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BOB POTTER: Today, Minnesota Public Radio presents the first in a series of programs examining selected legal problems. We want to look at how various parts of the court system react to difficult issues raised by a constantly changing society. At the same time, we hope to explain a few basic legal rights and responsibilities, with the disclaimer that the contents of these programs do not purport to be a complete explanation of any single legal issue.

In the next hour, we'll present both legal and human perspectives on a problem which found its way into the courts. It is, on the one hand, a simple landlord-tenant problem, and on the other, a unique look at how courts and judges use their power to make new law.

[JOAN BAEZ, "DEAR LANDLORD"] Dear landlord

Please heed these words I speak

I know you've suffered much

But in this you are not so unique

All of us at times, we might work too hard

To have it too fast and too much

And anyone can fill his life up

With things he can see but he just cannot touch.

BOB POTTER: The law is a labyrinth of constitutions, statutes, historical precedents, power relationships, human foibles, and aspirations. And when the law changes, that change is a result of a complex interplay of all these structures and forces. History, legislatures, media, courts, and people on the street all interact to mold the way the law defines human relationships.

For instance, through many centuries, the legal relations between people in Western civilization have been defined by property relations-- lord and vassal, landlord and tenant, owner and worker. Over the years, these legal relations have changed as society has changed.

This program deals with one of those changes, a small alteration in Minnesota's landlord-tenant law. We'll see how a real-life situation combined with legislative action and with centuries of legal tradition to create a new rule which now influences the way multitudes of people must act toward each other.

And then, we'll take a very quick look at a few of the other rules defining the mutual rights and responsibilities of landlords and tenants.

[GAVEL BANGS]

SPEAKER 1: Hear ye, hear ye. All rise. This court of the State of Minnesota is now in session. On today's docket, we hear arguments in the case of Fritz versus Warthen. Please be attentive and conduct yourselves in accordance with proper respect for the law.

SPEAKER 2: This is what we call the unlawful detainer calendar. Most of you here who are named as defendants have received one of these things called a summons, which is a document written in 17th-century English, and it's understandable by nobody but a lawyer. And I just want to make sure that you understand what it is and what the significance of it is.

When you were handed one of these summonses, it says you be summoned. It's what they call an unlawful detainer summons. What it means in plain English is that your landlord wants to evict you because you haven't paid your rent. That covers about 95% of the cases that are here in court. So the reason you've been summoned here is that the landlord says you haven't paid your rent.

Now, if you pay the rent before what we call a writ of restitution or the eviction order is made, then the matter can be cured at that time. In fact, if you pay the rent before you are actually evicted, and if you pay up all the rent that's due, then the matter will be cured, and you won't be evicted.

If you've already moved out and you don't care one way or another, you don't have to stay here. This is not a proceeding to collect rent. This is not a collection court. This is purely an eviction proceeding. Now if--

CHARLIE WARNER: The situation in the building was basically one of deferred maintenance and a kind of a continuously deteriorating physical situation in the building. We went for long periods of time without the garbage being picked up.

And then when it became wintertime-- this was back in 1972-- the furnace would be off periodically for a day or two days. So one time it was over four or five days that the furnace was off. The temperature inside the building went way down. I kept a record of some of the dates that the temperature dropped, and it was in the 60s and 50s inside, which is pretty cold.

And there was old people in the building, and there was a baby in the building. And it was obviously a pretty serious health problem.

BOB WARTHEN: And he had that furnace in 711 so jury-rigged that it would cut out by itself. The safety devices would cut out, then he overrode the safety devices.

SHEILA WARTHEN: There was another thing that was wrong with our apartment. We had a robbery in our apartment, and I asked him to fix the door, and he wouldn't fix that door, either.

BOB WARTHEN: They broke down the door. And then they never did fix it. The door never did ever have a handle on it. And I shut it, nailed it shut, and they still broke it down. And asked Fritz to fix it. No, we won't-- just like asking the wall to fix it.

BOB POTTER: 44% of the people in St. Paul are tenants, as are 50% of Minneapolis residents. And the percentage is even higher in some suburbs. Rental housing is scarce. Over 97% of the rental units in St. Paul are filled. And if you want to rent a single family home, then over 99% of the market is already taken.

Experts say that occupancy rates of 92% to 93% make a tight market. So the Twin Cities rental market situation reflects a national housing shortage that is sometimes described as disastrous. The National Housing Conference estimates that soon, five families will be competing for every four apartments and homes available in many American cities.

BOB WARTHEN: Well, we thought we would call the landlord and complain about it, and that was really fruitless. The landlord was basically irrational when you call him up. We got all kinds of abuse back on the phone, telling us if we thought we were so good, why didn't we move out, what were we living in a dump for, that kind of stuff.

SHEILA WARTHEN: Never any responses. Mrs. Fritz would hang up on me when I'd call her, or they wouldn't answer their phone at all. The phone would just ring and ring and ring, and there'd be no answer. I was always in the wrong. I mean, I wasn't-- they didn't want to listen to what I had to say.

BOB WARTHEN: The nature of the conversation was that we were supposed to be on the defensive all the time, and he was on the offensive all the time. And he figured that we were completely wrong, and he was completely right. There was no middle ground at all. You couldn't-- you couldn't talk to the guy on any other type of basis at all.

