24th District Court
24th District Court
Overview
Types of Tenancy
Methods of Avoiding
Potential Lease Problems
Provisions of the Rental
Agreement
Rights and Responsibilities
Security Deposits
Evictions
Maintenance
Subleasing
Other Questions
Summary
Note: This information is based on the A Practical Guide for Tenants and Landlords, a publication of the State of Michigan and is for informational purposes only. It is not to be considered legal advise. For more information on the terms and conditions governing this material, click here.
In order to understand the legal relationship created under a lease, you must be familiar with certain applicable legal terms. First, is the landlord, who is the person or business in control of property who allows others to occupy and use it. A landlord may be the owner of the property, an agent / employee of the owner or a management company. The tenant is the person who occupies and uses the landlord's property. This legal right to use and enjoyment of the land of another is called a leasehold estate (or lease).
The term "lease" may also be used to mean the rental agreement (contract between the landlord and tenant) that creates the leasehold. Generally, this agreement is a contract which outlines what property rights the landlord is giving the tenant in exchange for a set payment of rent. Rental agreements for a period of less than one year may be written or oral, but those over a year must be in writing.
Another term which is an important part of the landlord-tenant relationship is an escrow account. This is an account held by a third-party (generally a bank) which can be deposited to either party based on the fulfillment or failure of specified conditions (such as a security deposit for damage to the premises during the tenancy). A plaintiff is the person who files suit in a civil action in order to seek judicial relief for some injury to his or her legal rights. The defendant is the party against whom the lawsuit is filed and thus the person or entity against whom relief is requested.
The two most common types of tenancy arrangement in which a landlord and
tenant may enter are the following:
A fixed-term tenancy agreement will specify a starting date and
termination date. Since the rental agreement traditionally will cover all
applicable rules, conditions and the amount of rent during the term, the lease
usually cannot be terminated early or extended except by mutual consent.
If an extension or termination without cause occurs during the time specified in
the rental agreement, this will usually result in a breach of contract. If
the specified time in the lease does not exceed one year, then the agreement may
be oral or written. Otherwise, Michigan law requires that it be in
writing.
A periodic tenancy begins on a specific date and is renewed on a regular basis, which is usually on a monthly basis. The amount of rent and rules governing the landlord-tenant relationship therefore may change more frequently than under a fixed-term tenancy. If the term of the periodic tenancy does not exceed a year, such as one renewable each month, then there is no requirement that it be put in writing.
Methods of Avoiding Potential Lease Problems
Before a tenant enters into a lease, he or she should know the type of housing needed, the amount of rent that is consistent with any budgetary constraints. In addition, it is helpful to make a list of potential concerns including who pays for utilities, whether the parking situation is adequate and whether pets are allowed. The tenant should make sure that the property in question meets these needs. When entering into a lease agreement, both parties should be familiar with the contract and feel comfortable with the arrangement. If there are any questions about the terms of the lease or if any conditions are unclear, it is advisable to have an attorney examine it for irregularities.
As stated above, there are certain instances under Michigan law where a written agreement is not required and an oral contract will suffice. Regardless, it is best to have a written record of the rental agreement, since it functions as a reference which may be used if misunderstandings arise. In the absence of one of these writings, signed by both the landlord and tenant, it is advisable to keep a personal written record of any mutually agreed-upon conditions for your own benefit.
Provisions of the Rental Agreement
Since all real property, landlords and tenants are different, there is no single formula for the rental agreement. The following are, however, items which are common to many contracts and are beneficial to include:
 | The name(s) and signature(s) of the landlord(s).
| The name(s) and signature(s) of the tenant(s).
| The amount of rent required, as well as how and when it is to be paid.
| A description of (or location of) the premises to be rented.
| The starting and ending dates (if the lease is for a fixed-term tenancy.)
| The landlord's mailing address.
| The amount of security deposit (if any).
| The name of the financial institution holding the security deposit.
| Notice of the tenant's obligation to supply a forwarding address to the
landlord within four days of terminating the tenancy.
| Definition of responsibility for paying utilities.
| Maintenance responsibilities.
| Notice to quit procedures.
| Two copies of an inventory checklist (should be furnished to both
parties).
| Any other agreement the landlord and tenant wish to make. | |
A written rental agreement should NOT include:
| A provision which excludes or discriminates against a person.
