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Lucy Dougherty, Volume 107 Staff Member

When tenants face an eviction for non-payment of rent in Hennepin County, they may have an affirmative defense to the eviction action if the landlord has broken the covenant of habitability.[1] The covenant of habitability is a statutory right in Minnesota which requires landlords “maintain the premises in compliance with the applicable health and safety laws.”[2] Tenants who are subjected to living conditions below this standard can assert the defense of habitability.[3] In Minnesota, the defense of habitability is governed by the Minnesota Supreme Court case Fritz v. Warthen and is more commonly known as the “Fritz defense.”[4]

Eviction filings in Hennepin County have skyrocketed since COVID-19 era federal and state eviction moratoriums were lifted,[5] and the vast majority of these evictions are on the basis of non-payment of rent.[6] Accordingly, the availability of a Fritz defense is more important than ever. However, in practice, this defense is difficult for low-income tenants to assert due to a daunting procedural barrier set out in Fritz: rent posting.[7] Rent posting requires that a tenant deposit, or “post,” some portion of their rent with the court while an eviction action is litigated.[8]  The practice of rent posting is a common procedural barrier erected by courts and legislatures in many states,[9] but the particular requirements often differ.[10] In Minnesota, a tenant is generally required to post any unpaid rent and to continue posting rent as their case is litigated.[11] If a tenant is unable to post the full amount of back rent, or become unable to post future rent during litigation, they lose their ability to assert a Fritz defense.[12] The Minnesota legislature should reform rent posting to ensure defendants are not unfairly denied their ability to assert the defense of habitability.


The requirement of rent posting in landlord-tenant law is unique in our adversarial system, because in no other form of civil litigation are litigants required to pay the money sought by their adversaries to assert one of their defenses.[13] Historically, once the covenant of habitability became widely recognized as a justification to withhold rent, landlords sought to protect their interest in receiving rental payments.[14] In pursuit of those aims, landlord advocates have advanced multiple justifications for requiring some form of rent posting: preventing tenants from frivolously asserting habitability defenses, ensuring there is funding for the landlord to make habitability repairs, and even that rent posting requirements are necessary to demonstrate a tenant is in “good faith” while the eviction action is being litigated.[15]

Studies have shown that rent posting procedures which are fair to both tenants and landlords result in the best outcomes to tenants.[16] Balanced procedures provide incentive and means for the landlord to fulfill the covenant of habitability while ensuring the tenant is not unduly burdened.[17] Striking that balance in practice, however, can prove challenging because allowing rent posting can create perverse incentives for landlords.[18] The procedure sometimes makes it easier for tenants—especially low-income tenants—to move rather than attempt to raise the money to assert the defense of habitability.[19] This could incentivize landlords to avoid maintaining their units until litigation.[20]

Regardless of any purported justifications for requiring rent posting, low-income tenants are disproportionally burdened when any form of rent posting is a precondition to asserting the defense of habitability.[21] These tenants are denied their day in court while continuing to be subjected to unacceptable living conditions. Procedural barriers like rent posting have been identified as a likely significant contributor to low-income tenants’ failure to receive relief based on the implied warrant of habitability.[22] These harms are compounded for the poorest tenants with the most severe habitability defects — for example, if an unwilling tenant utilizes their rent money on space heaters due to inadequate hearting in their unit and are subsequently unable to post that money, they cannot assert the defense of habitability.[23]


In 2019, the Minnesota Supreme Court clearly articulated the purpose of the defense of habitability: “There is a compelling reason to recognize this defense: the protection of the health, safety, and welfare of tenants and their families.”[24] Despite this guidance, current practices in Minnesota recognize a tenant losing this important defense is an acceptable outcome if they are unable to pay. The Minnesota Housing Court Benchbook, a “guide to help judges in Minnesota work through housing court cases that come before them,” states that tenants who do not have the money to post their rent are often “willing to settle out the case and work either on a payment agreement or they will agree to move out at some date.”[25] While this is judicially expedient, it does not protect tenants’ rights and sets up a pay-to-play model of adjudication.

