Renters often feel that they are at a distinct disadvantage in any dispute with a landlord. The landlord is virtually guaranteed to have more money and more experience in dealing with these types of disputes. And, of course, the landlord also controls the property where the tenant lives.
These factors often intimidate tenants into acquiescing to outrageous—and often illegal—demands from landlords, and embolden landlords to engage in truly appalling behavior. I’ve seen extreme examples of this: landlords who rented apartments in which toilets were not connected, who charged illegal fees, and who attempted to evict tenants who complained about such conditions. More often, the transgressions are less dramatic: wrongly withholding money from a security deposit, charging illegal fees, or attempting to obtain immediate eviction without cause to do so.
Sadly, tenants often fail to enforce their rights because they do not understand them. Below are some of the basics that every residential tenant should know. Please be aware that these rights apply to residential tenants only; the law of commercial leases is significantly different. The information below is also specific to Michigan; laws on landlord-tenant issues vary greatly from state to state, so what is true in Michigan is not likely to carry over into any other jurisdiction. As always, this information is for educational purposes only; it is not and should not take the place of legal advice. If you have a specific legal problem, you should contact a lawyer.
In many circumstances, landlords break the law at the very beginning of the landlord-tenant relationship by demanding excessive security deposits. In Michigan, the landlord may not require a security deposits greater than one-and-a-half month’s rent. So on a $500 per month apartment, a landlord cannot demand a security deposit greater than $750.
There are also significant restrictions on what the landlord may do with the security deposit. The deposit must be returned in full to the tenant at the end of the lease, and the landlord may only deduct three kinds of charges from the security deposit: unpaid rent, damage to the rental unit, and unpaid utilities. The security deposit may not be applied to cleaning costs, pet fees, or redecorating charges. A trick many landlords employ is to write into the lease that a “move out fee” will be deducted from the security deposit when the tenant moves out. Such terms are illegal and unenforceable; the landlord is simply attempting to keep some of the tenant’s money to which he has no right.
Landlords may impose some outright charges for cleaning, pets, and so on, but they may not be deducted from the security deposit. The key here is the definition of a security deposit in Michigan: “All money paid to the landlord to be held for any duration of the lease that exceeds the first month’s rent.” In other words, any money that is refundable is part of the security deposit, and any money that is nonrefundable is not. Therefore, Michigan landlords often require two things at the beginning of a lease: a security deposit and a non-refundable cleaning charge. This is perfectly legal so long as the refundable portion—the security deposit—does not exceed one-and-a-half month’s rent.
The most common dispute between landlords and tenants involves the return of the security deposit at the end of the lease. Michigan statutes require very specific procedures be followed if a landlord wishes to withhold funds from a security deposit, or if a tenant wishes to dispute such withholdings:
- When the lease starts, the landlord must give the tenant two copies of an inventory checklist, which the tenant is required to fill out to indicate existing damage. One copy goes to the landlord and one goes to the tenant.
- Within four days of moving out, the tenant must supply (in writing) his/her new address to the landlord.
- At the end of the lease, the landlord must examine the property again and mark any new damage on the inventory checklist.
- The landlord must mail the list, including an itemized estimate of the cost of repairs, to the former tenant within 30 days. These estimated repairs will form the basis for withholdings that the landlord can deduct from the security deposit.
- The tenant must provide written objection to any listed damages to the landlord within seven days of receipt of the itemized list of damages.
- If the landlord and former tenant cannot reach an agreement on the proper amount of damages, the landlord must file a claim in court within 45 days after the termination of occupancy to seek money damages.
If the landlord fails to follow the proper procedures, he loses his right to deduct any charges from the security deposit. (He can still recover by filing suit against the former tenant, but cannot simply withhold the money from the security deposit.) Similarly, a tenant who fails to follow the procedures (for instance, who refuses to leave a forwarding address) loses the right to dispute such charges. For this reason, it is very important to follow the procedures exactly.
Still, unscrupulous landlords frequently try a number of tricks to get around the law. These tricks include having the tenant sign the inventory checklist at the beginning of the lease without allowing the tenant to actually inspect the property, falsely claiming that the tenant refused to leave a forwarding address, or falsely claiming that the tenant did not timely respond to the list of damages when no such list was actually mailed to the former tenant.
