Tenants And Landlords A Practical Guide

Tenants

and

Landlords

Tenants

and

Landlords

a practical guide

Dear Friend:

This booklet is designed to inform tenants and landlords about their rights and

responsibilities in rental relationships. It serves as a useful reference—complete

with the following:

■ An in-depth discussion about rental-housing law in an easy-to-read question-

and-answer format;

■ Important timelines that outline the eviction process and recovering or

keeping a security deposit;

■ A sample lease, sublease, roommate agreement, lead-based paint disclosure

form, and inventory checklist;

■ Sample letters about repair and maintenance, termination of occupancy, and

notice of forwarding address; and

■ Approved court forms.

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.

Rental-housing law is complex. I am grateful to the faculty and students of the

MSU College of Law Housing Law Clinic for their detailed work and assistance in

compiling the information for this booklet.

Owners of mobile-home parks, owners of mobile homes who rent spaces in the

parks, and renters of mobile homes may have additional rights and duties. Also,

landlords and renters of subsidized housing may have additional rights and duties.

It is my pleasure to provide this information to you. I hope that you find it useful.

MSU College of Law Housing Law Clinic

(517) 336-8088, Option 2 housing@law.msu.edu www.law.msu.edu/clinics/rhc

This informational booklet is intended only as a guide—

it is not a substitute for the services of an attorney and

is not a substitute for competent legal advice.

Note: Content accurate at time of printing.

Table of Contents

Creating and Terminating Tenancies

and Understanding the Lease

A. THE TENANCY

Q1 What are the types of tenancies?....................................................... 3

Q2 Are there advantages and disadvantages to the different types of tenancies? ................ 4

B. THE LEASE

Q1 Are there advantages to a written lease? ................................................ 4

Q2 What provisions should be included in the lease? ......................................... 4

Q3 What provisions are prohibited by law from being included in the lease?..................... 5

Q4 What if the lease contains a provision that is prohibited by law

or is missing the required disclosure language?......................................... . . 5

Q5 What other provisions can be included in the lease?....................................... 5

Q6 How can a lease be terminated? ........................................................ 6

Q7 What are the termination rights for senior citizens or persons incapable of independent living? 6

Q8 What does “joint and several liability” mean? ............................................ 6

Q9 Can a landlord raise the rent once the lease has started?.................................. 6

The Security Deposit

A. COLLECTING THE SECURITY DEPOSIT AT THE BEGINNING OF THE TENANCY

Q1 Is there a limit on the amount that a landlord may collect as a security deposit? ............ 7

Q2 What exactly is considered a security deposit?............................................ 7

Q3 Is there a difference between a fee and a deposit? ....................................... 7

Q4 Once collected, what must the landlord do with the security deposit?........................ 8

Q5 Whose money is it anyway? ............................................................ 8

Q6 What rights and responsibilities does the landlord have

with regard to the tenant’s security deposit?........................................... . . 8

Q7 What is the point of the inventory checklist?............................................. 8

Q8 Is it important to properly complete the inventory checklist?............................... 8

B. RECOVERING THE SECURITY DEPOSIT AT THE END OF THE TENANCY

Q1 What must the tenant do at the end of the lease?........................................ 9

Q2 What must the landlord do at the end of the lease? ...................................... 9

Q3 What must the tenant do when he or she receives the itemized list of damages? ............. 9

Q4 What must the landlord do once he or she receives notice of

the tenant’s dispute of the itemized list of damages? ................................... . . 9

Q5 Who must file suit—the landlord or the tenant—for the security deposit? .................... 9

C. SECURITY DEPOSIT TIMELINE 10

Subleasing

Q1 Does the landlord have to agree to the sublease? ......................................... 11

Q2 If the tenant is to sublease, what exactly can be subleased? ............................... 11

Q3 What duties does the original tenant have when subleasing? ............................... 11

Q4 What about the security deposit? ....................................................... 12

Q5 What if the subtenant stops paying rent? ............................................... 12

Q6 Can the original tenant be released from the obligations under the lease? ................... 12

Eviction Proceedings

A. STARTING THE EVICTION PROCESS—BEFORE GOING TO COURT

Q1 What lawful reason(s) must be given to evict a tenant? ................................... 13

Q2 If one roommate moves out and stops paying rent, can the other tenant(s) be evicted? ....... 13

Q3 What is proper notice of eviction and how important is it? ................................ 13

Q4 How much notice must be given to the tenant before the landlord may file suit? ............. 14

Q5 Once the proper notice is prepared, how must it be delivered to the tenant? ................. 14

(Rev. 11/2015)

Table of Contents (continued)

Eviction Proceedings

(continued)

B. TAKING THE ACTION TO COURT

Q1 What must the landlord do to begin a lawsuit for eviction? ................................ 14

Q2 What must the tenant do after receiving the Complaint? .................................. 16

Q3 What happens if the tenant fails to appear and answer after receiving the Complaint? ........ 16

Q4 Once a lawsuit is started, can the parties still try to negotiate or mediate an agreement? ..... 16

Q5 If the parties reach an agreement, do they still have to appear in court?.................... 16

Q6 What possible defenses to a lawsuit for eviction might a tenant have? ...................... 16

Q7 What can the parties expect to see happen at trial? ...................................... 17

Q8 If the landlord wins the lawsuit for eviction, how soon can the tenant

and his/her personal property be removed? ............................................ . . 17

