Tenants and Landlords: A Practical Guide

Whether you are a tenant or a landlord, when you sign a lease agreement, you sign a contract. You are contractually obligated to perform certain duties and assume certain responsibilities. You are also granted certain rights and protections under the lease agreement. This informational booklet is intended only as a practical guide—it is not a substitute for competent legal advice. Owners of mobile-home parks, owners of mobile homes who rent spaces in the parks, and renters of mobile homes may have additional rights. For more information, please contact the Building Division of the Michigan Department of Consumer and Industry Services at (517) 241-9347. It is our pleasure to provide this information to you. We hope that you find it useful.

Creating and Terminating Tenancies and Understanding the Lease

Read the lease. Read the lease. Read the lease. When most people hear the term “lease” they think of the long sheets of paper written in very small type that they sign when they agree to move in and rent an apartment or house. A lease contains a variety of legal terms. It is important to recognize and know the following terms of a lease and to understand the substance of the agreement.

  • Landlord: The party agreeing to transfer possession and use of the rental property, usually the owner (but may also include an agent or employee of the owner, or a management company).

  • Tenant: The party taking possession and use of the rental property from the landlord under a lease. A tenant’s right to possession and use is called a tenancy or leasehold.

  • Lease (or Rental Agreement): The contract between the tenant and landlord, transferring possession and use of the rental property. A lease can be written or oral, but a written lease provides the best protection for both the landlord and the tenant.

  • Joint and Several Liability: If more than one person signs the lease as a tenant, the lease may state that their obligations are “joint and several.” This means that each person is responsible not only for his or her individual obligations, but also for the obligations of all other tenants. This includes paying rent and performing all other terms of the lease.

  • Escrow Account: A bank account or other account held by a third party, generally established in the name of the tenant, into which whole or partial rent payments are deposited to show that the tenant was ready, willing, and able to pay the rent—but is withholding the rent until a certain problem is fixed that the landlord is legally responsible for fixing. Once the problem is fixed, the escrowed rent amount will be released to the landlord.

  • Plaintiff: A person who files a civil action to seek judicial relief for some injury or damage caused in violation of his or her rights.

  • Defendant: A person against whom relief or recovery is sought in a civil action.

THE TENANCY

Question 1: What are the types of tenancies?

While the lease refers to the written (or oral) agreement, the “tenancy” refers to the actual property right a tenant receives under the lease. When the owner conveys to another a lesser interest in the property for a term less than that of the owner’s for valuable consideration (generally rent), thereby granting another use and enjoyment of his or her property during the period stipulated, that creates a tenancy. In Michigan, there are three types of tenancies:

(1) Fixed-Term Tenancy. This type of tenancy is created when the lease agreement specifies when the tenancy begins and when it ends. It terminates automatically at the end of the period specified. Generally, a written lease provides that if a tenant holds over after the fixed term expires, the tenancy shall be considered a month-to-month tenancy. On the other hand, if the lease does not so provide, and the parties acquiesce—i.e., tenant stays in possession and landlord accepts the rent—the lease is considered renewed for the same fixed term upon the same conditions.

(2) Periodic Tenancy OR Tenancy at Will. This type of tenancy is indefinite in duration. It is created by actual or implied consent. Usually a month-to-month tenancy, the lease is considered renewed at the end of each rental period (month-to-month or week-to-week, depending on how often rent must be paid). Termination procedure is governed by statute and requires notice.

(3) Tenancy at sufferance OR holdover tenancy. This type of tenancy is created by operation of law only. A tenant holds possession after his or her legal right to possession has ended (oftentimes based on landlord’s failure to act). The person is just short of being considered a trespasser. The elements:

A. The tenant entered possession lawfully,

B. The tenant’s legal right to possession has ended, and

C. The tenant remains without the landlord’s consent.

Question 2: Are there advantages and disadvantages to the different types of tenancies?

Fixed-Term Tenancy

Advantages to the tenant:

  • The rental period is fixed and the rental amount is stable
  • The landlord may not regain possession or raise the rent, with few exceptions.
Advantages to the landlord:
  • The tenant is committed to pay rent for a specified period of time
  • The tenant is bound by the lease terms, with few exceptions.

Disadvantage to the tenant:

  • He or she is bound by the lease term and may not simply move without remaining liable for the rent, permitting fewer changes in arrangements.

Disadvantage to the landlord:

  • He or she is stuck with the tenant until the lease term ends.

Periodic Tenancy OR Tenancy at Will Advantages.

Advantage to the tenant:

  • He or she is free from any further obligation once proper notice of termination is given to the landlord
  • Different housing arrangements can be made more quickly.
Advantage to the landlord:
  • He or she may decide to no longer rent to the tenant if the same proper notice is given.

Disadvantage to the tenant:

  • The landlord, with proper notice, can also raise rent.

Disadvantage to the landlord:

  • Is that he or she is not provided with any certainty as to how long the tenant will remain.

THE LEASE

Question 1: Are there advantages to a written lease?

Although it is common for tenants to sign some type of written agreement, a lease is not always put in writing. Sometimes it is nothing more than an oral agreement as to the move-in and move-out dates, the address of the rental property itself, and the amount of the rent and when it must be paid. However, if the lease agreement is for a period of more than one year, an oral lease is not an option—it must be put in writing to comply with the Statute of Frauds (MCL 566.106).

Whether there is a fixed-term tenancy or a periodic tenancy, it is best to have a written record of the rental agreement. A written record is a permanent record that may be used for reference if misunderstandings arise—and they do. In the absence of a written lease, signed by both the landlord and the tenant, it is advisable to keep a personal written record of the agreement.

Question 2: What provisions should be included in the lease?

The Michigan Truth in Renting Act (Act 454 of 1978, MCL 554.631 to 554.641) regulates residential leases—requiring the landlord to disclose certain information. Leases differ somewhat in terms, but a written lease agreement should include:

        1. Name and signature of the landlord;
        2. Name and signature of the tenant;
        3. Rent amount to be paid, how frequently, and when and where it is to be paid;
        4. Address of the rental property;
        5. Starting and ending dates if it is a fixedterm tenancy;
        6. Landlord’s mailing address;
        7. Amount of the security deposit, if any;
        8. Name and address of the financial institution holding the security deposit;
        9. Notice of the tenant’s obligation to provide a forwarding address to the landlord within 4 days of terminating the tenancy;
        10. Who is responsible for paying utilities;
        11. Repair and maintenance responsibilities;
        12. Eviction procedures;
        13. Any other terms and conditions that the landlord and tenant agreed to; and
        14. This statement must be provided in a prominent place in the lease, in at least a 12-point font size: “NOTICE: Michigan law establishes rights and obligations for parties to rental agreements. This agreement is required to comply with the Truth in Renting Act. If you have a question about the interpretation or legality of a provision of this agreement, you may want to seek assistance from a lawyer or other qualified person.”

Note: Two copies of an inventory checklist must be provided to the tenant when he or she takes possession of the rental property.

Question 3: What provisions are prohibited by law from being included in the lease?