BOB POTTER: Americans spend a greater proportion of their income on housing than on any other single item except food. This is especially true of renters. The Bureau of Labor Statistics says that one third of the renters in the country pay more than they can afford for housing. A recent Harvard-MIT study points out that 10.5 million tenants paid more than 25% of their income for rent in 1975.

For these reasons, tenants emerge as one of the largest single identifiable consumer groups in the country. However, until recently, landlord-tenant law was one of the most archaic of all areas of the law. Until recently, renters were less protected by the law than purchasers of minor consumer goods.

For example, the law gave a tenant very little recourse if he or she found that the rental unit was not heated properly, was infested with vermin, or in some other way was not properly habitable. This was the situation in which Bob and Sheila Warthen, Charlie Warner, and the other residents of 709 Portland Avenue in St. Paul found themselves in the winter of 1972.

BOB WARTHEN: Well, I think one has the right to expect the basic amenities anywhere you live. I don't care what kind of rent you pay. If you pay $0.10 a month, you got the right to expect a vermin-free place to live. You got the right to expect the heat. If it's being supplied, you got the right to expect that. And you've got the right to expect a sanitary place to live, none of which we had.

CHARLIE WARNER: The thing finally culminated one night when it got-- the furnace went off, and it got really cold inside, and some pipes burst in the Warthen apartment. And they were-- it was 1:30 in the morning. The pipes burst, and they had water pouring all over their apartment. And it was about an inch or two deep inside their apartment, and it ruined all kinds of clothes and furniture and so forth. And it was impossible to get Fritz out to do anything about it.

BOB WARTHEN: The main reason that I withheld my rent was because of the water in the bedroom. That was the final straw that broke the camel's back, so to speak.

SHEILA WARTHEN: But some of the other things were rats underneath the sink, a rat in my toilet when I went into the bathroom in the morning. Here, he's swimming. And cockroaches and water bugs and no heat. And then the final thing was the water in the basement-- I mean, in our apartment.

BOB POTTER: These people had found local housing codes to be both weak and poorly enforced. So, they decided to withhold their rent and try to fight it out in the courts. The state of the law was strongly against them in one respect. As soon as they withheld their rent, their landlord, Dr. Wallace Fritz, brought against them what's known as an unlawful detainer action, legal euphemism for eviction. The idea is that since the tenant has not paid the rent, he is unlawfully detaining or holding the landlord's property.

To an owner of rental property, time is quite literally money. And the courts have always dealt sharply with such actions. A tenant either pays the rent or moves out. At the time when Dr. Fritz brought an unlawful detainer action against Bob Warthen and the other tenants, the state of the law was such that no mitigating circumstances were considered by the court.

In other words, the fact that these tenants had no heat didn't make any difference. So the landmark Minnesota case of Fritz versus Warthen began in St. Paul municipal court with an eviction order.

CHARLIE WARNER: And we kind of muddled through that evening, and then we started really getting upset about it and organizing a tenant's union. We put up a sign that said, "no heat, no rent" and called a meeting, and the organizing was on.

Warthen on his own deducted a portion of his rent, $35 out of the $85, I believe is was what it was, for a cleaning bill to take care of all the mess that was created. And he got an unlawful detainer. He got an eviction notice, or a notice to appear in court for an eviction proceeding.

And we got in touch with legal aid. And then the next month, the rest of us-- as I recall, it was the next month-- the rest of us all withheld our rent. And in the meantime, we had gone to the Building department and asked for an inspection. We gave them a list of what we thought were deficiencies and asked them to come out and inspect the building. And we were all served with unlawful detainer eviction notices.

BOB WARTHEN: Then our lawyer in turn responded with a court action. And the judge wouldn't hear of it. He wouldn't hear the case in his court at all. They argued about hearing the case in his chambers, and he never did come out of his chambers. So then Mr. Kaplan decided it was time to go to the State Supreme Court, which he did.

BOB POTTER: The tenants had been consulting with attorneys from LARC, Legal Assistance of Ramsey County, and they were pinning their hopes on a recently passed Minnesota statute. That statute says quite clearly that landlords of residential dwellings must provide habitable premises for their tenants.

However, the law had no teeth. If a landlord did not provide a habitable building-- if the heat went out, for example-- the statute did not provide a way to force him to do so. As lawyers are wont to say, the law gave a right without giving a remedy.

Professor Robert Stein of the University of Minnesota Law School was involved in writing this and other landlord tenant legislation, and he became deeply involved in the case of Fritz versus Warthen. He explains the weakness of Minnesota's habitability law.

ROBERT STEIN: The reason no remedies were set forth in the statute is that this had been a very controversial political issue at the time the statute had been considered. And rather than risk defeat of the entire concept of a covenant of habitability, the bill's sponsors, including myself, decided it would be better to have the statute passed and leave to the courts the question of what remedies were available. And this question was squarely presented in the Fritz case.

BOB POTTER: In other words, the law was incomplete on purpose. The legislature wanted the courts to fill in the holes. But the courts must interpret the law in light of their own historical traditions, which can oftentimes be as important as the written law itself.

For example, much of the legal framework defining the regulations of modern landlords and tenants comes directly from the rules which define the roles of medieval lords and vassals. In fact, Professor Stein points out that Minnesota landlord-tenant law of the 1960s was little changed from landlord-tenant law of England hundreds of years ago. This law was strongly biased in favor of landlords.

