Sometimes, a tenant will simply leave a rental unit without any notice to the landlord whatsoever, even in the middle of an eviction proceeding. Is the landlord simply able to walk in and reclaim the rental unit? Can the landlord then toss out the tenant’s personal property and change the locks? What happens if the tenant comes back? Landlords do have the ability to reclaim abandoned units without a court order, but only after making reasonable inquiries that the tenant is truly gone with no intention to come back.
Most landlords are aware that Michigan’s “Anti-Lockout” Statute generally prohibits them from ejecting or displacing a tenant from rental property without a court order. “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.” MCL 600.2918(1).
Further, “[a]ny 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.” MCL 600.2918(2). “Unlawful interference” includes one or more of the following:
- “Use of force or threat of force.” MCL 600.2918(2)(a).
- “Removal, retention, or destruction of personal property of the possessor.” MCL 600.2918(2)(b).
- “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.” MCL 600.2918(2)(c).
- “Boarding of the premises that prevents or deters entry.” MCL 600.2918(2)(d).
- “Removal of doors, windows, or locks.” MCL 600.2918(2)(e).
- “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.” MCL 600.2918(2)(f).
- “Introduction of noise, odor, or other nuisance.” MCL 600.2918(2)(g).
However, “[a]n owner’s [or landlord’s] actions DO NOT unlawfully interfere with a possessory interest if… [t]he 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.” MCL 600.2918(3)(c). When does a owner or landlord have a good faith basis that the premises are actually abandoned?
In McLaurin v Miles, unpublished per curiam opinion of the Court of Appeals decided October 15, 2020 (Docket No. 348022), the trial court dismissed the plaintiff-tenant’s suit under the anti-lockout statute under the following facts:
“Plaintiff rented property from defendant. Eventually, their landlord-tenant relationship soured, plaintiff stopped paying rent, and defendant filed eviction proceedings against plaintiff. After a hearing, the district court entered an order permitting defendant to apply for an order of eviction to evict plaintiff if she had not moved out of the property by June 25, 2018. When defendant’s wife visited the property on June 14, 2018, she observed that plaintiff had moved all of her possessions out of the home. She took photographs confirming this. Defendant’s wife testified that she repeatedly tried to contact plaintiff to confirm that she had moved, but plaintiff “wouldn’t respond.” Defendant’s wife went to the property again on June 17, 2018, and observed there was still no sign of plaintiff. Again, defendant’s wife took pictures showing that plaintiff had moved out all of her belongings except for some bags in the property’s basement. Defendant informed plaintiff on June 21 that he intended to change the locks on the property on June 27, and did so on that day. Plaintiff thereafter returned to the property and had the locks changed herself, but did not move back into the property. After that, defendant changed the locks again, which ultimately led to this suit.” Slip op. at 1.
The trial court determined that the defendant-landlord did not violate the anti-lockout statute because the plaintiff-tenant already moved out when the locks were changed. The plaintiff-tenant appealed on the grounds that the defendant-landlord was required to obtain an order of eviction from the court before changing the locks, but the Michigan Court of Appeals disagreed and upheld judgment in favor of the defendant-landlord. They determined that the exception under MCL 600.2918(3)(c) applied here and that the trial court properly found that the defendant-landlord believed in good faith that the plaintiff-tenant had abandoned the premises, and after diligent inquiry had reason to believe that he would not return (with current rent being unpaid), so no order of eviction was needed:
“These findings were supported by ample evidence. Defendant obtained an order in district court instructing him to file for an order of eviction if plaintiff had not vacated the property by June 25, 2018. In an apparent attempt to avoid having an order of eviction entered against her, plaintiff vacated the property by June 14, 2018. This was supported by defendant’s wife’s testimony and the photographs taken of the home showing that plaintiff had moved all of her belongings out of the home as of that date. Defendant’s wife further testified that she tried to contact plaintiff to confirm that she had moved, but plaintiff would not respond. When defendant’s wife returned to the home on June 17, 2018, she observed that plaintiff had still not brought any of her belongings back into the home, which was again confirmed by photographs. Defendant then informed plaintiff that he intended to change the locks on June 25, 2018, and did so. Based on defendant’s wife’s testimony that plaintiff had moved all of her belongings out of the property by June 14, 2018, and the photographs depicting the same, defendant had a good faith belief that plaintiff had abandoned the premises. Defendant’s efforts of repeatedly checking the premises to ensure that plaintiff had not returned and attempting to contact plaintiff to confirm that she had moved, sufficiently supported the trial court’s finding that defendant, after diligent inquiry, had reason to believe that plaintiff did not intend to return to the property. No one contests that plaintiff’s rent was not current when defendant changed the locks, so the evidence amply supported the trial court’s decision that the exception to the anti-lockout statute in MCL 600.2918(3)(c) applied. And because MCL 600.2918(3)(c) applied, the trial court properly dismissed plaintiff’s anti-lockout-statute claim.” Slip op. at 2-3.
There is no hard and fast criteria in either case law or statutes that states explicitly when a tenant abandons the premises. Obviously, if the tenant returns the keys to the landlord and states in writing that he or she is surrendering possession of the rental unit, then the landlord has personal knowledge of the tenant’s intentions. Otherwise, the landlord has to consider the best evidence available under the circumstances. Some factors that courts have considered when determining if a tenant has abandoned a rental unit include, but are not limited to, the following:
- Essential utilities such as electric, gas and water have been turned off.
- The tenant’s personal property is removed from the rental unit (except for items that can clearly be considered as discarded trash).
- There is no food at the unit, or any food present in the refrigerator or cabinets is spoiled.
- The tenant has changed their address at the U.S. Post Office. Mail being sent to the rental unit is returned as undeliverable and there is a new forwarding address.
- Neighbors and other residents report that they have seen the tenant move out of the premises.
- Pets on the premises seem to be abandoned and are sick, starving or deceased. The premises may contain uncleaned pet urine and feces.
- Tenant does not appear to be at the residence when landlord appears over several days to knock at the door, and the tenant does not respond to phone calls, emails or text messages by the landlord inquiring if he or she still resides there.
The landlord should also be wary of concluding that the tenant has abandoned the premises when he or she is actually on a temporary absence with the intent to return. Landlords should consider the following situations:
- The tenant may have to leave suddenly for a family emergency out of town. If the tenant left some kind of emergency contact information, then the landlord should see if that trusted individual knows his or her whereabouts.
- The tenant have been arrested and is in jail. Landlords should contact the police department to inquire if the tenant is in custody.
- The tenant may be in the hospital due to a medical emergency. The landlord should try contacting family members, if known, or inquire from neighbors or other residents if they saw an ambulance or any other emergency vehicles come to take the tenant away.
Despite whether these abandonment conditions exist, landlords should recall that this exception to obtaining an order of eviction does not apply if the tenant is current on their rent.
A landlord who is unclear whether the premises was abandoned should move through the normal legal channels to recover possession. A demand for possession or notice to quit should be sent to the tenant. If they have not yet vacated, the landlord must file a complaint for possession and seek an order evicting the tenant. After acquiring an order of eviction, the landlord should contact the local sheriff’s office for enforcement and removal. A skilled lawyer can help the landlord every step of the way to ensure legal compliance and avoid liability under the anti-lockout statute.
If you have further questions or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