The Michigan Truth in Renting Act regulates residential leases—prohibiting certain clauses or provisions and prescribing penalties. A provision or clause in a lease that violates the Truth in Renting Act is void. In particular, a written lease shall not include a provision which:

        1. Waives or alters a remedy available to a party when the rental property is in a condition which violates the covenants of fitness and habitability;
        2. Waives a right established under the laws that regulate security deposits;
        3. Unlawfully excludes or discriminates against a person in violation of the laws relating to civil rights;
        4. Provides for a confession of judgment, e.g., requiring a person to give up certain legal rights in advance;
        5. Relieves the landlord from liability for the landlord’s failure to perform a duty or for negligent performance of a duty imposed by law (however, the landlord’s duty could be waived to the extent a tenant was able to recover under an insurance policy for loss, damage, or injury caused by fire or other casualty);
        6. Waives or alters a party’s right to demand a jury trial or any other right of notice or procedure required by law;
        7. Provides that a party is liable for legal cost or attorney fees incurred by the other party in excess of costs or fees specifically permitted by statute;
        8. Provides for the landlord to take a security interest in any of the tenant’s personal property to assure payment of rent or other charges, except as specifically permitted by statute;
        9. Provides that rental payments may be accelerated if the tenant violates a lease provision unless the amount is determined by the court;
        10. Waives or alters a party’s rights with respect to possession or eviction proceedings;
        11. Releases a party from the duty to mitigate (or minimize) damages;
        12. Provides that the landlord may alter a lease provision after the lease begins without the tenant’s written consent, EXCEPT: with 30 days’ written notice, the landlord may make the following types of adjustments, as long as there is a clause in the lease allowing for the adjustments:
            1. Changes required by federal, state, or local law, rule, or regulation;
            2. Changes in rules relating to the property meant to protect health, safety, and peaceful enjoyment; and
            3. Changes in the amount of rental payments to cover additional costs incurred by the landlord because of increases in property taxes, increases in utilities, and increases in property insurance premiums.
        13. Violates the Consumer Protection Act (Act 331 of 1976, MCL 445.901 to 445.922), which lists 34 unfair trade practices; or
        14. Requires the tenant to give the landlord a power of attorney.

Question 4: What if the lease contains a provision that is prohibited by law or is missing the required disclosure language?

A provision or clause in a lease that violates the Truth in Renting Act is void. The lease is not void—only the prohibited provision. However, a landlord must fix the prohibited provision or add the required disclosure language within 20 days after the tenant brings the deficiency to the landlord’s attention in writing. If the landlord fails to fix it within the time specified, the tenant may bring an action to:

        • Void the entire lease agreement;
        • Make the landlord remove the prohibited provision from all lease agreements in which it is included; and
        • Recover $250 per action (for prohibited provisions) or $500 per action (for missing disclosure provisions required by law), or actual damages, whichever is greater.

Qustion 5: What other provisions can be included in the lease?

As long as a provision or clause does not violate federal, state, or local laws, rules, or regulations, the parties can agree to almost anything and include it in the lease. It can be as outlandish as stating, “Only blue cars can be parked in the driveway.” Some special provisions to be aware of include:

        • Smoking: A landlord is free to prohibit smoking in the rental property, as this would not violate any state, federal, or local laws.
        • Pet Restrictions: A landlord may prohibit all pets in a rental unit. A landlord may charge a fee for having a pet. An exception here is that a landlord may not prohibit a disabled individual relying on a service animal from housing the animal.

Question 6: How can a lease be terminated?

Fixed-term tenancy: This type of tenancy is created when the lease agreement specifies when the tenancy begins and when it ends. It terminates automatically at the end of the period specified. A fixed-term lease ends on its own without further action. However, many leases include the provision that the lease converts to a month-to-month tenancy at the end of the fixed term. Other leases state a sky-high increase in rent—sometimes double—if the tenant stays beyond the fixed term.

Periodic tenancy OR tenancy at will: This type of tenancy is indefinite in duration. It is created by actual or implied consent. Usually a month-to-month tenancy, the lease is considered renewed at the end of each rental period (month-to-month or week-to-week, depending on how often rent must be paid). Termination procedure is governed by statute and requires notice. Additionally, there are special termination rights for senior citizens or persons incapable of independent living.

Question 7: What are the termination rights for senior citizens or persons incapable of independent living?

Lease agreements entered into, renewed, or renegotiated after June 15, 1995, must provide special termination rights for senior citizens and persons incapable of independent living. These leases must allow the tenant who has already occupied a rental unit for more than 13 months to terminate the lease with 60 days’ written notice if either of the following occurs:

    • Tenant becomes eligible to move into a rental unit in senior-citizen housing subsidized by a federal, state, or local government program, OR
    • Tenant becomes incapable of living independently, as certified by a physician in a notarized statement.

Qustion 8: What does "joint and several liability" mean?

If more than one person signs the lease as a tenant, the lease may state that their obligations are “joint and several.” This means that each person is responsible not only for his or her individual obligations, but also for the obligations of all other tenants. This includes paying rent and performing all other terms of the lease.

Question 9: Can a landlord raise the rent once the lease has started?

Generally, the landlord may not alter a lease provision after the lease begins without the tenant’s written consent. There are, of course, exceptions to this. With 30 days’ written notice, the landlord may make the following types of adjustments, as long as there is a clause in the lease allowing for the adjustments:

    • Changes required by federal, state, or local law, rule, or regulation;
    • Changes in rules relating to the property meant to protect health, safety, and peaceful enjoyment; and
    • Changes in the amount of rental payments to cover additional costs incurred by the landlord because of increases in property taxes, increases in utilities, and increases in property insurance premiums.

The security deposit is an amount of money paid by the tenant to the landlord— other than the first rent payment (whatever period is established in the lease: weekly rent payment, monthly rent payment, semiannual rent payment, and so on). The security deposit remains the tenant’s property, but is held by the landlord for the term of the lease to ensure that the tenant pays the rent due, pays the utility bills, and returns the rented property in proper condition, as required by the lease. It is held as security as the name implies. Once the lease is terminated, the tenant has the right to have the entire security deposit returned unless the landlord can substantiate a claim to it because the tenant:

    • Owes unpaid rent;
    • Owes unpaid utility bills; or
    • Caused damage to the rented property beyond reasonable wear and tear.

Under Michigan law, both a tenant and a landlord have duties and must perform specific acts regarding the security deposit. Understanding the duties and taking action are crucial. The law requires mandatory notice provisions, written communications, mailings, and strict compliance with time limits. If the duties are not performed precisely, the tenant risks losing the return of his or her security deposit and the landlord risks losing a claim to it. This chapter explains the duties and the necessary actions that must be taken.

COLLECTING THE SECURITY DEPOSIT AT THE BEGINNING OF THE TENANCY

Question 1: Is there a limit on the amount that a landlord may collect as a security deposit?

 Yes. The law states that a security deposit shall not exceed 1.5 times the monthly rent.

Question 2: What exactly is considered a security deposit?

Any prepayment of rent—other than for the first full rental payment period established in the lease—and any refundable fee or deposit are considered by law to be part of the security deposit. Sometimes the lease requires that both the first and last months’ rent be paid before a tenant moves in. If this is the case, the last month’s rent would be considered a security deposit. Sometimes, too, additional fees or deposits are charged to hold the rental property, for credit checks, for pets, for cleaning, for keys, for mailboxes, for storage, and for many other reasons. While these fees or deposits may not be called “security deposits” in the lease, if they are otherwise refundable, they are still considered by law to be part of the security deposit and subject to the strict rules that Michigan has adopted— including the limit on the total amount that a landlord may collect.

Question 3: Is there a difference between a fee and a deposit?

Yes. The law defines the term “security deposit” and limits the amount that may be collected (not to exceed 1.5 times the monthly rent). Refundable fees are deemed—by definition—to be security deposits. Nonrefundable fees are not; and they can be assessed in any amount for any reason.

The Security Deposit Example: If a landlord charges $500 a month for rental property, the maximum the landlord may collect as a security deposit is $750 ($500 X 1.5 = $750). Example: The monthly rent is $500 and the lease calls for a $750 security deposit. In addition to the security deposit, the lease calls for a $250 refundable cleaning fee. Because the cleaning fee is refundable, it would be considered part of the security deposit—and that would put the amount collected for a security deposit above the 1.5 times monthly rent allowed, violating Michigan law. If the lease, instead, declared the fee to be nonrefundable, it would be allowed.

Question 4: Once collected, what must the landlord do with the security deposit?