| Waivers or any alterations of a party's rights with respect to possession
or eviction proceedings.
| A confession of judgment (requiring a party to relinquish legal rights in
advance).
| Any provision which relieves the landlord from liability for failure to
perform a duty or for negligent performance of a duty imposed by law (Note,
a landlord's liability, however, could be waived to the extent a tenant was
able to recover under an insurance policy for loss, damage or injury caused
by fire or other casualty).
| Waivers (or alterations) of a party's right to demand a trial by jury or
any other right of notice or procedure required by law.
| Provide that a party be liable for legal costs or attorney's fees incurred
by another party in excess of costs or fees specifically permitted by
statute.
| Provide for the landlord to acquire a security interest in any personal
property of the tenant in order to assure payments of rent or other charges,
except as specifically permitted by statute.
| Any provision that releases a party from the duty to mitigate damages.
| A requirement of the tenant to pay rent or accept premises, when the
premises are in a condition which are legally inhabitable, as established by
law.
| Any provision that waives tenant's rights regarding security deposits.
| Provisions that allow a landlord to change the terms of the lease
agreement without the written consent of the tenant. A rental agreement may,
however, provide for changes to be made upon written notice to the tenant
with at least 30 days to comply if they are any of the following:
|
Violations of the Michigan Consumer Protection Act (Act No. 331 of 1966).
| A provision granting the landlord power of attorney over the tenant. | |
Pursuant to Public Act 348 of 1972, rental agreements entered into, renewed, or renegotiated after June 15, 1995, must provide special termination rights for senior citizens. Such residential rental agreements must provide that a tenant who has already occupied a rental unit for more than 13 months may terminate the lease on a 60-day written notice if one of the following is true:
| The tenant becomes eligible to move into a rental unit in senior citizen
housing subsidized by a local, state or federal program, or
| The tenant becomes incapable of living independently, as certified by a
physician | |
A landlord has 20 days to correct any illegal clauses brought to their attention by the tenant. If these clauses are not corrected during this time, a tenant can bring action to void the lease and/or to prohibit the landlord from including the clause in future leases, and to recover damages of $500 or actual damages, whichever is greater. Rental agreements must comply with the Security Deposit Act, the Consumer Protection Act, the Michigan Civil Rights Act, the Handicappers' Civil Rights Act, and the Truth in Renting Act.
Landlord
The landlord has a right to receive rent on time, to expect that the property will not be damaged or used for illegal purposes, and to receive payment for damages from the tenant at the end of the lease. The landlord has the right to expect that the tenant will not create a nuisance and will abide by the responsibilities contained in the lease agreement.
When a landlord and tenant agree that a specific amount of rent will be paid for a specified period of time, the agreement remains in force during that time unless both parties agree to something else. If the tenant chooses to vacate a rental unit before the end of the lease period, he or she may continue to be liable for rental payments.
In addition, a tenant who chooses to leave is required to provide timely notice to the landlord. If notice is not provided at all, is insufficient or is not done in a timely fashion, the tenant may be held liable for additional rent payments. This could result in the tenant being legally obligated to pay all rent payments for the full term of the lease. The landlord, however, is obligated to make a good faith effort to re-rent the property and thereby mitigating damages. The tenant may also, in some cases, be held liable for advertising costs to find a new tenant. Generally, the timing of the notice of the tenant's intent to vacate the premises depends on the length of the rental period. If the agreement is for monthly rent, a month's notice should be given. Likewise, if the rental period is a week, a week's notice is usually sufficient. If there was no agreement as to the length of the rental period, the landlord will be entitled to 30 days notice.
The landlord also has maintenance rights. These include access to the unit to inspect and repair at reasonable intervals (with notice to the tenant) and in times of emergency. In addition, the landlord has recourse to use the judicial system to evict and sue tenants who cause damage to the property through action or neglect. On the other hand, the landlord also has maintenance responsibilities. The landlord must provide a safe and habitable dwelling, comply with all state and local laws, and carry out repairs that are not the fault of the tenant. The landlord is also required to return the unclaimed portion of the security deposit. The landlord's specific duties and responsibilities are a very important part of a lease. Before entering into either a written or oral lease, these rights and responsibilities should be clearly understood by both parties.