Tenant advocates have called for changes to Minnesota’s rent posting procedures. One argument is that Minnesota should eliminate the requirement that a tenant post all unpaid back rent because this was never originally part of the Fritz defense.[26] The Fritz defense, rather, referenced the payment of future rent.[27] This solution avoids penalizing the tenant for actions they may have taken prior to the commencement of litigation when it is more likely than not they were unaware of the proper legal procedure.[28] Unfortunately, only eliminating the back pay requirement still leaves tenants potentially vulnerable to losing their defense of habitability. Under current law, if a tenant fails to make a future rent payment to the court while their defense is pending, their claim would be dismissed, putting that tenant right back where they started.[29] This delicate balance has generated many calls for legislative change.[30]

A pair of bills in the Minnesota legislature seek to eliminate rent posting entirely.[31] The first was introduced in the Minnesota House on January 26th, 2023,[32] and the companion was introduced in the Minnesota Senate on February 6th, 2023.[33] If passed, either bill would prevent the court from requiring the defendant post any amount “prior to the final disposition of an action.”[34] This remedy would protect tenants’ rights regardless of income level and ensure the Fritz defense is no longer locked behind a paywall.


[1] Fritz v. Warthen, 213 N.W.2d 339 (Minn. 1973).

[2] James Poradek & Luke Grundman, Eliminating the Unconstitutional “Pay-to-Defend” Barrier in Minnesota Eviction Actions, Hous. Just. Ctr. (2021) [].

[3] Id.

[4] Id.

[5] Erin Adler & MaryJo Webster, Minnesota Eviction Filings Soared in 2022 and Continue into New Year, Star Trib. (Jan. 22, 2023) [].

[6] Minneapolis Innovation Team, Evictions in Minneapolis, 2 (2016).

[7] Fritz, 213 N.W.2d at 343.

[8] Jana Ault Philips & Carol J. Miller, The Implied Warranty of Habitability: Is Rent Escrow the Solution or the Obstacle to Tenant’s Enforcement?, 25 Cardozo J. Equal Rts. & Soc. Just. 1, 8 (2018).

[9] Id.

[10] Id.

[11] Minn. Gen. R. Prac. 608

[12] Poradek & Grundman, supra note 2.

[13] David A. Super, The Rise and Fall of the Implied Warranty of Habitability, 99 Calif. L. Rev. 389, 397 (2011).

[14] Philips & Miller, supra note 8 at 15–16.

[15] See, e.g., id. at 15–18.

[16] Id. at 36.

[17] Id.

[18] Super, supra note 13 at 445.

[19] Id.

[20] Id.

[21] Celia Feldman, Renting While Poor: How Rent Escrow Violates Tenants’ Due Process Rights, 51 U. Baltimore L. Rev. 248 (2022).

[22] Super, supra note 13 at 432.

[23] Id.

[24] Central Hous. Assocs. v. Olson, 929 N.W.2d 398, 409 (Minn. 2019).

[25] Randy Furst, Rest Escrow Requirement Prevents Tenants from Challenging Poor Living Conditions, Lawyers Say Landlords Benefit from a Court Directive That is a violation of Due Process, Star Trib. (Nov. 26, 2021), [].

[26] Id. 

[27] Id.

[28] Feldman, supra note 21 at 267.

[29] Id. at 268.

[30] See, e.g., Furst, supra note 25.

[31] H.F. 917, 93 Leg. (Mn. 2023); S.F. 1298, 93 Leg. (Mn. 2023).

[32] HF 917 Status in the House for the 93rd Legislature (2023–2024), [] (last visited Mar. 1, 2023).

[33] SF 1298 Status in the House for the 93rd Legislature (2023–2024), [] (last visited Mar. 1, 2023).

[34] H.F. 917, 93 Leg. (Mn. 2023) (“The court may not require the defendant to pay any amount of money into court, post a bond, make a payment directly to a landlord, or by any other means post security for any purpose prior to final disposition of an action, except for appeals as provided in section 504B.371.”).