The landlord must either:

  • Deposit the money with a regulated financial institution (e.g., bank), OR
  • Deposit a cash bond or surety bond, to secure the entire deposit, with the Secretary of State. (Note: If the landlord does this, he or she may use the money at any time, for any purpose.) The bond ensures that there is money available to repay the tenant’s security deposit.

Question 5: Whose money is it anyway?

The security deposit is considered the lawful property of the tenant, until the landlord establishes a right to it—generally by obtaining a judgment in a court of law. If the landlord sells the rental property, he or she remains liable with respect to the tenant’s security deposit until any ONE of the following occurs:

  • The landlord returns the deposit to the tenant, OR
  • The landlord transfers the deposit to the new owner and sends notice—by mail—to the tenant informing him or her of the new owner’s name and address, OR
  • The new owner sends written notice of their name and address to the tenant AND the name and address of the financial institution where the deposit is held AND the tenant’s obligation to provide a forwarding address within 4 days of terminating occupancy.

Question 6: What rights and responsibilities does the landlord have with regard to the tenant"s security deposit?

  • The landlord must provide the tenant with certain notices. Within 14 days from the day the tenant moves in, the landlord must provide written notice of the following:
  • The landlord’s name and address for receipt of communications regarding the tenancy;
  • The name and address of the financial institution where the security deposit is held, OR the name and address of the surety company; and who filed the bond with the Secretary of State; and
  • The tenant’s obligation to provide a forwarding address—in writing—within 4 days after the tenant moves out. Generally these notices are found in the lease itself. (See The Lease section; see also the model lease in the Appendices, which displays all of these notices with the correct form and wording.)

Question 7: What is the point of the inventory checklist?

The checklist preserves some proof of the condition of the property when the tenant moved in. The landlord must provide the tenant with 2 blank copies of an inventory checklist, referencing all items in the rental unit. The landlord must provide written notice on the first page of the checklist that the tenant must properly complete the checklist, noting the condition of the property, and return it to the landlord within 7 days after moving in. The tenant may request a copy of the termination inventory checklist (generally referred to as the itemized list of damages caused by the previous tenant). If requested, the landlord must provide a copy to the tenant.

Question 8: Is it important to properly complete the inventory checklist?

Yes. The checklist preserves some proof of the condition of the property when the tenant moves in. If the tenant fails to properly fill out the checklist, or fails to return it, and a dispute over damages to the property occurs at the end of the lease, it becomes the tenant’s word against the landlord’s word. Further recommendation: Take photos or video tape recordings of the rental unit before tenant moves in.

RECOVERING THE SECURITY DEPOSIT AT THE END OF THE TENANCY

Question 1: What must the TENANT do at the end of the lease?

The tenant MUST provide his or her forwarding address—in writing—to the landlord within 4 days of moving out. Calling or telling the landlord, or landlord’s agent, won’t do. While the landlord must inform a tenant of this at the beginning of the lease, all too often a tenant forgets to do this when he or she moves out. Without a forwarding address, the landlord has no duty to make arrangements for returning the deposit. If the forwarding address is provided within the 4 days, the landlord has 30 days from move out to respond.

Question 2: What must the LANDLORD do at end of the lease? If the landlord receives the tenant’s forwarding address within 4 days of move out, the landlord has 30 days from move out to either:

  • Return the entire amount of the deposit by check or money order, OR
  • Send—by mail—an itemized list of damages lawfully assessed against the deposit and a check or money order for the remaining balance of the deposit (if any). The itemized list must also contain the following notice: “You must respond to this notice by mail within 7 days after receipt of same. Otherwise you will forfeit the amount claimed for damages.”

Question 3: What must the tenant do when he or she receives the itemized list of damages?

If the tenant disputes any of the items on the itemized list, the tenant MUST respond—in detail, by mail—within 7 days of his or her receipt of that list. “Responding in detail” means giving reasons why the tenant disputes each item of damage and the amount assessed against his or her security deposit, and why he or she should not be responsible. Simply making a blanket statement that the tenant does not agree will not do; the tenant must address each item on the list individually. The tenant’s detailed response must be sent to the landlord by mail.

Question 4: What must the landlord do once he or she receives notice of the tenant's dispute of the itemized list of damages?

If the tenant disputes all or part of the itemized list of damages, the landlord is left with two choices:

  • Negotiate or mediate an agreement in writing with the tenant, OR
  • Commence an action in court for a money judgment for damages that he or she claimed against the tenant’s security deposit, which the tenant disputes. Remember, the security deposit remains the tenant’s property until the landlord perfects a claim to it—either by agreement or by court order. If the landlord and tenant cannot agree and if the landlord goes to court, he or she MUST prove that the tenant is actually responsible for the damages.

Question 5: Who must file suit, the landlord or the tenant, for the security deposit?

Either the landlord or the tenant can be the plaintiff in a security deposit suit. The landlord may file suit within 45 days from termination of occupancy. If both the tenant and the landlord have followed the security deposit timeline perfectly and there still remains a dispute on the amount of damages assessed against the tenant’s security deposit, the landlord MUST file suit to retain the deposit. If the landlord does not file suit, he or she may be liable to the tenant for double the amount of the security deposit retained. The tenant may be required to file suit in certain circumstances. The burden of filing suit shifts to the tenant if:

  • The tenant failed to provide his or her forwarding address in writing within 4 days of terminating occupancy, OR
  • The tenant failed to respond—by mail— to the itemized list of damages within 7 days of receiving it, OR
  • The landlord failed to return the tenant’s deposit after receiving the tenant’s response disputing the amount assessed against it.

SUBLEASING

Subleasing occurs when a tenant permits another party to lease the rental property that the tenant has leased from the landlord. (Note: The lease must allow the original tenant to sublease, and most leases specify that the landlord must approve of the subtenant.) The tenant, then, assumes the position of landlord in relation to his or her subtenant. Subleasing usually occurs because the tenant has signed a fixed-term lease and wants—for whatever reason—to get out of the lease before it expires. Since the original tenant is bound by the terms of the lease, he or she cannot simply leave the property and stop paying rent. To avoid the financial burden of the unexpired portion of the lease, the tenant usually tries to find a subtenant who will assume that burden. Word of warning: Subleasing is not without its problems—so put it in writing. Under a sublease, the original tenant is still bound by contract to the landlord by the terms of the lease. If the subtenant stops paying rent or causes damage to the rental property, the original tenant—not the subtenant—must answer to the landlord. Of course, the original tenant may have a legal cause of action against the subtenant for a violation of the sublease.

The following are important terms to understand:

  • Landlord: The party agreeing to transfer possession and use of the rental property, usually the owner.
  • Tenant: The party taking possession and use of the rental property from the landlord under a lease contract.
  • Subtenant: A third party who takes possession and use of the rental property from the original tenant, under a sublease contract. The subtenant contracts with the original tenant—not the landlord—but generally with the landlord’s permission.
  • Sublease: The contract between the original tenant and subtenant, transferring, again, possession and use of the rental property.

A written sublease contract provides the best protection. Because a sublease can only transfer what is left of the rights given to the tenant in the original lease, it is important that the tenant provide the subtenant with a copy of the original lease.

Question 1 Does the landlord have to agree to the sublease?

Generally, yes. Most leases specify that subleasing or assigning an interest in the rental property is not allowed without the landlord’s consent, OR that subleasing or assigning is not allowed at all. But if the original lease agreement is silent, then the tenant need not seek the landlord’s permission before entering into a sublease. First check the terms of the original lease. Then, if permission is required, check with the landlord.

Question 2: If the tenant is allowed to sublease, what exactly can be subleased?

The tenant can only sublease the rights he or she has been given in the original lease—no more. For example, if the tenant has only three months left on a one-year lease, the tenant can only sublease up to three months. The same holds true with any restrictions contained in the original lease—they all apply to the subtenant and cannot be waived by the original tenant. On the other hand, the tenant may decide to sublet less than all of the rights he or she has been given in the original lease (e.g., he or she may decide to return to the rental property).