Q9 Can the tenant be evicted and still forced to pay money damages to the landlord? ........... 17

C. EVICTION TIMELINE 18

Mediation

The Mediation Process.................................................................... 20

Community Mediation Centers in Michigan .................................................. 21

Small Claims Court

Q1 What is a small claims lawsuit? ........................................................ 23

Q2 Why not try mediation before starting a lawsuit?......................................... 23

Q3 How does a lawsuit begin? ............................................................. 23

Q4 What happens when you are sued in Small Claims Court? .................................. 24

Q5 Is it necessary to prepare for the hearing? .............................................. 24

Q6 What happens at the hearing? ......................................................... 25

Q7 If you win, how do you collect your money?.............................................. 25

Repair and Maintenance

A. RESPONSIBILITIES ARE SHARED WHEN MAINTAINING A RENTAL PROPERTY

Q1 What are the landlord’s responsibilities? ................................................. 26

Q2 What are the tenant’s responsibilities? .................................................. 27

B. IMPORTANT STEPS TO TAKE IN SOLVING THE PROBLEM(S)

Step 1: Notify the landlord and provide reasonable time for repair ............................ 27

Step 2: Contact the building inspector and schedule an inspection ............................. 27

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 ..... . . 27

Q1 How much rent should be withheld? ..................................................... 28

Q2 What if the tenant lawfully withholds rent and the landlord starts the eviction process?....... 28

Additional Considerations

Civil Rights ............................................................................. 29

Housing Codes, Smoke Detectors ........................................................... 29

Pet Restrictions ......................................................................... 29

Smoking ............................................................................... 29

Lead-Based Paint ........................................................................ 29

Appendices .......................................................................... 31

Sample Residential Lease Agreement ....................................................... 32

Sample Residential Sublease Agreement .................................................... 37

Sample Roommate Agreement ............................................................. 38

Sample Lead-Based Paint Disclosure Form ................................................... 40

Sample Inventory Checklist ............................................................... 41

Samples of Tenant’s Letters to Landlord .................................................... 43

Samples of Landlord’s Letters to Tenant .................................................... 48

Approved Court Forms ................................................................... 50

PrePared by the Michigan LegisLature

THIS INFORMATION IS PROVIDED FREE TO MICHIGAN CITIZENS AND MAY NOT BE REPRODUCED FOR RESALE OR PROFIT.

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. (See Sample Residential Lease

Agreement, page 32.) 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.

A. THE TENANCY

Q1 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 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 into

possession lawfully, (b) the tenant’s legal right

to possession has ended, and (c) the tenant

remains without the landlord’s consent.

Q2 Are there advantages and

disadvantages to the different types

of tenancies?

Fixed-Term Tenancy

Advantages. The advantage to the tenant is

that the rental period is fixed and the rental

amount is stable; the landlord may not regain

possession or raise the rent, with few

exceptions. The advantage to the landlord is

that the tenant is committed to pay rent for a

specified period of time; the tenant is bound

by the lease terms, with few exceptions.

Disadvantages. The disadvantage to the

tenant is that 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. The disadvantage to

the landlord is that he or she is stuck with the

tenant until the lease term ends.

Periodic Tenancy OR Tenancy at Will

Advantages. The advantage to the tenant is

that 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. The

same advantage is true for the landlord; he or

she may decide to no longer rent to the tenant

if the same proper notice is given.

Disadvantages. The disadvantage to the

tenant is that the landlord, with proper notice,

can also raise rent. The disadvantage to the

landlord is that he or she is not provided with

any certainty as to how long the tenant will

remain.

B. THE LEASE

Q1 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.

Q2 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 fixed-

term 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.

(See Sample Inventory Checklist, page 41.)

Q3 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 that 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 and/

or warrant of attorney, 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 that amount is

determined by the court;

10. Waives or alters a party’s right 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:

› 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.

13. Violates the Consumer Protection Act

(MCL 445.901 to 445.922) which lists

multiple unfair trade practices; or

14. Requires the tenant to give the landlord a

power of attorney.

Q4 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.

Q5 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.

Q6 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.

Q7 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:

1. Tenant becomes eligible to move into a

rental unit in senior-citizen housing

subsidized by a federal, state, or local

government program, OR

2. Tenant becomes incapable of living

independently, as certified by a physician in

a notarized statement. (MCL 554.601a)

Q8 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.

Q9 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.

©MSU-DCL

(1) ______ (2) ______ (3) ______ (4) ______ (Each tenant must initial.)

Page 1 of 5 Pages

ESIDENTIAL

EASE

GREEMENT

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.

We Agree That

_______________________________________________________________,

(Landlord’s Name(s))

Leases To

(1)________________________________________________

(Tenant’s Name)

(2)________________________________________________

(Tenant’s Name)

(3)________________________________________________

(Tenant’s Name)

(4)________________________________________________

(Tenant’s Name)

The Following Premises To Be Used For Private Residential Purposes Only

____________________________________________________________________________________

(Street Address, City, State, and Zip Code)

For A Term

Beginning ____________ ____, 20____, and

Ending ____________ ____, 20____.

Month-To-Month

Beginning ____________ ____, 20____.

(a)

JOINT AND SEVERAL TENANCY:

re than one person signs this lease as a Tenant, 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 this lease. A judgment entered against one or more Tenant(s) does not bar an action against the

others. Each Tenant must initial this paragraph: (1) ____, (2) ____, (3) ____, (4) ____.

