This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Robert Wardin,



Parag Maski, et al.,


Filed August 18, 1998


Peterson, Judge

Hennepin County District Court

File No. 9618109

Kenneth Hertz, Hertz and Associates, 3853 Central Avenue Northeast, Columbia Heights, MN 55421 (for appellant)

William Dane, University of Minnesota Student Legal Services, 160 West Bank Union Skyway, 219 Nineteenth Avenue South, Minneapolis, MN 55421 (for respondents)

Considered and decided by Shumaker, Presiding Judge, Peterson, Judge, and Amundson, Judge.



In this appeal from a judgment in an action to recover unpaid rent, appellant Robert Wardin argues that the district court erred in finding a basement bedroom uninhabitable, in abating respondents' rent, and in making certain evidentiary rulings. We affirm.


Appellant Robert Wardin leased property in Minneapolis to respondents. The lease ran from September 1, 1995 to August 31, 1996, and described the property as follows:

House of seven (7) private rooms, for one or more persons, with two (2) study rooms and a common area on the 3rd floor, other common areas are bathrooms, kitchen, laundry and basement, except TENANTS shall not have entry to one room in the basement, one closet on 1st floor and one closet on 3rd floor which OWNER uses for storage, tools, and equipment.

Respondents paid rent in full for all months except August 1996, when three respondents withheld their portion of the August rent. Respondents also paid a security deposit.

After the tenancy ended, Wardin filed a claim in conciliation court, seeking damages for unpaid rent and late fees. Respondents filed a counterclaim for (1) their security deposit, (2) rent abatement for space rented illegally, (3) rent abatement for lack of heat and water, and (4) statutory penalties for unauthorized entries. Wardin filed a demand for removal to the district court and then filed an amended complaint, adding claims for additional late fees, insufficient fund fees, and property damage.

Two respondents used two rooms on the third floor as bedrooms throughout the tenancy. Renting these two rooms violated the zoning code, and during the tenancy, Wardin signed an agreement with the City of Minneapolis providing that the third floor of the house was not and had never been occupied by tenants. The tenants testified that Wardin told them that they could use the rooms as bedrooms, but Wardin denied this. The district court found that the respondents' testimony was more credible than Wardin's testimony.

The parties disagreed about the licensed status of the house during the tenancy. Wardin claims that the house was licensed as a lodging house with nine units. Respondents claim that as of June 1, 1995, the house was licensed as one dwelling unit plus five rooms (6 bedrooms total). A housing inspector testified that the manner in which a house is used dictates how many individuals could lawfully rent the house. The district court found that Wardin rented the property as a house and, therefore, was obligated to comply with the zoning requirements for a single family dwelling, which permitted him to rent it to no more than five unrelated adults. Because Wardin rented the house to seven unrelated adults, the court determined that respondents could have claimed abatement for two-sevenths of all rent paid, but they limited their claim to one-seventh of all rent. Alternatively, the court found that even if the house had been rented as a lodging house, the maximum number of rooms that could be rented was six, because the basement was uninhabitable and the two rooms on the third floor were not legal bedrooms.


I. Fact Findings

Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

Minn. R. Civ. P. 52.01.

Wardin argues that the district court findings that (1) the basement bedroom was uninhabitable and (2) there were only six tenantable units are clearly erroneous.

A. Basement Bedroom. In finding that the basement was not habitable, the district court cited photographs of the basement, which show a cracked foundation, bare cement floors, and missing plaster on a wall. In addition, respondent Brinza testified that the basement room was "festered with mildew," respondent Vaz testified that the room smelled, and respondents Brinza and Towles testified that the room was "unlivable." Although a housing inspector testified that there were seven legal-sized rooms in the house, including the basement, he did not testify about the habitability of any of the rooms. The district court's finding that the basement bedroom was uninhabitable was not clearly erroneous.

B. Number of Tenantable Units. Wardin claims that the licensing status of the house permitted more than seven people to live in the house based on the large size of the bedrooms. Although there was evidence that more than seven people could have lived in the house if bedrooms were shared, the lease provided for seven individual bedrooms. It is undisputed that the two third-floor rooms could not legally be used as bedrooms. When the district court found the basement bedroom uninhabitable, that left six legal bedrooms in the house. The district court finding that there were six tenantable rooms was not clearly erroneous.

II. Rent Abatement

Rent abatement is a permissible remedy for a landlord's illegal rental of an uninhabitable apartment. See Love v. Amsler, 441 N.W.2d 555, 559-60 (Minn. App. 1989), review denied (Minn. Aug. 15, 1989) (affirming district court's damages award of previously paid rent for landlord's rental of apartment in unsafe condition). In addition, "[c]ourts have broad discretion in fashioning remedies." Wenzel v. Mathies, 542 N.W.2d 634, 643 (Minn. App. 1996), review denied (Minn. Mar. 28, 1996).