ROBERT STEIN: I think the reasons for this are largely historical. If one goes back to the origins of the Anglo-American property law, property was part of the political system in these countries. And the property interests which an individual had represented his place in the feudal structure of society. And tenants, in effect, held the land of their lords and owed the lord certain services and duties in return for the privilege of holding the property.

As times changed and the feudal system disappeared and was replaced by a different political system, economic considerations took their place. And these economic considerations caused the tenants to be treated in much the same way. Land in medieval England was largely rural. It was composed of-- comprised of farms. The persons having tenancies in the property were very much similar in terms of their means of the persons of whom they held the property.

And so the law came to recognize state interests in these tenancies that typically continued over a long period of time. And so the tenant was thought of as holding property, much as an owner would hold it, for some extended period of years, or perhaps for his entire life. For this reason, the duties of repair were imposed upon him. The person of whom he held, the landlord, had very few duties with respect to the property. His interest principally was a future interest, the right to receive the property back at some specified time in the future. And the tenant's obligation was one, to pay rent.

Whatever obligations did exist in the relationship were entirely independent of one another. And the failure of one party to perform his obligations didn't justify the other party from refusing to perform his obligations. This gave rise to the doctrine of independent covenants, which provided that the landlord's failure to do something that he'd promised to do would not in any way excuse the tenant from his obligation to pay rent.

BOB POTTER: In other words, even if an apartment building was not heated during a Minnesota winter, the tenants could still be required to make full rent payments. This situation continued largely because of the stare decisis principle in the law. Stare decisis says that similar legal disputes should be decided the same way. It binds judges to decide problems in the same way those problems have been decided in the past.

Generally, the principle provides stability in the courts and predictability for people in planning their daily lives. But sometimes the principle locks judges into deciding cases in a mechanical fashion, even though social circumstances surrounding the dispute have changed substantially.

ROBERT STEIN: I think the changed economic circumstances in the law in the relationship of landlords and tenants had substantially changed in the last several decades. But unfortunately, the law had not yet recognized these changes. And so in 20th-century post-World War II America, we find a situation where the typical tenancy is not a rural tenancy but an urban tenancy.

The duration of the tenancy is not one of several years, but typically a month-to-month tenancy. We find great mobility, with tenants living in one building and moving frequently to another building. We find tenants normally not having the means or the economic incentive to make permanent repairs in a building which they don't own.

We find several tenants living together in high-rise buildings so that the defective condition in their premises is not one which they can themselves correct but which would require the combined efforts of several tenants. And realistically, the landlord is the only person or entity which could make the repairs that would improve the conditions of the premises.

And so for all of these reasons, rules that continued to treat tenancies as long-term rural residences no longer seemed suited to contemporary times. And it's for this reason that several interested individuals began to work together in the middle '60s to try to achieve some changes in the Minnesota law of landlord and tenant.

BOB POTTER: Given that background, the scene was set for some novel legislation. Tenants groups began agitating and lobbying for changes in the late 1960s. The first bills failed in the 1969 legislature. But between 1969 and '71 sessions, meetings took place between tenant groups and landlord representatives, with Professor Stein as arbiter. The result was a package of three bills passed by the 1971 legislature.

ROBERT STEIN: The first was the covenant of habitability that was involved in the Fritz and Warthen case. The second was a bill dealing with retaliatory evictions and said that it was unlawful for a landlord to evict a tenant in retaliation for the tenant's exercise of his legal rights under the law of Minnesota.

And third was a bill which addressed problems that had related in damage deposits. In its first form, it provided that it would be unlawful for a landlord to wrongfully withhold a damage deposit at the completion of a tenancy and impose punitive damages on the landlord for such withholding.

BOB POTTER: It was the meaning of the first of these bills, the covenant of habitability, which would be interpreted by the Supreme Court in this case. Unfortunately, it takes quite a long time for a case to be heard and decided by the Court. In the meantime, litigants, such as the tenants in this case, may have unique problems.

SHEILA WARTHEN: During that time we had meetings that were being held in Ethel White's apartment. And the landlord's son, Wally, would be listening at the door. We knew he was there listening to us talk about the building.

BOB WARTHEN: And Mrs. Fritz attended one, uninvited. And she wouldn't-- she was asked to leave, and she wouldn't leave. And let's face it. You can't manhandle a 50-some-odd year old woman around, so it wasn't much you could do.

SPEAKER 3: So you proceeded with the meeting with her there?

BOB WARTHEN: That's right.

CHARLIE WARNER: During the summer in 1972, the landlord was apparently attempting to break up the organization by some really-- well, I don't-- I guess I can't really-- I shouldn't really say that he was trying to do that. But it seemed that he was letting the building go to hell and hoping that we would just disappear. We had a succession of caretakers that came in there, one of whom was a-- I mean, he looked like a cartoon character of a thug. He had tattoos all over his arms, and he packed a pistol.

And we had been trying to raise this issue to a higher-- in the process of HUD dealing with the city of St. Paul. At that time, HUD had a responsibility-- the HUD, Department of Housing and Urban Development, had a responsibility to make sure that the city's code enforcement program was operating effectively so that HUD knew that its money was being spent well in the city.

So we went to HUD and to the city code enforcement people with our complaints. And some HUD inspectors came out to look at the building. And they came with their clipboards and their suits and pointy shoes and stuff on.