(b)

RENT:

Tenant must pay Landlord, as rent for the entire term, a total of $___________, being $_________

each month, beginning ____________ ____, 20____, and the same amount on or before the 1

day of each

succeeding month. Rent must be paid and all communications must be sent to the Landlord at the following

address:

_____________________________________________________________________________________

(Street Address, Apartment, City, State, and Zip Code)

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 an attorney or other qualiﬁed person.

The security deposit is an amount of

money paid by the tenant to the landlord other

than the first rent payment (for 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:

1. Owes unpaid rent;

2. Owes unpaid utility bills; or

3. 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.

A. COLLECTING THE SECURITY

DEPOSIT AT THE BEGINNING

OF THE TENANCY

Q1 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

⁄2 times the monthly rent.

Q2 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.

Q3 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 but the

reason and matters covered by the fee must be

clear. A nonrefundable fee may not cover

matters also covered by refundable fees and

may be charged in any amount as long as the

tanant accepts them by undertaking the

tenancy.

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 $100 refundable snow

removal fee for “removing snow from any

common area” and a nonrefundable $250

community fee for “costs of landlord-

sponsored social events and common-area

snow removal.” Because the $100 snow

removal fee is refundable, it would be

considered part of the security deposit and

Q4 Once collected, what must the landlord

do with the security deposit?

The landlord must either:

a) Deposit the money with a regulated

financial institution (e.g., bank), OR

b) 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.

Q5 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:

a) The landlord returns the deposit to the

tenant, OR

b) 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

c) 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.

Q6 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:

a) The landlord’s name and address for

receipt of communications regarding the

tenancy; AND

b) 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

c) 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.)

Q7 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 at move-in 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. (See sample, page 41.)

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.

Q8 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 leasing or moving in.

violate Michigan law because the amount

collected for a security deposit would

exceed the 1.5 times monthly rent limit.

The nonrefundable $250 fee violates

Michigan law because it covers a matter

also covered by a refundable fee. If the

lease, instead, required a nonrefundable

snow removal fee and a nonrefundable

community fee for “cost of landlord-

sponsored social events,” it would, absent

other contrary or confusing lease terms,

be allowed.

B. RECOVERING THE SECURITY

DEPOSIT AT THE END OF

THE TENANCY

Q1 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.

Q2 What must the LANDLORD do at the

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:

a) Return the entire amount of the deposit

by check or money order, OR

b) 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.” (See example, page 49.)

c) The landlord would be able to apply the

outstanding rent balance against the security

deposit, presuming the security deposit is at least

as much as the rent outstanding. The landlord

does not have to sue to accomplish this.

Q3 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 the security deposit, and why

the tenant 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.

Q4 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:

a) Negotiate or mediate an agreement in

writing with the tenant; OR

b) 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.

Q5 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:

a) The tenant failed to provide his or her

forwarding address in writing within 4 days of

terminating occupancy; OR

b) The tenant failed to respond—by mail—

to the itemized list of damages within 7 days of

receiving it; OR

c) The landlord failed to return the tenant’s

deposit after receiving the tenant’s response

disputing the amount assessed against it.

C. Security Deposit Timeline

Security Deposit Landlord’s Duties Tenant’s Duties

Beginning of Lease

(generally move-in)

MCL 554.602, 554.604, 554.605,

554.608(2)

A security deposit, if required, shall not

exceed 1

⁄2 months’ rent.

Deposit tenant’s security deposit in a

regulated financial institution OR file a

surety bond with the state.

Provide tenant:

1. A copy of the lease, and

2. Two blank copies of the inventory

checklist.

The security deposit is the lawful

property of the tenant.

Recommendation: Read the lease

(preferably before signing it) and all

other information provided to you

by the landlord. Request from

landlord the inventory checklist and/

or itemized list of damage report

from previous tenancy.

Within 7 days from move-in

(landlord and tenant may agree to

a shorter period, but not a longer

period)

MCL 554.608(3)

Recommendation: Keep tenant’s

completed checklist.

Return to landlord the completed

inventory checklist, noting condition

of rental unit (add pages if

necessary); be sure to keep a copy

yourself.

Within 14 days from move-in

MCL 554.603

Provide tenant in writing:

1. Landlord’s name and address for

receipt of rent and communications;

and

2. Where tenant’s security deposit will

be held (name and address of the

financial institution or surety bond

company).

3. Include specific statutory notice of

tenant’s duty to provide forwarding

address within 4 days of move-out.

Recommendation: Read the

information provided to you by the

landlord.

Move-out

(not necessarily the end of the

lease)

MCL 554.608(5)

Complete a termination inventory

checklist, noting condition of rental

unit.

Recommendation: Remove all

personal property, clean the rental

unit; turn in keys.

Within 4 day after move-out

MCL 554.611

Recommendation: Keep a copy of

tenant’s forwarding address.

Provide landlord in writing (not

orally) your forwarding address.

Within 7 days of tenant’s receipt

of landlord’s itemized list of

damages

MCL 554.612

Watch for tenant’s response to the

itemized list of damages by mail.

Respond in detail, by ordinary mail,

indicating agreement or

disagreement to the damages

charged.

Be sure to count the days; the date

of mailing is considered the date of

response.

Within 45 days—not thereafter—

of move-out

MCL 554.613

To be entitled to keep the disputed

amount of security deposit, file suit

against tenant for damages—unless an

exception applies.