The landlord will generally carry insurance on the land and structures for fire, general liability, and (in some locations) flood protection. Under many policies, the insurance may not cover the tenant. Therefore, it is wise for a tenant to investigate the extent of the landlord's coverage and whether they are included. The tenant may purchase a renter's policy to protect personal possessions from theft, damage, or loss. This type of liability insurance may also be a good idea if a tenant has children or pets. Some landlords may require proof of insurance if the tenant has a waterbed. Renters' policies are readily available through most insurance agencies.
Tenant
The tenant has the right to "quiet enjoyment" of the rented premises, to receive a written eviction notice as provided by law, to have the unused portion of the security deposit returned, and to expect the landlord will discharge all responsibilities contained in the lease agreement. The landlord must provide timely repairs to the premises, upon being informed by the tenant, as well as general maintenance. Also, the tenant has the right to remain in the rental unit if the landlord sells it, unless there is a condition of sale clause as part of the lease arrangement. This holds until the expiration of the lease agreement. The new landlord must abide by the terms of any existing lease. Again, the written or oral lease should contain a specific listing of the duties and responsibilities of the tenant.
A tenant generally is expected to make timely rental payments and other agreed-upon payments (e.g. utility bills), to keep the property in good condition, and to not engage in actions that are illegal or bothersome to others. A tenant can be charged late fees for missing deadlines on the payment of rent. This amount can only be a reimbursement for expenses incurred by the landlord for the late period, and not a penalty assessment.
Introduction
In 1972, the Michigan Legislature passed a law which regulates security deposits. The law sets forth the procedures governing the collection, management, and return of security deposits. A security deposit is a sum of money, in any amount, paid by the tenant to the landlord (or an agent) to be held for the term of the rental agreement (or any part thereof). This sum includes:
| Any required prepayment of rent, in any rental period, in excess of the
average rent for the term, and
| Any other amount of money or property returnable to the tenant, upon
vacating the rental unit, as required in the rental agreement. | |
Security deposit does not include an amount paid for an option to purchase, unless it is shown the intent of the arrangement was to evade this act. It also does not include an amount paid as a subscription for (or purchase of) a membership in a cooperative housing association which provides dwelling units to its members.
If the tenant does not owe the landlord any rent, has no outstanding utility bills and leaves the rental unit in the same condition (excluding normal wear and tear) as it was in when first occupied, then the tenant will have a right to the security deposit when he or she leaves. Security deposits are the property of the tenant until the landlord establishes a valid claim to the money through judicial action or through a mutual agreement with the tenant. If there is a dispute over this money, the landlord must go to court to establish a claim to the disputed portion of the security deposit.
A security deposit includes any money the tenant gives to the landlord beyond the first month's rent, except for specifically stated non-refundable fees. In these cases, it is irrelevant whether the landlord defines the money as a "security deposit" or as something else. This eliminates problems where landlords have in the past attempted to circumvent the state law limit on how much may be collected for a security deposit, by calling it by another name. The Michigan law governing security deposits is quite specific about the procedures which must be followed and it is therefore important to be familiar with them. The law assigns legal rights and duties to both the landlord and tenant from the moment a lease is signed or a unit is occupied. These are some of the highlights:
Landlord:
| May not require a security deposit that is greater than 1 1/2 month's
rent.
| The landlord remains responsible for the security deposit until one of the
following occurs:
|
Must notify the tenant in writing, within 14 days after occupancy,
of her or her address, where the security deposit is being held (which must
be a regulated financial institution), and of the tenant's duty to supply a
forwarding address, in writing, within four days after vacancy. This
is often included in the body of the lease.
| Can use the security deposit for the duration of the lease if he or she
posts a surety bond with the Michigan Secretary of State.
| Must give two blank tenant inventory checklist forms to the tenant at the
beginning of occupancy and must fill one out at the end of occupancy.
May request a receipt from the tenant for these checklists.
| Must return any unclaimed portion of the security deposit within 30 days
after the tenant completely vacates. Must also inform the tenant that
he or she must respond to the landlord's list of damages within seven days
after receiving it. (Failure on the part of the landlord to comply
with this dual requirement forfeits his or her right to claim damages).