And the caretaker made his appearance. He came out twirling his gun on his finger and kind of brandishing his firearm around and kind of flexing his big, huge arm muscles. And these HUD guys took a look at that, and they made some quick scribbles on their clipboards, and they got out of there real fast. That was really funny.

But there was-- again and again, there were-- the deterioration in the building was allowed to continue. And it was just a horrible situation, and the cops were called a couple of times. But the landlord either unwittingly or knowingly permitted that kind of thing to go on. I think in the hopes that it would break our spirit and that we'd just say, oh, god, this is just so lousy. Who wants to stay here?

[THE POINTER SISTERS, "SHAKY FLAT BLUES"]

(SINGING) It would be better to wake up

And hear the birdies singin'

And the fishes a' swimmin' in the creek

Than to hear the sirens ringin'

My flat's a' shakin' beneath my feet

Flat's shakin' beneath my feet

I got the shaky flat blues

I ain't got nothin' to lose

So I'll just pack up my pack and move

I wish I had a little garden

Where I could grow some food

And not a backyard full of garbage

And a head that's full of blues

Oh, I'd love to see the sunshine

I'd love to see the moon

Not smog and air pollution

Too many people, too little room

I got the shaky flat blues

I ain't got nothin' to lose

So I'll just pack up my pack and move

CHARLIE WARNER: After a while, it became a principle of sticking the thing out. We had these really bad-- and the people in the building kind of got into the idea.

BOB WARTHEN: Well, had to fight it, so fight it right down to the end. When I started, I wasn't going to stop till I finished it, one way or the other.

SHEILA WARTHEN: I didn't want to stay living in that place. I wanted to move out. I couldn't stand it. It was just driving me out of my mind.

BOB WARTHEN: No way I was going to move out till I found out that-- fought that to the bitter end. There was no way. We always perceived it as a rent strike, yes, and as a way to get a habitable premises. That's was our main concern. It was our-- that was what it was all about. And well, like, I said before, the only way to-- that was the only way you could deal with him. You couldn't use force on the man, so what other way was there?

BOB POTTER: Meanwhile, the legal process continued. The Warthens first withheld their rent at the beginning of February 1972. But the decision of the State Supreme Court did not come down until November 30, 1973. We asked Judge Fallon Kelly, a Justice of the Minnesota State Supreme Court, to outline the mechanics of the legal appeal process.

FALLON KELLY: In a case such as the Fritz case, the tenant, having lost the lawsuit, would request his attorney to appeal. The attorney would then file a notice of appeal and under our rules and regulations would be required to order a transcript of the proceedings, or at least such part of the transcript as would be necessary for that particular appeal. And in addition would have to file what we call an appellant's brief within a certain number of days.

The landlord, in turn, would be required to file an answering brief. And then the tenants' attorney would file a reply brief, if he felt one was necessary. The findings of the court below would be incorporated by an appendix to the appellant's brief or the tenant's brief.

We then would normally set the case down for oral arguments. Some cases are not orally argued, where we feel that oral argument would not add anything to it. In the Fritz case, or the landlord-tenant case, we did have oral arguments.

CHARLIE WARNER: The Supreme Court was just like in the movies. That was the thing that struck me. There was this big bench, a raised platform, a long, straight bench with great big lamps on either end of it. And sitting across there were these seven judges in their black robes. And they were doing their Supreme Court thing, just like in the movies.

And our lawyer got up and argued our points. And then their lawyer got up and argued his points. And then there was rebuttal back and forth, and then some questions from the justices themselves that were pretty good questions. I mean, they don't mess around in the Supreme Court. They really try and pick the arguments apart. And it was a really interesting experience to go to the State Capitol and sit there, and kind of like being on a movie set.

BOB POTTER: By the time the case reached the Supreme Court, the landlord, Dr. Fritz, had himself given up on the litigation. It had gotten too expensive. We tried to interview Dr. Fritz for this program, but he declined. However, since he began the original litigation, his name remained on the case.

And since the issues involved all landlords, the Minnesota Apartment Association took up his case and stepped in to argue that the Court should not depart from common law historical practices and that the privilege of landlords should not be changed. The Apartment Association wanted the law declared unconstitutional because it was inconsistent with the old traditional relations of landlords and tenants. James Rosenbaum, the attorney for the landlord.

JAMES ROSENBAUM: The most conservative field of law always has been real estate law. The idea was is that land, since it is identifiable, it exists forever beyond whoever owns it or whoever rents it, it's important that a lot of changes not be made very fast in real estate because banks have loaned money on it, because people have lived on it, because buildings have a permanence. And for that reason, they don't like to change laws dealing with real estate very fast.

BOB POTTER: The Court heard arguments from the appellants, which is what Warthen and the other tenants were called, because they were the ones who appealed the lower court decision. Then it heard the side of the landlord, who was called the appellee, or respondent, since he was responding to the appeal brought by the other side.

In an unusual procedure, the Court also heard arguments from a third party, Professor Stein. He was involved in the litigation as what's called an amicus, or friend of the court. After hearing the three arguments and asking a few questions, the Court retired to consider its decision. Justice Kelly explained what happened behind the scenes.

FALLON KELLY: After the oral arguments, the case, if it were heard by a panel of judges, would be discussed thoroughly by the panel. If it were heard in bank, which means by all of the justices, we then would discuss the case in a conference, and all nine justices would participate in that conference.