If suit is filed, appear in court and

defend.

Note: If suit is not filed, you may

file suit for recovery of your security

deposit.

Within 30 days after move-out

MCL 554.609

Mail to tenant an itemized list of

damages, with proper statutory notice

provision claimed against tenant’s

security deposit accompanied by a

check or money order for the

difference. Only unpaid rent, unpaid

utility bills, and damages to the rental

unit beyond reasonable wear and tear

caused by tenant may be claimed

against the deposit (not cleaning fees).

Recommendation: Watch for the

itemized list of damages in the mail.

Subleasing occurs when a tenant permits

another party to lease the rental property that

the tenant has leased from the landlord. (Note:

Usually, the lease or the landlord 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 or Sublessor: The party taking

possession and use of the rental property from

the landlord under a lease contract.

■ Subtenant or Sublessee: 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. (See Sample Sublease, page 37.)

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.

Q1 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. However, as a practical matter,

the tenant should notify the landlord of the

sublease ahead of time. First check the terms

of the original lease. Then, if permission is

required, check with the landlord.

Q2 If the tenant is 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).

Q3 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

Subleasing

› 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.

Q4 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 Security Deposit

section, page 7.)

Q5 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).

Q6 Can the original tenant be released

from the obligations under the lease?

Sometimes, yes. Subleasing can be a

com plicated 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, which differs from a sublease agreement:

1. 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.)

2. 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 a Summary Proceeding, and it moves

quickly to restore rental property to the

person lawfully entitled to possession.

The process starts with a notice, usually

called a “Notice to Quit” or a “Demand for

Possession” but for simplicity, it can be an

eviction notice and may involve court

appearances and a trial. If the landlord is

successful in proving his or her case, the

eviction notice 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.

This is illegal.

A. STARTING THE EVICTION

PROCESS—

BEFORE GOING TO COURT

Q1 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 with the notice described above:

1. Nonpayment of rent;

2. Extensive and continuing physical injury to

property;

3. Serious and continuing health hazard;

4. Illegal drug activity on the premises and a

formal police report filed (lease provision

must allow for such termination);

5. Violation of a lease provision and the lease

allows for termination;

6. Forceful entry OR peaceful entry, with

forceful stay OR trespass;

7. Holding over after natural expiration of lease

term;

8. “Just cause” for terminating tenant of mobile

home park (“just cause” is defined for this

purpose by MCL 600.5775); OR

9. “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.

Q2 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. Who ever 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.

Q3 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

Eviction Proceedings

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,

usually a “Notice to Quit” or “Demand for

Possession.”

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

24 hours or 7 days 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.

Q4 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

24 hours or 7 days or 30 days.

A 24-HOUR NOTICE is required for the

following reason:

Illegal drug activity on the premises and a

formal police report filed (lease provision must

allow for termination).

A 7-DAY NOTICE is required for the

following reasons:

a) Nonpayment of rent;

b) Extensive and continuing physical injury

to property;

c) Serious and continuing health hazard.

A 30-DAY NOTICE is required for the

following reasons:

a) Violation of a lease provision and the

lease allows for termination for that violation;

b) Forceful entry OR peaceful entry, with

forceful stay OR trespass;

c) Holding over after natural expiration of

lease term;

d) “Just cause” for terminating tenant of

mobile home park;

e) “Just cause” for terminating tenant of

government-subsidized housing.

Q5 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:

a) In person to the tenant; OR

b) At the rental property, to a member of

the tenant’s household—of suitable age—

requesting that it be delivered to the tenant;

c) 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 24-hour

or 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.

B. TAKING THE ACTION TO COURT

Q1 What must the landlord do to begin

a lawsuit for eviction?

If some agreement or understanding cannot

be worked out by the parties, and if the

eviction notice has been properly delivered

and the 24-hour or 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:

a) Complaint;

b) Copy of the Notice of Eviction (attached

to the Complaint);

c) Lease (attached to the Complaint); and

d) 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) A description of the rental property;

b) The reason(s) for eviction;

c) A demand for a jury trial (if the landlord

wants a jury);

d) 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

e) 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:

a) Copy of the Notice of Eviction; and

b) 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:

a) The tenant has the right to employ an

attorney;

b) 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;

c) If the tenant cannot pay for an attorney,

he or she might qualify for legal-aid assistance;

and

d) 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

deter mine 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:

a) Personally; OR

b) By first-class mail—certified, return-

receipt requested, restricted delivery; OR

c) At the rental property, to a member of

the tenant’s household—of suitable age—

requesting that it be delivered to the tenant;

d) After diligent attempts at personal

service, by securely attaching the papers to

the main entrance of the rental property unit.

CHECKLIST FOR COMMENCING A LAWSUIT

■ The Notice of Eviction was properly delivered to the tenant and the proper time period, either

24 hours or 7 days 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.

Note: This delivery method differs slightly

from delivery of the initial Notice of Eviction.

Here, two methods of delivery are required.

Q2 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 3-10 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. Also at this

time, the tenant can state a counterclaim with

the answer and request a jury.

Q3 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.

Q4 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. (See pages 21-22

for the names, locations, and phone numbers

of the Michigan Community Mediation Centers

that can be contacted for assistance.)

Q5 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:

a) Sign an agreement called a “Consent

Judgment,” putting an end to the case by

consent and by order of the judge; OR

b) 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.

Q6 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:

(1) 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).

