Landlord/Tenant Booklet

Introduction

This booklet is designed to familiarize both tenant and landlord with the sometimes complex rules of law which determine rights and responsibilities. If both parties understand these matters, their relationship is more likely to be a good one. It is hoped that this booklet will encourage discussion between landlord and tenant before problems arise.

Courtesy and cooperation between the parties will go a long way towards solving differences. Occasionally, however, it is necessary to get advice from an attorney and to resolve a question in court. This booklet is a layman's guide and is not intended as a substitute for competent legal advice. Our judges, who are attorneys, may not and will not give advice on matters they may have to rule on later.

Discrimination

State and Federal Laws provide that it is illegal for a landlord to discriminate against any person because of that person's race, color, religion, national origin, sex, marital status, age, or handicap. There are a few minor exceptions to this general rule.

A tenant who has been discriminated against should either seek legal advice or contact the following:

Michigan Department of Civil Rights
185 East Main Street, Suite 602
Benton Harbor, MI 49022
269-925-7044 or 1-800-482-3604

Western Michigan Legal Services
901 Port Street
St. Joseph, MI 49085
1-888-418-1311

Fair Housing Department
Housing and Urban Development
Washington, D.C. 20410

Written Leases

A written lease or rental agreement is advisable. Different types of forms are available at office supply stores. Before signing any written agreement the following should be considered:

1. Do both sides understand the terms of the agreement? If there is a disagreement, an understanding should be reached before the lease is signed or money is paid. Neither party should agree to something they do not understand.
2. Be sure the lease complies with the requirements of the Truth in Renting Act.
3. If a security deposit will be required, the Landlord must comply with the Security Deposit Act.

Truth in Renting Act (MCL 554.631)

A rental agreement shall not include a provision which:

1. waives or alters a remedy available to the parties when the landlord violates the covenants of fitness and habitability.
2. waives any rights or requirements established by the security deposit act.
3. excludes or discriminates against a person based upon age, race, sex, marital status, handicap, religion, etc.
4. provides for a confession of judgment by a party.
5. waives the landlord's liability for failure to perform or for negligence.
6. waives a party's right to trial by jury or notice requirements.
7. provides for other than statutory attorney fees or costs.
8. provides for a security interest in the personal property of a tenant.
9. provides that rental payments may be accelerated.
10. waives a party's rights or interferes with tenant's possessory interest through force, changing of locks, removal of doors, stopping utilities, etc.
11. releases a party from a duty to mitigate damages.
12. alters a rental agreement without written consent of the tenant.
13. violates consumer protection or unfair trade practices.

Security Deposits (MCL 554.604)

No landlord should require a security deposit, (or last month's rent) without first consulting a lawyer in order to be sure of compliance with the law. Non-compliance could result in serious penalties.

1. MAIN REQUIREMENTS
   1. 
      The Landlord
      1. in addition to prepayment of rent, may require a security deposit in an amount up to 1 1/2 month's rent;
      2. must deposit the security deposit in a bank or other regulated financial institution;
      3. may use the money for any purpose, PROVIDED that a cash or surety bond equal to the deposit is deposited with the Secretary of State;
      4. must notify the tenant, IN WRITING, within 14 days after the tenant takes possession, of:
         1. the name and address where the landlord will receive any communications about the tenancy;
         2. the name of the financial institution where the security is deposited, or the name of the surety; and
         3. the statutory requirement that the tenant must furnish the landlord with the tenant's forwarding address within 4 days after giving up occupancy. Failure to give the tenant this notice in 12 POINT BOLDFACE TYPE relieves the tenant of his obligation to furnish a forwarding address.
      5. must furnish the tenant, at the commencement of the tenancy, with two blank copies of an inventory check list for all items contained in the rental unit (e.g. paint, plumbing, electrical fixtures, etc.) This form is to be completed by the tenant and one copy returned to the landlord within seven days. The tenant must be notified of this time requirement in 12 POINT BOLDFACE TYPE;
      6. must advise the tenant of this right to see the termination inventory check list of the last tenant;
      7. must, at termination of the tenancy, complete a termination inventory check list of all damages claimed;
      8. must mail to the tenant, within 30 days after termination, a list and amount of the claimed damage, along with a notice in 12 POINT BOLDFACE TYPE, that the tenant must raise any objections in writing, within seven days after receipt of the list of claimed damages;
      9. must then bring a lawsuit for damages within 45 days of termination, or return all security deposits (except for unpaid rent) unless the tenant did not leave a forwarding address or respond to the notice of claimed damages, or unless the parties have agreed in writing as to the amount of damages.
   2. THE TENANT
      1. has the right to the return of the security deposit unless the landlord complies with the requirements of the security deposit law;
      2. has the responsibility to:
         1. return the inventory check list within seven days after receiving possession of the premises;
         2. notify the landlord in writing of his forwarding address within four days of moving.
         3. makes written objections within seven days after receipt of the landlord's list of claimed damages.
   
