1.3Landlord’s Interference With Peaceful Possession

MCL 600.2918 is commonly known as the anti-lockout law and was enacted “in an effort to prevent landlords’ self-help in executing evictions. The Legislature sought to reduce the number of violent confrontations occurring as a consequence of landlords entering onto the premises while tenants believed that they were rightfully in possession.” Grant v Detroit Ass’n of Womens Clubs, 443 Mich 596, 607-608 (1993) (applying anti-lockout law to situations where housing is exchanged for employment).

MCL 600.2918 prohibits unlawful interference with a tenant’s possessory interests and specifies what constitutes unlawful interference. The provisions contained in MCL 600.2918 may not be waived. MCL 600.2918(7). See also MCL 554.633(1)(j) (prohibiting a written lease provision that waives or alters a party’s rights under MCL 600.2918).

A.Prohibited Conduct

Under MCL 600.2918, a tenant may bring suit against an owner who forcibly and unlawfully ejects the tenant from the leased premises:

•Owner’s liability for forcible ejection. A person who is ejected from the premises “in a forcible and unlawful manner,” or who after being ejected is forcibly kept out of the premises, is entitled to recover possession of the premises and the greater of three times the amount of his or her actual damages or $200. MCL 600.2918(1).

•Owner’s liability for interference with possessory interest. If an owner unlawfully interferes with the possessory interest of a tenant in possession of the premises, the owner is liable to the tenant for the greater of three times the tenant’s actual damages or $200 for each time the unlawful interference occurs, and if the tenant loses possession of the premises, he or she is entitled to regain possession. MCL 600.2918(2).¹

•Unlawful interference defined. Subject to the exceptions in MCL 600.2918(3) and MCL 600.2918(5),² unlawful interference with a possessory interest includes any of the following:

•The owner uses force or threatens to use force. MCL 600.2918(2)(a).

•The owner removes, retains, or destroys the possessor’s personal property. MCL 600.2918(2)(b).

•The owner changes, alters, or adds locks or security devices to the premises and does not immediately provide the possessor with keys or other unlocking equipment. MCL 600.2918(2)(c).

•The owner boards up the premises, which prevents or deters the possessor from entering. MCL 600.2918(2)(d).

•The owner removes doors, windows, or locks from the premises. MCL 600.2918(2)(e).

•The owner causes, by act or omission, the termination or interruption of an essential service that the tenant procured or that the owner is required to furnish, and the termination or interruption of the essential service constitutes constructive eviction.³ MCL 600.2918(2)(f).

•The owner introduces noise, odor, or another nuisance to the premises. MCL 600.2918(2)(g).

“MCL 600.2918 governs claims of constructive eviction or ejection. Michigan has long recognized the theory of constructive eviction. Constructive eviction occurs ‘when the act of the landlord is of such a character as to deprive the tenant . . . of the beneficial use and enjoyment of the whole or any part of the demised property, to the extent he [or she] is thus deprived.’ Constructive eviction can also be found where a landlord fails to supply essential services.” Belle Isle Grill Corp v Detroit, 256 Mich App 463, 474-475 (2003) (internal citations omitted) (holding that, under the facts of the case, MCL 600.2918 did not apply).

Where a tenant can prove constructive eviction, he or she may be relieved from future liability for rent. See DeBruyn Bros Realty Co v Photo Lith Plate Service Corp, 31 Mich App 487, 489-490 (1971), where the rodent infestation and the landlord’s failure to provide heat amounted to constructive eviction justifying vacation and no further liability on the lease. However, “‘in case of a breach of contract the injured party must make every reasonable effort to minimize the damages suffered[.] . . . [T]he burden is upon the defendant to show in mitigation of the damages claimed that the plaintiff has not used every reasonable effort within his [or her] power [] to minimize his [or her] damages.’” Froling v Bischoff, 73 Mich App 496, 499 (1977), quoting Rich v Daily Creamery Co, 296 Mich 270, 282 (1941).

“[A] landlord [is prohibited] from resorting to self-help even where the landlord is entitled to possession. Instead the landlord must, on refusal of the tenant to surrender the leased premises, resort to judicial process.^[4] To discourage self-help, the Legislature has provided that the tenant may recover treble damages for forcible ejectment under [MCL 600.2918(1)], and actual damages for other unlawful interference under [MCL 600.2918(2)].” Deroshia v Union Terminal Piers, 151 Mich App 715, 720 (1986).

B.Actions and Remedies Available for Loss of Possession or Unlawful Interference With Possessory Interest

MCL 600.2918(6) provides for the following actions when a tenant loses possession of the premises or an owner unlawfully interferes with the tenant’s possessory interest in the premises:

•Claims for loss of possession or unlawful interference with possessory interest. If a person has lost possession of the premises or an owner has unlawfully interfered with the person’s possessory interest in the premises, and that person does not peacefully recover possession of the premises, he or she may initiate summary proceedings under MCL 600.5714(1)(f)⁵ to regain possession⁶ or may bring a claim for injunctive relief in circuit court. MCL 600.2918(6). The person may join a claim for damages with the claim for possession and the claim for injunctive relief, or a claim for damages may be brought separately. Id.

