EVICTION
The only legal eviction is a court ordered eviction.
If a landlord forces a tenant out through any other means, the eviction
is illegal and the tenant is entitled to damages and repossession of
the property. Only someone from the county sheriff's department, or in
rare cases a specially authorized police officer, may legally remove
evicted tenants from their home. That person must have a court eviction
order, called a writ of restitution.
There are three legal bases on which landlords can evict tenants:
non-payment of rent
creating a health hazard
termination of a tenancy (usually requires a 30-day notice)
Landlords
must use different "Notices to Quit" for each type of eviction. A
Notice to Quit must be issued before the legal eviction procedure can
begin.
The Notice to Quit
A Notice to Quit
is a legal document that a landlord or agent must give tenants when she
or he wants them to pay or move. It indicates when and why the landlord
wants the tenants to move. In some cases, landlords use these notices
to intimidate tenants. If you receive a Notice to Quit, it does not mean you have to move at the time specified on the notice.
This is merely the first step before the landlord can begin the legal
eviction procedure. You will still have an opportunity to negotiate or
go to court to defend yourself. It also does not mean that the landlord
has to follow through with the eviction. If the landlord accepts all
the rent that is due, or rent for future months, after the tenant
received the notice, the notice becomes void.
Notices to Quit come in three forms:
Seven day non-payment of rent This
type is used if the landlord is claiming you owe rent. The notice tells
you how much you owe and says that you have seven days to either pay,
move, or face possible eviction procedures.
30 day termination of tenancy This is used to end a month-to-month tenancy or to assert that the tenant committed a major breach of the lease.
Seven day health hazard These
are extremely rare, used only if the landlord is evicting you by
claiming you are causing a health hazard or are doing serious physical
damage to the property.
Landlord "Self-Help" Evictions
It is illegal for a landlord to attempt self-help measures to get you out, such as
A landlord may be held liable for any damages you incur under the state Lock Out Law.
The Lock Out Law states that if a tenant is illegally forced out of all
or a portion of her or his home, due to a landlord's acts or failure to
act, she or he is entitled to damages for each occurrence. The tenant
may be entitled to $200 or three times the amount of the actual
damages, whichever is greater, as well as possession of the unit. The
only way a tenant can legally be forced out of her or his home is
through a court order, or if the city condemns the property.
Eviction for Non-Payment of Rent
The
eviction process for non-payment of rent begins when you receive a
seven-day "Notice to Quit", demanding that you either pay the rent
claimed due or vacate the premises within seven days. After a seven-day
notice has been issued, the landlord is supposed to accept rent if a
tenant offers it, making the notice void.
Although these
notices do not explicitly state it, tenants may also ignore the notice
and wait to be sued for eviction. If tenants do nothing in response to
the notice, after seven days the landlord may request that the court
issue a "Summons and Complaint". These two documents will be delivered
to the tenant at the same time through the mail or served in person by
a court officer.
For more information, view our resource on
Evictions for Nonpayment of Rent.
The Court Process
The "Summons"
The Summons indicates the date, time and location of your court hearing. Never ignore a summons.
The "Complaint"
The Complaint states why the landlord wants to evict and whether she or he wants the tenant to move, pay money, or both.
The Initial Hearing
On
the initial court date, either the tenant or their attorney must
appear. Tenants who do not know how to defend a case and have no lawyer
may request a time extension at the first court appearance. They may
ask for up to two weeks; the judge will probably grant one. This does
not mean that the tenant has to show up the next time with a lawyer,
but rather that they wanted to talk to one. If a tenant does
not appear at the first court hearing or have an attorney appear, the
tenant will lose regardless of their defense. The landlord will receive a default judgment against the tenant.
Tenants may request a jury trial when
they appear in court. Even if a tenant settles, she or he will
probably settle better having asked for a jury trial. Tenants must pay
a fee for a jury the same day that they make the request. Always keep
the receipt from the court as proof that you paid the fee. The judge may waive the jury fee for low-income tenants, if requested.
The Pre-Trial
The
next step is the pre-trial, where both sides present their arguments,
and the judge sets a trial date. Following that is the actual trial,
where both sides may present their evidence, documentation, and
witnesses.
The "Answer, Defense and Counter-Claim"
This
is how tenants (or their lawyers) present their side of the story. It
is the written answer (or response) to the landlord's complaint. It
should raise defenses against the eviction and any complaints the
tenants have against the landlord (e.g. poor conditions, landlord
retaliation, discrimination, or violation of the Consumer Protection
Act or the Truth in Renting Act). Even if tenants are behind in rent,
they may still be able to make a counterclaim against the
landlord.
How Long Will An Eviction Take?
It
can take a minimum of four to six weeks to go through an eviction
procedure, from the date the tenant receives the Notice to Quit to the
day the sheriff actually knocks on the tenant's door to physically
evict. Here is how that time was calculated:
Any time
after the Seven Day Notice to Quit expires, the landlord can file for a
court date. The date of the first court hearing will be from four to
eight days after the landlord files. (seven days plus four days = 11
days)
At the initial court appearance, the tenant may ask for
a one to two week adjournment and a jury trial, as described above.
(seven days)
After an initial adjournment, the next court date will be for a pre-trial hearing, usually one to two weeks later. (seven days)
The
judge may hold the trial at the same time as the pre-trial, or set a
new trial date for whenever there is room on the court schedule. (The
tenant may settle a case with the landlord at any time.) (possibly
seven days)
If the judge eventually orders the tenant to move
due to non-payment of rent, the tenant will still have ten days to
either pay the rent (plus court costs) or move. (ten days)
After
that time, the court can issue a "Writ of Restitution" and the sheriff
may come and physically remove the tenant and their property from the
unit. The landlord cannot do this without a writ, and then only with a
sheriff present.
TOTAL TIME: 42 days if the judge grants all the extensions and schedules the trial one week after the pre-trial.
When to Retain An Attorney?
Tenants do not need to be represented by an attorney at a court hearing for eviction.
In many situations, having an attorney is advisable, especially if there are many disputed issues that need to be resolved at a trial, but with the
proper information, you may be able to handle your own case.
For More Information on Eviction:
View our resources on
Evictions for Termination of Tenancy, Evictions for Nonpayment of Rent, Eviction, Illegal Eviction, and Utility Access, and
Surviving Eviction.
To learn more about housing rights in Michigan and where to get help:
If you received court papers or otherwise need free or low cost legal advice:
This article appears courtesy of the Michigan Tenants Counseling Program.