The landlord should allow for mailing time and it is always a good practice
to retain some proof that this was in fact sent.
| Must take the tenant to court within 45 days of the end of occupancy to
collect any disputed portion of the security deposit.
| Is entitled to part or all of the amount of the deposit if the tenant has
failed to pay rent or utility bills, or continues to occupy the premises in
whole or in part, entitling the landlord to additional rent. | |
Tenant
| Must complete an inventory checklist at the start of occupancy (within
seven days of moving in).
| Must give the landlord a forwarding address within four days after moving
out. If the tenant does not do this, the right to an itemized list of
damages from the landlord is forfeited. However, this requirement only
applies if the landlord has informed the tenant of this requirement, in
writing, within 14 days after the tenant has moved in.
| Must respond in writing, if he or she disputes the
charges against the security deposit, within seven days of receipt of
notice. The tenant should allow for mailing time. It is a good
practice to retain some proof of mailing.
| Has a right to the refund of the security deposit if the landlord does not
send a list of damages within 30 days of the end of the occupancy and does
not file the case within 45 days of the end of occupancy. | |
Aside from the above listed items, there may be other charges at the time tenancy begins that are reasonable and non-refundable (such as a cleaning charge, fee for wall washing, carpet cleaning or drapery cleaning). Even if a cleaning fee is charged, it does not negate the obligation of the tenant to maintain the unit in a normal, sanitary manner. These non-refundable charges are separate items from the security deposit and thus are not covered by the Michigan Security Deposit law.
Upon receiving possession of the rented premises, the landlord must also furnish a new tenant with two blank copies of a commencement inventory checklist including all of the items in the rental unit owned by the landlord, as mentioned above. Within seven days, the tenant should review the checklist by noting the condition of the landlord's property and return one copy to the landlord. The tenant has the right to request and receive a copy of the termination inventory checklist, which shows the claims chargeable to the last tenant(s) who leased the premises. At the end of the occupancy, the landlord should complete a termination inventory checklist of any damages, which were caused by the tenant. This procedure will protect both the landlord and the tenant.
How to Get Your Security Deposit Back
Within four days of moving out of the rental unit, the tenant must inform the landlord in writing of a forwarding address. Within 30 days after the tenant has vacated, the landlord must mail an itemized list of any damages claimed against the tenant's security deposit to the tenant's new address. At the same time, the landlord must list the estimated cost of repair for each damaged item, the amounts charged, the reason for the assessment and enclose a check or money order for the difference between damages claimed and the amount of the security deposit held. It is important that both landlord and tenant perform their duties within the allotted time.
Public Act 348 of 1972 provides legal guidelines for both landlords and tenants. Failure by either party to comply may result in the loss of a claim to the security deposit. If, no later than 45 days after the tenant has physically moved out and surrendered the keys, the landlord and tenant cannot reach agreement on damage charges, the landlord must sue the tenant and secure a court judgment covering damage charges in order to rightfully retain any portion of the security deposit being withheld for physical damage or unpaid utilities. Failure of the landlord to comply with this requirement constitutes a waiver of all claimed damages and makes the landlord to the tenant for double the amount of the security deposit retained.
Evictions in General
There are two ways a landlord can remove a tenant from the rental unit during the term of the lease. The first method is for the landlord and tenant to mutually agree to terminate the renal agreement. The second procedure is eviction, which is the legal process used by a landlord to remove a tenant from the rental premises with or without the tenant's consent. The following are some of the reasons a landlord can evict a tenant:
| Nonpayment of rent.
| Damage to property.
| Causing a "serious and continuing" health hazard.
| Engaging in illegal activities related to controlled substances.
| Engaging in illegal activities not related to controlled substances.
| Violation of the terms of the rental agreement.
| Failure to vacate the premises after the lease expires.
| Failure to vacate the premises after the landlord has given timely notice
to terminate the lease. | |
Evictions Under Seven-Day Notices to Quit
If a tenant is renting under either a fixed-term or periodic tenancy and the landlord wishes to evict for nonpayment of rent, damage to property or causing a "serious and continuing" health hazard, it may be done through a seven-day notice to quit. This eviction notice gives the tenant seven days to either correct the transgression or vacate the premises. If the illegal activities relate to controlled substances (and the lease specifically prohibits such activities) or for violations of the rental agreement, a seven-day notice to quit may be used.
Example: The tenant does not make the required rent payment on May 1st. On May 2nd, the tenant receives a written Notice to Quit for non-payment of rent. On May 9th, the landlord may file for a court hearing to evict the tenant if the rent still remains unpaid.