    
2. CONSEQUENCES OF FAILURE BY EITHER PARTY TO COMPLY
   1. THE LANDLORD
      1. failure to comply with the notice requirements forfeits the right to retain a security deposit, and any security deposit paid must be returned or considered an additional prepayment of rent;
      2. failure to comply with the inventory check list requirements may also be considered subject to the same penalties as failure to comply with proper notice requirements;
      3. failure to comply with the notice of claimed damages provisions constitutes an absolute waiver of any claim to retain the security deposit;
      4. failure to file suit or return deposits within 45 days also makes the landlord liable to the tenant for DOUBLE the security deposit. Tenant may file a small claim or a regular lawsuit.
      
       
   2. THE TENANT
      1. failure to furnish a forwarding address relieves the landlord of the notice of damages requirement but does not prejudice the tenant's claim for return of security deposit;
      2. failure to respond to a notice of damages constitutes an admission as to the amount of damages;
      3. there are no other specific sanctions contained in this act.

Lock-out Law (MCL 600.2918)

COURTS, not landlords, evict tenants. Forceful eviction without a court order is prohibited by law and can result in serious penalties to the landlord. REMEMBER:

1. Any person who is ejected or put out of any lands or tenements in a forcible and unlawful manner, or being out is afterwards held and kept out, by force, may sue the landlord and if he wins, is entitled to recover three times the amount of his actual damages or $200.00, whichever is greater, in addition to recovering possession.
    
2. Any tenant in possession of premises whose possessory interest has been unlawfully interfered with by the landlord shall be entitled to recover the amount of the actual damages or $200.00, whichever is greater, for each occurrence and where possession has been lost, to recover possession. Unlawful interference with a possessory interest shall include:
   1. the use of force or threat of force;
   2. the removal, retention or destruction of personal property of the possessor;
   3. a change, alteration or addition to the locks or other security devices on the property without forthwith providing keys or other unlocking devices to the person in possession.
   4. the boarding of the premises which prevents or deters entry;
   5. the removal of doors, windows or locks;
   6. causing by action or omission, the termination or interruption of a service procured by the tenant or which the landlord is under an existing duty to furnish, which service is so essential that its termination or interruption would constitute constructive eviction, including heat, running water, hot water, electric or gas service, introduction of noise, odor or other nuisance.
   
    
3. The above provisions shall not apply where the landlord can establish that he:
   1. acted according to court order, or
   2. interfered temporarily with possession only as necessary to make needed repairs or inspection and only as provided by law, or
   3. believed in good faith the tenant had abandoned the premises and after diligent inquiry had reason to believe that the tenant does not intend to return and current rent is not paid.
   
    
4. A person who has lost possession or whose possessory interest has been unlawfully interfered with may, if that person does not peacefully regain possession, bring an action for possession or bring a claim for injunctive relief in the appropriate circuit court. A claim for damages may be joined with the claim for possession and for injunctive relief or may be brought in a separate action.
    
5. The provisions of this section may not be waived.
    
6. An action to regain possession of the premises under this section shall be commenced within 90 days from the time the cause of action arises or becomes known to the plaintiff. An action for damages under this section shall be commenced within one year from the time the cause of action arises or becomes known to the plaintiff.

Instructions for Evicting a Tenant

1. NOTICES TO QUIT
   (MCR 4.201; MCL 600.5714; MCL 554.134)

   The first step in evicting a tenant is serving a notice to quit. The two most commonly used are 1) the Demand for Possession, non-payment of rent and 2) the Notice to Quit, termination of tenancy. Each one is used for a different reason.

