A summary of the notice required to properly initiate summary proceedings is provided in this section for purposes of illustrating aspects of the notice process subject to challenge by the tenant.1
A complaint that initiates summary proceedings must comply with the requirements of MCR 4.201(B). At a minimum, the complaint must:
•be in compliance with general pleading requirements. MCR 4.201(B)(1)(a).
•“have attached to it a copy of any written instrument on which occupancy was or is based[.]” MCR 4.201(B)(1)(b).
•“have attached to it copies of any notice to quit and any demand for possession” showing when and how the notice and demand were served. MCR 4.201(B)(1)(c).
•contain a description of the premises or the tenant’s part of the premises. MCR 4.201(B)(1)(d).
•show that the landlord is entitled to possession and explain why the tenant’s possession “is improper or unauthorized.” MCR 4.201(B)(1)(e).
•be filed with a jury demand if the landlord wants a jury trial. MCR 4.201(B)(2). “The jury trial fee must be paid when the demand is made or within 5 days of being advised of the rights and information under [MCR 4.201(K)(2)(a)], unless payment of fees is waived under MCR 2.002.” MCR 4.201(B)(2).
B.Service of Process for Complaint
Proper service in summary proceedings requires that the summons and complaint be delivered to the tenant in two ways:
•The summons and complaint must be mailed to the tenant, and
•The summons and complaint must be delivered by a method described in MCR 2.105,2 or must be delivered to a proper member of the tenant’s household with instructions to deliver it to the tenant, or if personal service cannot be made, must be tacked to the premises. MCR 4.201(D)(1)-(2).
“Service-of-process rules are intended to satisfy the due process requirement that a defendant be informed of the pendency of an action by the best means available, by methods reasonably calculated to give a defendant actual notice of the proceeding and an opportunity to be heard and to present objections or defenses.” Hill v Frawley, 155 Mich App 611, 613 (1986). See also MCR 2.105(K)(3).
Service of process under MCR 2.105 must be completed, or a tenant must appear or answer the complaint, before a court may enter a money judgment against the tenant. MCR 4.201(H)(1)(b). If service is not made and the tenant does not appear or answer the complaint, “a money claim must be . . . dismissed without prejudice, or . . . adjourned until service of process is complete[.]” MCR 4.201(H)(1)(b)(i)-(ii).
“An action shall not be dismissed for improper service of process unless the service failed to inform the defendant of the action within the time provided in these rules for service.” MCR 2.105(L)(3). A defendant may appear at the first hearing and claim that service of process was insufficient as long as the defendant makes the claim in his or her first motion for summary disposition or first responsive pleading, whichever comes first. Al-Shimmari v Detroit Med Ctr, 477 Mich 280, 293 (2007). See MCR 2.116(D)(1). Dismissal is appropriate, however, when there is “a complete failure of service of process.” Holliday v Townley, 189 Mich App 424, 425-426 (1991).
C.Notices to Quit and Demands for Possession
1.Notices to Quit
With the exception of a notice to quit in cases involving a controlled substance violation (the notice to quit must be written), no specific form or content guidelines apply to notices to quit. However, depending on the type of tenancy involved, a notice to quit must allow the tenant a specified amount of time to vacate the premises or, if applicable, otherwise remedy the landlord’s claim against the tenant. Summary proceedings may not begin unless and until a tenant holds over after the time specified in the following notices to quit.
•Tenancy at will or by sufferance. A tenant at will or by sufferance must be given one month to vacate the premises, or if the interval between rent payments under a lease is less than three months, a period of time equal to that interval. MCL 554.134(1). See also MCL 600.5714(1)(c)(iii) (summary proceedings to recover possession if tenant holds over after time stated in notice to quit).
•Nonpayment of rent. A tenant is entitled to a seven-day notice to quit. MCL 554.134(2).3 See also MCL 600.5714(1)(c)(iii) (summary proceedings to recover possession if tenant holds over after time stated in notice to quit).
•Year-to-year tenancy. A tenant must be given a one-year notice to quit. MCL 554.134(3). See also MCL 600.5714(1)(c)(iii) (summary proceedings to recover possession if tenant holds over after time stated in notice to quit).
•Controlled substance violation on the premises. A tenant must be given a 24-hour written notice to vacate the premises. MCL 554.134(4).4 See also MCL 600.5714(1)(c)(iii) (summary proceedings to recover possession if tenant holds over after time stated in notice to quit).
Specific content and service requirements apply to demands for possession.
According to MCL 600.5716, a demand for possession must:
•be written,
•be addressed to the person in possession of the premises,
•give the address or description of the premises,
•clearly state the reasons for the demand,
•clearly state the time in which the tenant must take remedial action, and
•be dated and signed by the person entitled to possession of the premises, or his or her attorney or agent.
If the demand for possession is based on nonpayment of rent or other sums due, the demand for possession must state the amount due at the time of the demand. MCL 600.5716.
