Rule Changes Could Slow Eviction Process In Michigan

By Carolyn Muyskens | September 12, 2023, 10:23 PM EDT ·

The Michigan court process for evictions is set to change in November, when several new and temporary tenant protections that could increase the amount of time it takes to evict a renter who is behind on bills will take permanent effect.

Final rule changes announced last week were described as a compromise proposal that sought to keep some of the tenant-friendly innovations of the state's COVID-19 pandemic emergency court procedures and address some of the pushback the Michigan Supreme Court received from landlords when it first suggested making those tenant protections permanent.

"I think it's clear that [the justices] were very careful and did strike a balance, and striking a balance means that you are never going to make everyone happy," said Mira Edmonds, clinical assistant professor of law at the University of Michigan Law School.

Landlord-side lawyers say the rule changes introduce delays into the eviction process, with additional hearing requirements, more hurdles to obtaining default judgment and the possibility of a monthlong automatic stay while the tenant seeks rental assistance.  

Those delays cost money, said Steve Delie, an attorney with the libertarian Mackinac Center Legal Foundation.

"The overall impact of these changes is likely to increase costs for landlords and tenants, lengthen the process for evictions, and all this is going to mean that eviction proceedings get more expensive and our concern is that that's going to get passed along to tenants," Delie said.

The Michigan Supreme Court's changes keep intact pandemic-era innovations such as a two-hearing structure, in which most tenants in cases involving nonpayment of rent first get a pretrial hearing where they are advised of their rights, then a trial hearing to resolve the case.

Renters' advocates said the two-hearing structure was important to reduce default judgments and improve tenants' awareness of the resources available to them.

Tenants must be informed of rental assistance programs during the process and have more time to request a jury trial. Tenants can also obtain an automatic stay of up to 28 days if they submit proof that they are applying for rental assistance.

Overall, Edmonds said, the changes are a "step in the right direction" to give tenants a meaningful chance to respond and seek assistance before they lose their homes, noting that Michigan still faces an eviction crisis even as the pandemic emergency wanes.

The changes are "not going to prevent landlords from evicting tenants," Edmonds said.

Rather, the Supreme Court is "ever so slightly slowing down the machinery of evictions and offering modest additional procedural protections to ensure that tenants have more due process than has been the case."

Matthew I. Paletz of Paletz Law, a landlord-side firm, said his clients were already experiencing often monthslong delays in obtaining judgments in landlord-tenant cases because of the changes the Michigan Supreme Court implemented during the pandemic, and the delays are only likely to continue as the changes become cemented.  

While a court rule change on paper might only add up to 28 days, pragmatically speaking, the courts can't always immediately schedule a new hearing and a weekslong delay can turn into months due to scheduling conflicts.

The work for the courts has also "ballooned" now that there are multiple hearings for each case, taxing the district courts that handle the landlord-tenant docket, Paletz said, describing one eviction case that took 11 months to resolve.

Such delays harm both landlords and tenants, the lawyer said, because tenants may get deeper into debt the longer the case drags on.

Delie of the Mackinac Center said it could be more difficult for landlords to obtain a default judgment against a tenant who doesn't show for the first hearing under the new rules, which require an additional form of service to be mailed by the court at least seven days before the first hearing to obtain a default judgment.

Under previous court rules, the landlord could meet that requirement by posting a notice on the door of the tenant.

"There could be some issues with this [requirement] for a number of reasons," Delie said, including that fulfilling the requirement by the deadline will be in the courts' hands and out of the control of the landlord.

Justice Brian Zahra, who wrote a dissent to the rule changes, said the service requirement "sounds innocent" but would "unduly burden the courts and needlessly delay the eviction process" by making it more difficult to obtain default.

But proper service is key to tenant-side advocates like Edmonds, who said it's common for clients to fail to receive notices warning them of an impending eviction.     

"My question is will it be enforced," Edmonds said, noting that it will be up to judges to take the stricter service requirements seriously if a tenant doesn't show up to enforce his or her rights.

Justice Zahra said the proceedings "remove the 'summary' from the Legislature's directive that landlord/tenant matters be 'summary proceedings to recover possession of premises,'" echoing many of the landlord-side lawyers' concern that the matters would be dragged out unnecessarily.

Edmonds, though, said changes like the automatic stay for seeking rental assistance ultimately ought to be a win-win for landlords and tenants because any aid the renter receives will go toward repaying the landlord.

"The vast majority of tenants are unrepresented and navigating the eviction process on their own and the vast majority of landlords are represented by a lawyer, and so there are vast power differentials in the majority of eviction cases, and that remains the case," Edmonds said. 

Justice Elizabeth Welch, defending the changes in a concurrence, said the court spent hundreds of hours reflecting on the comments it received and developing a middle-ground proposal, giving courts 60 days to adjust to the new rules before they take effect. 

"While some would prefer that nonpayment of rent eviction proceedings return to 'business as usual' under the prepandemic rules, the revisions offer a balanced approach between the business interests of landlords and the rights of tenants to receive proper notice of proceedings against them as well as access to resources that might be available to assist them," Justice Welch said. 

--Editing by Karin Roberts.

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