Minnesota Session Laws - 1989, Regular Session

  

                         Laws of Minnesota 1989 

                        CHAPTER 305-H.F.No. 159 
           An act relating to crimes; providing for termination, 
          cancellation, and forfeiture of real estate interests 
          related to contraband or controlled substance 
          seizures; amending Minnesota Statutes 1988, sections 
          566.02; 609.531; 609.5311, subdivisions 2 and 3; 
          proposing coding for new law in Minnesota Statutes, 
          chapters 504; 566; and 609. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
     Section 1.  [504.181] [COVENANT OF LESSEE NOT TO ALLOW 
DRUGS.] 
    Subdivision 1.  [COVENANT NOT TO SELL DRUGS OR ALLOW DRUG 
SALES.] In every lease or license of residential premises, 
whether in writing or parol, the lessee or licensee covenants 
that the premises, common area, and curtilage will not be used 
by the lessee or licensee or others acting under his or her 
control to manufacture, sell, give away, barter, deliver, 
exchange, distribute, or possess with intent to manufacture, 
sell, give away, barter, deliver, exchange, or distribute a 
controlled substance in violation of chapter 152. 
    Subd. 2.  [BREACH VOIDS RIGHT TO POSSESSION.] A breach of 
the covenant created by subdivision 1 voids the lessee's or 
licensee's right to possession of the residential premises.  All 
other provisions of the lease or license, including but not 
limited to the obligation to pay rent, remain in effect until 
the lease is terminated by the terms of the lease or operation 
of law. 
    Subd. 3.  [WAIVER NOT ALLOWED.] The parties to a lease or 
license of residential premises may not waive or modify the 
covenant imposed by this section. 
     Sec. 2.  Minnesota Statutes 1988, section 566.02, is 
amended to read: 
    566.02 [UNLAWFUL DETENTION OF LANDS OR TENEMENTS SUBJECT TO 
FINE.] 
    When any person has made unlawful or forcible entry into 
lands or tenements, and detains the same, or, having peaceably 
entered, unlawfully detains the same, the person entitled to the 
premises may recover possession thereof in the manner 
hereinafter provided.  A seizure under section 7, subdivision 1, 
for which there is not a defense under section 7, subdivision 3, 
constitutes unlawful detention by the tenant. 
    Sec. 3.  [566.021] [NOTICE OF SEIZURE PROVISION.] 
    Landlords shall give written notice to tenants of the 
provision relating to seizures in section 566.02.  Failure to 
give such notice does not subject the landlord to criminal or 
civil liability and is not a defense under section 7, 
subdivision 3. 
    Sec. 4.  Minnesota Statutes 1988, section 609.531, is 
amended to read: 
    609.531 [FORFEITURES.] 
    Subdivision 1.  [DEFINITIONS.] For the purpose of sections 
609.531 to 609.5316 609.5317, the following terms have the 
meanings given them.  
    (a) "Conveyance device" means a device used for 
transportation and includes, but is not limited to, a motor 
vehicle, trailer, snowmobile, airplane, and vessel and any 
equipment attached to it.  The term "conveyance device" does not 
include property which is, in fact, itself stolen or taken in 
violation of the law.  
    (b) "Weapon used" means a weapon used in the furtherance of 
a crime and defined as a dangerous weapon under section 609.02, 
subdivision 6.  
    (c) "Property" means property as defined in section 609.52, 
subdivision 1, clause (1).  
    (d) "Contraband" means property which is illegal to possess 
under Minnesota law.  
    (e) "Appropriate agency" means the bureau of criminal 
apprehension, the Minnesota state patrol, a county sheriff's 
department, or a city or airport police department.  
    (f) "Designated offense" includes:  
    (1) For weapons used:  any violation of this chapter; 
    (2) For all other purposes:  a felony violation of, or a 
felony-level attempt or conspiracy to violate, section 609.185; 
609.19; 609.195; 609.21; 609.221; 609.222; 609.223; 609.2231; 
609.24; 609.245; 609.25; 609.255; 609.322, subdivision 1 or 2; 
609.342, subdivision 1, clauses (a) to (f); 609.343, subdivision 
1, clauses (a) to (f); 609.344, subdivision 1, clauses (a) to 
(e), and (h) to (j); 609.345, subdivision 1, clauses (a) to (e), 
and (h) to (j); 609.42; 609.425; 609.466; 609.485; 609.487; 
609.52; 609.525; 609.53; 609.54; 609.551; 609.561; 609.562; 
609.563; 609.582; 609.59; 609.595; 609.631; 609.671, 
subdivisions 3, 4, and 5; 609.687; 609.821; 609.825; 609.86; 
609.88; 609.89; or 617.246.  
    (g) "Controlled substance" has the meaning given in section 
152.01, subdivision 4.  