Unfortunately, these tricks often work because unsuspecting tenants do not take steps to prevent such shenanigans. However, there are things that you can do to prevent becoming a victim of scams such as these. First, never sign an inventory checklist without first examining the property in detail and noting all damage, no matter how small it might seem. Second, take photographs of the entire residence before you turn the keys back over to the landlord. Third, when you do turn in your keys, make the landlord sign a receipt that acknowledges that you have returned your keys and that you have provided a forwarding address (and include that address on the receipt). Bring along a witness in case the landlord refuses to sign such a document. And, finally, if you have not received a list of itemized charges from the landlord by the thirty-first day after moving out, send a certified letter (with a return receipt) to the landlord that states you have not received a list of itemized damages and therefore demand return of your security deposit in full. Keep copies of everything related to the lease, including certified mail return receipts!
If your landlord wrongfully withholds a portion of your security deposit, the statutes provide a strong incentive for you to sue to recover: by law, you are entitled to recover double the amount of the security deposit retained.
It is a basic rule of contract law that “late fees” are unenforceable unless the payee can document actual damages caused by the failure to pay on time. This principle carries over into landlord-tenant law, as well: landlords cannot legally charge late fees beyond actual, documented costs incurred as the result of late payment.
It is assumed by many people that since such fees are routinely charged by landlords, stores, and other businesses that they are legal and enforceable. This is not true; in Michigan—as in most states—a breach of contract (such as not paying on time) only entitles the non-breaching party to recover what would have been paid if there had not been a breach. In other words, if you are supposed to pay $1,000 on the first of the month and you do not pay, the landlord is only entitled to recover $1,000; the landlord is not entitled to charge you an extra $300 and profit from your breach. This extra charge is known as a “penalty”, and penalties are not enforceable in Michigan.
Having said that, the law is not entirely clear on this issue because parties are allowed to agree to “liquidated damages”: payment for costs incurred by the non-breaching party that are hard to calculate, but that the parties can agree are probably within a certain range in the event of a breach. For instance, the landlord may have to pay a secretary to spend five minutes typing up a reminder letter and mailing it out, and the cost to the landlord of this would be hard to calculate. Thus, the landlord and tenant could agree that if the tenant pays late, a $10 charge would cover all of these hard-to-calculate expenses incurred because of the late payment. Michigan’s courts presume that “late fees” are “liquidated damages” to the extent that the amounts are not disproportionate to the amount of the rent paid. Of course, “disproportionate” is in the eye of the beholder; what one judge may think is “disproportionate” may seem perfectly fine to another judge. In general, judges will allow for a small “late fee” of $25 or so, but more significant “late fees” start to become blatant penalties and are unenforceable.
Some landlords have tried to get around this by offering “on-time discounts”; that is, they specify that the monthly rent is $550, but that the tenant may take a $50 “on-time discount” if the rent is paid on or before the first of the month. Such “discounts” are really disguised late fees; the landlord may not legally require that a tenant who has signed such a contract ever pay more than the “on-time discount” rate (in this example, $500).
The most common reason for which a tenant is evicted is for non-payment of rent. Other common reasons include damage to the property, illegal activity, or “hold-over” (the tenant has remained in the property even though the lease has expired).
Notice to Quit
To evict a tenant, the first thing a landlord must normally do is serve the tenant with a “Notice to Quit”. This document is intended to notify the tenant that the landlord intends to terminate the lease unless the tenant takes a specific kind of action within a certain number of days. The specific amount of time in which the tenant has the right to take corrective action is up to the landlord, but must not be less than seven days. (Or, if the Notice to Quit is intended to terminate an open-ended lease, it must not be less than one rent payment period.) The clock starts to run on the tenant’s time once the tenant has received the Notice to Quit.
Once a Notice to Quit has been received, the tenant has two basic choices: comply with the conditions on the Notice to Quit (i.e., pay the overdue rent) or ignore the Notice to Quit. If the tenant takes the actions specified under the Notice to Quit, the landlord may not proceed further against the tenant.
It should be noted here that if you receive a Notice to Quit, you should attempt to make a rent payment as soon as possible (even if it is not yet due), and get a receipt that says the landlord has accepted the payment. In Michigan, acceptance of a rent payment is usually sufficient to effectively render a Notice to Quit null and void. The reasoning is that if your landlord accepts a rent payment from you, the landlord is effectively telling you that he no longer wishes to evict you (otherwise, why would he accept the rent?) and you are entitled to rely on that representation.
There is a caveat to this rule: a landlord can hold a check for a purpose other than acceptance (even beyond the move-out date on a notice to quit) without waiving the right to pursue the case. For instance, the landlord could take your rent check but hold it without cashing it pending the outcome of eviction proceedings. Therefore, it is important that you get a receipt from the landlord that the check is being accepted as rent.