Note: Regarding damage to the property or presence of a serious and continuing health hazard, if there is a major violation of the local housing or zoning codes, the city may condemn a structure. Such action would force the tenants to vacate, but if the violation was not caused by them, they would be allowed to sue for money damages, such as moving expenses or temporary shelter.
Evictions Under a Thirty-Day Notice to Quit
A notice to quit is also a mechanism used by a landlord to evict a tenant who is creating a nuisance or otherwise violating the terms of the lease. It is used when a landlord wishes to regain possession of a rental unit for other purposes (such as remodeling) at the end of the renal period or upon the expiration of the lease. At this point, the tenant is obligated to vacate the premises unless he or she can prove that the notice to quit was issued in retaliation for some action, which the tenant is legally permitted to do.
A thirty-day notice to quit may be issued for a tenant engaging in illegal activities not related to controlled substances, violation of the terms of the rental agreement, failure to vacate the premises after the lease expires and failure to vacate the premises after the landlord has given timely notice to terminate the lease. A tenant who rents under a periodic tenancy can be evicted for any of the foregoing reasons as long as it is not retaliatory or discriminatory. The notice must be in writing and give the tenant at least one rental period's time, usually 30 days. (Some district courts may require 30 days notice even if the term of the lease is for a different amount of time).
Example: The landlord gives the tenant a written notice to vacate on May 1st. The notice states that the tenant is to leave by June 1st. This is a proper notice, because it is at least 30 days. If, however, it is stipulated in the lease that the rental period is other than the standard one month, then the notification period would be equal to the length of that rental period.
Remember that in each of the above situations, a tenant has a right to a court hearing before any actual eviction takes place. The case may be heard either by a judge or jury (if requested by either party). This prevents a landlord from unilaterally choosing to remove a tenant and provides an impartial forum to resolve the dispute.
Eviction Timetable
(1) The landlord provides a notice to quit (seven-day, thirty-day or an amount of time equal to the rental period) to the tenant.
(2) After the required waiting period has passed, the landlord may file a complaint with the district court. At this time, the court delivers or mails the tenant (the defendant in the case) a summons to appear before the court on a certain date.
(3) At the court hearing, if the tenant wins, the tenancy continues. If the tenant loses, he or she will have ten days to pay the past due rent, settle the dispute or vacate the premises.
(4) After ten days (or a different time period set by the court), if the tenant has not vacated, a writ of restitution is issued by the court which commands the sheriff or other authorized court officer to serve the process and restore the landlord (plaintiff) to full possession of the premises.
Important Points
Remember that an eviction notice must include all of the following:
| The tenant's name
| The address or description of the premises
| The reason for the demand (a notice of termination of tenancy need not
state a reason)
| The date
| The landlord's signature | |
The following should also be noted
| Tenants are entitled to a written notice of eviction, properly served;
| Tenants are not required to move when the eviction notice expires.
Expiration of the notice only enables the landlord to file for a court
hearing. If a tenant stays beyond the expiration date of a notice to
quit, the landlord may request the court to order the tenant to pay court
costs, including filing fees and process server fees;
| When a summons is received, keep it and show up to court on time. If
either party does not go to the hearing, it will probably result in a
default judgment where the party not in attendance will lose the case
automatically.
| An appeal of a court's decision must be made within ten days.
| Only an officer of the court can eject a tenant. A
legal eviction can only occur after the landlord has won the court hearing
and the appeal period expires;
| There is legal recourse for protesting an illegal
eviction. Consult an attorney or housing counselor for assistance;
and
| On issues of fact, both parties have the right to have a jury decide the
merits of the evidence (other than in small claims court). | |
The final type of eviction that tenants should be aware of is a "self-help" eviction. This is an attempt by the landlord to remove the tenant from the rented premises without the use of the legal process. Public Act 300 of 1976 prohibits this type of eviction. The four most common forms this type of eviction takes are:
| Shutting off utilities;
| Changing the locks on the doors;
| Moving the tenant's possessions out of the rented premises; and
| Removing the tenant's possessions to another location. | |
In cases of a "self-help" eviction, a tenant can sue to recover up to three times the amount of his or her actual damages or $200, whichever is greater.
Remember, eviction is a legal process. Unless both the landlord and tenant are absolutely positive that they know what they are doing, they should each consult an attorney.
