Housing
Landlord-Tenant Basics
The Lease
Types of Leases
Security Deposits
Withholding the Security Deposit
Eviction
Notice to Quit
Eviction Notice Requirements
Eviction Court Case
Illegal Evictions
Retaliatory Evictions
Landlord-Tenant Basics
In Michigan, much of the residential rental relationship is covered by legislation. How much of a security deposit can be charged, who you can or can't refuse to rent to, how to evict and how to collect for damages to the rental unit, are all controlled by state law.
The Lease
A lease is the agreement, sometimes written, sometimes verbal, setting out the rental terms. The lease spells out the amount of rent, when it is to be paid, who is responsible for utilities, garbage, parking, how long the lease lasts, whether a security deposit is charged, whether a cleaning fee is charged, both parties' maintenance responsibilities, and whether the tenant is allowed to sublease to another. If any of these issues are not included or covered by the lease agreement, a smart consumer needs to get them clarified before signing or paying.
Under Michigan law, certain terms cannot be included in a residential lease. The lease:
- Cannot make the tenant waive eviction rights set out in Michigan law.
- Cannot require the tenant to give up her legal right to challenge a claim for damages.
- Cannot require the tenant to pay for attorney fees or legal costs beyond what is allowed by law.
- Cannot require the tenant to give a security interest (a lien) in personal property to guarantee rent payments.
- Cannot require a tenant to pay rent for a place that violates housing codes for habitability.
- Cannot require the tenant to accept changes in the lease without the tenant's written consent (if the lease is only month to month, the landlord cannot impose a new lease term without 30 days notice to the tenant).
- Cannot violate any provision of the Michigan Consumer Protection Act.
- Cannot require a tenant to give a landlord a power of attorney. In the past this has particularly been a problem for older renters, who have been moved out of an apartment to a nursing home and had their furnishings disposed of by the landlord using a power of attorney.
- In 1995, another protection, available to certain renters, went on the books. Any lease signed, renewed or renegotiated, must allow a person to break the lease on 60 days written notice, without further penalty if the person has already rented for at least 13 months and
1. Is incapable of living independently, as certified in writing by a doctor, or
2. Is eligible to move into subsidized senior housing (age 62 or older) and provides written proof of that eligibility.
Types of Leases
As stated above, a lease can be written or verbal. Generally, a verbal lease is for a period as long as the rental payment, i.e. if you pay by the month, it is a month to month lease; if you pay weekly, it is a week to week lease. Written leases can also be periodic (month to month, week to week), or they can be for a fixed term -- one year being the most common. The type of lease is significant in determining the damages a tenant owes by moving out earlier than expected, and in determining when and how the landlord is allowed to increase the rent.
In a periodic tenancy, the landlord must give notice of a proposed rent increase equal to the rental period. If you rent by the month, the landlord must give you at least 30 days notice that the rent is changing. There is no rent control in Michigan and unless you have an agreement specifying the amount of your rent for a fixed term, your rent can always be raised after 30 days written notice. You then get to decide if you want to accept the new terms or move within the 30 days. In a fixed term lease, the landlord cannot increase the rent without the written consent of the tenant.
Also, the tenant, by signing the lease, agrees to be responsible for the fixed term of rent, usually 12 months. Under a one-year lease, if you decide to move out after 7 months, the landlord can still hold you responsible for the remaining five months of rent you agreed to pay. There are two limits to this general rule. First, every landlord has a "duty to mitigate damages." This means the landlord must try to find a new tenant to take your place, and if the landlord does rent it again (for example, in the ninth month), you are not responsible for rent the rest of those months (in the example, months 9-12). Second, as discussed above, as of 1995, seniors are able to break a year lease if they are moving to subsidized housing or assisted living, and meet the other special requirements.
If you have a written one-year lease, read it over to understand what happens at the end of the year. Some leases will switch to a month to month, some will have an automatic renewal for another year, and some will be finished, requiring you to sign a new lease to stay on.