The requirements of properly serving a demand for possession are found in MCL 600.5718(1), which states that the demand for possession must:
•be personally delivered to the tenant, MCL 600.5718(1)(a), or
•be personally delivered on the premises to a member of the tenant’s family or household or an employee who is of suitable age and discretion with instructions to deliver the demand to the tenant, MCL 600.5718(1)(b), or
•be sent by first-class mail addressed to the tenant, MCL 600.5718(1)(c), or
•be sent by electronic service, “if [the tenant] has in writing specifically consented to electronic service of the demand and if the consent or confirmation of the consent has been sent by 1 party and affirmatively replied to, by electronic transmission, by the other party.” MCL 600.5718(1)(d).
“If the demand is mailed, the date of service . . . is the next regular day for delivery of mail after the day when it was mailed.” MCL 600.5718(1)(c).
The use of electronic service is subject to MCL 600.5718(2), which provides:
“The electronic service address used by a party in the process under [MCL 600.5718(1)(d)] shall be considered to remain that party’s correct, functioning electronic service address, unless the process under [MCL 600.5718(1)(d)] is repeated using a different electronic service address for that party or unless that party notifies the other in writing that that party no longer has an electronic service address. A landlord shall not refuse to enter a lease because the prospective tenant declines to consent to electronic service under [MCL 600.5718].”
c.Initiating Summary Proceedings
Summary proceedings may not begin unless and until a tenant holds over after the time specified in the following demands for possession.
•Nonpayment of rent. A tenant must be given seven days to vacate the premises or pay the amount due plus taxed costs. MCL 600.5714(1)(a);5 MCL 600.5744(7).
•Controlled substance violation on the premises. A tenant must be given a 24-hour written notice. MCL 600.5714(1)(b).6
•Health hazard on, or physical injury to, the premises. A tenant is entitled to seven days to vacate the premises. MCL 600.5714(1)(d). Summary proceedings on this basis may not begin more than 90 days after the landlord discovered or should have discovered the condition of the premises. Id.
•Causing or threatening physical injury to an individual. A tenant must be given a seven-day notice to vacate the premises. MCL 600.5714(1)(e).
D.No Statutory Notice Required
Applicable statutory provisions do not require a landlord to first serve the tenant with a notice to quit or a demand for possession before initiating summary proceedings in the following circumstances:7
•Holding over after expiration of the term of demise.8 MCL 600.5714(1)(c)(ii).
•Being in possession after forcible entry, holding possession by force after peaceable entry, or trespassing. MCL 600.5714(1)(f).
•Continuing in possession after redemption period following the sale of the premises by mortgage or execution. MCL 600.5714(1)(g).
•Continuing in possession after the premises are sold by authority of the probate court or by will. MCL 600.5714(1)(h).
Committee Tip:
The fact that no formal notice to quit or demand for possession is required in the situations above does not mean that a landlord may take immediate possession of the premises. The landlord must initiate summary proceedings in order to recover possession, and the court must determine whether the landlord is lawfully entitled to possession of the premises under the circumstances.
•Holding over after termination of the lease “pursuant to a power to terminate[.]” MCL 600.5714(1)(c)(i).
The applicable statute in the Summary Proceedings Act does not specify that any notice be given before initiating summary proceedings when a lease is terminated pursuant to a provision in the lease (a power to terminate). MCL 600.5714(1)(c)(i). While there is no statutory requirement of notice, the notice requirement should be contained in the lease itself. A power to terminate included in a lease must clearly indicate what action or omission by the tenant permits the landlord to elect such a remedy, and the lease must specify the notice of termination to which the tenant is entitled. Erickson v Bay City Glass Co, 6 Mich App 260, 265 (1967).
Committee Tip:
A one-month notice is the most commonly used notice period applicable to the termination of a tenancy where a lease exists. In most cases, the interval between payments is one month, and the committee believes that a tenant under a valid lease should be entitled to as much notice as is a tenant in possession of the premises without a lease (tenants at will or by sufferance).
F.Acceptance of Rent After Notice to Terminate
When a landlord accepts a tenant’s payment for his or her occupancy of the premises for a period of time after the date by which the tenant was expected to vacate, a tenant may reasonably conclude that the landlord no longer intends that the tenant vacate the premises. Park Forest of Blackman v Smith, 112 Mich App 421, 426 (1982). Therefore, “[a] landlord waives the notice to terminate by accepting rental payments for a period of time subsequent to the date specified in the notice.” Id. The Park Forest Court suggested that in such a case, “[a] new notice to terminate then must be sent to the tenant before the summary proceedings can be commenced.” Id. at 425. See also Aspen Enterprises, Ltd v Bray, 148 Mich App 9, 12-13 (1985), where the Court stated: “Acceptance of rent after efforts to gain possession have been commenced may result in a waiver[,]” but “[r]eceipt of rent checks after sending a notice to quit does not automatically constitute waiver.” However, “the landlord’s retention of [] payment [for future rent], without more, constitutes a waiver of the notice.” Id. at 14.