    Subd. 1a.  [CONSTRUCTION.] Sections 609.531 to 609.5316 
609.5317 must be liberally construed to carry out the following 
remedial purposes: 
    (1) to enforce the law; 
    (2) to deter crime; 
    (3) to reduce the economic incentive to engage in criminal 
enterprise; 
    (4) to increase the pecuniary loss resulting from the 
detection of criminal activity; and 
    (5) to forfeit property unlawfully used or acquired and 
divert the property to law enforcement purposes. 
    Subd. 4.  [SEIZURE.] Property subject to forfeiture under 
sections 609.531 to 609.5316 609.5317 may be seized by the 
appropriate agency upon process issued by any court having 
jurisdiction over the property.  Property may be seized without 
process if: 
    (1) the seizure is incident to a lawful arrest or a lawful 
search; 
    (2) the property subject to seizure has been the subject of 
a prior judgment in favor of the state in a criminal injunction 
or forfeiture proceeding under this chapter; or 
    (3) the appropriate agency has probable cause to believe 
that the delay occasioned by the necessity to obtain process 
would result in the removal or destruction of the property and 
that:  
    (i) the property was used or is intended to be used in 
commission of a felony; or 
    (ii) the property is dangerous to health or safety.  
    If property is seized without process under clause (3), 
subclause (i), the county attorney must institute a forfeiture 
action under section 609.5313 as soon as is reasonably possible. 
    Subd. 5.  [RIGHT TO POSSESSION VESTS IMMEDIATELY; CUSTODY 
OF SEIZED PROPERTY.] All right, title, and interest in property 
subject to forfeiture under sections 609.531 to 
609.5316 609.5317 vests in the appropriate agency upon 
commission of the act or omission giving rise to the 
forfeiture.  Any property seized under sections 609.531 to 
609.5316 is not subject to replevin, but is deemed to be in the 
custody of the appropriate agency subject to the orders and 
decrees of the court having jurisdiction over the forfeiture 
proceedings.  When property is so seized, the appropriate agency 
may:  
    (1) place the property under seal; 
    (2) remove the property to a place designated by it; 
    (3) in the case of controlled substances, require the state 
board of pharmacy to take custody of the property and remove it 
to an appropriate location for disposition in accordance with 
law; and 
    (4) take other steps reasonable and necessary to secure the 
property and prevent waste.  
    Subd. 5a.  [BOND BY OWNER FOR POSSESSION.] If the owner of 
property that has been seized under sections 609.531 to 609.5316 
609.5317 seeks possession of the property before the forfeiture 
action is determined, the owner may, subject to the approval of 
the appropriate agency, give security or post bond payable to 
the appropriate agency in an amount equal to the retail value of 
the seized property.  On posting the security or bond, the 
seized property must be returned to the owner and the forfeiture 
action shall proceed against the security as if it were the 
seized property.  This subdivision does not apply to contraband 
property.  
    Subd. 6a.  [FORFEITURE A CIVIL PROCEDURE; CONVICTION 
RESULTS IN PRESUMPTION.] (a) An action for forfeiture is a civil 
in rem action and is independent of any criminal prosecution, 
except as provided in this subdivision.  The appropriate agency 
handling the forfeiture has the benefit of the evidentiary 
presumption of section 609.5314, subdivision 1, but otherwise 
bears the burden of proving the act or omission giving rise to 
the forfeiture by clear and convincing evidence, except that in 
cases arising under section 609.5312, the designated offense may 
only be established by a felony level criminal conviction.  
     (b) A court may not issue an order of forfeiture under 
section 609.5311 while the alleged owner of the property is in 
custody and related criminal proceedings are pending against the 
alleged owner.  For forfeiture of a motor vehicle, the alleged 
owner is the registered owner according to records of the 
department of public safety.  For real property, the alleged 
owner is the owner of record.  For other property, the alleged 
owner is the person notified by the prosecuting authority in 
filing the forfeiture action. 
    Sec. 5.  Minnesota Statutes 1988, section 609.5311, 
subdivision 2, is amended to read: 
    Subd. 2.  [ASSOCIATED PROPERTY.] All property, real and 
personal, that has been used, or is intended for use, or has in 
any way facilitated, in whole or in part, the manufacturing, 
compounding, processing, delivering, importing, cultivating, 
exporting, transporting, or exchanging of contraband or a 
controlled substance that has not been lawfully manufactured, 
distributed, dispensed, and acquired is subject to forfeiture 
under this section, except as provided in subdivision 3. 
    Sec. 6.  Minnesota Statutes 1988, section 609.5311, 
subdivision 3, is amended to read: 
    Subd. 3.  [LIMITATIONS ON FORFEITURE OF CERTAIN PROPERTY 
ASSOCIATED WITH CONTROLLED SUBSTANCES.] (a) A conveyance device 
is subject to forfeiture under this section only if the retail 
value of the controlled substance is $500 or more. 