Security Deposits
Landlords don't have to charge a security deposit, but if they do, the terms must follow the strict rules set out in Michigan's Security Deposit Act. First, the security deposit cannot be more than 1½ month’s rent. If the landlord is also charging a cleaning fee or key fee, it must be clearly identified as separate from the security deposit. The difference between these charges is whether the return of the money depends on the condition of the unit's return. If you don't get the cleaning fee back no matter how clean the unit is, it is not included in the security deposit cap. If the key fee is only kept if you don't give the keys back, that is a security deposit.
Second, if a security deposit is charged, then the landlord must do the following:
- Keep the deposit in a regulated financial institution, and within 14 days of the start of occupancy, tell the tenant in writing where it is held. (The landlord can post a surety bond with the Secretary of State instead of keeping a separate account, but this too must be told to the tenant.)
- Provide two copies of a rental inventory checklist to the tenant for the tenant to fill out, one at the start of the rental period and one at the end. The tenant must complete the first inventory within 7 days of moving in.
- The security deposit can only be used to cover the tenant's failure to pay rent or utilities, or for damage beyond normal wear and tear generally, not for cleaning. The deposit is considered the tenant's property until there is a court order awarding it to the landlord or the tenant does not dispute the charges against the deposit.
Withholding the Security Deposit
It is a surprise to many landlords and tenants that the landlord cannot routinely keep a security deposit, but must follow strict procedures in Michigan law to avoid paying the tenant for a violation of the Security Deposit Act.
A landlord must:
- Give the tenant two inventory checklists to complete. Without this documentation, it will be very difficult to use the security deposit for damages, because the landlord cannot prove the damage wasn't there when the tenant moved in.
- Within 14 days of occupancy, the landlord must give the tenant written notice of the landlord's address, where the security deposit is held, and the tenant's duty to give the landlord a forwarding address within 4 days of moving out. Usually all this information is included in a written lease, to make it easy to prove it was provided.
A tenant must:
- Complete the first inventory checklist within 7 days of moving in.
- On moving out, the tenant must give the landlord a forwarding address within 4 days. Failure to do this means the landlord does not have to provide the itemized list of damages to the ex-tenant.
If the landlord gets a forwarding address, then within 30 days of the tenant's leaving, the landlord must return all of the security deposit not claimed for rent, utilities or damages and must send an itemized list of damages being claimed against the unreturned portion of the deposit. This written notice, required to be in a certain readable-size type, must tell the ex-tenant she has 7 days to respond in writing to disagree with the claimed damages. If a landlord does not send this notice after getting a timely forwarding address, then the landlord cannot keep the security deposit for damages. An exception to this is if the landlord is withholding the security deposit solely for back rent, the written notice to the tenant is not required.
The ex-tenant must dispute the claimed damages in writing within 7 days, or lose the right to get the security deposit back.
If the tenant makes a timely dispute of any claimed damages, the landlord must go to court within 45 days of the tenant moving out, to sue for the disputed portion of the security deposit. The landlord cannot keep the disputed portion beyond the 45 days without risking owing the tenant damages. After the 45 days, if the tenant has met all her legal duties, the Security Deposit Act allows the tenant to sue the landlord for damages equal to double the amount of the security deposit held. This suit can be brought in small claims court.
Eviction
Eviction is the legal process used by a landlord to remove a tenant from the rented place with or without the consent of the tenant. The eviction process is also clearly set out in Michigan law, and allows a tenant a chance to stop the eviction process in court before being put out on the street.
The eviction process starts with a Notice to Quit, from the landlord to the tenant. Only after this written notice has been given and the time the tenant is given to leave has passed, can the landlord go to court to start the eviction.
Notice to Quit
There are three types of a Notice to Quit.
24 hour Notice. Under Michigan Law, a 2004 amendment to the Summary Proceedings procedure allows a landlord to use a 24 hour Notice to Quit if the tenant, a member of the tenant’s household or other person under the tenant’s control has unlawfully manufactured, delivered, possessed with intent to deliver, or possessed a controlled substance on the leased premises. There must be a provision in the lease allowing for this Notice and the landlord is required to have filed a police report alleging that the person has unlawfully manufactured, delivered, possessed with intent to deliver, or possessed a controlled substance on the leased premises.
Seven Day Notice. Under Michigan law, a seven-day notice is used when one of a list of special violations happens. The tenant has seven days to "fix" the violation or move out. The special violations include: nonpayment of rent, unreasonable damages to the rental unit, and causing an ongoing health hazard.