Wardin contends that the district court abused its discretion in abating rent by one-seventh. We disagree. The lease provided for seven individual bedrooms. Respondents did not get what they had bargained for when the house contained only six legal bedrooms. The fact that two respondents used the third-floor rooms as bedrooms does not make rent abatement improper. See Love, 441 N.W.2d at 559-60 (tenant has option to remain on premises while continuing to pay rent and may recover damages for a breach of covenants of habitability). The district court did not abuse its discretion in abating rent by one-seventh for the uninhabitable basement bedroom.

Wardin next claims that the district court erred in allowing an abatement of rent for lack of utilities because the respondents had sufficient utilities at all times. When the covenant of habitability is violated, rent paid during the tenancy can be awarded as damages. Id. One of the respondents testified that the heat went out for three days in February 1996, and as a result, a water pipe burst. Wardin claims that there were no damages because the respondents agreed in the lease to maintain "all mechanical systems." The district court found that the lease did not comply with Minn. Stat. § 504.18, subd. 2 (1996), which provides:

The lessor or licensor may agree with the lessee or licensee that the lessee or licensee is to perform specified repairs or maintenance, but only if the agreement is supported by adequate consideration and set forth in a conspicuous writing. No such agreement, however, may waive the provisions of subdivision 1 or relieve the lessor or licensor of the duty to maintain common areas of the premises.

The lease provided that the respondents would maintain mechanical systems, but the district court found that the lease did not contain a "conspicuous indication * * * to support [Wardin's] contention that [respondents] were obligated to perform specific repairs or maintenance." We agree that the maintenance provision was not specific and was not set forth in a conspicuous writing. The maintenance provision appears on page three of a six-page form lease and is written in the same typeface as the rest of the lease. Also, the maintenance agreement was not supported by any consideration. The district court properly found that respondents were not responsible for maintaining the heating system and water pipes and did not abuse its discretion in abating rent for insufficient utilities.

III. Evidentiary Rulings

The question of whether to admit or exclude evidence rests within the broad discretion of the trial court and its ruling will not be disturbed unless it is based on an erroneous view of the law or constitutes an abuse of discretion.

Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).

Wardin claims that the district court erred in admitting evidence over his objection as to lack of foundation. A decision on the sufficiency of the foundation for evidence is within the discretion of the district court. McKay's Family Dodge v. Hardrives, Inc., 480 N.W.2d 141, 147 (Minn. App. 1992), review denied (Minn. Mar. 26, 1992). During respondent Smith's testimony, counsel offered photographs of the basement bedroom that were taken by a prior tenant who is not a party to this action. Wardin's attorney objected, claiming lack of foundation. The district court initially sustained the objection, but then allowed the evidence after finding that Smith's testimony that the photograph accurately depicted the condition of the basement on the day respondents moved in independently established the authenticity of the photographs. The district court did not abuse its discretion in admitting the photographs.

Wardin next contends that the district court erred in limiting his testimony about physical damages. Photographs of damage were submitted, and while Wardin was testifying about the photographs, the district court stopped his testimony, finding that it was not helpful for Wardin to testify as to whether the photographs portrayed the damages he was claiming, because the court could simply look at the photos. Wardin also claims that the district court limited his testimony about a modified accounting ledger. To preserve evidentiary rulings for review, a party must make a timely objection at trial and move the district court for a new trial. Sauter v. Wasemiller, 389 N.W.2d 200, 202 (Minn. 1986). Wardin did not object to the court's rulings at trial, and Wardin did not move for a new trial. Therefore, Wardin did not preserve these evidentiary issues for review.

Wardin also claims that the district court erred in considering the conciliation court complaint when the standard of review for removal to the district court is trial de novo. Minn. Stat. § 491A.02, subd. 6 (Supp. 1997). As one of the bases for rejecting Wardin's claim for physical damages, the district court considered the fact that Wardin did not claim he was entitled to recover for physical damages when he filed his conciliation court complaint. Wardin claims he was prejudiced by the court's use of the conciliation court complaint, arguing that the district court failed to consider that he filed the complaint prior to knowledge of the damage and without the assistance of counsel.

Even if it was error for the court to consider the conciliation court pleadings, any error was harmless. In denying Wardin's physical damages claim, the district court considered other factors including the credibility of the respondents' testimony that they left the house in as good condition as when they arrived. Harmless error is not a ground for reversal. Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975).

Wardin argues that the district court erred in rushing Wardin's attorney during closing arguments. Prior to his closing argument, the district court asked Wardin's attorney to focus on the threshold issues. After the attorney made arguments that filled 11 transcript pages, the district court asked him to "wrap up," and counsel concluded with arguments that filled one and a half transcript pages. Wardin argues that because respondents' counsel was not asked to hurry his argument, Wardin suffered unequal treatment. There was no objection to the district court's requests. Wardin's failure to object to the district court's requests prevents him from raising this issue on appeal. Sauter, 389 N.W.2d at 202. In addition, Wardin does not claim that he was prejudiced by the district court's actions and makes no claim that his attorney was prevented from making any argument. The district court did not err by asking Wardin's counsel to "wrap up" his arguments.