Question 3: What duties does the original tenant have when subleasing?

Generally, when a tenant subleases, he or she assumes the position of landlord in relation to his or her subtenant. Accordingly, all of the laws that apply to landlords apply to a tenant who subleases. These duties are explained in other parts of this book. They include the following:

  • Complying with the duties to maintain a habitable rental property and to make reasonable repairs, when necessary;
  • Complying with the duties to register or license the rental property under local ordinance (check with the local housing office);
  • Complying with duties imposed under the security deposit laws and procedures; and
  • Complying with the eviction laws and procedures, in the event the original tenant wants to remove the subtenant from the rental property.

Repair and maintenance still remain the ultimate duty of the original landlord. Because the subtenant, in a sublease, has no relationship with the original landlord, repair requests will usually be made by the original tenant. The original tenant makes a repair request to the landlord. This is not always the case; many times, the landlord, in granting the original tenant permission to sublease, will be aware of the subtenant’s presence and will respond to his or her requests.

Question 4: What about the security deposit?

Because nothing in the original lease agreement changes when a tenant subleases to a subtenant, the original tenant’s security deposit will remain with the landlord. The tenant may decide to collect a security deposit from the subtenant to insure against nonpayment of rent or utility charges or damage to the rental property beyond reasonable wear and tear caused by the subtenant. Remember that the original tenant remains responsible to the landlord under the original lease. The original tenant’s security deposit could be at stake. Collecting a security deposit from the subtenant. If the original tenant decides to collect a security deposit from the subtenant, he or she would simply follow all of the normal steps that any landlord would in collecting a security deposit. These include being timely in providing proper notice, placing the security deposit in a financial institution, providing inventory checklists, and providing the itemized list of damages. (See The Security Deposit section.)

Question 5: What if the subtenant stops paying rent?

Two things may be done to help protect against this:

        1. Require the subtenant to sign a written sublease agreement that includes the same language as the original lease agreement; and
        2. Require the subtenant to pay a security deposit to the original tenant.

If the original tenant permits the subtenant to pay rent directly to the landlord, the tenant runs the risk of not knowing if the subtenant is continuing to meet the rental obligations. When the subtenant is required to pay rent directly to the original tenant—and the tenant pays the usual rent to the landlord—there is much less risk. If the subtenant stops paying the rent, the landlord can hold the original tenant responsible for missed payments. This amount can be withheld from the original tenant’s security deposit, as can charges for unpaid utility bills and damages beyond reasonable wear and tear caused by the subtenant. The landlord’s recourse is with the tenant under the original lease, not the subtenant. The tenant’s recourse is with the subtenant, under the sublease. For this reason, it is risky to sublease rental property. Therefore, tenants should take all necessary precautions to ensure that they are subleasing to a financially responsible subtenant (e.g., running a credit check, asking for a reference from a previous landlord).

Question 6: Can the original tenant be released from the obligations under the lease?

Sometimes, yes. Subleasing can be a complicated procedure, particularly if the tenant is leaving the area for the period of the sublease. There are two ways that a tenant can be released from the obligations under the lease:

  • By mutual agreement. Though it is rare, a landlord sometimes allows a tenant to terminate the lease early. Therefore, it is a good idea to talk to your landlord before looking for someone to sublease. (Note: If the landlord does allow the tenant to break the lease, the tenant should be sure to receive from the landlord a signed document describing the agreement.)
  • By assignment. Under an assignment, the new tenant is substituted for the original tenant. When this is done, the original tenant is “cut-out” of the entire lease agreement and the new person steps into his or her shoes. Accordingly, the new tenant will be responsible for all obligations under the original lease, including rent, utilities, and damages—the original tenant will be released of all obligations. (Note: If the landlord does allow an assignment, the tenant should be sure to receive from the landlord a signed document describing the assignment and the release of obligations.)

If the landlord wishes to remove a tenant from his or her rental property, the landlord must use the eviction process. The process is called Summary Proceedings, and it moves quickly to restore rental property to the person lawfully entitled to possession. The process starts with notice—an eviction notice—and may involve court appearances and a trial. If the landlord is successful in proving his or her case, an Order of Eviction may be issued and a court officer may remove the tenant and tenant’s personal items from the rental property. It is important to remember, however, that there are many steps in the eviction process before the tenant is physically removed—and most landlords and tenants reach a settlement long before the matter moves that far. The landlord must never forcibly remove the tenant (or occupant) himself or herself. This includes things like changing locks, turning off utilities, or some other act or omission that interferes with the tenant’s right to possess, use, and enjoy the rental property.

THE EVICTION PROCESS

BEFORE GOING TO COURT

Question 1: What lawful reason(s) must be given to evict a tenant?

There are nine reasons specified by law that would allow the landlord to start eviction proceedings:

  • Nonpayment of rent;
  • Extensive and continuing physical injury to property;
  • Serious and continuing health hazard;
  • Illegal drug activity and formal police report filed (lease provision must allow for termination);
  • Violation of a lease provision and the lease allows for termination;
  • Forceful entry OR peaceful entry, but forceful stay OR trespass;
  • Holding over after natural expiration of lease term;
  • “Just cause” for terminating tenant of mobile home park (“just cause” is defined for this purpose by MCL 600.5775); OR
  • “Just cause” for terminating tenant of government-subsidized housing. (Note: “Just cause” is defined by statute. See MCL 125.694a and 600.5714.)

Several of the lawful reasons describe prohibited behavior. One reason includes, “Violation of a lease provision.” This could be any provision agreed to by the parties when the lease was signed. For example, it could be as silly as, “Only red cars may be parked in the driveway.” If the tenant signed the lease, and if the tenant later buys a blue car, he or she cannot park it in the driveway without violating that provision of the lease. If the lease also includes a provision that allows the landlord to terminate the lease, the landlord could seek to evict the tenant on that basis.

Question 2: If one roommate moves out and stops paying rent, can the other tenant(s) be evicted?

It may seem harsh and unfair, but yes, the other tenant(s) who are still paying rent may be evicted. The landlord is lawfully entitled to receive the full rent amount. Whoever signs the lease will be bound by its terms and conditions. If a “joint-and-several liability” clause is in the lease, who actually pays what amount is of no concern to the landlord. Most leases include a provision that holds all tenants “jointly and severally liable” for any and all violations of the lease. This means that each person is responsible not only for his or her individual obligations, but also for the obligations of all other tenants. This includes paying rent and performing all other terms of the lease. Therefore, if only one tenant stops paying the rent (or violates any other provision of the lease agreement), the landlord may choose to evict any or all of the tenants. In addition, the landlord may choose to collect the rent or other money for damages incurred from any or all of the tenants.

 Question 3: What is proper notice of eviction and how important is it?

Proper notice is very important. Notice— due process—safeguards and protects individual rights provided by law. If the landlord wishes to remove a tenant from his or her rental property, the landlord must use the eviction process—and it begins with proper notice. Before a court will enter a landlord’s request for an Order of Eviction, the tenant must have been given a proper eviction notice. Many times the rental problem can be fixed with nothing more than the eviction notice. For example, if the tenant simply forgot to pay the rent, the notice may simply serve as a reminder—and once he or she pays the rent, the eviction process ends. The eviction notice may take many forms. It must state that the landlord intends to evict the tenant, within a specified time (either 7 or 30 days), because of a specified reason or problem—otherwise, court action will be taken. The notice may allow the tenant time to correct the problem (like paying the rent, if nonpayment of rent is the reason for eviction). The eviction notice MUST include certain information or the notice is not proper. While many district courts provide standard eviction forms, a letter can accomplish the same as long as it contains all of the following:

      • Tenant’s name;
      • Address or rental property description;
      • Reason for the eviction;
      • Time to take remedial action;
      • Date; and
      • Landlord’s signature.

