A tenant usually signs a lease with a landlord to occupy a rented space for a certain period of time, usually one year. However, both the landlord and the tenant face a dilemma if the tenant is still occupying the premises after the lease expires. Does the landlord have the authority to use self-help and throw the tenant out? Does the tenant retain any rights to stay on the land? Is there still an obligation for the tenant to pay rent?
A “holdover tenant” is a tenant who continues to occupy the premises after the term of the lease expires. The liability of the tenant depends whether or not that the landlord consents to the continued occupation of the rented space.
If the tenant is holding over without consent, the landlord may be able to take action to remove the tenant without providing advance notice. However, a landlord is barred from using self-help tactics to remove the tenant (e.g. removing personal property, changing locks) without first obtaining a court order. The action to remove a holdover tenant is called an unlawful detainer action. Michigan law provides for summary proceedings to recover possession “when a tenant holds over his or her possession or the premises after the term for which the premises are demised to person or to the person whom her or she holds.” MCL 600.5714(1)(c)(ii). If the landlord acts promptly, no advance notice is required. The district court judge can issue an order requiring the tenant to leave the rented premises in 10 days, or else the landlord can apply for a writ of eviction to have the county sheriff remove the tenant.
However, if the landlord fails to take prompt action (usually within one month), then the law might assume that the tenant remains in possession of the land as a “tenancy by sufferance”. In this case, the leasehold is considered a month-to-month tenancy and the terms of the original lease must be met, including the payment of rent. A similar situation arises if the landlord consents or acquiesces to the occupation by the tenant without executing a new lease agreement. The consensual arrangement is a “tenancy by will”, which is also considered a month-to-month tenancy with all the terms of the original lease. A holdover tenant should keep in mind that the landlord has the right to increase the rent during this period after providing 30-day notice, even if this increase is 150% or 200% of the original amount. Both a tenancy by sufferance and a tenancy by will continues until the tenant fails to pay rent or either party gives notice to terminate the leasehold.
If the landlord wishes to terminate a holdover tenancy, he or she must serve the tenant with a notice to quit demanding that the tenant surrender possession in a certain amount of time or else the landlord will file suit to recover possession. The length of period that the tenant has to quit depends upon which of the following circumstances apply:
- “[A]n estate at will or by sufferance may be terminated by either party by giving 1 month’s notice to the other party. If the rent reserved in a lease is payable at periods of less than 3 months, the time of notice is sufficient if it is equal to the interval between the times of payment. Notice is not void because it states a day for the termination of the tenancy that does not correspond to the conclusion or commencement of a rental period. The notice terminates the tenancy at the end of a period equal in length to the interval between times of payment.” MCL 554.134(1).
- “If a tenant neglects or refuses to pay rent on a lease at will or otherwise, the landlord may terminate the tenancy by giving the tenant a written 7-day notice to quit.” MCL 554.134(2).
- “A tenancy from year to year may be terminated by either party by a notice to quit, given at any time to the other party. The notice shall terminate the lease at the expiration of 1 year from the time of the service of the notice.” MCL 554.134(3).
- “If a tenant holds over after a lease is terminated pursuant to a clause in the lease providing for termination because the tenant, a member of the tenant’s household, or other person under the tenant’s control has manufactured, delivered, possessed with intent to deliver, or possessed a controlled substance on the leased premises, the landlord may terminate the tenancy by giving the tenant a written 24-hour notice to quit. This provision ONLY applies if a formal police report has been filed alleging that the person has unlawfully manufactured, delivered, possessed with intent to deliver, or possessed a controlled substance on the leased premises. MCL 554.134(4). “Controlled substance” means a substance or counterfeit substance classified under:
- Schedule 1 of the Public Health Code, which includes but is not limited to heroin, peyote, Ecstasy (MDMA) and fentanyl.
- Schedule 2 of the Public Health Code, which includes but is not limited to cocaine, opium, high potency morphine, oxycodone and methamphetamines.
- Schedule 3 of the Public Health Code, which includes but is not limited to low potency morphine, anabolic steroids and certain codeine mixtures.
If the tenant is still in possession of the premises after the time period in the notice to quit ends, then the landlord may file suit in district court. Once again, it is illegal for a landlord to evict without obtaining a court order first. The tenant has the right to contest the proceedings and force the landlord to show why he or she should be evicted at a trial. The tenant may have actually tried to pay rent that the landlord refused, or that the tenant did not actually violate the terms of the lease. However, keep in mind that a properly served 30-day notice to quit is a sufficient basis to terminate a tenancy at will or a tenancy at sufferance, even if the tenant otherwise complied with the terms of the lease. A lawyer may be able to help negotiate a resolution with the landlord to avoid eviction (e.g. negotiate a new lease term). If you fail to respond to the legal proceedings or lose a trial, the district court judge can issue an order requiring the tenant to leave the rented premises in 10 days, or else the landlord can apply for a writ of eviction to have the county sheriff remove the tenant.
If you are a landlord or tenant with questions about your holdover tenancy and need legal advice or representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.