If your landlord is attempting to terminate your lease, there may be several defenses you can raise in district court to stop the eviction action. One consideration is whether or not the landlord filed for eviction out of retaliation for the tenant making a lawful complaint or enforcing residential rights. If the tenant can establish that the proceedings are a result of retaliatory eviction, then he or she may be able to defeat the landlord's efforts.
Michigan law states that "[a] judgment for possession of the premises for an alleged termination of tenancy shall not be entered against a defendant if 1 or more of the following is established:"
- "That the alleged termination was intended primarily as a penalty for the defendant's attempt to secure or enforce rights under the lease or agreement or under the laws of the state, of a governmental subdivision of this state, or of the United States." MCL 600.5720(1)(a).
- "That the alleged termination was intended primarily as a penalty for the defendant's complaint to a governmental authority with a report of plaintiff's violation of a health or safety code or ordinance." MCL 600.5720(1)(b).
- "That the alleged termination was intended primarily as retribution for a lawful act arising out of the tenancy, including membership in a tenant organization and a lawful activity of a tenant organization arising out of the tenancy." MCL 600.5720(1)(c).
- "That the plaintiff attempted to increase the defendant's obligations under the lease or contract as a penalty for the lawful acts as are described in MCL 600.5720(a) to MCL 600.5720(c) and that the defendant's failure to perform the additional obligations was the primary reason for the alleged termination of tenancy." MCL 600.5720(1)(e).
Some of the actions that can be a basis for a retaliatory eviction include, but are not limited to:
- The tenant complained about unsafe or illegal living conditions to a government agency (e.g. building inspector, fire marshal, civil rights department, fair housing agency).
- The tenant deducted money from rent to make repairs or even withheld rent entirely because the unit was unhabitable.
- The tenant started or organized a tenant's union.
- The tenant demanded that the landlord comply with an obligation under the lease (e.g. make a repair).
- The tenant is suing the landlord in a court of law.
As an affirmative defense, the burden is on the tenant to establish the retaliatory conduct. However, the level of proof needed depends on how much time passed since the tenant's actions and the landlord's demand for possession:
- "If a defendant who alleges a retaliatory termination of the tenancy shows that within 90 days before the commencement of summary proceedings the defendant attempted to secure or enforce rights against the plaintiff or to complain against the plaintiff, as provided in MCL 600.5720(1)(a), MCL 600.5720(1)(b), MCL 600.5720(1)(c), or MCL 600.5720(1)(e), by means of official action to or through a court or other governmental agency and the official action has not resulted in dismissal or denial of the attempt or complaint, a presumption in favor of the defense of retaliatory termination arises, unless the plaintiff establishes by a preponderance of the evidence that the termination of tenancy was not in retaliation for the acts. If the defendant's alleged attempt to secure or enforce rights or to complain against the plaintiff occurred more than 90 days before the commencement of proceedings or was terminated adversely to the defendant, a presumption adverse to the defense of retaliatory termination arises and the defendant has the burden to establish the defense by a preponderance of the evidence." MCL 600.5720(2).
The defense of retaliatory termination may even be raised against a "just cause" eviction from a mobile home park. It also extends to landlord's actions that might amount to a constructive eviction such as raising the rent to a level unpayable by the tenant or adding a provision to the lease that would punish enforcing the tenant's legal rights or making a complaint to government agencies.
However, retaliatory eviction is only available when the written lease has not yet expired. In Frenchtown Villa v Meadors, 117 Mich App 683 (1982), the defendants are mobile home owners renting a lot in the plaintiff's mobile home park. In an earlier lawsuit, the defendants demanded and subsequently received a written six-month lease as it was their right under Michigan's Mobile Home Commission Act. At the end of the lease, the plaintiff sought to terminate the defendants' tenancy. The defendants raised in district court that this eviction was in retaliation of seeking a written lease earlier. The district court judge denied the defense and indicated that the retaliatory eviction was only available prior to the expiration of the written lease. The circuit court agreed on direct appeal.
The Michigan Court of Appeals agreed with both courts, indicating that, "[b]y its its language, the statute precludes a judgment for possession for an alleged termination of a tenancy where the termination was intended primarily as a penalty for the defendant's attempt to secure or enforce legal rights." Id at 688. The judges found that the plain language of the statute differentiates a month-to-month lease from a lease with a determinate period. "[A] tenant's right to possession of leased premises expires or terminates pursuant to the lease absent the securing of an extension. Ellsworth v Taylor, 233 Mich. 163; 206 NW 314 (1925). As a result, a landlord seeking repossession of premises upon the expiration of the term of a fixed lease does not terminate the tenancy, but merely seeks repossession pursuant to the termination that has otherwise taken place. Because the landlord has not independently caused the termination, his motivation in seeking repossession or declining to renew the lease agreement is irrelevant to the operation of MCL 600.5720. Under the clear, explicit and unambiguous language of the statute, the retaliatory eviction defense does not extend to summary proceedings instituted at the expiration of a fixed-term lease." Id at 689. In sum, the Michigan Court of Appeals found that the retaliatory eviction defense does not apply to a notice to quit that is served at the end of a lease term.
A landlord cannot evict you without a court order, so you may decide to stay in the rental unit while the case is pending. This means that the tenant will still have an obligation to follow the terms of the lease or pay rent (which may require making payments in escrow directly to the court). An escrow order will often be requested by the landlord to prevent the tenant from living rent-free while the case is pending. It is possible that a resolution can be reached with the landlord at any time to call the eviction off if it is clear that they are in violation of the law. If the landlord truly makes the premises unlivable, it is possible that the tenant can negotiate an early release on favorable terms (e.g. landlord pays for the cost of moving). However, it is the landlord's duty to uphold their legal duties under the agreement until the judge makes a decision.
If you are facing a retaliatory eviction, you can benefit from an experienced attorney in your corner to protect your rights and prevent you from losing your home. You can expect that the landlord will "lawyer up" to protect his or her interests, so you should do the same to prevent a wrongful teminaiton of the lease. When you need legal representation, do not hesitate to contact the skilled lawyers at Kershaw, Vititoe & Jedinak PLC today.