Question 4: How much notice must be given to the tenant before the landlord may file suit?

Each reason for eviction has a specific amount of time that MUST pass before the landlord may commence a lawsuit—either 7 or 30 days. A 7-DAY NOTICE is required for the following reasons:

  • Nonpayment of rent;
  • Extensive and continuing physical injury to property;
  • Serious and continuing health hazard;
  • Illegal drug activity and formal police report filed (lease provision must allow for termination).

A 30-DAY NOTICE is required for the following reasons:

  • Violation of a lease provision and the lease allows for termination;
  • Forceful entry OR peaceful entry, but forceful stay OR trespass;
  • Holding over after natural expiration of lease term;
  • “Just cause” for terminating tenant of mobile home park;
  • “Just cause” for terminating tenant of government-subsidized housing.

Question 5: Once the proper notice is prepared, how must it be delivered to the tenant?

Once the eviction notice is prepared, it must be properly delivered to the tenant. The eviction notice MUST be delivered:

  • In person to the tenant, OR
  • At the rental property, to a member of the tenant’s household—of suitable age— requesting that it be delivered to the tenant, OR
  • By first-class mail, addressed to the tenant. If the notice is delivered personally, the time of the notice begins to run the next day.

If the notice is mailed, the time begins the next mail delivery day (not a Sunday or holiday). The eviction notice is not the same as an Order of Eviction. A tenant is not required to move when the eviction notice expires—he or she may have a valid defense to the landlord’s reason for eviction. Expiration of the 7- or 30- day time period only enables the landlord to file a lawsuit. Remember: Only a court officer may remove the tenant and tenant’s personal items from the rental property—and only under court order.

TAKING THE ACTION TO COURT

Question 1: What must the landlord do to begin a lawsuit for eviction?

If some agreement or understanding cannot otherwise be worked out by the parties, and if the eviction notice has been properly delivered and the 7- or 30-day time period has passed, the landlord may commence a lawsuit—known as a Summary Proceedings action. This section will outline how the landlord may bring an action, and what the tenant can expect when being sued.

The Paperwork.

The paperwork necessary to begin a lawsuit includes the following:

  • Complaint;
  • Copy of the Notice of Eviction (attached to the Complaint);
  • Lease (attached to the Complaint); and
  • Summons.

Most district courts will provide the landlord with pre-approved court forms, if requested. These forms meet all Michigan statutory and court-rule requirements. However, they must be properly filled out. It is suggested that anyone not using the pre-approved court forms consult with an attorney. The lawsuit for eviction begins like any other lawsuit—the plaintiff (the landlord) files the appropriate paperwork with the court. Jurisdiction over eviction proceedings is granted to the district court and the few remaining municipal courts. The Complaint tells the court why the landlord seeks to regain possession of his or her rental property—much the same as the original Notice of Eviction. The Complaint MUST include:

  • A description of the rental property;
  • The reason(s) for eviction;
  • A demand for a jury trial (if the landlord wants a jury);
  • If rent or other money is due, the rental period and rate, the amount due and unpaid when the Complaint was filed, and date(s) the payments became due; and
  • Allegations that the landlord has kept the residential rental property fit for the use intended and in reasonable repair during the term of the lease (unless the lease term is a year or more and the parties have modified these obligations by contract).

The following paperwork MUST BE ATTACHED to the Complaint:

  • Copy of the Notice of Eviction; and
  • Lease (unless the tenancy was created by an oral agreement).

The Summons MUST accompany the Complaint, commanding the tenant to appear at the district court for trial. It MUST also include information, advising the tenant that:

  • The tenant has the right to employ an attorney;
  • If the tenant does not have an attorney, but can otherwise afford to retain one, to contact the State Bar of Michigan or a local lawyer referral service;
  • If the tenant cannot pay for an attorney, he or she might qualify for legal-aid assistance; and
  • The tenant has the right to a jury trial (the fee must be paid when the demand is made in the first response—written or oral).

Proper filing of the paperwork with the court.

The paperwork MUST be properly filed with the appropriate district court, as only this court has jurisdiction over eviction proceedings. A lawsuit for eviction is filed in the district court in the county where the rental property is located. Sometimes, the district court’s jurisdiction borders are the same as the municipal borders, but this is not always the case. Check with the local court to determine the proper district court for your lawsuit.

Proper delivery of the paperwork to the tenant.

The paperwork MUST be properly delivered to the tenant, notifying him or her that legal action has begun (and proof of how and when they were delivered must be filed with the court). The Summons and Complaint and a copy of the original Notice of Eviction and Lease MUST be properly delivered to the tenant BY MAIL AND ONE OTHER WAY:

  • Personally, OR
  • By first-class mail—certified, return receipt requested, restricted delivery, OR
  • At the rental property, to a member of the tenant’s household—of suitable age— requesting that it be delivered to the tenant, OR
  • After diligent attempts at personal service, by securely attaching the papers to the main entrance of the rental property unit. (Note that this delivery differs slightly from delivery of the initial Notice of Eviction. Here, two methods of delivery are required.)

CHECKLIST FOR COMMENCING A LAWSUIT

The Notice of Eviction was properly delivered to the tenant and the proper time period, either 7 or 30 days, has passed.

          • The pre-approved court forms—the Complaint and Summons—are properly completed.
          • Copies of the Notice of Eviction and Lease are attached to the Complaint.
          • All paperwork is filed with the appropriate district or municipal court.
          • All paperwork is properly delivered to the tenant.

Question 2: What must the tenant do after receiving the Complaint?

The lawsuit for eviction is like any other lawsuit. Once a Complaint is received, the tenant MUST APPEAR AND ANSWER by the date on the Summons. The time period is short—generally 3 to 10 days. The tenant must answer either in person, orally, or by filing a written response addressing each of the allegations in the landlord’s Complaint. The tenant’s answer generally objects to the landlord’s reason(s) for the eviction and explains why the court should not evict the tenant from the rental property.

Question 3: What happens if the tenant fails to appear and answer after receiving the Complaint?

If the tenant does not appear at the district court, as commanded in the Summons, a default judgment—giving possession of the rental property back to the landlord—will be entered against the tenant. And 10 days later, at the landlord’s request, the court will issue an Order of Eviction and a court officer will physically remove the tenant and the tenant’s personal items from the rental property. Additionally, the court may enter a money judgment against the tenant. This would allow the landlord to begin collection proceedings, which may include garnishment of wages, bank accounts, and tax refunds. It may also include execution against the tenant’s personal property, like his or her automobile. Further, a money judgment may appear on the tenant’s credit report, hindering his or her ability to get a loan or a credit card. Advice to the tenant: Do not fail to appear and answer!

Question 4: Once a lawsuit is started, can the parties still try to negotiate or mediate an agreement?

Up until trial, the parties may reach an agreement and settle the case themselves OR they may decide to resolve their dispute through mediation.

Community Mediation: parties can choose to mediate before or after a lawsuit is filed. Mediation is an alternative dispute resolution technique that is voluntary, empowering, confidential, convenient, effective, and provided at little or no cost.

Question 5: If the parties reach an agreement, do they still have to appear in court?

At any time before trial, the landlord and tenant may decide to work out a compromise. In fact, most lawsuits for eviction end in compromise—minutes before trial.

The parties may either:

  • Sign an agreement called a “Consent Judgment,” putting an end to the case by consent and by order of the judge, OR
  • Agree to a dismissal subject to some condition (e.g., tenant paying rent by a particular day, tenant voluntarily vacating the rental property by a particular day).

Once the condition is satisfied, the judge will order the dismissal. If a Summons has been issued, the tenant must show up at the court. If an agreement is reached, the court must be notified. Whether the landlord and tenant must appear before the judge to put their agreement on the record is up to the judge.