    (b) Real property is subject to forfeiture under this 
section only if the retail value of the controlled substance or 
contraband is $5,000 or more. 
    (c) Property used by any person as a common carrier in the 
transaction of business as a common carrier is subject to 
forfeiture under this section only if the owner of the property 
is a consenting party to, or is privy to, the use or intended 
use of the property as described in subdivision 2. 
    (d) Property is subject to forfeiture under this section 
only if its owner was privy to the use or intended use described 
in subdivision 2, or the unlawful use or intended use of the 
property otherwise occurred with the owner's knowledge or 
consent. 
    (e) Forfeiture under this section of a conveyance device or 
real property encumbered by a bona fide security interest is 
subject to the interest of the secured party unless the secured 
party had knowledge of or consented to the act or omission upon 
which the forfeiture is based.  A person claiming a security 
interest bears the burden of establishing that interest by clear 
and convincing evidence.  
    (f) Notwithstanding paragraphs (d) and (e), property is not 
subject to forfeiture based solely on the owner's or secured 
party's knowledge of the unlawful use or intended use of the 
property if the owner or secured party took reasonable steps to 
terminate use of the property by the offender. 
    Sec. 7.  [609.5317] [REAL PROPERTY; SEIZURES.] 
    Subdivision 1.  [RENTAL PROPERTY.] (a) When contraband or a 
controlled substance manufactured, distributed, or acquired in 
violation of chapter 152 is seized on residential rental 
property incident to a lawful search or arrest, the county 
attorney shall give the notice required by this subdivision to 
(1) the landlord of the property or the fee owner identified in 
the records of the county assessor, and (2) the agent authorized 
by the owner to accept service pursuant to section 504.22.  The 
notice is not required during an ongoing investigation.  The 
notice shall state what has been seized and specify the 
applicable duties and penalties under this subdivision.  The 
notice shall state that the landlord who chooses to assign the 
right to bring an unlawful detainer action retains all rights 
and duties, including removal of a tenant's personal property 
following issuance of the writ of restitution and delivery of 
the writ to the sheriff for execution.  The notice shall also 
state that the landlord may contact the county attorney if 
threatened by the tenant.  Notice shall be sent by certified 
letter, return receipt requested, within 30 days of the 
seizure.  If receipt is not returned, notice shall be given in 
the manner provided by law for service of summons in a civil 
action. 
    (b) Within 15 days after notice of the first occurrence, 
the landlord shall bring, or assign to the county attorney of 
the county in which the real property is located, the right to 
bring an unlawful detainer action against the tenant.  The 
assignment must be in writing on a form prepared by the county 
attorney.  Should the landlord choose to assign the right to 
bring an unlawful detainer action, the assignment shall be 
limited to those rights and duties up to and including delivery 
of the writ of restitution to the sheriff for execution. 
    (c) Upon notice of a second occurrence involving the same 
tenant, the property is subject to forfeiture under sections 
609.531, 609.5311, 609.5313, and 609.5315, unless an unlawful 
detainer action has been commenced as provided in paragraph (b) 
or the right to bring an unlawful detainer action was assigned 
to the county attorney as provided in paragraph (b).  If the 
right has been assigned and not previously exercised, or if the 
county attorney requests an assignment and the landlord makes an 
assignment, the county attorney may bring an unlawful detainer 
action rather than an action for forfeiture. 
    Subd. 2.  [ADDITIONAL REMEDIES.] Nothing in subdivision 1 
prevents the county attorney from proceeding under section 
609.5311 whenever that section applies. 
    Subd. 3.  [DEFENSES.] It is a defense against a proceeding 
under subdivision 1, paragraph (b), that the tenant had no 
knowledge or reason to know of the presence of the contraband or 
controlled substance or could not prevent its being brought onto 
the property. 
    It is a defense against a proceeding under subdivision 1, 
paragraph (c), that the landlord made every reasonable attempt 
to evict a tenant or to assign the county attorney the right to 
bring an unlawful detainer action against the tenant, or that 
the landlord did not receive notice of the seizure. 
    Subd. 4.  [LIMITATIONS.] This section shall not apply if 
the retail value of the contraband or controlled substance is 
less than the amount specified in section 609.5311, subdivision 
3, paragraph (b). 
    Sec. 8.  [EFFECTIVE DATE; APPLICATION.] 
    Sections 2, 4, 5, 6, and 7 are effective on October 1, 
1989, and apply to seizures of contraband or controlled 
substances occurring on or after that date. 
    On or before September 1, 1989, landlords shall give notice 
to tenants of residential rental property under an existing 
lease or periodic rent agreement, that section 2 will become 
effective October 1, 1989. 
    All residential rental property leases or periodic rent 
agreements entered on or after September 1, 1989, must include 
the notice to the tenant required by section 3. 
    Presented to the governor May 30, 1989 
    Signed by the governor June 1, 1989, 10:49 p.m.