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  1. #1
    Join Date
    May 2011
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    7

    Default Validity of an Orally Served Trespass Notice

    My question involves criminal law for the state of: Minnesota

    I lived with my father for over 2 years with verbal permission from the landlord and I was not on the lease.

    The local sheriff deputies (Anoka) acted improperly in my opinion and removed me immediately from the premises by serving me a verbal trespass notice. I asked them twice to leave and they refused and came into the house without permission.

    I was not doing anything wrong and the landlord sent no prior warnings or demands for me to leave the property. My father invited me to stay there (never mind the permission from the landlord, which I may or may not be able to prove) and I was not causing damage to the property. (My father missed a rent payment and it could have possibly been retaliatory.)

    I believe that the landlord is violating my father's statutory and contractual right to have invited guests. Even if my father WAS breaching his contract and I was residing there without the landlord's permission, the landlord's remedy should have been to issue him a notice to cure condition (get me out or put me on the lease, if the lease requires all occupants to be so listed) and, if he ignored it, to file an eviction action against my father and argue it all out in court. Any average court (in my opinion) should not find this issue to be a material breach of a contract such that an eviction order would be issued.

    I have not yet discussed with the head of the sheriff's office proper protocol, but I believe that the sheriffs deputies should have told the landlord that it was a civil matter unless the landlord credibly lied and said that I was damaging property or interfering with other tenants in the common areas.

    The deputies did not mention anything about a disturbance and instead said that I was being removed simply because I was not on the lease and that the landlord wanted me removed. (Even if I was causing a disturbance inside my father's space, that's something the landlord should have addressed by way of a notice to cure condition or quit to my father.)

    The sheriff's office has no record of the trespass as I called them and asked for a copy, and the deputy told me I could be arrested if I go onto the property. The deputy told me that I had been "served" and that there was no paperwork.

    I still have belongings at the dwelling. My father has been in the hospital for the last 2 months. it's unclear to me why I was trespassed by the sheriff's deputies and whether it is even valid. If I am actually arrested for trespassing, I believe that my father and I may have an action against the landlord for malicious prosecution. I am not pressing my luck and am currently staying off of the property. I have been off of the property for over 2 months now.

    This put me out on the street for several weeks until I established a temporary residence. There was never a problem until my father had to go to the hospital and missed one rent payment. My life just changed instantly and unexpectedly. I am wondering if this is serious enough to be worth pressing a civil lawsuit over.

    I did research and found nothing about procedure, for actually serving a trespass notice. I could only find the statutes. I believe (4) applies to me.

    609.605 TRESPASS.
    (4) occupies or enters the dwelling or locked or posted building of another, without claim of right or consent of the owner or the consent of one who has the right to give consent, except in an emergency situation;

    My father has claim of right as a leaseholder if I understand correctly, and the landlord should not be able to enforce a trespass on me against my fathers will without a court order.

    My questions are as follows:

    1) Can a trespass notice be served verbally without any record and be legal and valid?

    2) If my rights have been violated, how can I go about pressing a civil lawsuit (against landlord and possibly Anoka county)? Are there any simple steps that I can take without being required to hire a lawyer? What kind of compensation can I expect if I win?

    Thank you for your time!
    -Todd

  2. #2
    Join Date
    Sep 2010
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    19,901

    Default Re: Validity of an Orally Served Trespass Notice

    Trespass notice can indeed be given verbally.
    Your better tactic would be to challenge permissive access by the leaseholder.

  3. #3
    Join Date
    May 2011
    Posts
    7

    Default Re: Validity of an Orally Served Trespass Notice

    I should have been more specific, sorry! Please when replying do not word your response as an opinion. I would like facts with references, as in the actual law in black and white. You hopefully understand why but I have received varying answers to this question which is why I would like the actual LAW to make my own determination. At the very least an explanation would be better than a statement. (i.e. how do they prove you are trespassing without a written record?)

    If the leaseholder gives me "permissive access" then I am challenging the landlords trespass. I don't see the difference. Also I don't see how challenging this would give me anything other than access to the dwelling which would not settle my damages. I'm looking to press a lawsuit here.

    You can't just INSTANTLY throw someone out of a house they have lived at for 2 years when they have done NOTHING wrong! Every part of America has laws dealing with "squatters rights" and there are consequences for violating those rights!

  4. #4
    Join Date
    Sep 2010
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    19,901

    Default Re: Validity of an Orally Served Trespass Notice

    Look Toodle, you don't get to adopt an attitude with those providing you information for free. If you want that level of service, pick up that fat yellow book under the telephone and there will be pages of people willing to take your snarkiness for a fee.

    Every part of America does not have laws with regard to squatters rights rights. Minnesota doesn't (at least not as it applies to your case), the closest they have is adverse possession statutes.
    The trespass passage says that if you have permission of the legal leaseholder, you aren't tresspassing. Note how the statute says OR. It means that the owner can send you a notarized, personally served, witnessed by the chief of police and the Pope denial of your access and if your father is the legal tenant he can still invite you in without it being trespass.

    Nothing in the statute says anything about denial of permission having to be either PERSONAL, in writing, or otherwise when it is given. If you do not have permission, and it's unambiguous when you are explicitly told you do not have permission, you are tresspassing. This is, as we say in the law, MOOT if you had permission.

  5. #5
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,906

    Default Re: Validity of an Orally Served Trespass Notice

    Although dating back quite a few years, such that it makes sense to search for more recent case law, the case of State v Hoyt, 304 NW 2d 884 (1981), appears to be on point.

  6. #6
    Join Date
    May 2011
    Posts
    7

    Default Re: Validity of an Orally Served Trespass Notice

    @ron forgive me if I seemed frustrated at your generic response. I did apologize in advance and rephrased my request to be more specific so that you can better understand my intentions. I may have been forthcoming but I handled it respectfully. As for attitude, double check the spelling of my name and I would appreciate it being used properly. Thank you. As for challenging permissive access, would that be something I would write to the county sheriff about? I was already removed from the property and told I would be arrested if I came back. Do I need a court order to defend my rights BEFORE they are violated? do I wait until they arrest me then go to court? It has already been 3 months and the damage is done! I have a new place to stay. It would be ridiculous to fight this in court for several more months just so that I can move back in to a place that the landlord has a grudge against me.

    Do you think I have any realistic claim of damages that I could file for in small claims court?

    @aaron thank you for the link. Something that I can actually reference. Helpful stuff in there.
    The opinion of the court is what I am looking for and the law. No offense guys but when cops tell me different things, and lawyers tell me different things and people online tell me different things, then I really need to just see the law and court decisions to make my own mind up.
    The state concedes that if defendant had either a constitutional or statutory right to be on the premises, the trespass statute is inapplicable.

    One in possession of premises by permission of a tenant who is entitled to possession is not a trespasser but a licensee. Keithley v. Hettinger, 133 Minn. 36, 157 N.W. 897 (1916).

    In Chicago and North Western Transportation Co. v. City of Winthrop, 257 N.W.2d 302, 304 (Minn. 1977), this court succinctly stated:

    Because a license is generally revocable, it is not an encumbrance upon land. It is actually a justification for acts done under the license, a sort of immunity from trespass.
    So I guess that prior court decisions have affirmed that what I was doing in my case was not trespassing.
    Because the landlord ALLOWED me to live there, that set up a whole new scenario. I even told the police that I had established residency and they ignored me.

    My next question is:

    Do I have a valid claim of damages against landlord/police since the police already removed me from the premises? Or do I need to be physically arrested first?

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