(2) 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.

(3) 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, and must have

been given a reasonable amount of time to fix

Notice to the tenant: Do not fail to appear

and answer!

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

suc cess ful 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.

Q7 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).

Q8 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 the

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 of Eviction, and there is

little the tenant can do but start packing.

Q9 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 judge (or jury) 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.

(See Eviction Timeline, pages 18-19.)

C. Eviction Timeline

Eviction

Some incident gives rise for eviction.

MCL 600.5714

24-HOUR NOTICE is required for the following

reason:

Illegal drug activity and formal police report filed

(lease provision must allow for termination).

7-DAY NOTICE is required for the following reasons:

a) Nonpayment of rent;

b) Extensive and continuing physical injury to

property;

c) Serious and continuing health hazard.

30-DAY NOTICE is required for the following reasons:

a) Violation of a lease provision and the lease allows

for termination;

b) Forceful entry OR peaceful entry, but forceful stay

OR trespass;

c) Holding over after natural expiration of lease term;

d) Just cause for terminating tenant of mobile home

park;

e) Just cause for terminating tenant of government-

subsidized housing.

BEGIN THE LAWSUIT:

After the time period in the notice has expired—

either 7 days or 30 days—if things cannot be worked

out:

File with the district court and serve on the tenant a

Summons and Complaint.

MCL 600.5735

Landlord’s Duties

Provide proper notice of intent to evict.

MCL 600.5716, 600.5718

Forms DC 100a, DC 100c (from the court)

The notice MUST:

a) Be in writing;

b) Be addressed to the tenant;

c) Describe the rental property (address is sufficient);

d) Give reason for eviction;

e) State the time for tenant to take remedial action;

f) Include landlord’s signature; and

g) Include date.

The notice MUST be delivered:

a) In person to the tenant, OR

b) At the rental property, to a member of tenant’s

household—of suitable age—requesting that it be

delivered to the tenant, OR

c) By sending it through first-class mail addressed to

the tenant.

The Summons. The Summons commands the tenant

to appear at the court for trial.

Michigan Court Rule 4.201(C)

Form DC 104 (from the court)

The Complaint. The Complaint gives further notice of

the cause of action, or grounds, for the eviction.

Landlord MUST attach the following:

a) A copy of the Lease; AND

b) A copy of the notice of intent to evict—stating

when and how it was delivered.

Michigan Court Rule 4.201(B)

Forms DC 102a, DC 102c (from the court)

The Summons and Complaint MUST be delivered

(and proof of how and when they were delivered must

be filed with the court) to the tenant BY MAIL AND

ONE OTHER WAY:

a) Personally, OR

b) Sent by mail—certified, return-receipt, restricted

delivery, OR

c) At the rental property, to a member of tenant’s

household—of suitable age—requesting that it be

delivered to the tenant, OR

d) After diligent attempts at personal service, by

securely attaching the papers to the main entrance

of the rental property unit.

Michigan Court Rule 4.201(D)

Tenant’s Duties

Read the notice. Certain reasons for eviction can be

cured (e.g., nonpayment of rent can be cured by

paying the rent). Certain other reasons cannot be

cured and tenant must move out (e.g., breach of lease,

illegal drug activity). Otherwise, you may be sued.

Recommendation: Contact the landlord to peacefully

discuss his or her reasons for eviction. Try to work

things out to remain in the rental property.

The Summons will have a date and time ordering the

tenant to appear in court. As the Summons

commands, you MUST appear at the court for this

hearing.

You MUST appear and answer the Complaint by the

date on the Summons. You can do this either in

writing OR orally at the hearing.

Recommendation: It is best to contact an attorney to

help you through this process.

C. Eviction Timeline (continued)

Eviction

TRIAL: Within 10 days

there will be a trial/

hearing.

Michigan Court Rule

4.201(F)

If either party appears

without an attorney, but

requests to retain one,

the judge will generally

adjourn the trial/

hearing for 7 days.

JUDGMENT: After trial,

the judge will render a

decision either in favor

of the:

a) Landlord (evicting the

tenant), OR

b) Tenant (allowing him

or her to remain in

possession).

A money award may also

be entered for damages

incurred by either party.

Michigan Court Rule

4.201(K)

APPEAL: Within 10

days after judgment,

either party may appeal

the judge’s decision. The

party appealing the

judge’s decision must

pay an appeal bond,

filing fees, and transcript

fees to preserve the

appeal and stop the Writ

of Eviction from being

issued.

Michigan Court Rule

4.201(N)

EVICTION: After 10

days—a Writ of Eviction

may be requested,

issued, and executed.

MCL 600.5744(4);

Michigan Court Rule 4.201(L)

Issuance: Issuance must

occur within 56 days after

judgment is entered and

must be executed no later

than 56 days after the writ is

issued.

Important: Certain

situations may allow

issuance of a Writ of

Eviction Immediately.

MCL 600.5744(2)

Landlord’s Duties

You have a right to an

attorney; you may ask

for time to retain one.

Generally, the judge will

adjourn for 7 days. You

have a right to a jury

trial; however, you must

demand it in the

Complaint and pay the

jury fee. (The fee starts

at $40 and goes up

depending on the amount

in controversy.)

Provide testimony,

documents, and other

evidence to show that

you are lawfully entitled

to recover possession of

your rental property.

If judgment is for you,

the landlord, it may

include an award for any

money due and for costs.