   1. NON-PAYMENT OF RENT: This notice is commonly referred to as the "Pay or Move" or "Seven Day" notice and demands possession of the premises within seven days unless the tenant, during that time, pays ALL the rent due or moves out. If the rent is paid in full, the tenant must be allowed to stay. If the rent is not paid in full or the tenant does not move by midnight of the 7th day, the landlord may (on the 8th day) file a Summons and Complaint with the court.
   2. TERMINATION OF TENANCY: This is the notice to quit used when the landlord wishes to end (terminate) the tenancy. To determine the minimum number of days to be given on this notice, answer the following questions:
      1. Were the premises rented for a definite period of time (with a definite end, e.g. a six month's lease)?
         ______ Yes (Go to Question 2)
         ______ No (Go to Question 3)

          

      2. Has the lease expired?
         ______ Yes (Go to Question 3)
         ______ No (We suggest you consult an attorney)

          

      3. Were the premises rented by:
         (a) the month (with rent payable either monthly or twice a month)
         (b) the half month, with rent payable twice a month (e.g. the 1st and 15th)
         (c) every two weeks, with rent payable every other week
         (d) the week, with rent due weekly

      The number of days given on the notice must be at least equal to one applicable rental period - one of the four items above -- a, b, c, or d.

      If the tenant has a lease for a specific period of time (e.g. six months), neither the landlord nor the tenant may terminate the lease without the other's agreement or without legal grounds.

      If a tenant does not have a written agreement for a specific period of time, then the tenant is most probably a periodic tenant. (For example, if there is no definite agreement as to how long the tenant may remain in the rented premises but there is an agreement that the tenant will pay rent on a monthly basis for as long as he does remain in possession, then the tenant is a periodic tenant and the period is that of a month). In this case, either party may terminate the tenancy by giving advance written notice equal to the rental period, to the other party of the intent to terminate. The landlord should use the standard "Notice to Quit" form for termination of tenancy. The tenant's notice may be in letter form. Failure of the tenant to give notice that he is moving at least one rental period before vacating, can subject him to pay rent for the rest of that period.

      A periodic tenancy may be ended without reason or cause except where it is done in retaliation against the tenant for a lawful act arising out of the tenancy (for example, where the tenant files a complaint with the city inspector about the conditions of the property). A tenant in public housing, however, has the right to a hearing before eviction proceedings are started. Good cause must be shown in order to evict a tenant from the public housing.

       

   3. SERVING THE NOTICE TO QUIT: Notices to quit are completed and served by the landlord. Each adult tenant must receive a copy of the notice to quit. If more than one tenant is being evicted the landlord will need to photocopy the second page of the notice. This second page, marked TENANT'S COPY, is the copy that must be served. The landlord keeps the first page with the proof of service to be completed and filed with the court when the complaint is filed. Notices may be served in one of three ways. (Explanations marked with asterisks ** refer to the seven day notice for non-payment of rent.
      1. Personal Service -- personally hand the notice to each tenant. (** Start counting the days beginning with the day after service.)
      2. Substitute Service -- leave all copies with one of the adult tenants named on the notice or with a member of the household that is not named. (** Days are counted the same as in item 1 for personal service.)
      3. First Class Mail -- mail copies of the notice to quit by 1st class mail. Be sure to get a certificate of mailing, Form No. PS3817 from the Post Office. (** Wait one day before starting to count. This allows for mail delivery.) On the notice to quit for termination of tenancy, add one day to the date you have specified for the tenant to move.

II.         FILING OF THE SUMMONS AND COMPLAINT  (MCR 4.201; MCL 600.5739):

A.        GENERAL INFORMATION: 

            After the time has expired on the notice to quit, the landlord may file a summons and complaint with the court if (1) for nonpayment of rent--the tenant does not pay the total arrearage or move out, or (2) termination of tenancy--the tenant does not move out.

            Like the notices to quit, each complaint form is designed for a specific purpose.  The landlord must file the complaint that matches the notice to quit that was served.  The summons is a general summons and is used with all complaints.  A trial date must be set within 10 days of issuance of summons and served no less than three days before the trial.

            Individual property owners may file on their own behalf, but corporate landlords MUST be represented by an attorney.  

            Complaint for possession - when filing a landlord tenancy action, the landlord is always asking for a judgment of possession.  If the tenant does not move within the required time, the landlord may file a writ of restitution/order of eviction and forcibly move the tenant out with a deputy present. 

            Complaint for money damages - at the same time the landlord may file a money judgment to collect back rents and other damages.  This is the "Supplemental Complaint" portion of the form.  It can be filed with either the nonpayment of rent or termination of tenancy complaint.  Collecting a money judgment in landlord tenancy is the same as any money judgment entered by the court.