Maintenance issues involve a wide spectrum of problems, ranging from those that are simply annoying to severe conditions which pose an immediate threat to health and safety. It should be noted that both the landlord and tenant have some maintenance responsibilities.
A tenant is generally expected to pay rent on time, keep the rented premises in a safe and sanitary condition, promptly notify the landlord of maintenance problems, exterminate insects that appear (if they were not present when the tenant moved in) and leave the rented premises in good condition (normal wear and tear is expected). These responsibilities can be modified in certain instances, as noted above, by mutual agreement between the landlord and tenant.
There are three different types of maintenance problems: (1) emergencies, (2) major problems and (3) minor problems.
|
Emergencies are those problems which require action within 24 hours and pose an immediate threat to the health and safety of the household. Examples include gas leaks, major roof damage, furnace defects and flooding.
| Major Problems affect the quality of the residential environment, but not to the extent that the life of the occupant is immediately endangered. Examples include clogged drain, heating problems or defective water heater.
| Minor Problems, unlike the two previous categories, fall into the nuisance category and include defective lighting, faucets, locks, pests and peeling paint. |
In order to solve these types of problems, the first step is for the tenant to talk to his or her landlord. The tenant should explain the situation, the importance of the repair and suggest how quickly it needs to be done. In addition, many municipalities have enacted housing codes to protect the rights of both landlords and tenants, which can be accessed by contacting the local city hall.
The second step is for the tenant to write a letter to the landlord describing the problem as well as what was covered in the previous talk. At this time, the tenant can outline what further action may be taken if there is no action taken to remedy the situation. It is important for both parties to keep a copy of all correspondence and records. In addition, individuals sometimes want to contact a building inspector to give a professional opinion on the problem.
The third step should only be taken after (1) the tenant has documented the problem, (2) the tenant has given the landlord a reasonable time for repair and (3) the landlord has failed to act. It involves the withholding of rent by the tenant, which is a right granted under Michigan law when the landlord fails to maintain a rental unit. The tenant should keep all receipts, notations of the dates and times of all correspondence with the landlord and, if necessary, contact a building inspector. If this step is done, the tenant should send a letter to the landlord stating why rent will be withheld and the amount which will be released when the maintenance problem(s) are corrected. The letter should be sent by certified mail with a return receipt requested and a copy kept for the tenant's records. Alternatively, the letter may be sent by first class mail, with the tenant obtaining a "receipt of mailing" from the post office. This letter should be sent before the rent has come due, and the money withheld should be placed into an escrow account. All documentation, as stated earlier, should be kept for future reference.
The tenant's next option is to pay for the repairs and then deduct the cost from the rent due, which may even be drawn from the escrow account. Before any repairs are done, three companies should be called for estimates. If it is a do-it-yourself job, then three stores should be contacted for the prices of the necessary parts. Reputable firms will come to a home and provide a free written estimate. These estimates should be mailed to the landlord, stating that the cost of the repairs will be paid from the withheld rent. A date should be set for the landlord to fix the problem, and that the tenant will take care of the repair if it not done by this time. Again, a copy of all letters and estimates should be saved by both parties for record-keeping purposes.
If the landlord still does not respond, the last step is for the tenant to hire the lowest bidder and pay for the work out of the escrow account. The tenant should then send the landlord a copy of the receipt along with a letter stating that the money spent on repairs will be deducted from the escrow account or from the outstanding rent owed. The tenant should then wait for the landlord's response.
The landlord may try to have the tenant evicted in this situation. A defense in this situation is that the landlord has not lived up to the legal duty to keep the home in good repair, which must be proven. This is a time when the documents saved by the tenant become increasingly important. There is always the possibility of negotiation between the landlord and tenant in order to reach a conclusion that is beneficial to both parties.
A maintenance agreement is a timetable for the landlord to make repairs. The tenant should be sure that it is in writing, that both the landlord and tenant have signed and dated it, and provide a copy to both parties. Before the tenant talks with the landlord, he or she should determine the maximum time allowed for repairs to be done and whether to release rent (if the tenant is withholding) after repairs are made. One problem common in landlord and tenant disputes is that the parties become irritated with each other, leading to hostility and a breakdown in their business relationship. It is therefore stressed that the parties continue to remember that the lease is a mutual agreement for the benefit of both parties and that there is a direct correlation between the parties respective rights and duties.