The case would normally be assigned to one justice. These assignments are made on a rotation basis, and not in any other fashion so that there's no way of knowing which judge might get a particular case.

The judge who has been assigned the case leads off the discussion by explaining it in detail and states his viewpoint. Then, the next justice in seniority, other than the Chief Justice, would discuss the case and give his particular viewpoint.

The next person who would speak as to that particular case would be the person who is second in seniority, and so on down the line until all of the justices have spoken except the Chief Justice. The Chief Justice speaks last and gives his viewpoint last.

If the judge whose case it is, the one who has been assigned the case, prevails and has a majority view, he writes the opinion. If not, the first justice who takes an opposing view as they go around the table would be assigned the task of writing the majority viewpoint.

After the case has been written up, it then is sent around with a face sheet to all of the justices. And they, in turn, initial their approval, or they file with that case a dissent, or a special concurring opinion, if they desire.

BOB POTTER: On November 30, 1973, the Minnesota Supreme Court handed down its decision in Fritz versus Warthen. As you've undoubtedly guessed, the tenants won. In the language of the decision, the Court held in part that, quote, "These implied covenants of habitability and the covenant for payment of rent are mutually dependent, rather than independent," unquote.

That means that if the landlord does not provide a habitable apartment, he shouldn't expect to get rent payments. The covenant, or obligation of the tenant to pay rent, cannot be invoked by the landlord unless the apartment is fit to live in, is kept in reasonable repair by the landlord, and is in compliance with local health and safety codes.

Those are the rights established by Minnesota Statute 504.18, the habitability law, which we discussed a few minutes ago. What the Court did here was put teeth into that law. Now the tenant has both a right and a remedy. If the apartment does not meet the standards, a tenant may now take his rent check down to Conciliation Court instead of to his landlord.

SPEAKER 2: Now, if you're withholding your rent, and if you're not paying it because you have some complaint about the premises, then what you've got to do is you still have to pay the rent. But instead of paying it to the landlord, you pay it to the clerk of this court, up on the eighth floor.

And you have to write out a statement of what it is that you're complaining about and give that to the clerk and give a copy to the landlord. And then we can determine that question, and the landlord will know what your complaint is. And we'll take that up the next time this court meets.

So if you want to do that, have this in mind. You still have to pay the rent. But when your case is called, you let me know if that is the problem. If you want to get a lawyer to advise you as to what to do, let me know about that when your case is called.

We're going to call the calendar now. That means we'll call the names of every plaintiff and every defendant. And if you are here, please answer here so that we know. Because if you don't answer, we will assume that you're not here. And then the case will be heard as a default, and we'll just go ahead and enter the order. Does anybody have any questions?

BOB POTTER: Now, of course, this does not mean that the landlord is left totally out in the cold.

JAMES ROSENBAUM: They further provided that the landlord can reach those assets, the amounts that the tenant is paying into court, for payment of his mortgage, for payment of his taxes, and also for necessary repairs to the property.

So the net result is that the tenant winds up paying the full amount of his rent. He's just paying it to the Court rather than to the landlord. And to that end, when the landlord can still reach some of that money, to some extent, it doesn't change much of the landlord's situation.

BOB POTTER: We asked James Rosenbaum whether the rights of property were stepped on by this decision.

JAMES ROSENBAUM: The rights of property-- a lot of landowners have always said, "this is my land, I'll do whatever I want to do with it." And my response has often been, if it's your land and you can do anything you want, why don't you try not paying taxes on it for a few years? You can do exactly with your land what the law says you can do with your land, even though it's your land.

No, the rights of property were not stepped on. They were changed. And some of the concepts behind obligations of each of the parties were changed when the statute went into effect and when the Supreme Court heard the case.

There's an axiom in the law that says that hard cases make bad law. This is a situation where the facts, I've been given to understand, were quite glaring. And as a result, it made for an easier determination for the Court. There are a lot of more difficult issues that could have been raised.

SPEAKER 3: Such as?

JAMES ROSENBAUM: Convenient example, for instance, is somebody who lives in an apartment building right now. And over a short period of time, the hot water heat goes-- the hot water goes out in the apartment. To what extent has the tenant been damaged? And to what extent does the Court recognize, then, that the tenant doesn't owe rent for that period of time?

SPEAKER 3: How should the court deal with an issue exactly like that?

JAMES ROSENBAUM: I don't know. It's never been presented. And during the time I was renting, I was extremely concerned about it. I would say that the tenant has, to some extent, suffered some injury at that point, since a cold shower in the mornings not my favorite way to spend time.

You get back once again to a common problem in all fields of law-- what are the damages? To what extent have you not been provided with what was agreed to be provided to you? And the extent or the value of the loss of that is an open kind of a question.

The Supreme Court didn't, for instance, say a broken down refrigerator will save the tenant or cost the landlord $5 a day in rent. I think it's put a reasonableness test in that, I think, will probably be helpful.

BOB POTTER: Some guidance is provided for a court in this type of situation by Minnesota Statute Number 566.25. One thing the court can do is order what's called rent abatement. It uses this reasonableness test to guess at how much rent a tenant should be able to keep in order to make up for a partial loss of services. More commonly, a judge will simply order the landlord to fix things up or order the tenant to do it and deduct the cost of repair from his rent.

