As a landowner or landlord, it is tempting to engage in self-help to remove a tenant when rent is not being paid or damage is discovered on the premises. However, anyone who ejects a person from their property without going through permitted legal processes can be liable for substantial damages. Known as Michigan’s “Anti-Lockout” Statute, this law provides huge legal protections and substantial relief for residential occupants thrown out of their homes without going through the proper channels.
MCL 600.2918 provides as follows:
- (1) “Any person who is ejected or put out of any lands or tenements in a forcible and unlawful manner, or being out is afterwards held and kept out, by force, is entitled to recover 3 times the amount of his or her actual damages or $200.00, whichever is greater, in addition to recovering possession.”
- (2) “Any tenant in possession of premises whose possessory interest has been unlawfully interfered with by the owner is entitled to recover the amount of his or her actual damages or $200.00, whichever is greater, for each occurrence and, if possession has been lost, to recover possession. Subject to subsection (3), unlawful interference with a possessory interest includes 1 or more of the following:”
- a. “Use of force or threat of force.”
- b. “Removal, retention, or destruction of personal property of the possessor.”
- c. “Changing, altering, or adding to the locks or other security devices on the property without immediately providing keys or other unlocking devices to the person in possession.”
- d. “Boarding of the premises that prevents or deters entry.”
- e. “Removal of doors, windows, or locks.”
- f. “Causing, by action or omission, the termination or interruption of a service procured by the tenant or that the landlord is under an existing duty to furnish, which service is so essential that its termination or interruption would constitute constructive eviction, including heat, running water, hot water, electric, or gas service.”
- g. “Introduction of noise, odor, or other nuisance.”
A “forcible eviction” or being kept out “by force” doesn’t have to be accomplished by violence but can also be satisfied by trickery. In Pelavin v Misner, 241 Mich 209, 217 NW 36 (1928), the Michigan Supreme Court upheld a “forcible eviction” where the landlord visited the premises, requested the tenant step outside of the building to show a pretending purchaser where repairs are needed, then immediately locked the door after she steps outside to prevent reentry. “Such an invasion, under color of a legitimate purpose, supplemented by stratagem or trick, carried out under a false pretense and successful for a moment only, did not result in a possession recognized by law.” Id at 213.
The term “actual damages” is extremely broad. Under Michigan common law, the term actual damages includes both economic and non-economic loss, including compensation for shame, mortification, mental pain and anxiety. Veselenak v Smith, 414 Mich 567, 573-574; 327 NW2d 261 (1982).
In Dunbar v Walker, unpublished per curiam of the Court of Appeals, issued June 24, 2003 (Docket No. 232307), the Michigan Court of Appeals upheld a trial court’s award for damages for lost wages, hotel expenses and exemplary damages in an anti-lockout suit.
Pursuant to MCL 600.2918(3), “[a]n owner’s actions DO NOT unlawfully interfere with a possessory interest if any of the following apply:”
- (a) The owner acts pursuant to court order.
- (b) The owner interferes temporarily with possession only as necessary to make needed repairs or inspection and only as provided by law.
- (c) The owner believes in good faith that the tenant has abandoned the premises, and after diligent inquiry has reason to believe the tenant does not intend to return, and current rent is not paid.
Additionally, for a deceased tenant, the landowner or landlord must observe ALL OF THE FOLLOWING REQUIREMENTS pursuant to MCL 600.2918(3)(d) before recovering possession:
- “(i) The owner informed the tenant in writing of the tenant’s option to provide contact information for an authorized person the owner could contact in the event of the tenant’s death. The owner is not responsible for incorrect contact information provided by the tenant or for the tenant’s failure to provide contact information.”
- “(ii) Current rent has not been paid.”
- “(iii) The owner believes in good faith that the tenant has been deceased for at least 18 days and that there is not a surviving tenant.”
- “(iv) After the requirements of subparagraph (iii) are met and not less than 10 days before the owner reenters to take possession of the premises and dispose of its contents, each of the following occurs:”
- “(A) If the tenant provided contact information under MCL 600.2918(3)(d)(i), the owner makes a reasonable attempt to contact the authorized person using the contact information provided and to request him or her to open a probate estate for the tenant within 28 days after the tenant’s death. The owner is not responsible for the authorized person’s failure to respond to the notification before the owner’s reentry into the premises.”