Less serious emergencies are the most common type, such as where the tenant has been given timely notice and then finds it impossible to vacate the rental unit by the date specified. If this happens, the tenant should contact the landlord immediately, since the premises may have been rented to another party. A tenant has no automatic right to remain in the rental unit beyond the last day of the rental period. The only way that a tenant can "hold over" into the next rental period is with the permission of the landlord. It is imperative in these situations that both parties understand and agree upon how much rent is due for a "hold over" tenant. This is due to the fact that the last rental period may have been for a fixed time period (such as a month) and the "hold over" period may just be a couple of days. If this is the case, the tenant may not want to pay an entire months rent for a few days extra occupancy.
The tenant may have to move to temporary housing if his or her health or safety is threatened. If this happens, an immediate notification should be provided to the landlord. If repairs are not undertaken within a reasonable time period, the tenant may wish to consider deducting expenses incurred from the rent payment. In this case, expense receipts should be kept by the tenant to prove costs incurred, if legal proceedings are later filed.
Subleasing is a situation where the tenant leases his or her interest in the premises to another party (the subtenant). The tenant then assumes the position of being the landlord over the subtenant. Subleasing usually occurs because the tenant has signed a fixed-term tenancy lease and wishes to get out before it expires. To avoid the financial burden of the un-expired portion of the lease, some tenants try to find a subtenant to assume their interest.
Tenants who are considering subleasing should realize that the lease will permit a sublease unless the agreement specifically prohibits it. The subtenant, if allowed, will assume only the duties and rights enjoyed by the tenant and the tenant is still responsible to the landlord for performance of the lease agreement. In relation to the subtenant, the tenant assumes the responsibilities of a landlord and therefore must follow all of the laws and rules applying to landlords, including the security deposit law.
As stated above, the subtenant will only receive the rights and obligations of the tenant unless both parties agree to the subtenant taking something less than all of the tenant's rights and responsibilities. Note that the subtenant cannot receive more rights and responsibilities than the tenant has. This is because the tenant cannot sell to the subtenant rights and responsibilities that were never possessed in the first place.
| Example: The tenant subleases the last three months of a fixed-term tenancy to a subtenant. At the end of the three months, the landlord refuses to renew the lease and insists that the subtenant move out. The subtenant is required to move because the tenant was only entitled to three months' occupancy of the premises. |
| Example: If subtenants fail to pay rent, the original landlord can hold the original tenant responsible for missed rent payments. This amount can be withheld from the original tenant's security deposit, along with charges for physical damages done by the subtenants. |
Two things may be done to protect against the problems posed in the previous examples: (1) require that the subtenants sign a written agreement that includes the same wording as the contract with the original landlord; and (2) require a security deposit from the subtenants.
The tenant should also understand the responsibilities associated with undertaking the role of landlord toward the subtenant. For instance, if the tenant requires the subtenant to provide a security deposit, the provisions of the applicable law governing security deposits must be followed. Also, if the tenant wants to evict the subtenants, he or she must use procedures which conform to the law. In addition, if landlords are required to register with a city housing department, the sublessors may also have to do so.
Issues involved in subleasing may be complicated, especially if the tenant leaves the area for part (or all) of the period of the sublease. It has been recommended that the tenant get an agreement with the landlord, discharging the tenant's obligations under the lease and substituting the subtenant for the tenant in the lease. If the landlord agrees, as is often the case, the tenant's responsibilities end when his or her occupancy ends and the agreement is in place.
If the tenant permits the subtenants to pay rent directly to the landlord, the tenant runs the risk of not knowing whether the subtenants are continuing their obligations. There is much less risk in a situation where the subtenant is required to pay rent directly to the tenant, who passes it on to the landlord.
Some communities have additional restrictions on the number of unrelated occupants who can reside in a single unit. These should be checked before a rental agreement is entered into, since some ordinances can hold the landlord, tenant or both liable for a violation.
It must be remembered that if a tenant should decide to move out without subleasing, he or she is responsible to the landlord for all rent due until the end of the rental period. If the lease is fixed-term, the tenant can be held responsible until the end of the specified time period. On the other hand, if it is a periodic tenancy, a tenant can be liable for rent until the required notice period for termination has expired. The landlord has a duty to mitigate damages, which means that he or she must make a "reasonable" effort to re-rent the premises. If the landlord is successful in re-renting the premises, the tenant's responsibility ends when the new tenants begin paying rent. A tenant may also be held liable for reasonable re-renting costs, such as advertising.
