This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1998).




James Swartwood,



William Rouleau,


Tami Rouleau,


Filed May 11, 1998


Amundson, Judge

Hennepin County District Court

File No. 1980827507

James Swartwood, 4336 Columbus Avenue South, Minneapolis, MN 55407 (pro se respondent)

William Rouleau, Tami Rouleau, P.O. Box 19375, Minneapolis, MN 55419 (pro se appellants)

Considered and decided by Anderson, Presiding Judge, Crippen, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N

Amundson, Judge

Tenants William and Tami Rouleau appeal from a judgment for restitution of premises in this unlawful detainer action that alleges nonpayment of rent. We affirm.


On August 1, 1998, James Swartwood entered into a lease agreement with James and Tami Rouleau to rent residential property in Hennepin County. On August 27, 1998, Swartwood brought an unlawful detainer action, claiming that the Rouleaus had failed to pay the rent due. The eviction summons that was served on the Rouleaus warned:

If the attached papers say that you have not paid rent and you believe that your apartment is in bad condition and needs repairs, you can tell that to the judge, but only if you bring with you to court the total rent that the attached paper says you owe.

The attached unlawful detainer complaint stated that the amount of rent that the Rouleaus owed was $580.

At the unlawful detainer hearing, the tenants acknowledged that they had not paid the August rent. They claimed that the property was in disrepair and that they had receipts for the work they had performed on the property. Because the Rouleaus had not posted the rent, the court refused to hear their abatement defense. Finding that Rouleaus had not paid the delinquent rent or deposited that amount with the court administrator, the district court concluded that the landlord was entitled to restitution of the premises and costs. The writ of restitution was stayed for a week to allow the Rouleaus time to relocate. This appeal followed.


The Rouleaus contend that they are entitled to reversal of the judgment for restitution, because (1) the property was condemned before they moved in and the house is unsafe; and (2) Swartwood did not have a license to rent the premises. They also request reimbursement for their repairs to the property, moving expenses, and the return of their security deposit.

An unlawful detainer action provides a summary remedy for obtaining possession of premises that are wrongfully held by a tenant after nonpayment of rent. Fritz v. Warthen, 298 Minn. 54, 58, 213 N.W.2d 339, 341 (1973). In general, the sole issue for determination in an unlawful detainer proceeding is whether the facts alleged in the complaint are true. Minneapolis Community Dev. Agency v. Smallwood, 379 N.W.2d 554, 555 (Minn. App. 1985), review denied (Minn. Feb. 1986). The plaintiff is entitled to a writ of restitution if the court finds that the allegations are true. Minn. Stat. 566.15 (1998). A reviewing court will not set aside a judgment of restitution entered by a district court sitting without a jury, unless the findings are clearly erroneous. Travelers Ins. Co. v. Tufte, 435 N.W.2d 824, 827 (Minn. App. 1989), review denied (Minn. Apr. 19, 1989).

The statutory covenants of habitability are part of every residential lease and are mutual with the covenant to pay rent. Fritz, 298 Minn. at 59, 231 N.W.2d at 342. A tenant may assert a breach of these covenants as a defense in an unlawful detainer action. Meyer v. Parkin, 350 N.W.2d 435, 438 (Minn. App. 1984), review denied (Minn. Sept. 12, 1984). In Hennepin County housing court, the tenant must post rent as a precondition to raising an abatement defense:

In any unlawful detainer case where a tenant withholds rent in reliance on a defense, the defendant shall deposit forthwith into court an amount in cash, money order or certified check payable to the District Court equal to the rent due as the same accrues or such other amount as determined by the court to be appropriate as security for the plaintiff, given the circumstances of the case.

Minn. R. Gen. Pract. 608. The authority for this rule is Fritz:

We are aware that pending final determination of the tenant's claim of breach of the statutory covenants, the landlord will be deprived of all or a portion of the rent while the tenant remains in possession. However, during this period the landlord will continue to experience normal operating and overhead expenses. In a building where all or a substantial number of tenants withhold their rent, this could be devastating to a landlord. Because he is deprived of rental income, he may be unable to correct the very conditions that the tenant contends render the premises untenantable. In some of the cases, the landlord may prevail and may not then be able to collect the rents due and yet would have been unable to dispossess the tenant during the delays occasioned by court proceedings.

Recognizing these potential problems, we have concluded that once the trial court has determined that a fact question exists as to the breach of the covenants of habitability, that court will order the tenant to pay the rent to be withheld from the landlord into court * * * and that until final resolution on the merits, any future rent withheld shall also be paid into court.

298 Minn. at 61, 213 N.W.2d at 343. Because the Rouleaus did not deposit the rent into court, the district court properly refused to hear their abatement defense. The Rouleaus raise the other issues for the first time on appeal. This court generally will not address issues not argued and considered in the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). We decline to do so now.

The sole issue before the district court, and therefore the only issue on appeal, concerned Swartwood's allegation that the Rouleaus owed the August rent. The Rouleaus admitted this allegation, and, accordingly, the court found that the allegation of nonpayment was true. Because this finding is not clearly erroneous, the district court did not err in concluding that Swartwood was entitled to a writ of restitution of the property.