Question 6: What possible defenses to a lawsuit for eviction might a tenant have?

If the tenant has exhibited certain lawful behavior, Michigan law provides the tenant with a number of defenses—even if the landlord can prove any of the nine reasons for a lawful eviction. The most common defenses are:

  • A claim of retaliatory eviction. There exists a presumption of retaliation if the landlord started the eviction proceedings within 90 days of the tenant trying to enforce his or her rights under law (e.g., reporting health and safety code violations, exercising rights under the lease, filing a complaint against the landlord for violation of the law, or joining in membership in a tenants’ organization).
  • Full payment of the rent due. After a lawsuit for nonpayment of rent was filed, the tenant may have actually paid the total amount of rent due.
  • Landlord’s breach of the warranty of habitability and duty to repair. The landlord must have been provided with notice of the problem, generally in writing (see the lease), and must have been given a reasonable amount of time to fix the problem.

If a portion of the rent was withheld for the purpose of addressing the maintenance or repair issue(s), it must have been deposited into an escrow account. (That portion of rent must reasonably relate to the cost of repair or to the damage that the tenant incurred because of the problem.) The tenant must show that “but for the repair and maintenance required, he or she was ready, willing, and able to pay the rent.” Having a defense and being able to prove it are two different things. If the tenant is successful in offering his or her proofs, the tenant is generally allowed to remain in possession of the rental property. The Court may not order eviction if the Court believes that the tenant complied with the law and acted only to protect his or her rights, even though the landlord may have had a lawful reason to evict.

Question 7: What can the parties expect to see happen at trial?

If the parties to a lawsuit for eviction cannot otherwise reach an agreement, they will have to go to court to have things decided for them. Even when they first get to court, most cases are resolved in the hallways. The judges generally encourage the parties to reach a settlement; the attorneys who are there on behalf of the parties also encourage their clients to do so. If they cannot, the parties then proceed to trial where the judge or jury will decide the outcome. At trial, both parties will be given an opportunity to tell their side to the judge (or jury). They will be allowed to offer testimony and show documentation that may persuade the judge (or jury), by a preponderance of the evidence (51 percent), to rule in their favor. In the courtroom, there is an order to things. The landlord must first prove that a lawful reason for eviction exists and that he or she is entitled to regain possession as owner of the rental property. The tenant, on the other hand, may next offer evidence that even though there is a lawful reason, a legal defense exists that protects him or her from being removed. (See a list of landlord’s lawful reasons and tenant’s possible defenses, pages 13 and 16, respectively.) After both parties have had an opportunity to offer their proofs to the judge (or jury), a decision will be made either for the landlord (to regain possession) or for the tenant (to remain in possession).

Question 8: If the landlord wins the lawsuit for eviction, how soon can the tenant and his/her personal property be removed?

Even if the landlord wins the lawsuit for eviction, the court cannot issue an Order of Eviction for at least 10 days. This allows time for the tenant to appeal the decision; it allows time for the tenant to cure by paying the rent owed if that was the reason for eviction, and it allows time to work things out by agreement. Only after waiting 10 days can a prevailing landlord request that the judge issue an Order of Eviction. However—even then—Michigan law does not allow the landlord to forcibly remove the tenant or the tenant’s property. Only an officer of the court, by a judge’s order, can remove the tenant and tenant’s property from the rental property; and that officer is generally the sheriff or someone from the sheriff’s office. This is called executing the Order for Eviction, and there is little the tenant can do but start packing.

Question 9: Can the tenant be evicted and still forced to pay money damages to the landlord?

Yes. In addition to regaining possession of the rental property, the landlord may have persuaded the judge (or jury) that he or she is entitled to a money judgment. The judge may award the landlord a money judgment for such things as unpaid rent, unpaid utilities, damages to the rental property beyond reasonable wear and tear caused by the tenant, and any other damages incurred because of the tenant’s violation of the lease agreement. Avoiding a money judgment is always a good idea. If the option to pay is still available, the losing party (if financially able) should remit what is owed. Once a money judgment is awarded, the prevailing party, through a lawful collection process, can garnish wages, garnish bank accounts, and garnish tax refunds. The prevailing party may also be entitled to another remedy—executing the money judgment against personal property (a car, fine jewelry, collectibles, and the like). Remember that a lease agreement— whether written or oral—is a contract, enforceable by law. Both parties have rights and obligations under the lease. Simply having the tenant removed from the rental property may not provide the landlord with all that he or she is entitled to receive under the lease.

Parties in a dispute can choose to mediate before or after a lawsuit is filed. Mediation is an alternative dispute resolution technique that is voluntary, empowering, confidential, convenient, effective, and provided at little or no cost. There are 24 mediation centers throughout Michigan that can be called for assistance.

Mediation is:

    • A process that helps people to resolve disputes. Trained mediators facilitate a communication process that assists people in reaching mutually satisfactory agreements.
    • An alternative to destructive confrontation, ineffective avoidance, costly litigation, and violence.
    • An opportunity for people in conflict to use their own problem-solving skills, to take responsibility, and to find solutions that best meet their needs.
    • Designed to preserve individual interests while strengthening relationships between individuals and groups.
    • An opportunity to learn a successful method for resolving conflicts that can serve as a model for constructively resolving future conflicts.

THE MEDIATION PROCESS

Any person or organization may initiate mediation.

          • A trained professional will talk with you to determine if your situation is appropriate for mediation. If it is, you will be asked for basic information about yourself and the other person(s) involved.
          • With your permission, the mediation center will contact the other person(s) involved to encourage them to participate in a mediation session.
          • If both parties agree, the mediation center will schedule a mediation session at a time and place convenient for all.
          • At the mediation session, trained mediators will listen to all sides of the dispute. Each party will get a chance to explain, uninterrupted, their point of view. The mediator will encourage communication from all sides to uncover facts, identify issues, and explore possible solutions.
          • When the parties reach a solution, their agreement will be put in writing by the mediator. It is then a legally enforceable document.

If you feel an individual or a business has treated you unfairly and you believe they owe you money, there is something you can do about it. If your community has a mediation program, you and the person with whom you are having a dispute can try to work the problem out with the help of a neutral mediator. If you cannot resolve your problem informally through mediation, you can file a lawsuit in small claims court for up to $3,000. This information tells you how to file a smallclaims case.

Question 10: What is a small-claims lawsuit?

In the small-claims division of the district court, you can bring a lawsuit against anyone who owes you money. You can sue a person who or business that has caused damage to your property or possessions. The maximum you can collect through a judgment in small claims court is $3,000. Small claims courts are designed to operate informally and without attorneys present. If you feel you need an attorney to represent you, the matter must be filed in district court. In small claims court you represent yourself, speak directly to the judge or attorney magistrate, provide your own evidence, and have any witnesses you wish speak for you. You do not need to know the law before you appear for a hearing. You simply tell the judge why you feel that someone owes you money and the person or business you are suing has the opportunity to tell their side of the case. After hearing both sides, the judge will decide whether money is owed to any party and, if so, how much. When deciding whether to file a claim, consider whether the person you are suing has any income. Even if the judge grants you a judgment, if the person you sued has no income, it will be difficult for you to collect any money. You might want to check this out before you invest your time and money in filing a claim. Also consider whether mediation would better resolve your problem.

Question 11: Why not try mediation before starting a lawsuit?

Filing a lawsuit in court should be used as a last resort. Make sure you have discussed your problem with the person or business you are thinking about suing. In many cases, people and businesses do not know that someone has a dispute with them until they receive court papers. If talking the problem over does not work, consider using mediation instead of going to court. Mediation is a process in which two or more people involved in a dispute meet in a private, confidential setting and, with the help of a trained neutral person, work out a solution to their problem. Mediation is fast, either free or low cost, and effective in resolving many disputes including landlord/tenant, consumer/merchant, and neighborhood disputes. In most cases, a mediation meeting can be set up within 10 days, and 90 percent of all cases in which both parties to a dispute agree to use a mediation service result in agreements acceptable to all sides. If you can work out your dispute in mediation, you may not need to go to court. Ask the clerk of your local district court if a mediation program is available in your area.

