Co-authored by Donald King and Kenneth Kurel of Trott & Trott, P.C.Ken Kurel (left) and Donald King (right)
Evicting tenants from multifamily properties can be complicated, and, if it isn’t handled properly, it can cause headaches for property owners and managers. When a tenant has breached the terms of their lease, a proper eviction must be conducted through the judicial system when seeking to recover possession of the premises in order to avoid delays, costly penalties and potential liability. Landlords should never try to recover possession on their own and should rely on the court that has jurisdiction over such matters in their state. There are numerous events that might constitute a breach of a lease, but the most common one leading to eviction actions is for non-payment of rent. The court’s function in these matters is to protect tenants’ rights, ensuring that they receive proper notice and an opportunity to defend themselves, while providing the landlord a legal forum for pursing the relief they are seeking.
Laying out the options
For illustrative purposes, here are some possible options in Michigan. Once it is determined that an eviction action may be necessary, property managers have two options. The first option involves giving the tenant an opportunity to cure the breach. In this instance, the tenant must be served with a notice stating the nature of the breach, what is required to cure it and the timeframe the tenant has to do so, which is most commonly seven days. If the tenant cures the breach, the matter is concluded and no further action is required. This option is also the least costly. If the tenant breaches the terms of the lease again, the same procedure can be followed. If the tenant does not cure the breach, then an eviction complaint in the appropriate district court where the property is located will be required.
The second option is termination. This process is appropriate in situations where the retention of the tenant is not the landlord’s objective, and, once again, proper notice is required. The time period applied for termination by Notice to Quit must be at least that of the rental payment frequency. Most rental payments are due monthly, which is why it is commonly referred to as a 30-Day Notice to Quit. However, if a rental agreement calls for the payment of rent on a different schedule—every 60 days, for example—then the notice must provide at least that much time for the tenant to voluntarily vacate the premises.
Notices to tenants must contain the following information: the identity of the parties, the property address, the cause for eviction and the timeframe provided to take remedial actions. It must be dated and signed by the landlord or the landlord’s attorney.
If a tenant fails to vacate the premises, the landlord would then file a complaint with the court seeking possession of the premises. A party authorized by the court must serve the complaint on the defendants. It is served along with the summons, which gives notice to the defendant of the lawsuit, as well as the date and time to appear for a hearing. The landlord may also decide to request the court to grant a money judgment in the amount of overdue rent, or to cover other damages (after deducting those amounts from any security deposit), along with an order granting possession. It is important to note that personal service on the tenant is required in order to obtain a money judgment. However, service of process is also acceptable by securely attaching the summons and complaint to the main entrance of the premises after diligent attempts at personal service have failed under the Michigan Court Rules, if the landlord is only seeking possession. An Order of Eviction (Writ of Restitution) may issue 10 days following the entry of the judgment should the tenants fail to vacate the property or if any personal property is left behind.
Possible outcomes from the hearing
There are four possible outcomes of a landlord-tenant hearing. The first outcome occurs when the plaintiff is granted a judgment for possession by default because the tenant did not appear. If there was personal service of the summons and complaint, the court will enter a money judgment at that time as well. The second outcome occurs when the plaintiff negotiates a consent judgment for possession with the defendant for a vacate date that is amenable to both parties. The third outcome occurs when the parties cannot reach an agreement. In this instance, the court, after hearing arguments, will enter a ruling. The plaintiff should be prepared to address any defenses that the tenant may allege. More specifically, the attorney should be prepared to show the court that habitability assertions have been addressed and have a current payment history, as these issues are commonly asserted as defenses. The last potential outcome is an adjournment. This may occur if the tenant raises arguments that cannot be adequately addressed at the initial hearing.
After a Judgment of Possession has been entered, the landlord may take possession of the property if the tenant has vacated and removed all personal property. If the tenant has not fully vacated, the landlord is required to file a request for the issuance of an Order of Eviction and execution of the writ. This action is still under the control of the court and it will issue an order that directs the court officer to evict the tenant and any remaining personal property and return possession of the premises to the landlord. This process provides a defense for the landlord should the tenant bring a wrongful lock out claim or action against the landlord. Failure to follow the statutes regarding the eviction process may result in substantial damages being awarded to the tenant.
The DO’s and DON’Ts
DO have a written lease for any tenancy clearly defining the duties and responsibilities of the landlord and the tenant. If a term of a lease is not written, it does not exist.
DON’T make undocumented collateral agreements, which are modifications to the original written agreement. Subsequent changes to any terms of a lease agreement should be memorialized in writing.
DO hire an attorney to represent the landlord or the complex because most multi-unit complexes have some form of corporate ownership or control. In some states, corporations and LLCs are legal entities that must be represented by counsel in court.
DON’T send the complex manager alone to court, as that individual cannot represent the complex in court in any capacity other than as a witness.
DO promptly address and maintain a record of tenant complaints regarding habitability of the rental unit, making sure to document when the complaint was made and how it was resolved.
DO maintain accurate accounting and bookkeeping records. These records provide the court with guidance when deciding on the amount of a money judgment.
DON’T estimate past due rent amounts or costs. There is a risk that the court will not allow any rents or costs that are not supported by documentation.
DO possess a current Certificate of Registration for rental properties in communities that require the landlord to register rental units with the municipality. Make sure the property manager knows and is in compliance with any local ordinances.
DON’T forget to renew any required Certificates of Registration required by the municipality. Failure to register the property or to renew a certificate may result in fines and delay the issuance of a judgment for possession, denial or abatement of a money judgment, or dismissal of an eviction complaint.
While eviction is certainly not the first option property managers and owners turn to, it is frequently the only viable option for the good of the property and the other residents. The rules and timelines vary state by state and can often be confusing. It is advisable to seek an experienced attorney who can navigate the process to a successful conclusion.