It should also be noted here that there are many circumstances in which the landlord simply wants the tenant out. These might include situations in which the lease has expired (or will expire soon) and the landlord does not intend to renew the lease, situations in which the tenant has repeatedly violated the terms of the lease (for noise violations, for instance), or the tenant has been convicted of a violent crime and the lease specifies that if this happens, the tenant will not be allowed to remain. Under such circumstances, the Notice to Quit will not list conditions with which the tenant must comply to prevent eviction proceedings. Nonetheless, if the landlord accepts rent payment after the Notice to Quit has been served on the tenant, the Notice to Quit will be rendered ineffective.
If the tenant does not (or cannot) comply with the demands of the landlord in the Notice to Quit (and in some circumstances where the landlord simply wants the tenant out, there will be no demands to be met), then the landlord will file a complaint in District Court. The complaint essentially outlines the reasons the landlord wants the tenant to leave, and specifies that the landlord wants a monetary judgment, a possessory judgment, or both.
A monetary judgment is, as the name implies, a demand for all money due up through the court date. Even if the tenant vacates the premises, the tenant will still owe the money to the landlord.
A possessory judgment gives the tenant ten days to pay the landlord the entire amount of rent due for the month. If the tenant pays within the ten days, the judgment is satisfied and the lease continues. If the tenant moves out within the ten days, the defendant need not pay the landlord anything more and the lease is terminated.
Since most landlord-tenant disputes are relatively cut-and-dry, Michigan law allows for summary disposition of such cases. That is, the landlord and tenant both appear in court on the date specified on the Summons and Complaint, the judge determines if there are any triable facts, and if there are none (for instance, the landlord alleges that the tenant owes $1,000 in back rent and the tenant agrees that this is the case), the judge may enter judgment immediately. If there are triable facts, the judge may also conduct a trial or adjourn (postpone) the trial for a later date (usually one or two weeks).
Often, the landlord and tenant will come to an agreement at the summary disposition hearing. For example, the landlord might agree to accept less than what is owed in exchange for the tenant promising to pay the agreed-upon amount and move out within a specified amount of time. Often such agreements are put “on the record” in front of the judge, in which case they become a “consent judgment.” Consent judgments are enforceable by the courts as if the judge had tried the case and rendered a judgment on his or her own. Typically, if the tenant is still living in the rental property and fails to comply with the terms of the consent judgment, the landlord may immediately seek a Writ of Restitution.
Writ of Restitution (Eviction)
If the landlord has obtained a possessory judgment and the tenant neither pays nor leaves (or the tenant fails to comply with the terms of a consent judgment), then the landlord may return to court and obtain a Writ of Restitution. Once the Writ of Restitution is issued, the tenant is legally evicted, and the landlord may have the sheriff physically remove the tenant from the premises if necessary.
Michigan law provides a finite list of circumstances under which a landlord may evict a tenant without the normal ten-day waiting period:
- Forcible entry (the “tenant” is really a trespasser who broke in);
- Entry was made peaceably but possession is being retained by force;
- The “tenant” is a garden variety trespasser.;
- The tenant is causing serious health hazards or damage; or
- The building is unsafe or uncertified for rental.
If any of these circumstances apply, the landlord may seek to immediately evict the tenant without the normal ten day window that comes with a possessory judgment.
Landlords sometimes attempt to evict clients when they do not have the legal right to do so. The reasons for wanting to do so vary—personality conflicts between the landlord and tenant, market changes that mean the landlord could charge more rent from a new tenant, retaliation against a tenant who has asserted his or her rights—but in any case, a landlord may not simply evict a tenant at will.
Nevertheless, some still try. Some will follow legal processes as if they had a right to evict the tenant, hoping to intimidate the tenant into moving out. (It is also not uncommon for landlords under such circumstances to make false allegations, such as “the tenant was running a business out of her apartment in violation of her lease”, in an attempt to trick the courts into doing their dirty work for them.) Other times, landlords will use physical force or threaten to use physical force to evict tenants, lock them out of the property, remove the tenant’s personal property, cut off utility service to the property, or otherwise make it impossible or unrealistic for the tenant to live in the property (“constructive eviction”).
Under such circumstances, the tenant’s best option is usually to find another place to live and then sue the former landlord for damages. When this is done, the tenant can collect for all expenses related to the wrongful eviction, including moving expenses, storage expenses, the difference in rent between the tenant’s new residence and the property from which she was evicted for the remaining term of the lease. In some circumstances, the tenant can recover three times the amount of actual damages or $200, whichever is greater. If the tenant is unable to move, she can also seek an injunction requiring the landlord to immediately halt the offending behavior.