MCL 600.2918(8) specifies the time by which a possession claim or a damage claim must be brought.

•Timing of a claim for possession or a claim for damages. Summary proceedings to regain possession of premises must be initiated not more than 90 days after the claim arises or becomes known to the plaintiff. A claim for damages must be brought not more than one year after the claim arises. MCL 600.2918(8).

“As for damages[] under the anti[-]lockout law[,] a tenant who is unlawfully dispossessed is entitled to recover actual damages suffered as a result of the landlord’s use of self-help rather than judicial process.” Deroshia, 151 Mich App at 722. “Actual damages in Michigan, particularly when an intentional wrong is involved, as is the case here, include damages for emotional stress, embarrassment and humiliation. Accordingly, [individuals who are successful in an action filed under MCL 600.2918] are entitled to damages for the emotional stress, embarrassment and humiliation they suffered as a result of the lock[]out.” Shaw v Cassar, 558 F Supp 303, 316 (ED Mich, 1983) (internal citations omitted).

Unless the lease specifies otherwise, a tenant is not required to pay further rent if he or she is evicted by the landlord. Central Trust Co v Wolf, 255 Mich 8, 12-13 (1931); Longcor v Homeopathic College, 210 Mich 575, 579-580 (1920).

C.Conduct Not Amounting to Unlawful Interference

Together, MCL 600.2918(3) and MCL 600.2918(5) specify several situations in which an owner’s conduct does not amount to an unlawful interference with a tenant’s possessory interest.

1.Situations Under § 2918(3)

•Court order. The owner’s actions are court-ordered. MCL 600.2918(3)(a).

“The plain language of MCL 600.2918(3)[(a)] provides immunity only for actions undertaken pursuant to an order of eviction.” Sickles v Hometown Am, LLC, 477 Mich 1076 (2007). Actions taken that are “neither necessary to effect the eviction nor incidental to the process of eviction, cannot be said as a matter of law to be within the scope of [an] . . . order of eviction, and hence, may not [be] undertaken pursuant to that order.” Id.

•Repairs or inspection. The owner’s interference with possession is temporary and “only as necessary to make needed repairs or inspection and only as provided by law.” MCL 600.2918(3)(b).

•Abandonment of premises. Current rent is unpaid and “[t]he owner, or a court officer appointed by or a bailiff of the court that issued the court order or the sheriff or a deputy sheriff of the county in which the court is located, 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[.]” MCL 600.2918(3)(c).

•Tenant’s death. The owner’s interference results from a belief that the tenant is deceased and all of the following requirements are met:

•Opportunity to provide contact information for authorized person. The tenant was informed in writing that he or she could provide the owner with information for an authorized person to contact in case of the tenant’s death. MCL 600.2918(3)(d)(i). The owner is not responsible if the contact information provided by the tenant is incorrect, nor is the owner responsible if the tenant fails to provide any contact information. Id.

•Unpaid rent. Current rent is unpaid. MCL 600.2918(3)(d)(ii).

•Belief that tenant is deceased. “The owner believes in good faith that the tenant has been deceased for at least 18 days and that there is not a surviving tenant.” MCL 600.2918(3)(d)(iii).

•No probate estate opened. “A probate estate has not been opened for the deceased tenant by the public administrator,^[7] authorized contact person, or any other person in the county in which the premises are located and the owner has not been notified in writing of the existence of a probate estate opened in another county and of the name and address of the personal representative.” MCL 600.2918(3)(d)(v).

•Additional requirements. When the owner believes that the tenant has been deceased for at least 18 days and that there is no surviving tenant, each of the following must occur “not less than 10 days before the owner reenters to take possession of the premises and dispose of its contents[.]” MCL 600.2918(3)(d)(iv).

•Attempt to contact authorized person. If the tenant provided the owner with contact information, “the owner makes a reasonable attempt to contact the authorized person . . . and to request him or her to open a probate estate for the tenant within 28 days after the tenant’s death.” MCL 600.2918(3)(d)(iv)(A). “The owner is not responsible for the authorized person’s failure to respond to the notification before the owner’s reentry into the premises.” Id.

•Notice of intent to reenter. “The owner places on the door of the premises a notice indicating the owner’s intent to reenter, take possession of the premises, and dispose of its contents after 10 days have elapsed.” MCL 600.2918(3)(d)(iv)(B).

•Public administrator notification. The owner notifies the appropriate public administrator that he or she believes the tenant is deceased and that unless a probate estate is opened, the owner “intends to reenter to take possession of the premises and dispose of its contents[.]” MCL 600.2918(3)(d)(iv)(C). Before expiration of the ten-day period, the owner must permit a properly identified public administrator to access the premises on request. Id.

2.Situations Under § 2318(5)

“An owner’s actions do not unlawfully interfere with an occupant’s possession of premises if the occupant took possession by means of a forcible entry, holds possession by force, or came into possession by trespass without color of title or other possessory interest.” MCL 600.2918(5).