In summary proceedings based on the tenant’s nonpayment of rent, the landlord must plead and prove the following:
•“the rental period and rate[.]” MCR 4.201(B)(3)(a)(i).
•“the amount due and unpaid when the complaint was filed[.]” MCR 4.201(B)(3)(a)(ii).
•“the date or dates the payments became due.” MCR 4.201(B)(3)(a)(iii).
“Tenants may . . . raise any defense, which would justify the withholding of rent, in an action by the landlord to regain possession for nonpayment of rent.” Rome v Walker, 38 Mich App 458, 464 (1972). The following defenses are available to a tenant defending against a termination of tenancy for nonpayment of rent due:
•The tenant made payment or partial payment or paid the redemption amount.
•The amount owing should be abated.
•The case involves actual or constructive eviction.
•The amount owed was eliminated or reduced by the tenant’s right to repair and deduct.
•Payment was made to or by a third party.
•The landlord breached the lease.
A.Payment of Rent or Redemption Amount
A tenant may avoid a judgment of possession for nonpayment of rent if the tenant pays the rent due within the seven-day period of time permitted by MCL 600.5714(1)(a) (demand for possession). See MCL 600.5744(7).
In addition, in most circumstances, a tenant may avoid eviction even after entry of a judgment of possession following summary proceedings. Unless any of the circumstances in MCL 600.5744(3)-(4) apply (immediate issuance of an order of eviction (writ of restitution) or judgment of possession based on forfeiture of an executory contract, respectively), a tenant has an express statutory right to avoid an order of eviction by paying the redemption amount (rent due plus taxed costs) within the time stated in the judgment of possession (no less than ten days from the date the possession judgment was entered).1 MCL 600.5744(5); MCL 600.5744(7); Birznieks v Cooper, 405 Mich 319, 329-330 (1979).2
A tenant may be entitled to have all or part of his or her security deposit applied against any rent owing. MCL 554.607(b); Hovanesian v Nam, 213 Mich App 231, 235 (1995).3
Tenants defending against eviction actions for nonpayment of rent may seek to enforce the habitability covenants when the landlord’s alleged failure to comply with the covenants constitutes a defense to payment of rent. See MCL 600.5741, which states in part: “In determining the amount due under a tenancy the jury or judge shall deduct any portion of the rent which the jury or judge finds to be excused by the plaintiff’s breach . . . of 1 or more statutory covenants imposed by . . . [MCL] 554.139[.]”
A landlord seeking possession of residential premises “must allege that [he or she] has performed his or her covenants to keep the premises fit for the use intended, in reasonable repair during the term of the lease . . . , and in compliance with applicable state and local health and safety laws, except when the disrepair or violation has been caused by the tenant’s willful or irresponsible conduct or lack of conduct, or the parties to the lease . . . have modified those obligations, as provided for by statute. Plaintiff must explain any defects in this allegation, for example local government’s failure to inspect despite a request to do so.”4 MCR 4.201(B)(3)(c). A judgment of possession must not be entered if it is established “[t]hat the [landlord] committed a breach of the lease which excuses the payment of rent if possession is claimed for nonpayment of rent.” MCL 600.5720(1)(f).
The habitability covenants apply to all agreements to lease residential property. See MCL 554.139(1)(a)-(b), which state that a landlord covenants that the property is fit for its intended use, that he or she will keep the property in reasonable repair during the lease term, and that he or she will comply with government health and safety laws “except when the disrepair or violation of the applicable health or safety laws has been caused by the tenant[’]s wilful or irresponsible conduct or lack of conduct.” The Housing Law of Michigan has a general provision requiring that “[e]very dwelling and all the parts thereof including plumbing, heating, ventilating and electrical wiring shall be kept in good repair by the owner.” MCL 125.471. A landlord is required to keep in good repair appliances furnished by the landlord. Hockenhull v Cutler Hubble, Inc, 39 Mich App 163, 167-168 (1972) (gas cooking stove).
The court or the jury must determine the amount of rent abated under circumstances that warrant an abatement. See MCL 600.5741, which states in part:
“If it is found that the [landlord] is entitled to possession of the premises, in consequence of the nonpayment of any money due under a tenancy , . . . the jury or judge making the finding shall determine the amount due or in arrears at the time of trial which amount shall be stated in the judgment for possession. In determining the amount due under a tenancy the jury or judge shall deduct any portion of the rent which the jury or judge finds to be excused by the [landlord’s] breach of the lease or by his [or her] breach of 1 or more statutory covenants imposed by [MCL 554.139]. The statement in the judgment for possession shall be only for the purpose of prescribing the amount which, together with taxed costs, shall be paid to preclude issuance of the [order of eviction].”5
Additionally, the court rules authorize interim orders and injunctive relief “to prevent the person in possession from damaging the property[,] or [] to prevent the person seeking possession from rendering the premises untenantable or from suffering the premises to remain untenantable.” MCR 4.201(I)(1)(a)-(b).
C.Actual, Partial, or Constructive Eviction6
An eviction does not require “an actual, physical expulsion from the [premises]. Any act or acts of the landlord which deprived the tenant of the beneficial enjoyment of the [premises] to which he [or she] was entitled under the lease would amount in law to an eviction.”Bamlet Realty Co v Doff, 183 Mich 694, 702 (1915).
