This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Bucher Realty, Inc.,





Joseph V. Bot,





Connie Yeh Sheng,




Filed November 19, 2002

Klaphake, Judge


Lyon County District Court

File No. C3001028



Joseph V. Bot, 326 West Main Street, Marshall, MN  56258 (pro se appellant)


Judeth A. Christianson, 120 N. 3rd Street, Suite 10, Marshall, MN 56258 (for respondent)


            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


            In this dispute over a security deposit, landlord and pro se appellant Joseph V. Bot challenges the district court’s determination that his former tenant, respondent Connie Yeh Sheng, is entitled to refund of the deposit.  Bot’s rental agent, Bucher Realty, Inc., has had possession of the security deposit since the lease terminated in December 1988.  After both Bot and Sheng requested a return of the funds, Bucher Realty petitioned the district court to take custody of the funds pending resolution of the dispute under Minn. R. Civ. P. 67.02.

            Following a trial, the district court made findings and ordered the security deposit released to Sheng.  Bot filed this pro se appeal; Sheng did not submit a brief or otherwise respond to this appeal.

            Because Bot failed to give Sheng written notice that he intended to retain her security deposit to reimburse him for amounts that he claimed were due him under the lease, and because the district court did not clearly err in its findings, particularly in finding that Sheng was entitled to vacate the premises due to Bot’s failure to make necessary repairs, we affirm.


            Bot claims that he is entitled to retain Sheng’s security deposit to compensate him for lost and damaged equipment, costs incurred to clean the property after Sheng vacated, two months of unpaid rent, and amounts due under the lease for real estate taxes and increases in the consumer price index (CPI).  The district court rejected all of Bot’s claims, finding that Sheng never received written notice of Bot’s intent to deduct amounts from the security deposit, and that Sheng was entitled to terminate the lease and not pay the last two months of rent because Bot refused to repair the septic system, which forced Sheng to close her restaurant.

            The lease provided that the tenant shall deposit $2,000 as “security for the equipment and personal property” located on the premises and that

if any of the equipment or personal property is damaged, missing or in a state of disrepair, normal wear and tear excepted, then upon written notice of Landlord the amount of money which is needed to repair or replace the equipment or personal property of like kind and quality, shall be paid out of this account of deposit.  * * *  Said deposit to be returned to Tenant at the end of tenancy upon no claim being made by Landlord.


(Emphasis added.)  Although Bot now suggests that equipment was lost and damaged during Sheng’s tenancy, he never gave her written notice of any amounts he intended to withhold from her security deposit.

            The lease also allowed the landlord to deduct amounts from the security deposit for unpaid rents, damages for which the tenant was responsible, and the costs of re-renting the premises after a breach by the tenant.  Again, however, Bot never gave Sheng notice that he intended to deduct money from her security deposit for unpaid rents or the costs incurred to clean the premises after she vacated.  Bot’s failure to notify Sheng of his claim to her damage deposit prejudices Sheng and constitutes a waiver of any right he may have had to claim these funds.  See Ruzic v. City of Eden Prairie, 479 N.W.2d 417, 419 (Minn. App. 1991) (waiver is the voluntary relinquishment of a known right).

            Even if Bot had given some notice, the district court found that Sheng was entitled to terminate the lease and not pay rent after October 1988 because she was forced to close her restaurant due to health code violations caused by Bot’s refusal to repair the septic system on the property.  These findings are not clearly erroneous and support the district court’s implied conclusion that Bot’s actions constituted a breach of the lease and entitled Sheng to forego paying rent for the last two months of her tenancy.  Minn. R. Civ. P. 52.01; cf. Love v. Amsler, 441 N.W.2d 555, 559-60 (Minn. App. 1989) (tenant entitled to recover past rental payments as damages for landlord’s breach of covenants of habitability and to make repairs), review denied (Minn. Aug. 15, 1989).

            Finally, the lease provided that “[f]or each anniversary date starting January 1, 1988, the monthly rent shall be adjusted in accordance with the January Consumer Price Index for that respective year.”  The lease also required the tenant to pay “on written demand from Landlord all real property taxes and assessments * * * in excess of the real estate taxes payable in the year 1983.”  Again, Bot never requested or made a written demand to increase Sheng’s rent obligation to cover real estate taxes or increases in the CPI.  His failure to do so is contrary to the terms of the lease and constitutes a waiver of any rights he might have had to increase Sheng’s rent.

            We therefore affirm the district court’s decision.