A special circumstance arises in cases where a tenant has asserted his rights against the landlord (for instance, the tenant has reported the landlord for failing to keep the premises up to code) and the landlord tries to evict the tenant. If the landlord attempts to evict the tenant within 90 days of such an incident, there is a presumption that the eviction is retaliatory. The landlord must overcome this presumption for any eviction attempt to be successful.
Disrepair of Premises
In Michigan, a landlord has the legal obligation to keep rented premises fit for their intended use, in reasonable repair, and in compliance with applicable health and safety codes. The exact codes that apply may vary from location to location (because of differing municipal and county codes), but throughout the state, landlords have a minimal duty to ensure that the property is safe for human habitation.
Of course, the question becomes “what does ‘reasonable repair’ mean?” This is a gray area that often leads to disputes. Imagine, for instance, that the toilet has clogged and is unusable. Is it the responsibility of the tenant or the responsibility of the landlord to pay a plumber to fix the problem? Reasonable minds could disagree on this issue, but the bottom line is that the answer often depends on the cause of the problem. If the tenant caused the problem through willful or irresponsible conduct, then the tenant will probably have to pay for the repairs.
The lease can specify what is meant by “reasonable repair” to a certain extent. For instance, the lease may state that the tenant is responsible for all repairs to plumbing that result from clogs caused by items flushed down the toilet or washed down the drain.
If the tenant will be leasing the property for at least a year, the landlord and tenant may also agree that the tenant is responsible for all repairs, including major repairs, unless such repairs are necessary because the house is unsafe for human habitation. It is exceedingly rare to find a court that will allow a landlord to rent property that is unsafe, or to shift the burden of making it safe to tenants.
If you lease property and the landlord refuses to make repairs, you cannot simply stop paying your rent. Doing so is a violation of your lease and you can be evicted, even if the landlord is also violating the lease by refusing to make reasonable repairs. This does not mean, however, that you are out of luck. You have two basic options to force the landlord to make the repairs: withhold the rent by putting it in escrow until the repairs are made, or have the repairs made and then deduct the cost from your rent. Note that there are specific steps that you must follow for each course of action.
No matter which remedy you plan to seek, you must inform the landlord of the problem, the seriousness of the problem, and a reasonable deadline for completion of the repairs. Again, “reasonable” is a vague term, but it basically means “within common sense.”
If the landlord does not make the repairs, and if your local government has established a building code for rental properties, you can call the local building inspector. The inspector will go through the property, document any problems, and potentially cite the landlord for code violations. If the repairs are not made by the building inspector’s deadline, the landlord can potentially face criminal charges. Be aware that this option is not available everywhere, and in many places you will be responsible for paying for the inspection if the inspector finds no code violations.
If there is no building inspector, or if the landlord does not comply with the building inspector’s order to make repairs, you need to send a letter to the landlord. This should be sent by certified mail with a return receipt (so you have proof the landlord received it), should state what repairs need to be made, should remind the landlord that he had previously been asked to make the repairs and has not done so, and should state your intended remedy: withholding of the rent until the repairs are made, or deduction of the cost of repairs from your rent. If you intend to withhold rent, you cannot simply stop making payments. You must demonstrate that you were willing and able to make rent payments at the appropriate time, and that such payments will be made in full as soon as the repairs are made. The proper way to do this is by depositing withheld funds into an escrow account, often held by a bank or an attorney, on the same day that you would normally pay your rent. Make sure that in your letter to the landlord that you specify where the funds are being held and that you will release those funds to the landlord once the repairs are made.
You should also bear in mind that the amount of rent you withhold should be proportional to the problem; you can’t simply withhold the entire rent unless the premises are virtually unusable. Most of the time, 25% to 50% of the rent is enough to get the landlord’s attention without going too far.
If you intend to pay for the repairs yourself and then deduct the charges from the rent, you should include three estimates for the repairs with your letter and give the landlord another deadline by which the repairs must be made before you will hire someone to do the work. If the repairs have not been made by the deadline, have the work done, get receipts, and then send copies of the receipts along with the remainder of the rent. Keep copies of everything.
My experience is that in most situations, landlords who have been refusing to make repairs will try to retaliate in one form or another by trying to evict the tenant for non-payment of rent or by causing other problems for tenants. This is why it is important to document everything—the nature of the repairs, when the landlord was notified, the amount and date of escrow deposits, the date and cost of repairs for which the tenant paid—for future use. And, of course, remember that a landlord cannot legally retaliate against you for enforcing your rights.
