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MJI Supervising Justice Residential Landlord- Tenant Law Benchbook Cover and Acknowledgments Title Page By Ms. Phoenix Hummel, J.D. Research Attorney Michigan Judicial Institute MICHIGAN JUDICIAL INSTITUTE © 2021 Michigan Supreme Court • The Honorable Bridget Mary McCormack, Chief Justice • The Honorable Elizabeth T. Clement, MJI Supervising Justice • The Honorable Brian K. Zahra, the Honorable David F. Viviano, the Honorable Richard H. Bernstein, the Honorable Megan K. Cavanagh, and the Honorable Elizabeth M. Welch, Justices • The Honorable Thomas P. Boyd, State Court Administrator • The Honorable Milton L. Mack, Jr., State Court Administrator Emeritus • Ms. Cami M. Pendell, Supreme Court General Counsel • Mr. Larry S. Royster, Supreme Court Clerk and Chief of Staff Michigan Judicial Institute Staff • Dawn F. McCarty, Director • Alessa Boes, Research Attorney Specialist • Amanda Clark, Judicial Education Analyst • Anne M. DeMarco, Program Assistant • Craig Dillon, Instructional Design and Content Developer • Rachael Drenovsky, Learning Center Coordinator • Amy Feinauer, Program Assistant • Phoenix Hummel, Research Attorney •Heather Leidi, Administrative Specialist • Sarah Roth, Publications Manager • Danielle Stackpole, Research Attorney • Peter C. Stathakis, Program Manager • Cathy Weitzel, Training & Development Specialist Statements in this benchbook represent the professional judgment of the author and are not intended to be authoritative statements by the justices of the Michigan Supreme Court. This original edition was published in January 2014. It is current through August 26, 2021. ii Note on Precedential Value “A panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals as provided in this court rule.” MCR 7.215(J)(1). Several cases in this book have been reversed, vacated, or overruled in part and/or to the extent that they contained a specific holding on one issue or another. Generally, trial courts are bound by decisions of the Court of Appeals “until another panel of the Court of Appeals or [the Supreme] Court rules otherwise[.]” In re Hague, 412 Mich 532, 552 (1982). While a case that has been fully reversed, vacated, or overruled is no longer binding precedent, it is less clear when an opinion is not reversed, vacated, or overruled in its entirety. Some cases state that “an overruled proposition in a case is no reason to ignore all other holdings in the case.” People v Carson, 220 Mich App 662, 672 (1996). See also Stein v Home-Owners Ins Co, 303 Mich App 382, 389 (2013) (distinguishing between reversals in their entirety and reversals in part); Graham v Foster, 500 Mich 23, 31 n 4 (2017) (because the Supreme Court vacated a portion of the Court of Appeals decision, “that portion of the Court of Appeals’ opinion [had] no precedential effect and the trial court [was] not bound by its reasoning”). But see Dunn v Detroit Inter-Ins Exch, 254 Mich App 256, 262 (2002), citing MCR 7.215(J)(1) and stating that “a prior Court of Appeals decision that has been reversed on other grounds has no precedential value. [W]here the Supreme Court reverses a Court of Appeals decision on one issue and does not specifically address a second issue in the case, no rule of law remains from the Court of Appeals decision.” See also People v James, 326 Mich App 98 (2018) (citing Dunn and MCR 7.215(J)(1) and stating that the decision, “People v Crear, 242 Mich App 158, 165-166 (2000), overruled in part on other grounds by People v Miller, 482 Mich 540 (2008), . [was] not binding”). Note that Stein specifically distinguished its holding from the Dunn holding because the precedent discussed in Dunn involved a reversal in its entirety while the precedent discussed in Stein involved a reversal in part. The Michigan Judicial Institute endeavors to present accurate, binding precedent when discussing substantive legal issues. Because it is unclear how subsequent case history may affect the precedential value of a particular opinion, trial courts should proceed with caution when relying on cases that have negative subsequent history. The analysis presented in a case that is not binding may still be persuasive. See generally, Dunn, 254 Mich App at 264-266. iii Acknowledgments The Michigan Judicial Institute, in collaboration with Legal Services of South Central Michigan (LSSCM) and the Michigan Poverty Law Program (MPLP), and with the assistance of a diverse editorial advisory committee, created the Residential Landlord-Tenant Law Benchbook. The content of this benchbook derived from the former MPLP publication, Michigan Residential Landlord-Tenant Law (Third Edition). The Residential Landlord-Tenant Law Benchbook is a comprehensive publication