Quesiton 12: How does a lawsuit begin?

If you cannot resolve your dispute through mediation, you can file a claim against the person or business in the small-claims division of district court. Your case must be filed in the city or county where the transaction in dispute took place, or where the person or business you are suing is located. If you are suing more than one person or business, the suit may be filed in the district court in which any of the persons live or where any of the businesses do business. At court, tell the clerk you want to file a small-claims case. You will be given an affidavit and claim form to fill out. On the form, you name the person or business you are suing and list reasons why you are suing and the amount for which you are suing. Small Claims Court

There is a cost for filing a small claim, which includes postage or service fees; you will need to contact the court for this information. Be sure to bring this amount with you when you file your claim. The amount can be made a part of the judgment if the judge decides in your favor. After you have filed your claim, the court will notify the other party that you have filed a claim against them and the date they are to be in court. The defendant may respond before the hearing. The defendant may offer to settle out of court after learning you have filed a suit. If you settle the matter out of court, you can either voluntarily dismiss your lawsuit or obtain a judgment. If you want an enforceable judgment, the terms of your agreement must be spelled out in writing and signed by both you and the defendant. A copy of the agreement must be filed with the court.

Question 13: What happens when you are sued in Small Claims Court?

If you are served with court papers from the small claims court, you are called the defendant. You have several ways to respond to the affidavit and claim you have received. If you want to deny the claim, you must either answer the complaint before the hearing date or appear in court on the hearing date, bringing with you any evidence you have to support your denial. If you want an attorney to represent you, you must tell the court at or before the hearing; the case will be transferred from small claims court to the regular district court. If you have a claim against the person who is suing you, you can also file a counterclaim. Your written counterclaim should be filed with the court and served by first-class mail on the person suing you. If you fail to appear for the hearing, the court may enter a default judgment against you. This means the judge may grant a judgment for the plaintiff without hearing your statement. The entry of a judgment may appear on your credit report.

Question 14: Is it necessary to prepare for the hearing?

On the hearing date, any of the following may happen:

  • If both the person filing the lawsuit and the defendant appear, the judge may recommend that the parties go to mediation and the case may be adjourned. If either party does not want to try mediation, the hearing may proceed.
  • If the party filing the lawsuit does not appear, and the defendant does appear, the case will be dismissed.
  • If the defendant does not appear, the person filing the lawsuit may ask for a “default” judgment.

This means that, if the judge decides you have a good claim, you can obtain a judgment without a hearing since the person or business you are suing did not appear to challenge your claim. When you go to court for a hearing, take with you all the evidence you believe proves your claim. This might include a sales receipt, guarantee, lease, contract, or accident report. If a damaged article is too big to bring with you, photographs can be presented as evidence. Any witnesses you would like to speak on your behalf should appear in court as well. Remember, a judge or attorney magistrate will hear a small-claims case; you have no right to a jury trial, and the hearing will not be recorded. Either party has the right to ask that the case be heard in the general district court. The court will notify the person filing the lawsuit if the defendant makes such a request. In the district court, both you and the defendant have the right to be represented by an attorney. Whoever loses the case may be asked to pay for court costs and attorney fees. Unless defendants are prepared for the extra expense, they usually agree to have the hearing in the small-claims division.

Question 15: What happens at the hearing?

The hearing will usually take place at the court where you filed your claim. It is important to be there on time; if you filed the lawsuit and are not in court when your case is called, the case may be dismissed. If you are the defendant and are not in court when your case is called, a default judgment may be entered against you. In this case, you should be sure to file, in advance, a request to have that default judgment set aside. The automated form, DC 105, is available online to do such. Bring all of your relevant papers or other evidence and make sure your witnesses will be on time. The court clerk will call your case and you and the defendant will appear before the judge or magistrate. The judge will ask you to state your claim. Take your time and tell what happened in your own words and why you think the person or business you are suing owes you money. Show the judge your evidence and introduce any witnesses you have. The witnesses will be allowed to tell the judge what they know about the case. When you have finished, the person or business you are suing will have an opportunity to explain their side of the case. Listen carefully. If you think the defendant is leaving something out or is misstating facts, be sure to tell the judge. A judge's decision is final. Neither you nor the defendant can appeal to a higher court once the judge has made a decision in the small-claims division; although, on petition by either party, the same judge may reopen the case in the small-claims division. Either party may appeal a magistrate's decision. The case would be rescheduled before a judge and both parties would explain their case again.

Question 16: If you win, how do you collect your money?

If you obtain a judgment against the defendant, the court will provide instructions regarding post-judgment collections. The defendant may pay the judgment plus court costs immediately after the hearing, but if he or she does not have the money to pay right away, the judge may allow a reasonable time to pay and may set up a payment schedule. If the defendant fails to pay the judgment when ordered, you must go back to the court and file additional papers to collect on the judgment by having their wages or bank account garnished or property seized. This cannot occur until 21 days after the judgment is entered. As part of the judgment, the defendant must provide information to the court that can be used in post-judgment collection efforts. The Small Claim Court section was produced by the State Court Administrative Office. This information was developed under a grant from the State Justice Institute and in cooperation with the State Bar of Michigan. Points of view expressed are those of the Michigan State Court Administrative Office and do not necessarily reflect the official position or policies of the State Bar or the State Justice Institute. TP-2 (12/99)

Maintenance problems range from things that are merely annoying to things that pose an immediate threat to health and safety. Both the landlord and the tenant have some responsibility for maintenance. There are three types of maintenance problems:

          1. Emergencies (require action within 24 hours and pose an immediate threat to the health and safety of the occupant— gas leak, flooding, defective furnace, or major roof damage);
          2. Major problems (affect the quality of the residential environment, but not to the degree that the life of the occupant is immediately endangered—defective water heater, clogged drain, heating problem in part of a house); and
          3. Minor problems (fall into the nuisance category—defective lighting, locks, faucets; household pests; and peeling paint and wallpaper.

REPAIR AND MAINTENANCE

Question 1: What are the landlord's responsibilities?

Under Michigan statute, the landlord has a duty to keep the rental property and all common areas:

  • Fit for the use intended by the parties; and
  • In reasonable repair during the term of the lease, and to comply with the health and safety laws. (MCL 554.139)

Whether the landlord is required to repair a problem depends on two factors: the nature of the problem itself and whether the landlord’s duty to repair has been modified— either by the tenant’s conduct or by mutual agreement. Unfortunately, the term “reasonable repair” is not defined by law—it is a question of fact and, if litigated, would be decided by the judge (or jury). However, a little common sense can go a long way here. While it would certainly be reasonable for a landlord to fix a clogged drain or defective water heater, it may not be reasonable to require the landlord to repair a minor chip in a countertop or peeling wallpaper. The landlord is relieved of the duty to repair and comply, if the tenant’s willful or irresponsible conduct or lack of conduct has caused the disrepair or violation of health or safety laws. The landlord and the tenant may—by mutual agreement—modify these duties and make the tenant responsible for repairs, but only if the lease agreement has a current term of at least one year. In other words, if the lease term is less than one year, the landlord’s duty cannot be modified.

Additionally, almost all courts recognize that implied in a residential lease agreement is the understanding that the rental property must be fit for habitation by humans. This means that the rental property must meet some minimum level of standard so as not to expose the occupants to unreasonable health risks. This implied duty cannot be modified or waived. In addition to state law requirements, counties and municipalities are free to enact ordinances that require landlords to maintain rental property above minimum habitability standards. Most municipalities have a housing code protecting the health, safety, and welfare of their citizens. Some require that the rental property be inspected on a regular basis. Some even require licensing before a tenant can move in. Check with the local city or county government code enforcement office for additional standards imposed on landlords in maintaining their rental property.

