Public Policy Blog: Baby, it’s cold inside!

It’s 11:00pm and my cat is cold. I can tell he is cold because my normally aloof and not-snuggly cat has curled up under the numerous blankets I have piled upon myself in an effort to get warm enough to fall asleep.

It is December of 2018 and my first winter living on my own in Minnesota. I moved here from Iowa to attend law school at the University of Minnesota. On a limited budget as a student living alone (except for my cat) my options for one-bedroom apartments were limited. In July 2018 I moved into the fourth-floor walk-up in an old but beautiful brownstone because the rent was affordable, cats were allowed, and the unit advertised “tenant only plays electric – all other heat and utilities included!”

Unfortunately for me, having “free” heat also meant not having any control over the temperature in my home. Each night the boiler would turn on and blast hot water through my radiator, raising the temperature in my unit to a balmy 80+ degrees. After this heat blast the temperature would drop throughout the day until it fell as low as 60 degrees by the time I was trying to fall asleep. During the polar vortex of January 2019 it got even colder. I learned to cope with the cold by wearing several layers of clothes, burying myself under blankets, spending lots of time in the kitchen with the oven on, and investing in a space heater. The space heater ultimately helped keep my unit at a livable temperature, but increased my electricity bills as high as $85/month for a 500 square foot apartment, effectively undoing any savings promised from my “heat and utilities included.”

It is no secret that Minnesota is cold. Sub-zero temperatures are not considered unusual, with wind chill temperatures often sinking much lower. Minnesota winter weather often lasts as long as 7 months, from September through April, with bouts of extreme cold springing up unpredictably.

February 11-16, 2021 brought the third-longest sub-zero streak in Twin Cities’ history, totaling 116 hours (had it not been for a single reading of 1 degree above zero on February 11, the streak would have been 20 hours longer).

Despite many Minnesotans’ devotion to winter activities and the myriad jokes about Minnesota winters (“Oh hey there! Cold enough for ya?!”), there are very real health risks tied to cold weather and associated cold indoor temperatures beyond discomfort. According to the World Health Organization, cold indoor temperature is especially dangerous for elderly people, young children, and people with health problems. Health risks include increased blood pressure, asthma symptoms, increased winter mortality and morbidity, increased risk of respiratory and cardiovascular disease, and poor mental health. The risk of fire or other injury also increases in the winter because many Minnesota tenants report relying on alternative heating sources during the winter months such as space heaters, fires, or ovens, as was my experience.

ETRA and Rent Escrow

Access to adequate heating is considered so important that complete loss of heat is one of the few areas of landlord/tenant law that is eligible for an Emergency Tenant Remedies Action under Minn. Stat. 504B.381. However, this remedy is only available to tenants who have no heat or whose heat is consistently inadequate (i.e. consistently measures below 60 degrees). The benefits to an ETRA action are that a tenant can get court access and pursue remedies quickly, only having to give their landlord 24-hour notice of an intent to seek emergency relief. The downside to an ETRA is that filing fees are prohibitively expensive for many tenants, running around $300.

Rent Escrow is another option for tenants who experience inadequate heat. Minnesota law requires that landlords “keep the premises . . .  fit for the use intended by the parties,” meaning the unit must be kept habitable. To file a rent escrow the tenant must submit a request to the landlord to remedy the issue and then give the landlord 14 days to do so. If the landlord does not, the tenant can file for rent escrow, paying $70 for a filing fee, and then paying their rent money into the court rather than to their landlord. At a rent escrow hearing, the court will determine whether there has been a breach of habitability and, if so, what the appropriate remedy may be. Remedies may include compelling the landlord to make the necessary repairs, granting the tenant rent abatement (i.e. money back), or even letting the tenant cancel the lease. However, there is no law in Minnesota dictating exactly what a “habitable” temperature is. This means that if a tenant’s unit is above 60 degrees but nevertheless uncomfortably cold it is not certain that they would succeed in a rent escrow claim, especially in situations like mine where the heating equipment works, but the temperature fluctuates. Tenants with inadequate heat are more likely to find success if they have protection from a local heating ordinance.

Local Heating Ordinances

Depending on where a tenant is living, they may have some protection from a local heating ordinance or city code. A local heating ordinance sets standards that residential tenant buildings’ heating equipment must meet. These local ordinances vary from city to city, with some offering strong protection, some offering vague protection, and some cities lacking any ordinance at all. Tenants must rely on local enforcement, which also varies from city to city.

International Falls, also known as the “Icebox of the Nation” is one city with a heating code with vague protection. International Falls’ municipal code (Chapter 4, Section 4-20 (f)) dictates that heating equipment “must be capable of safely and adequately heating all habitable rooms . . .  to at least 68 degrees.” My first apartment building would have technically complied with this ordinance, even though the temperature in my unit fluctuated between 80+ and 60 degrees. The boiler in my building was “capable” of maintaining a minimum of 68 degrees. However, this capability clearly did not extend to actuality, leaving me without much recourse as long as my building did not completely lose heat or consistently fall below 60 degrees.

Contrasting International Falls, Minneapolis’ heating code offers strong protections for tenants. Minneapolis municipal code requires that heating equipment “maintain a minimum temperature of 68 degrees . . .  at all times between October 1 and April 30.” Tenants whose apartments are technically heated but still cold can show that their landlords are not complying with this code by demonstrating that the temperature in their home is below the 68 degree threshold. This does require effort on the tenant’s part, both to report to local enforcement and to demonstrate that the temperature is inadequate. However, tenants who are protected under a stricter local ordinance are much more likely to prevail should they pursue a rent escrow action because the parameters of what constitutes a “habitable” temperature are explicit.

Despite the obvious importance of adequate and reliable heating, the state of Minnesota does not have any uniform heating code for residential tenancy buildings. Each year many tenants struggle with inadequate heating. These tenants’ remedies are not uniform and can therefore be difficult to understand and enforce. A straightforward solution to this inequity would be to adopt a uniform statewide heating code that requires landlords to maintained a minimum temperature of 68 degrees in all residential rental housing from October to May.

I left that first, cold apartment after only one year, moving into a more expensive, but much nicer unit with my partner and our cat. Here, we also do not pay for heat, but our unit always maintains a temperature of at least 69 degrees. The additional costs that our landlord incurs as a result of paying for heat are factored into our rent, meaning that though our rent is higher, our budget is stable and we know what to expect. However, I fully recognize that my ability to leave my first apartment is a result of the privilege I have in the form of a partner who is willing and able to support me through law school and family members who were able to help me finance my moving costs, including a security deposit at my new place. My experience with inadequate heat is not unusual, but many Minnesotans who find themselves in similar situations are not able to access more suitable housing. Adopting a uniform heating code for the state that mandates that residential tenant buildings maintain at least 68 degrees in all units from the end of September through the end of April is one simple solution to the inequities faced by many of this state’s most vulnerable and low-income tenants. 

Leah DeGrazia is a Tenant Advocate for HOME Line, serving clients on the hotline and doing legal research. As a third year law student at the University of Minnesota Law School, she joined HOME Line through the Saeks Public Interest Residency Program.