Q3 What happens if the tenant fails to
appear and answer after receiving
the Complaint?
If the tenant does not appear at the district
court as commanded in the Summons, a default
judgment—giving possession of the rental
property back to the landlord—will be entered
against the tenant. And 10 days later, at the
landlord’s request, the court will issue an Order
of Eviction and a court officer will physically
remove the tenant and the tenant’s personal
items from the rental property.
Additionally, the court may enter a money
judgment against the tenant. This would allow
the landlord to begin collection proceedings,
which may include garnishment of wages, bank
accounts, and tax refunds. It may also include
execution against the tenant’s personal property,
like his or her automobile. Further, a money
judgment may appear on the tenant’s credit
report, hindering his or her ability to get a loan
or a credit card.
Q4 Once a lawsuit is started, can
the parties still try to negotiate or
mediate an agreement?
Up until trial, the parties may reach an
agreement and settle the case themselves OR
they may decide to resolve their dispute through
mediation.
Community Mediation. Parties can choose to
mediate before or after a lawsuit is filed.
Mediation is an alternative dispute resolution
technique that is voluntary, empowering,
confidential, convenient, effective, and provided
at little or no cost. (See pages 21-22 for the
names, locations, and phone numbers of the
Michigan Community Mediation Centers that can
be contacted for assistance.)
Q5 If the parties reach an agreement,
do they still have to appear in court?
At any time before trial, the landlord and
tenant may decide to work out a compromise. In
fact, most lawsuits for eviction end in
compromise—minutes before trial. The parties
may either:
1) Sign an agreement called a “Consent
Judgment,” putting an end to the case by
consent and by order of the judge; OR
2) Agree to a dismissal subject to some
condition (e.g., tenant paying rent by a
particular day, tenant voluntarily vacating
the rental property by a particular day).
Once the condition is satisfied, the judge
will order the dismissal.
If a Summons has been issued, the tenant
must show up at the court. If an agreement is
reached, the court must be notified. Whether the
landlord and tenant must appear before the judge
to put their agreement on the record is up to the
judge.
Q6 What possible defenses to a lawsuit
for eviction might a tenant have?
If the tenant has exhibited certain lawful
behavior, Michigan law provides the tenant with a
defense that will apply—even if the landlord can
prove any of the ten reasons for a lawful eviction.
There are also other defenses that may apply,
depending on what the reason for the eviction is.
The most common defenses are:
1) A claim of retaliatory eviction. Under
MCL 600.5720, there exists a presumption
of retaliation if the landlord started the
eviction proceedings within 90 days after
the tenant tried to enforce his or her
rights under law (e.g., reporting health
and safety code violations, exercising
rights under the lease, filing a complaint
against the landlord for violation of the
law, or joining in membership in a
tenants’ organization). If the official action
has not resulted in dismissal or denial of
the attempt or complaint, a presumption
in favor of the defense of retaliatory
termination arises, unless the plaintiff
establishes by a preponderance of the
evidence that the termination of tenancy
was not in retaliation for the acts.
Retaliatory eviction is a defense to any
eviction proceeding.
2) Full payment of the rent due. If the
eviction is for nonpayment of rent, after
the complaint was filed, the tenant may
have actually paid the total amount of
rent due.
3) Landlord’s breach of the warranty of
habitability and duty to repair. The
landlord must have been provided with
notice of the problem, generally in
writing, and must have been given a
reasonable amount of time to fix the
problem. If a portion of the rent was
withheld for the purpose of addressing
the maintenance or repair issue(s), it
must have been deposited into an escrow
account. (That portion of rent must
reasonably relate to the cost of repair or
to the damage that the tenant incurred
because of the problem.) The tenant
must show that “but for the repair and
maintenance required, he or she was
ready, willing, and able to pay the
rent.”
Having a defense and being able to prove
it are two different things. If the tenant is
suc cess ful in offering his or her proofs, the
tenant is generally allowed to remain in
possession of the rental property. The Court may
not order eviction if the Court believes that the
16
Notice to the tenant: Do not fail to appear
and answer!