This does not mean, however, that a tenant can simply go ahead on his or her own and fix the problem and then deduct the bill from the rent payment. This works only if it has been ordered by a court. The entire Fritz versus Warthen case began when Bob Warthen tried to do just that. He deducted his $35 in cleaning expenses, which resulted when overhead pipes burst and filled his bedroom with water.

Although he and the other tenants won the right to keep their rent from their landlord as long as their apartments were without heat and as long as the money was paid into court, the Warthens never did get that $35 back. Eventually, the landlord got it.

Legislation allowing a tenant to deduct repair costs from rent without a court order passed the Minnesota House this year but failed to get out of the Senate Judiciary Committee. Of course, it is also possible for a tenant to contract with the landlord to fix up his or her own place, as long as he or she gets what the law calls "consideration--" in other words, as long as they get something in return, like a rent reduction.

One major landlord-tenant problem unanswered in the Fritz case is whether a landlord is liable if a tenant is injured from the landlord's failure to provide habitable premises. For instance, what if a tenant at 709 Portland had gotten pneumonia when the heat went out?

[THE POINTER SISTERS, "BANGIN' ON THE PIPES / STEAM HEAT"] When we were kids in Oakland

Sitting on our daddy's knees

In the summer we would swelter

In the winter we would freeze

We'd freeze

When we wake up in the morning

We could always see our breath

If there hadn't been so many of us

We'd have froze to death.

BOB POTTER: If a tenant had gotten pneumonia, should the landlord pay for the hospital bills? Such a responsibility is what the law calls a tort liability-- liability for injury or expenses which someone negligently or willfully causes to happen to another. Very few state courts have held that the landlord is responsible for these kinds of injuries which happen in his building. This is the case in Minnesota.

ROBERT STEIN: As far as tort liability is concerned, the law in Minnesota is somewhat unclear at the present time. We haven't had a decision as yet which reverses the traditional law, which is that the person in possession of the premises is the person responsible for the condition of the premises to persons who are injured. And therefore, it is essential that, whoever has the burden between landlord and tenant to keep the premises in repair, the tenant is well advised to make sure that there are no defective conditions because he'd be liable to anyone who was injured.

I started out by saying the law was somewhat unclear. The reason it's unclear is in the covenant of habitability and the covenant to keep the premises in repair that was passed by the Minnesota Legislature. A subdivision was added which provides, "Nothing contained in this section shall be construed to alter the liability of the lessor of residential premises for injury to third parties."

That was put in because some members of the Legislature raised questions about tort liability change resulting from the statute. And the section is very neutral. It says that the section itself doesn't alter the tort liability, but it doesn't provide-- the tort liability remains the same.

And we now have a covenant of repair in the state. So it may be the next time a case comes along, the court will be prepared to say that a landlord does have a duty to keep the premises in repair, and his failure to discharge that duty would cause him to be liable in tort to persons injured.

BOB POTTER: However, while tort liability may be an important problem and certainly one which will get legal attention in coming years, it is not among the four major problems of landlord-tenant relations listed by Bruce Beneke of Legal Aid of Ramsey County. Beneke has worked with this area of the law for several years. And in his view, the four biggest problem areas are evictions, security deposits, rent increases, and substandard housing.

Until recently, a landlord was permitted to evict a tenant for any reason. The Fritz decision reduced that right a bit, and other state laws have done likewise. For example, if your landlord is kicking you out, you can at least make sure that you're told about it far enough in advance.

The law requires that such notice be at least one rental period plus one day in advance. So if you're the typical person paying rent at the beginning of each month, you must get written notice of at least a month and a day. And usually, you can't be kicked out in the middle of the month.

Of course, this works both ways. A tenant is also required to give the same courtesy to the landlord. And, of course, if you feel you're being evicted for racial or similar reasons, you can object on civil rights grounds, in which case you should file a complaint with the appropriate civil rights department.

Some tenants used to find themselves evicted after they complained to housing authorities about substandard apartment conditions. Today, this is much more difficult, at least for the first 90 days after a complaint has been lodged.

If there's any indication that a tenant is being evicted in retaliation for his or her exercise of some legal right, then no eviction is possible within 90 days of that action, except for exceptional reasons. The same protection also exists after that 90-day period. But because of a statutory provision, it's much harder to prove after that time.

In addition to preventing such retaliatory evictions, Bruce Beneke would like to see a greater check on a landlord's ability to unilaterally give an eviction notice, or what is sometimes called "notice to quit." Landlords still have a great amount of discretion in this regard. Unlawful detainer actions were at issue in over 40% of the more than 15,000 filings in Hennepin County Civil Court in 1975.

And similar landlord-tenant disputes accounted for a large part of the 27,000 filings in Conciliation Court that year. Hennepin County judges have even had to set up a special calendar or session to handle eviction notices exclusively. These are among the facts that lead Beneke to believe that tenants should be as secure in their apartments as homeowners are in their houses.

BRUCE BENEKE: We feel that just like a homeowner can be evicted for nonpayment of mortgage, well, at the same time, a tenant should be able to be evicted for nonpayment of rent. But beyond that, we feel that a tenant should have additional security in their occupancy.

And so this legislative session, we're proposing a law that, in the residential context, would abolish notice to quit. And this law would say that tenants can be evicted from rental housing in only certain specified situations. Examples of these situations would be nonpayment of rent, where the tenant is damaging the property, or the tenant is being so disorderly to interfere with the rights of other tenants and their enjoyment of the premises, or where a tenant is violating the important provisions in the lease that they have.