You may begin

collections on the money

judgment if tenant does

not otherwise pay or

appeal. You will have to

wait to regain possession

by requesting a Writ of

Eviction.

MCL 600.5741

If judgment is for the

tenant, he or she may

remain in possession of

your rental property.

Decide quickly whether

to appeal.

Once the sheriff executes

the Writ, you regain

possession of your rental

property.

Tenant’s Duties

You must appear and

answer the Complaint.

You have a right to an

attorney; you may ask

for time to retain one.

Generally, the judge will

adjourn for 7 days. You

have a right to a jury

trial; however, you must

demand it in your first

response—written or

oral—and pay the jury

fee. (The fee starts at $40

and goes up depending

on the amount in

controversy.)

Defending landlord’s

claim may require you to

testify and provide

documents and other

evidence of why you

should be entitled to

remain in possession of

the rental property.

If judgment is for you,

the tenant, you may

remain in possession of

the rental property.

MCL 600.5747

If judgment is for the

landlord, you must

either:

a) Make full payment (if

the eviction can be

cured by payment),

b) Settle the dispute, OR

c) Move out, OR

d) Appeal the judge’s

decision.

Decide quickly whether

to appeal.

If the reason for the

eviction was

nonpayment of rent, full

payment of the rent, plus

fees and costs awarded,

may stop the issuance of

the Writ of Eviction.

Partial payment will not

stop the issuance of the

Writ.

WARNING: Other

reasons for eviction may

not be cured by payment

and you must move out

before the sheriff

executes the Writ and

moves things out for

you.

FROM START TO FINISH—

IT CAN TAKE AS FEW AS 27 DAYS OR AS MANY AS 57 DAYS TO EVICT A TENANT

C. Eviction Timeline (continued)

Eviction

TRIAL: Within 10 days

there will be a trial/

hearing.

Michigan Court Rule

4.201(F)

If either party appears

without an attorney, but

requests to retain one,

the judge will generally

adjourn the trial/

hearing for 7 days.

JUDGMENT: After trial,

the judge will render a

decision either in favor

of the:

a) Landlord (evicting the

tenant), OR

b) Tenant (allowing him

or her to remain in

possession).

A money award may also

be entered for damages

incurred by either party.

Michigan Court Rule

4.201(K)

APPEAL: Within 10

days after judgment,

either party may appeal

the judge’s decision. The

party appealing the

judge’s decision must

pay an appeal bond,

filing fees, and transcript

fees to preserve the

appeal and stop the Writ

of Eviction from being

issued.

Michigan Court Rule

4.201(N)

EVICTION: After 10

days—a Writ of Eviction

may be requested,

issued, and executed.

MCL 600.5744(4);

Michigan Court Rule 4.201(L)

Issuance: Issuance must

occur within 56 days after

judgment is entered and

must be executed no later

than 56 days after the writ is

issued.

Important: Certain

situations may allow

issuance of a Writ of

Eviction Immediately.

MCL 600.5744(2)

Landlord’s Duties

You have a right to an

attorney; you may ask

for time to retain one.

Generally, the judge will

adjourn for 7 days. You

have a right to a jury

trial; however, you must

demand it in the

Complaint and pay the

jury fee. (The fee starts

at $40 and goes up

depending on the amount

in controversy.)

Provide testimony,

documents, and other

evidence to show that

you are lawfully entitled

to recover possession of

your rental property.

If judgment is for you,

the landlord, it may

include an award for any

money due and for costs.

You may begin

collections on the money

judgment if tenant does

not otherwise pay or

appeal. You will have to

wait to regain possession

by requesting a Writ of

Eviction.

MCL 600.5741

If judgment is for the

tenant, he or she may

remain in possession of

your rental property.

Decide quickly whether

to appeal.

Once the sheriff executes

the Writ, you regain

possession of your rental

property.

Tenant’s Duties

You must appear and

answer the Complaint.

You have a right to an

attorney; you may ask

for time to retain one.

Generally, the judge will

adjourn for 7 days. You

have a right to a jury

trial; however, you must

demand it in your first

response—written or

oral—and pay the jury

fee. (The fee starts at $40

and goes up depending

on the amount in

controversy.)

Defending landlord’s

claim may require you to

testify and provide

documents and other

evidence of why you

should be entitled to

remain in possession of

the rental property.

If judgment is for you,

the tenant, you may

remain in possession of

the rental property.

MCL 600.5747

If judgment is for the

landlord, you must

either:

a) Make full payment (if

the eviction can be

cured by payment),

b) Settle the dispute, OR

c) Move out, OR

d) Appeal the judge’s

decision.

Decide quickly whether

to appeal.

If the reason for the

eviction was

nonpayment of rent, full

payment of the rent, plus

fees and costs awarded,

may stop the issuance of

the Writ of Eviction.

Partial payment will not

stop the issuance of the

Writ.

WARNING: Other

reasons for eviction may

not be cured by payment

and you must move out

before the sheriff

executes the Writ and

moves things out for

you.

FROM START TO FINISH—

IT CAN TAKE AS FEW AS 27 DAYS OR AS MANY AS 57 DAYS TO EVICT A TENANT

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

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.

Mediation

THE

MEDIATION

PROCESS

(1) Any person or organization may initiate

mediation.

(2) 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.

(3) With your permission, the mediation

center will contact the other person(s)

involved to encourage them to

participate in a mediation session.

