


The district court concluded that these provisions place limitations on ACCAP’s ability to not renew the lease, requiring it to give notice of material non-compliance or other good cause before it could end the tenancy.  The court reasoned that because ACCAP did give Allen notice of his material non-compliance, that is, the reference to noise complaints in its second non-renewal letter, its notice was effective.  We also conclude that ACCAP’s notice was effective, although for different reasons. 

Like the expedited lease-termination procedure discussed above, this provision of the house rules creates a procedure whereby ACCAP can terminate the lease during the lease term, provided that it gives written notice to the tenant of at least one calendar month and one day of “material non-compliance with the lease” or “other good cause.”  But this provision does not require such justification or notice for a decision not to renew the lease.  Cf. Lor, 591 N.W.2d at 701 (considering whether notice was appropriate where initial lease term had expired but lease provided that management “shall not terminate, refuse to renew the Lease or evict Tenant from the dwelling” except for material violations of the lease or other good cause (emphasis added)).  Because Allen’s lease term had expired, all that was required of ACCAP was to give him at least one calendar month plus one day’s notice of its intent not to renew, which it did.


3.         Acceptance of Rent as Waiver of Breach


            Allen argues that the district court erred in not concluding that, by accepting his rental payments, ACCAP waived its right to rely on his past material non-compliance, that is, the noise complaints, as a basis for terminating his lease.  Generally, a landlord’s subsequent acceptance of rent from a tenant waives the landlord’s right to rely on any prior alleged breach of the lease as a basis for an unlawful-detainer action if the facts supporting the breach were known at the time that rent was accepted.  Westminster Corp. v. Anderson, 536 N.W.2d 340, 341 (Minn. App. 1995) (citing Parkin v. Fitzgerald, 307 Minn. 423, 431, 240 N.W.2d 828, 833 (1976)), review denied (Minn. Oct. 27, 1995).  But here, as discussed above, ACCAP was not limited to proof of a material breach as the basis for non-renewal of Allen’s lease.  Although ACCAP’s second non-renewal letter and its unlawful-detainer complaint both referred to noise problems, the basis of its unlawful-detainer action was that Allen wrongfully held over in his apartment after receiving notice to vacate.  “A tenant who wrongfully holds over after expiration of a lease becomes a tenant at sufferance,” and no further notice is required to terminate the tenancy.  Dvoracek v. Gillies, 363 N.W.2d 99, 102 (Minn. App. 1985).


4.         Retaliatory Eviction


            Allen argues that ACCAP did not renew his lease because of his requests for repairs and complaints about health and safety problems at the Pines.  Under Minnesota landlord-tenant law,

[i]t is a defense to an action for recovery of premises following the alleged termination of a tenancy by notice to quit for the defendant to prove by a fair preponderance of the evidence that:


(1) the alleged termination was intended in whole or part as a penalty for the defendant’s good faith attempt to secure or enforce rights under a lease or contract, oral or written, under the laws of the state or any of its governmental subdivisions, or of the United States * * *.


Minn. Stat. § 504B.285, subd. 2(1) (2000).  If notice to quit is served within 90 days after the tenant’s good-faith attempt to secure or enforce his or her rights, the burden of proof shifts to the landlord to show that the notice to quit was not served in whole or in part for a retaliatory purpose.  Id., subd. 2(2) (2000). 

The district court made no findings regarding Allen’s claim of retaliation.  The record shows that Allen requested repairs and complained about what he believed to be health and safety problems at the Pines during his tenancy.  But he did not show that he requested any repairs or complained about health and safety concerns during the 90 days before ACCAP served him with notice to quit.  Therefore, Allen bore the burden of proving by a fair preponderance of the evidence that ACCAP’s decision to terminate his lease was intended as retaliation.  Allen did not present any evidence that ACCAP’s decision not to renew his lease was “intended in whole or part” to penalize him for attempting to secure and enforce his rights.  The district court’s implicit finding that Allen failed to meet his burden of proving retaliatory intent is not clearly erroneous.


5.         Claims Not Properly Before this Court


Allen raises two other claims, which are not properly before this court.  First, he argues that the district court erred in not finding that he was entitled to reasonable accommodation for his disabilities.  In his letter requesting accommodation and in his answer to ACCAP’s complaint, Allen referred to his need for accommodation for his disabilities but did not cite any legal authority under which he would be entitled to accommodation.  At the unlawful-detainer hearing, Allen’s attorney presented some evidence regarding Allen’s alleged disability but did not present any legal arguments regarding Allen’s request for accommodation.  By raising this issue without citing any authority, Allen failed to present a legal argument that the district court could rule on.  Because this matter was not argued and considered in the district court, it is not properly before this court.  See Thiele, 425 N.W.2d at 582. 

Second, Allen argues that the district court erred in not finding that his eviction would be unjust and an undue hardship.  Aside from vague language in his answer to ACCAP’s unlawful-detainer complaint stating that “forfeiting of [Allen’s] home would be a great injustice,” Allen presented no legal authority as a basis for this claim either in his answer to ACCAP’s complaint or during the hearing.  The issue of undue hardship is, therefore, not properly before this court.  Id.



                * Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The psychologist’s letter, which Allen had provided to ACCAP when he moved into the Pines in 1996, also noted that Allen referred to his dog as his “ears” and that he needed the dog to live with him “for mental health and medical health reasons.”  ACCAP had allowed Allen to keep the dog at the Pines throughout his tenancy.  Allen’s letter also noted that because of his “hearing difficulties” he spoke loudly at times and might not notice if his television was “louder than some people are used to.”

[2] Because he was a Section 8 tenant, Allen’s lease incorporated a HUD Addendum.  Allen did not submit the complete HUD Addendum into evidence.  Nor did he argue at trial or before this court that the HUD Addendum or federal Section 8 laws impose any notice requirements.  Generally, this court will consider only matters argued and considered in the court below.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Also, issues not briefed on appeal are waived.  Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982).  Therefore, our consideration of the notice issue is limited to the terms of the lease and house rules.