Under both state and federal law, it is illegal for a landlord to discriminate against a tenant or potential tenant on the basis of race, gender, disability, age, national origin, or family status. The meaning of “discrimination” is fairly broad; if the landlord refuses to rent to you, charges you a higher rent, offers more limited access to the property, or otherwise makes it impossible or more difficult for you to rent the property because you belong to a protected class, you have a number of remedies available. Similarly, the Americans with Disabilities Act provides additional protections for people with disabilities, and requires that landlords make reasonable accommodations to allow a person with one or more disabilities rent property.
This does not mean that a landlord is automatically compelled to rent you property simply because you belong to a protected class; a landlord must specifically refuse to treat you equally because you belong to that class.
For instance, assume you are a 67-year-old woman confined to a wheelchair who immigrated from Nigeria in 1973. You attempt to rent an apartment from Shady Deals Apartments. The leasing agent is rude to you, and after you fill out the lease application, Shady Deals refuses to rent to you. You claim discrimination on the basis of age, race, national original, and/or disability. Shady Deals then shows that your credit report showed that you were convicted of attempted murder in 1980, and says this is the reason they refused to rent to you: they do not rent to convicted felons. Who wins?
Assuming the report is accurate, Shady Deals will probably win this case because they discriminated against you on the basis of your status as a convicted felon, and that is perfectly legal. In fact, even without the felony conviction, it would be difficult to prove illegal discrimination. Despite what some would have you think, the burden of proof in discrimination cases is on the plaintiff, and such cases are very difficult to prove because the plaintiff has to demonstrate the state of the landlord’s mind. In other words, you have to prove what the defendant was thinking. In the absence of blatant statements from the landlord as to his state of mind (“I don’t rent to blacks”), this is a considerable task. Common methods of proving discrimination include statistical comparisons, “stings” in which several people posing as potential tenants all apply for housing and report the results, and so on. Such investigations can be expensive and complicated—and inadmissible if they’re done incorrectly—and should normally be conducted under the guidance of an attorney.
There are, fortunately, many resources available to people who think they may have been the victims of housing discrimination. The federal Department of Housing and Urban Development investigates such complaints, as do several local agencies here in Michigan. If these options do not bring effective relief, you can file suit against the landlord, collecting both damages and attorney’s fees.
Tenants in public housing have more protections than tenants in private housing. The most important distinction is protection from eviction; tenants in public housing cannot be evicted except for “good cause”. Examples of “good cause” include (but are not limited to):
- Creation of a health or safety hazard for other residents;
- Repeatedly disturbing other residents;
- Intentionally damaging property;
- Failing to pay rent, or repeatedly paying your rent late; and
- Serious violations of your lease.
You can not be evicted from public housing because of minor lease violations, because you joined a tenants union, because you filed a grievance against the property’s management, or because of a change in the size of your family. You can also not be evicted because of a criminal conviction unless the crime was related to your tenancy on the property (for instance, growing marijuana in your apartment or breaking into other apartments on the property).
An issue that frequently comes up is eviction because a tenant makes too much money. If your income rises to the point that you are no longer eligible for public housing, you can be evicted.
Links for More Information
This article is merely the tip of the iceberg; landlord-tenant issues are frequently complex and involve a great number of issues. (Special rules apply for mobile home parks, for instance.) You can find additional information at the sites below:
- Tenants and Landlords: A Practical Guide [pdf]. Created by the Rental Housing Clinic at Michigan State University-Detroit College of Law, this booklet provides detailed answers to common questions asked by tenants and landlords alike. Includes forms and flowcharts, as well as specific instructions on dealing with common issues.
- United States Department of Housing and Urban Development. The official website of the federal agency that oversees the enforcement of fair housing laws.
- FairHousingLaw.org. A site created by the Leadership Conference on Civil Rights Education Fund (LCCREF), the National Fair Housing Alliance (NFHA), The Ad Council, and the U.S. Department of Housing and Urban Development (HUD), this site provides an overview of fair housing laws, examples of prohibited discrimination, and information on how to enforce your rights.
- Evictions in Public Housing [pdf]. A pamphlet from Legal Services of Eastern Michigan that includes very basic information on the rights of public housing tenants.
- The Fair Housing Act. The complete text of the federal Fair Housing Act.
- The Elliott Larsen Civil Rights Act. The complete text of Michigan’s law prohibiting discrimination in housing, employment, and public accommodations.
Steven Shelton is an attorney licensed in Michigan. Although his private practice is based in Fenton, Michigan, he handles criminal defense and general civil litigation cases statewide. You may contact him via telephone at 810-750-1420 or through this website.