intended to provide judges with a readily accessible source of both substantive and procedural law relevant to landlord-tenant proceedings. The benchbook primarily addresses residential landlord- tenant law, but it also offers a broad discussion of land contracts and mortgages—issues district courts may be faced with in the course of adjudicating landlord-tenant matters. The Residential Landlord-Tenant Law Benchbook was authored by MJI Research Attorney Phoenix Hummel and edited by MJI Publications Manager Sarah Roth. Work on the Residential Landlord-Tenant Law Benchbook was overseen by an Editorial Advisory Committee facilitated by Ms. Hummel. MJI gratefully acknowledges the time, helpful advice, and expertise contributed by the following Committee members: • The Honorable Craig Alston, Retired 74th District Court • Mr. James Fink, Attorney Fink & Valvo, PLLC • The Honorable Michelle Friedman Appel 45B District Court • Mr. Robert F. Gillett, Executive Director & Attorney Legal Services of South Central Michigan • Mr. Brian Gilmore, Associate Professor Michigan State University College of Law Legal Clinic • The Honorable Bradley Knoll 58th District Court • The Honorable Charles Parsons Missaukee Probate Court iv • Mr. James Schaafsma, Attorney Michigan Poverty Law Program The Michigan Judicial Institute (MJI) was created in 1977 by the Michigan Supreme Court. MJI is responsible for providing a comprehensive continuing education program for judicial branch employees; assisting judicial associations and external organizations to plan and conduct training events; providing complete and up-to-date legal reference materials for judges, quasi-judicial hearing officers, and others; maintaining a reference library for use by judicial branch employees; and conducting tours of and other public outreach activities for the Michigan Supreme Court Learning Center. MJI welcomes comments and suggestions. Please send them to: Michigan Judicial Institute, PO Box 30048, Lansing, MI 48909, or call (517) 373–7171. v vi Table of Contents Cover and Acknowledgments Title Page ........................................................................................................... i Michigan Supreme Court .................................................................................. ii Michigan Judicial Institute Staff ........................................................................ ii Note on Precedential Value ............................................................................. iii Acknowledgments ............................................................................................ iv Chapter 1: General Landlord-Tenant Law 1.1 Creation of a Tenancy .......................................................................... 1-2 A. Types of Tenancies ........................................................................ 1-3 B. New Owners Affecting an Existing Tenancy ................................. 1-5 C. Status of Caretakers and Other Employees Who Reside in Employer Housing ......................................................................................... 1-5 1.2 Lease Provisions ................................................................................... 1-6 A. Oral Leases (Statute of Frauds)...................................................... 1-7 B. Written Leases .............................................................................. 1-8 C. Statutory Covenants of Fitness and Reasonable Repair ............. 1-15 D. Leases and the Michigan Consumer Protection Act ................... 1-15 1.3 Landlord’s Interference With Peaceful Possession ............................ 1-17 A. Prohibited Conduct...................................................................... 1-17 B. Actions and Remedies Available for Loss of Possession or Unlawful Interference With Possessory Interest ....................................... 1-19 C. Conduct Not Amounting to Unlawful Interference .................... 1-20 1.4 Possible Criminal Liability for Tenant’s Occupation Without Consent 1-22 1.5 Liability of Landlord for Injury to Tenant, Invitees of Tenant, or Tenant’s Property ............................................................................................ 1-23 A. Injuries Arising Out of the Condition of the Premises ................. 1-23 B. Landlord’s Common-Law Duty to Protect Against the Foreseeable Criminal Acts of a Third Party ..................................................... 1-28 C. Residential Lease Provisions Waiving Liability ............................ 1-28 1.6 Rent Increases.................................................................................... 1-29 A. Rent Levels
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