Any wrongful eviction, including a partial eviction, caused by the landlord or an agent of the landlord results in an abatement of rent during the existence of the conditions that caused the eviction or until the end of the lease under which the premises are held, whichever comes first. Ravet v Garelick, 221 Mich 70, 72 (1922); Kuschinsky v Flanigan, 170 Mich 245, 247-248 (1912). In the event of a partial eviction, a tenant is not required to vacate the premises; rather, a tenant “may remain in possession [of the premises] during the remainder of [the lease] term.” Ravet, 221 Mich at 72.
A tenant who remains in possession of premises from which he or she has been partially evicted has not consented to the eviction, and the tenant’s voluntary payment of rent does not operate as a waiver. Kuschinsky, 170 Mich at 248. Only a new contract by which the tenant agrees to pay rent for the premises can renew the tenant’s duty to pay the landlord for occupying the premises. Id.
Partial eviction is a defense to an action against a tenant for failure to pay rent if the eviction occurs during the term of a tenant’s lease. Ravet, 221 Mich at 71. A tenant at will may raise the defense only during the time in which he or she was entitled to possession of the premises. McVeigh v McAlpine, 335 Mich 413, 415 (1953). The time before which a notice to quit becomes effective constitutes the “remainder of [the lease] term” for purposes of such a tenant’s defense of partial eviction to a claim of nonpayment. Id.
A tenant’s eviction from part of the rented premises entirely suspends the tenant’s duty to pay rent; the tenant is not required to apportion the rental amount based on the part of the premises he or she is able to inhabit. Kuschinsky, 170 Mich at 247-248.
“Constructive eviction occurs ‘when the act of the landlord is of such a character as to deprive the tenant . . . of the beneficial use and enjoyment of the whole or any part of the demised property, to the extent he [or she] is thus deprived.’” Belle Isle Grill Corp v Detroit, 256 Mich App 463, 474-475 (2003), quoting Bamlet Realty, 183 Mich at 703 (alteration added). The circumstances may cause the tenant to abandon the premises in whole or in part. Briarwood v Faber’s Fabrics, Inc, 163 Mich App 784, 790 n 2 (1987).
In addition to the tenant’s ability to use constructive or actual eviction as a defense to a landlord’s claim for unpaid rent, the tenant may also initiate an action against the landlord for “forcible and unlawful” ejection or for unlawful interference with his or her possessory interest in the premises. MCL 600.2918(1)-(2). In addition to recovering possession of the premises, a successful action under MCL 600.2918(1) (forcible and unlawful ejection) or MCL 600.2918(2) (unlawful interference with possessory interest) entitles the tenant to the greater of three times the amount of his or her actual damages or $200.7 MCL 600.2918(1)-(2). There are times, however, when a landlord’s interference with a tenant’s possessory interest is authorized.8 See MCL 600.2918(3).
A tenant’s right to repair and deduct was recognized in Anchor Inn of Mich, Inc v Knopman, 71 Mich App 64, 67 (1976) (defective air conditioning apparatus):
“Where the landlord has covenanted to make repairs and fails to do so, the tenant, after giving reasonable notice to the landlord, may make the repairs and recover the cost of such repairs from the landlord or he [or she] may deduct the cost from the rent. Unless the landlord’s duty to repair is expressly made conditional upon receipt of notice from the tenant, such duty may arise from the landlord’s actual knowledge of the need for repair.” (Internal citations omitted.)
E.Payment to or by Third Party
MCL 600.5720(1)(g) prohibits entry of a judgment for possession for nonpayment of rent where the tenant establishes
“[t]hat the rent allegedly due, in an action where possession is claimed for nonpayment of rent, was paid into an escrow account under [MCL 125.530 (certificate of compliance violations)]; was paid pursuant to a court order under [MCL 125.534(5) (notice of violation and deduction from rent of cost of repairs)]; or was paid to a receiver under [MCL 125.535 (appointment of receiver when suit brought against owner to enforce the Housing Law of Michigan)].”
MCL 400.14(1)(c) also prohibits a landlord from “maintain[ing] an action for the rent or possession of the premises” when a government agency withholds the tenant’s public rent assistance because of code violations for which the landlord is responsible. See also MCL 400.14c (public assistance for rent shall not be paid “for any dwelling that does not meet the [minimum housing] standard[s] established under [MCL 400.14c]”).
“A judgment for possession of the premises for an alleged termination of tenancy shall not be entered against a [tenant] if . . . the [landlord] committed a breach of the lease which excuses the payment of rent if possession is claimed for nonpayment of rent.” MCL 600.5720(f).
1 “The date of signing an order or judgment is the date of entry.” MCR 2.602(A)(2).
2 Birznieks was decided before 2019 PA 2, effective July 2, 2019, which renumbered MCL 600.5744, subsections (2)-(7) as (3)-(8).
3 See Section 2.1 for more information on security deposits.
4 “A court may not refuse a filing based on anything in [MCR 4.201(B)(3)(c)].” MCR 4.201(B)(3)(c).
5 See Restatement Property, 2d, § 11.1, for methods of calculating the amount of rent abatement.
6 See Section 1.3 for a detailed discussion of MCL 600.2918, the anti-lockout statute.
7 See Section 1.3 for a detailed discussion of the statute applicable to forcible and unlawful ejection and unlawful interference with a possessory interest.
8 See Section 1.3(C).