In those types of situations-- and there's some more-- we're saying in these specified situations, a landlord has a right to evict a tenant. But a tenant has a right to know what the reasons are. And if the tenant disagrees with the facts underlying those reasons, the tenant should have an opportunity to contest that in a court and have the court decide.

BOB POTTER: The bill Beneke referred to had little support in the 1977 legislative session. Many people see difficulty with this type of legislation. It especially threatens the increasing number of landlords who rent out only one or a very few units, often in the same building where they themselves live. Even Bob Warthen, the plaintiff in the Fritz case, is now that type of landlord.

But this type of person still accounts for a very small portion of the rental market. And most for-cause eviction legislation excludes the small landlord from its requirements. Professor Stein also points out that such laws threaten to put many tenants in the uncomfortable situation of having to testify against their neighbors in court.

But public housing residents already operate under these kinds of conditions. And general for-cause eviction legislation promises to be a controversial but increasingly popular trend throughout the country.

Next to evictions, probably the biggest landlord-tenant problem taken to court concerns security deposits. Security deposits are one of a landlord's primary protections. If a tenant runs off without paying rent or damages the apartment, the landlord has some money in hand to offset any losses.

The problem arises in deciding when and to what extent the tenant has a right to get the money back. The 1973 Legislature established several rules in this area. Statute 504.20 says that after a tenant leaves and gives a forwarding address, the landlord must return the deposit plus 5% interest, or he must give notice in writing why the money is not being returned.

This year, the Legislature raised from two weeks to three the deadline for returning the deposit or making the explanation. Then, if there is a dispute in the matter, the parties can fight it out in Conciliation Court.

BRUCE BENEKE: I think the most significant problems now with that law are a little bit different than what they used to be. I think the most significant problems are now that landlords are possibly unfairly keeping part of the security deposit, in the sense of ordinary wear and tear to an apartment is expected.

And a security deposit-- a landlord is not supposed to keep a security deposit for ordinary wear and tear. But we see a lot of landlords interpreting ordinary wear and tear to mean a new paint job or something like that, which you've got to expect after living in an apartment for two or three years that the paint isn't going to look so good anymore.

BOB POTTER: Beneke says that largely the security deposit law works pretty well. But he suggests that for self-protection, new tenants should make a list of the condition of the apartment just before they move in, possibly getting the caretaker to sign the list, possibly getting photographs or verification from an independent witness. Then he says do it again just before leaving.

It's important to note at this point that this is a two-way street. Tenants have no freedom to abuse their landlord's property. Beyond normal wear and tear, they are liable for any deterioration they may have caused to their apartment.

BRUCE BENEKE: In addition to not damaging the premises, the tenant does have responsibility to make sure the place is clean. And if, for example, if the oven isn't cleaned out or if the refrigerator is not cleaned out, and the landlord has to incur expenses in getting that done. The tenant will be charged for it, and justifiably so under the law.

BOB POTTER: The other two problems listed by Beneke, rent increases and substandard housing, are even more difficult to digest. Legal formulas and rules, such as that which emerged from the Fritz versus Warthen case, can only take nibbles at the problem of substandard housing. Long-run solutions lie far beyond the power of the courts.

ROBERT STEIN: I think the major lesson to be learned is the problem of substandard housing is a major problem that simply can't be changed by fiddling around with the legal relationships between landlords and tenants.

These are economic problems. They're social problems. They're political problems, as well as being legal problems. And you must have a major program to deal with them, which I think principally is satisfied by increasing the amount of housing available.

BOB POTTER: Unfortunately, that doesn't seem likely to happen. As we mentioned earlier, all major studies indicate that the housing problem is getting worse in terms of both the amount and quality of available space.

This particular problem and the others we've been discussing are certainly not peculiar to the United States. Housing shortages exist all over the world. Europe, especially, has dealt with this problem for decades. Professor Bruno Greene, who teaches comparative law at the University of Minnesota and Hamline Law Schools, still owns rental property in Austria.

BRUNO GREENE: Most countries are governed by rent control laws, which not only establish rent control but also impose, again in varying degree, duties upon the landlord which are unique, perhaps, as compared to the United States. The idea being that the landlord is more or less a trustee of the rents that he collects and must account for them for the purpose of upkeep.

Now, there are no slums in Austria in our sense. There are no slums because these properties are maintained. If the landlord doesn't maintain them, then the city will immediately impose an order and will do it itself at the expense of the landlord and will put a mortgage on the house.

BOB POTTER: Rent control exists in only a few parts of the United States. Although one third of Americans pay more than they can afford for rent, generally, landlords may charge as much as the market will bear. In Minnesota, this is limited only when a tenant can prove that his rent was raised in retaliation for exercising a legal right.

For example, a landlord cannot raise someone's rent just because he complained to the city about a housing code violation. Rent control laws, such as those in New York City, have been criticized for driving landlords out of business altogether, resulting in abandoned buildings, unused fire traps, eating away at core cities. For example, as much as 5% of Newark, New Jersey's rental property has been abandoned. But--

BRUNO GREENE: Rent control becomes a necessity in crowded urban areas where the landlord is charging rents which the tenants cannot afford. And the city is then facing the possibility of those tenants being evicted and having no place to go.

