Legal Action / Resident Eviction
Sometimes it becomes necessary to evict a resident for various reasons including, but not limited to non-payment, destruction of the premises, illegal activity or chronic disruptions to the community. The legal process must always be used to evict a resident. Conducting an eviction by blocking a residents access to the unit, turning off their power, or removing their belongings without using the legal process is illegal and will result potential legal action taken against the landlord or management company. Attention to the detail and legal timeline is extremely important to prevent an illegal eviction.
STEP 1 – Issue Notice to Resident
Two types of legal actions are commonly initiated against a resident. You must decide carefully which type of notice to issue to the resident.
1. The “Demand for Possession/Non-Payment of Rent” (aka Seven Day Notice). Send to residents for non-payment of rent and retain a copy of the notice sent to the resident. This form is specific to the State of Michigan, and can be obtained on the states website.
2. The “Notice to Quit/Termination of Tenancy” (aka Thirty Day Notice). Send to residents in violation of a lease and/or policies established. This form is specific to the State of Michigan, and can be obtained on the states website. Notice must be at least the length of one rent period.
Note that there are various versions of these forms depending on the circumstances surrounding the case. The full set of state forms can be found here:
http://courts.michigan.gov/scao/courtforms/landlord-tenantlandcontract/ltlindex.htm
When completing these forms, be sure to include the wording “and all other occupants” after the residents name in order to capture any unknown occupants from delaying the court process.
In order to terminate a tenancy before the end of the lease term, the landlord must have a valid reason. Examples of valid reasons include, but are not limited to: destroying the landlord’s property, excessive noise and disturbance of other residents, unauthorized occupants, pet violations, health hazards created by the resident and unlawful activities upon the premises. In the case of drug activity, a police report is required prior to the court date.
At the end of a conventional, non-subsidized lease, or in the absence of any written lease, NO reason is necessary to terminate the lease. However, a thirty day “Notice to Quit” must still be served to the resident.
The problems or issues leading up to the resident’s termination of tenancy should always be recorded in the resident file. The manager should notify the resident of the problem in writing, suggest they meet to discuss the problem and alert them in writing of the possibility that a termination action may be started if the problem is not rectified in a timely manner.
If possible, have the resident sign a letter acknowledging that he or she is aware of the violation of the lease and that he/she realizes that further violation will result in a termination case being started by the landlord. The action is, of course, applicable in situations such as the resident keeping a pet not allowed, or continued use of illegal drugs on the premises. It is recommended that the landlord discuss the individual’s situation with the attorney, in order to obtain advice as to the best way to proceed.
STEP 2 – File in Court
It is recommended that this step by performed with a landlord-tenant attorney. When filing, it’s sometimes advisable to file for a Money Judgment when filing for a Possession Judgment. The money judgment facilitates collections proceedings if the file is eventually sent to a collections company or attorney. However, a Money Judgment does cost more money to file, so consideration should be given to the cost differential vs. the ability to collect from this resident eventually.
For your understanding, we will review what the attorney does in this step of the process. The attorney will file two forms with the court:
1. Summons
2. Complaints
In order to file these forms with the court, a ‘matured’ copy of the Notice to Quit, or Termination of Tenancy form provided in STEP 1 is needed. The courts charge about $70 to file these two forms, but this cost can vary from court to court. It should be noted that the Complaints form will vary depending on what type of Demand or Notice was used to initiate the legal action.
STEP 3 – Appear in Court to Obtain a Judgment
After filing the paperwork in court, the courts will typically notify the attorney or manager by mail of the court date. Typically, the court date will be within 2 weeks of filing. However, we have seen delays as much as 4 weeks around the Christmas holidays.
Someone (attorney or manager) must appear at the court hearing and be prepared with current resident balance and documentation from the resident file to defend the position if the resident also shows up to the hearing. Be sure to prepare the attorney with all documented evidence well in advance of the court date. This will allow the attorney to determine if witnesses are necessary to appear in court. If the resident does not show up to the hearing, a default judgment in favor the landlord is entered.
STEP 4 – Collect Past Due Amounts or Mature Judgment
Non-Payment Case: In the case of a non-payment instance, the resident will typically have 10 days to pay the judgment amount, or move. This could be a great time to collect from the resident. However, in some cases, accepting partial payment from the resident can null and void the judgment. This is typically indicated on the judgment in writing, but it’s advisable to clarify with the attorney if payment should be collected from the resident, and what about of payment will nullify the judgment. If the resident does not pay within the maturity date, proceed to obtaining a Writ of Eviction.
Termination of Tenancy Case: In this case the resident is supposed to vacate the premises by the maturity of the judgment. If the resident has not yet vacated their belongings entirely, then a Writ of Eviction must be obtained.
STEP-5 – Obtain a Writ of Restitution
This step is typically performed by the landlord tenant attorney. The details below are provided for background information or the hands on manager.
If the resident continues to occupy the premises 10 days after the judgment was entered, a Writ of Restitution must be obtained from the court. The filing fee is typically $50 and the court will need a case number and copy of the matured judgment to facilitate filing. Once filed, the Writ must be signed by the judge before it’s valid. After the Writ is signed by the judge, it’s routed to a court assigned pool of Bailiffs to perform a physical eviction. It can take 1-2 weeks for a bailiff to be assigned to a Writ.
STEP 6 – The Eviction
The bailiff will schedule a day to complete the eviction. It’s important to note that in the City of Detroit, and other communities, a clean ‘eviction dumpster’ is required. The bailiff will not perform the eviction without the dumpster. During the eviction, it’s best to stand back and let the bailiff perform their job of physically removing the people and their belongings. The belongings are placed into the roll off eviction dumpster.
The locks must be changed immediately after possession of the apartment has been obtained. At this point, the unit should be cleaned out and the normal move out process should be followed complete with the move-out inspection and damage form.
This step is by far the most extensive in the process. The bailiff will cost between $300 - $1200 depending on the resident's contents. The dumpster will cost between $200 - $265.