(4) If both parties agree, the mediation

center will schedule a mediation

session at a time and place convenient

for all.

(5) 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.

(6) When the parties reach a solution, their

agreement will be put in writing by the

mediator. It is then a legally enforceable

document.

BERRIEN, Branch, Cass, St. Joseph,

Van Buren

Citizens Mediation Service, Inc.

811 Ship Street, Suite 302

St. Joseph, MI 49085

Phone: (269) 982-7898

Fax: (269) 982-7899

Website: www.citizensmediation.org

CHARLEVOIX, Emmet

Citizen Dispute Resolution Service, Inc.

Northern Community Mediation

415 State Street

Petoskey, MI 49770

Phone: (231) 487-1771

Fax: (231) 487-1770

Website: www.northernmediation.org

CHIPPEWA, Luce, Mackinac

Eastern UP Dispute Resolution Center, Inc.

P.O. Box 505

Sault Sainte Marie, MI 49783

Phone: (906) 253-9841

Fax: (888) 664-6402

Website: www.eupmediate.com

DELTA, Baraga, Dickinson, Gogebic, Houghton,

Iron, Keweenaw, Menominee, Ontonagon,

Schoolcraft

Resolution Services Program

UPCAP Services, Inc.

P.O. Box 606

Escanaba, MI 49829

Phone: (906) 789-9580

Fax: (906) 786-5853

Website: www.upcap.org

GENESEE, Arenac, Bay, Clare, Gladwin,

Midland, Ogemaw, Roscommon, Saginaw

Community Resolution Center

315 East Court Street, Suite 200

Flint, MI 48502

Phone: (810) 249-2619

Fax: (810) 239-9545

Website: www.mediation-crc.org

GRAND TRAVERSE, Antrim, Benzie, Leelanau,

Missaukee, Wexford

Conflict Resolution Services, Inc.

852 South Garfield Avenue, Suite B

Traverse City, MI 49685-1035

Phone: (231) 941-5835

Fax: (231) 941-4530

Website: www.CRSmediationTC.org

INGHAM, Clinton, Eaton, Gratiot, Isabella,

Shiawassee

Resolution Services Center of Central Michigan

516 South Creyts Road, Suite A

Lansing, MI 48917

Phone: (517) 485-2274

Fax: (517) 485-1183

Website: www.rsccm.org

JACKSON, Hillsdale, Lenawee, Monroe

Southeastern Dispute Resolution Services

United Way of Jackson County

P.O. Box 1345

536 North Jackson Street

Jackson, MI 49204

Phone: (517) 990-0279

Fax: (517) 784-2340

KALAMAZOO, Barry, Calhoun

Dispute Resolution Services

Gryphon Place

3245 South 8th Street

Kalamazoo, MI 49008

Phone: (269) 552-3434

Fax: (269) 381-0935

Website: www.gryphon.org

KENT, Ionia, Lake, Mecosta, Montcalm,

Newaygo, Osceola

Dispute Resolution Center of West Michigan

Community Reconciliation Center

678 Front Avenue, NW, Suite 250

Grand Rapids, MI 49504-5368

Phone: (616) 774-0121

Fax: (616) 774-0323

Website: www.drcwm.org

COMMUNITY MEDIATION CENTERS IN MICHIGAN

The following centers provide conciliation, mediation, and other forms of dispute resolution under

Michigan's Community Dispute Resolution Act.

MACOMB, Huron, Lapeer, Sanilac, St. Clair,

Tuscola

The Resolution Center

176 South Main Street, Suite 2

Mt. Clemens, MI 48043

Phone: (586) 469-4714

Fax: (586) 469-0078

Website: www.theresolutioncenter.com

MARQUETTE, Alger

Marquette-Alger Resolution Service

715 West Washington Street, Suite A

Marquette, MI 49855

Phone: (906) 226-8600

Fax: (906) 226-5399

Website: www.marsmediation.org

MUSKEGON, Manistee, Mason, Oceana

Mediation & Restorative Services

27 East Clay Avenue

Muskegon, MI 49442

Phone: (231) 727-6001

Fax: (231) 727-6011

Website: www.mediatewestmichigan.com

OAKLAND

Oakland Mediation Center, Inc.

550 Hulet Drive, Suite 102

Bloomfield Hills, MI 48302

Phone: (248) 338-4280

Fax: (248) 338-0480

Website: www.mediation-omc.org

OTSEGO, Alcona, Alpena, Cheboygan,

Crawford, Iosco, Kalkaska, Montmorency,

Oscoda, Presque Isle

Community Mediation Services

Otsego County

114 East Main Street, Suite 1

Gaylord, MI 49735

Phone: (989) 732-1576

Fax: (989) 705-1337

Website: www.mimediation.com

OTTAWA, Allegan

Mediation Services

Center for Dispute Resolution

Courthouse Square

68 West 8th Street, Suite 220

Holland, MI 49423

Phone: (616) 399-1600

Fax: (616) 399-1090

Website: www.mediationservices.works

WASHTENAW, Livingston

Dispute Resolution Centers of Michigan, Inc.

The Dispute Resolution Center

4101 Washtenaw Avenue, Suite 1105

Ann Arbor, MI 48108

Phone: (734) 794-2125

Fax: (734) 794-2126

Website: www.thedisputeresolutioncenter.org

WAYNE

Wayne Mediation Center

Garrison Place

19855 West Outer Drive, Suite 206 - East Building

Dearborn, MI 48124

Phone: (313) 561-3500

Fax: (313) 561-3600

Website: www.mediation-wayne.org

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 $5,500.