So therefore, rent control becomes a weapon. But as I've recently read, the other danger that exists is abandonment. Now, if the landlord doesn't get his income, he will abandon the property.

Now, abandonment is impossible in Austria because the city, the state, will not allow it. It will continue to hold the landlord responsible for everything that happens. Here, there are some states which have provisions. Some demand only sealing of the property. Others demand demolition of the property. But demolition is prohibited in Austria because if you demolish, what happens to the tenants?

BOB POTTER: An important thing to keep in mind in any discussion of the law is that most landlords and tenants get along pretty well. Every month, millions of people pay rent or move from one place to another without any trouble.

Litigation occurs only for the small minority of irresponsible landlords or tenants, or in areas of the law which do not yet reflect adequate balance of power between competing interests. While the problems faced in the Fritz case occur all too often, especially in crowded urban areas, landlords will frequently face equally frustrating problems in dealing with some tenants.

ROBERT STEIN: They have to have the rent coming in every month their cash flow is such that to miss even a single month's rent will cause severe economic problems for them. And so they're frequently required to take tenants with absolutely no credit check oftentimes without knowing the circumstances of their relationships with prior landlords or in some cases even their last names

BOB POTTER: The case of Fritz versus Warthen obviously deals with just one small section of the many rules and principles governing the relations of landlords and tenants. And those relations are merely the product of much broader societal forces, forces which are continually changing.

Because of those changes, the law attempts to be flexible. That flexibility is provided both by legislatures in passing statutes like Minnesota's habitability law and by courts in interpreting those laws, as in the case of Fritz versus Warthen. The idea is that the two work together to ensure that the role of law in a changing society is progressive. Sometimes, as in the case of Fritz versus Warthen, it seems to work.

However, one final irony should be noted about this case. In December of 1976, a strikingly similar set of events occurred in St. Paul. As winter assaulted the North Country, the tenants of an inner city apartment building were up in arms against their landlord. The address? 709 Portland, the same building involved in the Fritz case.

The tenants' complaint-- again, no heat in the building. The landlord under attack? Once more, Dr. Wallace Fritz. The tenants were largely different, as were the legal tools at their disposal. Unfortunately, the problems of the inner city hadn't changed at all.

[MARVIN GAYE, "INNER CITY BLUES"]

BOB WARTHEN: I think it's tragic, really, that people can be that bad. I really do. They shouldn't-- they shouldn't own apartment buildings like that. It's like-- well, owning an apartment building is like having a trust, you know. I mean, you've got an obligation to fulfill to maintain a decent building for people to live in.

SHEILA WARTHEN: All they want to do is just collect your money. They didn't want to do anything for the tenants to make it livable. They just wanted that almighty dollar.

[MARVIN GAYE, "INNER CITY BLUES"] Spend it on the have-nots

Money, we make it

Before we see it, you take it.

BRUNO GREENE: The idea being that the landlord is more or less a trustee of the rents that he collects and must account for them for the purpose of upkeep.

[MARVIN GAYE, "INNER CITY BLUES"] Inflation

No chance to increase

BOB WARTHEN: I knew when I started, I wasn't going to stop until I finished it.

[MARVIN GAYE, "INNER CITY BLUES"] Bills pile up

BRUCE BENEKE: And I would have to say I don't think it's an unfair obligation. I think it's workable. What it does is it makes the landlord and the tenant sort of co-partners in the living ability in an apartment.

[MARVIN GAYE, "INNER CITY BLUES"] Oh, make me wanna holler

They way they do my life

BRUCE BENEKE: And I think the Minnesota story has been marked by two distinctive features-- one, the combination of landlords and tenants working together to produce the bills that have resulted. And secondly, some very sensible judgments by the Minnesota Supreme Court in interpreting these bills.

[MARVIN GAYE, "INNER CITY BLUES"]

SHEILA WARTHEN: I don't really understand how the legal system goes, anyway. It just-- but I didn't think it was really fair about it is that I think they should have-- shouldn't have gotten any of our money at all. I think we should have had the right to keep it since how it was voted in our favor.

BOB WARTHEN: I had to pay for my own cleaning and everything, pay for everything, all the damage.

[MARVIN GAYE, "INNER CITY BLUES"] Natural fact is

Oh, honey, that I can't pay my taxes

BRUNO GREENE: And perhaps one of our greatest jobs is to attempt to right the unrightable wrongs, which, I think, is perhaps slowly but gradually coming about.

In other words, there are many wrongs in the past that have never been righted because we have-- the courts have-- stuck to outworn principles. And we have attempted to put the principles of law into cubby holes where everything fit nicely because it was easier to research them and to apply them.

[MARVIN GAYE, "INNER CITY BLUES"]

BOB WARTHEN: Well, actually, I never had much experience with the courts before that. And I think that we got a fair decision. I think the right decision was made, actually. I don't think they could-- I don't see how they could come up with any other type of decision.

[MARVIN GAYE, "INNER CITY BLUES"]

BOB POTTER: Funds for this program were provided in part by grants from the Nash Foundation and the Minnesota Bar Foundation. The program was written and produced by Bill Tilton. Engineering by David Carlton Felland and Bill Tilton.

We'd also like to acknowledge the assistance of University of Minnesota Law Professor John Cound and KQRS Radio for their assistance in preparation of this program. For Minnesota Public Radio, this is Bob Potter.