Question 2: What are the tenant's responsibilities?

Although responsibilities can be modified in certain instances—by mutual agreement between the landlord and tenant—a tenant is generally expected to:

  • Pay rent on time;
  • Keep the rental property in a safe and sanitary condition;
  • Promptly notify the landlord of maintenance problems;
  • Exterminate insects that appear if they were not there when the tenant moved in;
  • Leave the rental property in good condition—reasonable wear and tear excepted.

IMPORTANT STEPS TO TAKE IN SOLVING THE PROBLEM(S)

Depending on the problem, requesting that a repair be made could be as simple as a quick phone call or as complicated as filing a lawsuit. Outlined next are the recommended steps to take to solve a repair and maintenance problem:

STEP 1: Notify the landlord and provide reasonable time for repair. Keep it simple. The tenant must notify the landlord and explain the situation, the importance of the repair, and when he or she would like it done. A simple phone call usually works. Sometimes, however, the landlord requires that a specific form or repair order be filled out before proceeding. Read the lease and talk to whoever is in charge and figure out the best course to take. Keep copies of communications and note discussions. Municipalities have enacted housing codes— establishing minimum standards—to protect the rights of both the landlord and the tenant. Contact the local city hall for information. Remember: the landlord must be given reasonable time to make repairs.

STEP 2: Contact the building inspector and schedule an inspection. In some municipalities, if the rental property is up to municipal code standards, the tenant will be responsible for paying the inspector’s fee. If it is not up to code, the landlord pays the fee (and may also have to pay a re-inspection fee once the repair is made). Call the local inspector's office to find out how much the fee will be.

STEP 3: If the landlord has failed to make necessary repairs, either withhold the rent and deposit it into an escrow account OR pay for the repair and deduct the cost from the rent. But remember: the landlord must first be provided with notice of the problem, and must then be given a reasonable amount of time to fix the problem.

Escrow Account: A bank account or other account held by a third party, generally established in the name of the tenant, into which whole or partial rent payments are deposited to show that the tenant was ready, willing, and able to pay the rent, but is withholding the rent until a certain problem is fixed that the landlord is legally responsible for fixing. Once the problem is taken care of, the escrowed rent amount will be released to the landlord.

  • If the rent, or a portion of it, will be withheld for the purpose of addressing the maintenance or repair issue(s), the tenant should send a letter—certified mail, return receipt requested—stating why the rent will be withheld, where it will be deposited (what financial institution), and that payment will be released when the maintenance or repair problem has been corrected.
  • If the repair cost will be deducted from the rent, call for three repair estimates. If it is a do-it-yourself job, shop and compare the cost of parts. Reputable repair companies will come to the house and provide a free written estimate. Send copies of the estimates to the landlord and state that the problem will be fixed unless the landlord agrees to do it by a certain date, and that the cost of repair will be paid from the rent withheld. Keep all receipts and note the dates of repair; send copies to the landlord, along with the remaining portion of the rent. (Note: While the repair-and-deduct method may work well for small repairs, it may not work for large repairs.)

Question 1: How much rent should be withheld?

The amount of rent withheld must reasonably relate to the cost of fixing the problem or to the amount of damage the tenant has incurred because of the landlord’s failure to fix the problem. Withhold less for a clogged drain. Withhold more for an unusable toilet or shower. Only the most catastrophic problems will warrant withholding all of the rent. In any event, the amount withheld must be deposited into an escrow account.

Question 2: What if the tenant lawfully withholds rent and the landlord starts the eviction process?

If the landlord has a run-in with the municipal code enforcement office OR if the landlord does not receive the rent, he or she may well decide to start the process for evicting the tenant. Nevertheless, Michigan law provides the tenant who was acting lawfully with certain defenses. The tenant, however, must be able to prove the facts giving rise to the defense:

  • A claim of retaliatory eviction. There exists a presumption of retaliation if the landlord started the eviction proceedings within 90 days of the tenant trying to enforce his or her rights under law (e.g., reporting health and safety code violations, exercising rights under the lease, filing a complaint against the landlord for a violation of the law).
  • The landlord’s breach of the warranty of habitability and duty to repair. The tenant must show that the landlord was provided with notice of the problem and given a reasonable amount of time to fix the problem. The tenant must show that the landlord failed to make the necessary repairs.
  • Rent was properly withheld and escrowed. The tenant must be able to show that “but for the repair and maintenance required, he or she was ready, willing, and able to pay the rent.” The eviction process takes time—from start to finish, it takes as few as 27 days or as many as 57 days to evict a tenant. In the meantime, the landlord has mortgages, taxes, and bills to pay. Financial pressure may cause the landlord to negotiate. If the landlord will not negotiate, and if the tenant has carefully documented all communications about the needed repair and maintenance, the tenant may well succeed in the lawsuit for eviction. Both the landlord and the tenant should remember that, in many disputes, the basic issues become obscured by personal disagreements that develop and continue to grow and fester. If an agreement cannot be reached, try mediation—either before a lawsuit is filed or after. Mediation might help to empower the parties to use their own problemsolving skills, to take responsibility, and to find solutions that best meet their needs, while strengthening the landlord-tenant relationship.

Additional Considerations


Civil Rights

Federal, state, and local laws prohibit discrimination in rental housing based on a number of factors, including race, color, sex, age, handicaps, and family status. For further information regarding the classes of persons protected by state and federal law and the exceptions to the general laws, contact the Michigan Department of Civil Rights or the United States Department of Civil Rights.

 Housing Codes, Smoke Detectors

Some communities have adopted housing codes or other specific requirements that may affect the condition or equipment requirements of residential rental property. These include the requirement that smoke detectors be installed in housing or that residents comply with recycling ordinances. Be sure to check with the local unit of government to see if the rental property is affected.

Pet Restrictions

 Landlords can include a provision in the lease that restricts tenants from maintaining pets in a rental unit. A landlord cannot discriminate against a handicapper who maintains a guide, hearing, or service dog wearing a harness or a blaze orange leash and collar if the handicapper has identification certifying that the dog was professionally trained. In publicly-subsidized housing, handicapped or elderly tenants have additional rights to maintain pets in their rental units. The courts have permitted the eviction of tenants who violate a lease provision prohibiting tenants from maintaining pets in a rental unit.

Smoking

A landlord can restrict tenants who smoke to certain apartments or buildings or can refuse to rent to smokers. In Michigan Attorney General Opinion No. 6719, released May 4, 1992, the Attorney General stated “neither state nor federal law prohibits a privatelyowned apartment complex from renting only to non-smokers or, in the alternative, restricting smokers to certain buildings within an apartment complex.”

 Lead-Based Paint

Since the latter part of 1996, landlords must provide tenants who are renting units built before 1978 with certain information concerning lead-based paints. This information includes a federal government pamphlet entitled: Protect Your Family From Lead in Your Home and a form entitled: Disclosure of Information on Lead-Based Paint and/or Lead-Based Paint Hazards (Rentals). There are exceptions to this federal requirement, including commercial rentals, zero-bedroom efficiency apartments, and rental units certified as lead-free by a qualified lead abatement inspector. For further information on this requirement, contact the National Lead Information Center Clearinghouse at 1-800-424-LEAD.

To learn more about housing rights in Michigan and where to get help:    

Consult the Michigantenants.org website for local housing resources and tenant counseling services. 

Consult the Michiganlegalaid.org website for legal education articles and local service information.

If you received court papers or otherwise need free or low cost legal advice:

This article appears courtesy of the Michigan Legislature and the Rental Housing Clinic at Michigan State University–Detroit College of Law