Civil Rights
State and federal law prohibits discrimination in rental housing based on a number of factors. These include race, color, sex, age, handicap and family status. For further information regarding discrimination against protected classes, contact the Michigan Department of Civil Rights or the U.S. Department of Civil Rights.
Housing Codes and Smoke Detectors
Some communities have adopted housing codes or other regulations which may affect equipment requirements and the condition in which rental property must be maintained. Some of these regulations include mandatory smoke detectors and or that residents comply with recycling ordinances. These requirements differ by communities and therefore the local unit of government should be contacted to see what is mandated.
Restrictions on Pets
Landlords may include a clause in the lease that restricts tenants from having pets in the rental unit. Courts have permitted the eviction of tenants who violate this type of lease provision. A landlord, however, may not prohibit a guide, hearing or service dog wearing a harness or blaze orange leash and collar if the tenant has an identification certificate stating that the dog has been professionally trained. In public-subsidized housing, handicapped or elderly tenants have additional rights to maintain pets in their rental units.
Smoking
A landlord has the right to refuse to rent to smokers or may restrict people who smoke to certain apartments. In Michigan Attorney General Opinion No. 6719 of May 4, 1992, the Attorney General stated, "neither state nor federal law prohibits a privately-owned apartment complex from renting only to non-smokers or, in the alternative, restricting smokers to certain buildings within an apartment complex."
Money Judgments
Since 1996, a portion of a welfare payment that someone is entitled to may be used to pay for damages he or she caused to the landlord, if a money judgment to that effect is entered against the tenant. When a judgment for damages arising from a breach of a written or oral lease agreement is entered against a tenant who is a welfare recipient, the landlord may submit a certified copy of the judgment to the Michigan Family Independence Agency. The agency will then deduct a portion of that tenant's monthly welfare cash grant (up to a maximum of 10%) and continue to give that portion to the landlord until the damages are paid for. It should be noted that this statutory provision does not provide the landlord with a cause of action against the Michigan Family Independence Agency if a welfare recipient breaches a lease.
Lead-Based Paint
Beginning in 1996, landlords must provide information to tenants in buildings built before 1978 with information concerning lead-based paint. This information includes a federal pamphlet entitled Protect Your Family From Lead in Your Home and a form Disclosure of Information on Lead-Based Paint and/or Lead-Based Paint Hazards (Rentals). There are some exceptions to this rule, including commercial rentals, zero-bedroom efficiency apartments, and rental units certified as lead-free by a qualified lead abatement inspector. Further information on this subject is available by contacting the National Lead Information Center Clearinghouse at 1-800-424-LEAD.
Remember that there is a legal and proper method for a tenant or landlord to terminate a lease and/or make the landlord or tenant fulfill their responsibilities under the lease agreement. If the written lease specifies a method for terminating the lease, the tenant or landlord should follow that procedure. If the lease is silent on the issue of termination, the tenant should give written notice of his or her intent to vacate the premises, but in most cases is not legally obligated to do so. This notice should be equal in time to at least one rental period.
Note that the landlord has promised in the lease that all common areas are fit for the use intended (as a residence), that the premises will be kept in reasonable repair, and that the premises will be kept in compliance with applicable state and local health and safety laws except when the disrepair or violation is caused by the tenant's willful or irresponsible conduct (or lack of conduct). Legally, the landlord may enter the premises for inspections and repairs at reasonable intervals, with the consent of the tenant. Regardless, the landlord and tenant should respect each other's rights, since every right held by one of the parties carries with it a corresponding responsibility.
In order for both parties to protect themselves, careful records should be kept. These include a copy of the lease agreement, rent receipts, cancelled checks, paid utility bills, inventory checklists and registered / certified mail receipts. Therefore, any written information which pertains to the lease agreement should be kept.
Both the landlord and tenant should be familiar with all of their legal rights and duties. A tenant should find out if the landlord's insurance covers any of the tenant's property that may be damaged by fire, theft, or flood. Both parties should get to know each other before problems arise. If you do not know who your landlord or tenant is, it is recommended to find out. When the landlord and tenant are communicating, it is usually easier to resolve any problems which may develop.