- “(B) The owner places on the door of the premises a notice indicating the owner’s intent to reenter, take possession of the premises, and dispose of its contents after 10 days have elapsed.”
- “(C) The owner notifies the public administrator for the county where the premises are located or, if none, the state public administrator that the owner believes that the tenant is deceased and intends to reenter to take possession of the premises and dispose of its contents if a probate estate is not opened. Upon request by the public administrator before the 10-day period under this subparagraph has elapsed and presentation to the owner of proper credentials and identification, the owner shall give the public administrator access to the premises.”
- “(v) A probate estate has not been opened for the deceased tenant by the public administrator, authorized contact person, or any other person in the county in which the premises are located and the owner has not been notified in writing of the existence of a probate estate opened in another county and of the name and address of the personal representative.”
Once the property owner obtains a court order evicting or ejecting the occupant, he or she is immune for actions later alleged to have interfered with a possessory interest where those actions were taken pursuant to the court order. Sickles v Hometown America, LLC, 447 Mich 1076; 729 NW2d 217 (2007).
In Barnaby v PCI, unpublished per curiam of the Court of Appeals, issued April 23, 2015 (Docket No. 318073), the Michigan Court of Appeals upheld that there was no liability for landowners who (AFTER obtaining an eviction order) removed the tenant’s personal property from the home, placed them outside and posted “no trespass signs”. Even though the tenants alleged that they were barred from removing the property themselves and were publicly embarrassed by the spectacle, the landowners were immune from suit because they were carrying out the terms of the court order awarding them full possession of the property.
So can ANYONE occupying the property that is ejected by the landowner or landlord without legal process sue under the Anti-Lockout Law? Who is covered under the word “tenant” in MCL 600.2918(2)? In Nelson v Grays, 209 Mich App 661, 665; 531 NW2d 826 (1995), the Michigan Court of Appeals stated that, for the purposes of MCL 600.2918, “the determination that an occupier of property is a tenant depends upon the existence of a contractual relationship between the owner and the possessor wherein the possessor pays consideration in exchange for the right to occupy the property.”
This means that the following people can sue under the Michigan Anti-Lockout Law:
- Tenants who have entered into a lease agreement with the landlord, INCLUDING holdover tenants and tenants at sufferance who continue to hold property after the lease has expired (landlord must go through the eviction process).
- Purchasers who have entered into a land contract with a seller, even if the purchaser stops making payments as required (seller must go through the land contract forfeiture or land contract foreclosure process).
- Mortgagors who occupy a residence under a secured interest held by a mortgagee, e.g. the lending financial institution, even if the mortgagor stops making payments (the mortgagee must go through the foreclosure process).
However, the following people do NOT have a right to sue under the Michigan Anti-Lockout Law:
- Hotel guests do not have the same protections as tenants. In Ann Arbor Tenants Union v Ann Arbor YMCA, 229 Mich App 431 (1998), the Michigan Court of Appeals ruled that a hotel guest is not entitled to notice of termination and can be the subject of self-help eviction by the proprietor.
- Squatters who have taken possession of the property without the landowner’s knowledge or agreement. Pursuant to MCL 600.2918(5), “[a]n owner’s actions do not unlawfully interfere with an occupant’s possession of premises if the occupant took possession by means of a forcible entry, holds possession by force, or came into possession by trespass without color of title or other possessory interest.”
- Persons who remain in possession of property after the redemption period expired following a mortgage sale after a foreclosure. In Seymore v Adams Realty, unpublished per curiam of the Court of Appeals, issued November 1, 2016 (Docket No. 326924), the Michigan Court of Appeals upheld the dismissal of an anti-lockout suit from a person holding a residence after the sheriff’s sale when the redemption period expired and the new owners entered the home and changed the locks.
The provisions of the Michigan Anti-Lockout Law cannot be waived by the landlord and tenant in a lease agreement, pursuant to MCL 600.2918(7).
There is a strict statute of limitations to initiate this action. MCL 600.2918(8) requires that “[a]n action to regain possession of the premises under this section shall be commenced within 90 days from the time the cause of action arises or becomes known to the plaintiff. An action for damages under this section shall be commenced within 1 year from the time the cause of action arises.”
If you are a residential tenant who has been wrongfully ejected from your property or you are a landowner or landlord trying to defend against such a claim, do not hesitate to contact the property law attorneys at Kershaw, Vititoe & Jedinak PLC for legal assistance.