This information tells you how to file a small

claims case.

Q1 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 $5,500. 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.

Q2 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.

Q3 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.

Q4 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 to 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.

Q5 Is it necessary to prepare for

the hearing?

On the hearing date, any of the following

may happen:

1. 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.

2. If the plaintiff does not appear, and the

defendant does appear, the case may be

dismissed.

3. If the defendant does not appear, the

plaintiff 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.

Q6 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. 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

both parties will appear before the judge or

magistrate. The judge will ask the plaintiff 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. If the case is

heard by a magistrate, either party may appeal

the magistrate’s decision. The case would be

rescheduled before a judge and both parties

would explain their case again.

Q7 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 Claims Court section was supplied by the

State Court Administrative Office 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)

Repair and 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(s)—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(s) 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;

dripping faucets; household pests;

peeling paint and wallpaper.

A. RESPONSIBILITIES ARE

SHARED WHEN MAINTAINING

A RENTAL PROPERTY

Q1 What are the landlord’s

responsibilities?

Under Michigan statute, the landlord has a

duty to keep the rental property and all

common areas:

a) Fit for the use intended by the parties;

and

b) In reasonable repair during the term of

the lease; and

c) In compliance 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). 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

Repair and Maintenance

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 and additional requirements. 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.

Q2 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:

1. Pay rent on time;

2. Keep the rental property in a safe and

sanitary condition;

3. Promptly notify the landlord of

maintenance problems;

4. Exterminate insects that appear if they

were not there when the tenant moved in; and

5. Leave the rental property in good

condition—reasonable wear and tear excepted.

B. 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 phone call usually works.

However, the phone call should be followed up

with a letter to ensure that documentation

exists. 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 keep notes of 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.

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.

■ 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.

Note: The landlord must have been

provided with notice of the problem, and

must have been given a reasonable amount

of time to fix the problem.

Note: The landlord must be given reasonable

time to make repairs.

› 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

(name of financial institution), and that

payment will be released when the

maintenance or repair problem(s) 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.

Q1 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.

Q2 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:

1. 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).

2. 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.

3. 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 problem-

solving skills, to take responsibility, and to find

solutions that best meet their needs, while

strengthening the landlord-tenant relationship.

Note: While the repair-and-deduct method

may work well for small repairs, it may not

work for large repairs. See page 44.

Civil Rights

Federal, state, and local laws prohibit

discrimination in housing based on a number

of factors, including race, color, sex, age,

disability, and family status. For further

information regarding the classes of persons

protected by federal, state or local laws and

the exceptions to the general laws, contact the

Michigan Department of Civil Rights or the

U.S. Department of Housing and Urban

Development.

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 or impose a pet fee. A

landlord cannot discriminate against a person

who maintains a guide, hearing, service and/or

companion animals. Additionally, service and

companion animals are not considered to be

pets, and should not be subject to pet fees or

overly restrictive animal policies.

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 privately-

owned 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, contact the

National Lead Information Center at

1-800-424-LEAD[5323] or at www2.epa.gov/lead/

forms.

See Appendices for sample disclosure form.

Additional Considerations

Appendices

Sample Residential Lease Agreement ........................................ 32

Sample Residential Sublease Agreement .................................... 37

Sample Roommate Agreement ................................................ 38

Sample Lead-Based Paint Disclosure Form .................................. 40

Sample Inventory Checklist .................................................... 41

Samples of Tenant’s Letters to Landlord .................................. 43

Samples of Landlord’s Letters to Tenant .................................. 48

Court Forms Prepared by the Michigan State Court

Administrator’s Office

....................................................... 50

Additional Information is Available From

MSU College of Law Housing Law Clinic

(517) 336-8088, Option 2 housing@law.msu.edu www.law.msu.edu/clinics/rhc

Michigan State Court Administrative Office

http://courts.michigan.gov/scao/courtforms/landlord-tenantlandcontract/itindex.htm

Sample Residential Lease Agreement (page 1 of 5)

RESIDENTIAL-LEASE AGREEMENT

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.

We Agree That

_______________________________________________________________,

(Landlord’s Name(s))

Leases To

(1)________________________________________________

(Tenant’s Name)

(2)________________________________________________

(Tenant’s Name)

(3)________________________________________________

(Tenant’s Name)

(4)________________________________________________

(Tenant’s Name)

The Following Premises To Be Used For Private Residential Purposes Only

____________________________________________________________________________________

(Street Address, City, State, and Zip Code)

For A Term

Beginning ____________ ____, 20____, and

Ending ____________ ____, 20____.

Month-To-Month

Beginning ____________ ____, 20____.

(a) JOINT AND SEVERAL TENANCY: If more than one person signs this lease as a Tenant, 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 this lease. A judgment entered against one or more Tenant(s) does not bar an action against the

others. Each Tenant must initial this paragraph: (1) ____, (2) ____, (3) ____, (4) ____.

(b) RENT: Tenant must pay Landlord, as rent for the entire term, a total of $___________, being $_________

each month, beginning ____________ ____, 20____, and the same amount on or before the 1

business day of

each succeeding month. Rent must be paid to the Landlord at the following address:

_____________________________________________________________________________________

(Street Address, Apartment, City, State, and Zip Code)

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 an attorney or other qualiﬁed person.

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