B.        COSTS FOR FILING:

           Complaint for Possession............................................................ $45.00

           If complaint for money damages is filed with complaint for possession, additional filing fee as follows:

            (up to $600.00).........................................................................$25.00

            ($600.01 to $1750.00)............................................................. $45.00

            ($1750.01 to $10,000.00)..........................................................$65.00

            ($10,000.01 to $25,000.00).....................................................$150.00

            Jury Demand (in counties with a population over 100,000) ......$50.00

            Order of Eviction........................................................................$15.00

C.        COPIES NEEDED AT THE TIME OF FILING:

1.         Three photocopies of the lease or any written instrument on which the occupancy is based.

2.         Notice to Quit - The landlord's copy with the proof of service completed and notarized, plus three copies.

3.         Complaint - The complete 5-part form.

4.         Summons - The complete 5-part form.

ALL FORMS MUST BE TYPED OR CLEARLY PRINTED.  BE SURE THE LAST COPY OF THE SUMMONS AND THE COMPLAINT CAN BE READ.

D.        SERVICE OF SUMMONS AND COMPLAINT:

            The summons and complaint can be served by a deputy sheriff, court officer, or any legally competent adult who is not a party or an officer of a corporate party.  If the landlord is not familiar with the laws governing service, it is recommended that an experienced officer serve papers.  Drop boxes are provided at the court.  THE COURT ASSUMES NO RESPONSIBILITY FOR SERVICE.  The landlord or individual serving papers must see that service is made according to law.  The officer will bill the landlord for his services.  Service fees are $21.00 per defendant, plus mileage (mileage under 600.2559(1) shall be 1-1/2 times the rate allowed by the state civil service commission for employees in the state classified civil service).  A check or money order is to be mailed immediately to the address on the server's billing.

            Complaints for possession only may be posted on the premises if the tenant or a member of the household are not at home.  Complaints for possession AND back rents must be personally served on the tenant or a member of the household.  Summons must be served no less than three days before the trial date.

E.        SETTLEMENT PRIOR TO TRIAL DATE:  After service, the tenant may want to settle out of court, either by moving or paying the amount of rent due.  If the landlord agrees, he is to notify the court by phone as soon as possible so the matter may be removed from the calendar.  This call is to be followed up with a written dismissal.  If the landlord has filed an action for both possession and money damages and the tenant moves before the trial date, he may still want to appear for a money judgment.

F.         TRIAL:  one of several things may occur on the trial date:

1.         If either party, landlord or tenant, appears without counsel, the judge is required by law to inform that party that he has the right to consult or be represented by a lawyer.  In such a case, it may be necessary to adjourn the trial a week while that party hires an attorney.

2.         The tenant may fail to appear.  If he had proper service, the landlord may present his proofs, file a nonmilitary affidavit, and a default judgment will be entered.

3.         The tenant may appear, choose not to contest the landlord's claim, and a consent judgment will be entered.

4.         The tenant may appear and want a jury trial.  After he pays the $50.00 jury fee, the case will be adjourned to the earliest jury trial date.

5.         The tenant may appear and challenge the landlord's claim.  If the judge determines that a true issue of fact or law exists, a trial will be held.

6.         If service has been made and (1) neither the landlord nor tenant appears, or (2) the tenant appears but the landlord does not, the claim will be dismissed by the court.

G.        ADJOURNMENTS:  If a trial is adjourned for more than seven days and the landlord shows a clear need for protection, the judge may order the tenant to pay reasonable rent into escrow with the court.

III.         WRIT OF RESTITUTION / ORDER OF EVICTION:

            If the tenant has not moved within 10 days of the mailing of the judgment, on the 11^th day the landlord may file for a writ of restitution ($15.00 filing fee).  If a judgment was entered for nonpayment of rent and the tenant has paid the FULL amount within the last 10 days, the landlord CANNOT file the writ.

            After the judge signs the writ, it is given to a deputy for service.  He will contact the landlord to make the necessary arrangements for serving and/or moving the tenants.  Service fees are $35.00 plus mileage and any necessary and reasonable expense for moving tenant's property out of premises.  Mileage from the place where the court that issued or filed the process or paper is located to the place of service, not to exceed 75 miles each way.

            There is a time limit on the issuance and execution of a writ of restitution.  A writ may not be issued later than 56 days after judgment unless the landlord obtains a special permission of the court.