The defense of retaliatory eviction prohibits the court from granting “[a] judgment for possession of the premises for an alleged termination of tenancy” under the following circumstances:
•Tenant’s attempt to enforce rights under lease provisions or under law. A judgment for possession is prohibited if it “was intended primarily as a penalty for the [tenant’s] attempt to secure or enforce rights under the lease or agreement or under the laws of the state, of a governmental subdivision of this state, or of the United States.” MCL 600.5720(1)(a).
•Tenant’s complaint of code violations to a governmental agency. A judgment for possession is prohibited if it “was intended primarily as a penalty for the [tenant’s] complaint to a governmental authority with a report of [the landlord’s] violation of a health or safety code or ordinance.” MCL 600.5720(1)(b).
•Tenant’s lawful conduct arising from the tenancy, including the tenant’s membership in a tenant organization and its activity. A judgment for possession is prohibited if it “was intended primarily as retribution for a lawful act arising out of the tenancy, including membership in a tenant organization and a lawful activity of a tenant organization arising out of the tenancy.” MCL 600.5720(1)(c).
•Tenant’s failure to comply with increased obligations imposed by the landlord as a penalty for the tenant’s lawful conduct under MCL 600.5720(1)(a)-(c). A judgment for possession is prohibited if “[the landlord] attempted to increase the [tenant’s] obligations under the lease or contract as a penalty for the lawful acts . . . described in [MCL 600.5720(1)(a)-(c)] and . . . the [tenant’s] failure to perform the additional obligations was the primary reason for the alleged termination of tenancy.” MCL 600.5720(1)(e).
Committee Tip:
An increase in the tenant’s obligations is not limited to an increase in rent. For example, a landlord might require the tenant to pay utility or other bills previously paid by the landlord or to assume tasks formerly performed by the landlord.
A presumption of retaliation arises when a tenant can show that he or she “by means of an official action to or through a court or other governmental agency” formally “attempted to secure or enforce rights against the [landlord] or to complain against the [landlord]” within 90 days of the landlord’s initiation of summary proceedings as long as the tenant’s attempt or complaint was not dismissed or denied. MCL 600.5720(2).
When a presumption of retaliation arises, the burden of proof shifts to the party against whom the presumption exists. According to the Michigan Supreme Court:
“[T]he function of a presumption is solely to place the burden of producing evidence on the opposing party. It is a procedural device which allows a person relying on the presumption to avoid a directed verdict, and it permits that person a directed verdict if the opposing party fails to introduce evidence rebutting the presumption.” Widmayer v Leonard, 422 Mich 280, 289 (1985).
If the tenant establishes that his or her attempt or complaint occurred within 90 days of the landlord’s initiation of proceedings the burden shifts to the landlord to show “by a preponderance of the evidence that the termination of tenancy was not in retaliation for the acts.” MCL 600.5720(2).
If the landlord initiated summary proceedings more than 90 days after the tenant’s attempt to secure or enforce rights or complain against the landlord, or if the tenant’s complaint or other action was dismissed or denied, the landlord benefits from a presumption against retaliation. MCL 600.5720(2). When the presumption favors the landlord, the tenant has the burden of proving by a preponderance of the evidence that the landlord retaliated against the tenant by initiating summary proceedings after the tenant complained or took other action. Id.
“[T]he retaliatory eviction defense does not extend to summary proceedings instituted at the expiration of a fixed-term lease” because at the expiration of a fixed-term lease the tenant no longer has a right to possession of the premises. Frenchtown Villa v Meadors, 117 Mich App 683, 689 (1982). In Frenchtown Villa, the Court explained that although a landlord may be culpable under MCL 600.5720 for terminating a tenant’s month-to-month tenancy in retaliation for the tenant’s assertion of rights, a landlord’s motive for not renewing a tenancy that terminated at the expiration of the term of tenancy stated in the lease was irrelevant. Frenchtown Villa, 117 Mich App at 689. According to the Court, “a landlord seeking repossession of premises upon the expiration of the term of a fixed lease does not terminate the tenancy, but merely seeks repossession pursuant to the termination that has otherwise taken place.” Id.