Thirty Day Notice. When a written lease includes a clause that violation of any lease requirement is grounds for forfeiture of the lease, or if the lease has a specific ending date and the tenant stays on, the landlord can start an eviction with a thirty-day Notice to Quit.
Some leases do not have a specific ending date, but are automatically renewed when the landlord accepts the rent. If you rent under this type of lease agreement, the Notice to Quit must be equal to the rental period. The thirty-day Notice to Quit is commonly used when the landlord simply wants to terminate the rental relationship, even if there is no reason. This can only be done if the arrangement is month to month, or it is at the end of the lease period. Note: Michigan law also requires a tenant to give thirty days notice, in writing to the landlord, prior to moving out.
Eviction Notice Requirements
The eviction Notice to Quit must be in writing and include the tenant's name and address, the reason for the eviction if it is a seven day notice, the date of the notice, and the landlord's or agent’s signature.
The Notice to Quit must also be properly delivered to the tenant. This means: giving the notice to the tenant personally, delivering it to the tenant's address and handing it to a responsible person there, or tacking a copy of the notice to the main entrance of the rental property and sending a copy to the tenant by first class mail.
Eviction Court Case
If the tenant does not move out within the time set in the Notice to Quit, the landlord's next step is to file an eviction case in court. The landlord cannot start the court case for eviction until (24 hours, 7 days or 30 days) has elapsed.
The case is filed in District Court. Fill-in-the-blank forms are available. To start the case, the landlord must show that the tenant has been properly served with a Notice to Quit. The landlord can sue to get either the tenant out of the rental unit (possession), or for money damages (including rent owed), or both. The court papers to start the case, a Complaint and Summons, also must be properly served on the tenant. The Summons tells the tenant when to be in court for the hearing on the case and the Complaint sets out the reason(s) for the eviction. As a tenant, it is important to show up in court on this day. If the tenant is not present, the landlord is likely to get the court order he or she is asking for in the Complaint.
If the tenant disagrees with the Landlord's reasons for eviction, the tenant needs to bring written evidence and witnesses to support that defense. You may also want to consult with a lawyer. If you appear at the hearing without an attorney and explain to the judge that you want to consult with an attorney, most judges will adjourn the hearing for a week or so to give you time to employ or talk to a lawyer. At the court hearing, the judge will listen as both parties tell their side of the story and present their evidence and witnesses. Then the judge will make a ruling, known as the Judgment. This judgment may order the tenant to pay money damages for rent owed, or for damages to the rental unit. It may also include an order that the tenant must pay the amount due within 10 days or move out of the property. If the landlord has successfully sued to get a tenant out at the end of a lease, the judgment will require the tenant to leave within 10 days, with no option to pay and stay.
If after 10 days the tenant has not moved, the landlord must go back to the court office and obtain a Writ of Restitution. This is a court order commanding the local sheriff or court officer to physically remove the tenant and all of his or her belongs from the rental unit. Unless the landlord has the court order giving permission to physically take things out of the apartment, the eviction would be illegal.
Illegal Evictions
In Michigan, evictions must be handled in court. Unfortunately, one type of illegal eviction that still happens despite the law setting out all the above steps, is the self-help eviction. The landlord puts the tenants out of the property without going to court at all, or before completing all the steps through the Writ of Restitution. Included in these illegal, self-help evictions are situations where the landlord turns off the utilities while the tenant is still in the apartment, changes the locks, nails shut doors or windows or threatens the tenant into moving without a day in court.
Under Michigan law, a tenant can receive damages if the landlord uses any of these self-help remedies in place of a court eviction. Damages are $200 or actual damages, whichever is greater. If the tenant can prove intentional violations or flagrant abuse by the landlord, the judge can order the landlord to pay up to three times actual damages.
Retaliatory Evictions
Michigan law also does not allow the eviction procedures to be used if the reason the landlord is evicting the tenant is to retaliate for the tenant trying to enforce his or her legal rights. The court will presume the landlord is retaliating if the tenant made a report of a health or safety violation to the local government authorities within 90 days of the eviction lawsuit. Landlords are also prohibited from retaliating against tenants who join a tenant organization, or start a lawsuit against the landlord.
