“Home is the place where, when you have to go there, they have to take you in.”

— Robert Frost, The Death of the Hired Man, 1914

Minnesota statute defines a residential tenant as a person who is occupying a dwelling in a residential building under a written or oral lease or contract requiring the payment of money or an exchange of services. In Cocchiarella v. Driggs, the Minnesota Supreme Court expanded the statutory definition of residential tenant by finding someone occupies residential rental property by either holding actual physical possession or holding the present legal right of possession. The Cocchiarella majority repudiated a narrower view that the plain meaning of the controlling statutes requires actual possession. Two housing court referees, a trial court judge, three appeals court judges, and even two justices from the Minnesota Supreme Court disagreed with the majority’s expansive interpretation.

While the Cocchiarella majority provided a good outcome to a lockout action for one particular tenant victimized by an unscrupulous landlord, the court’s opinion expanded the statutory definition of residential tenant for all types of landlord-tenant cases in Minnesota. Moreover, the majority’s present legal right of possession approach used legal fiction by extending the meaning of tenancy to any period of time someone holds the right to occupy residential rental property, even if they have never physically occupied the property. This article (1) advocates a return to a narrower actual physical possession requirement–at least as applied to lockout actions; (2) touches on how the court’s reasoning continued a perilous trend of using dictionaries to surmise plain meaning; and (3) explores how the legal fiction of present legal right of possession has impacted the practice of law in Minnesota by looking at selected cases from the state’s busiest landlord-tenant forum, the Hennepin County Housing Court.