The habitability covenants apply to all agreements to lease residential property. MCL 554.139 states:
“(1) In every lease or license of residential premises, the lessor or licensor covenants:
(a) That the premises and all common areas are fit for the use intended by the parties.
(b) To keep the premises in reasonable repair during the term of the lease or license, and to comply with the applicable health and safety laws of the state and of the local unit of government where the premises are located, 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.
(2) The parties to the lease or license may modify the obligations imposed by this section where the lease or license has a current term of at least 1 year.
(3) The provisions of this section shall be liberally construed, and the privilege of a prospective lessee or licensee to inspect the premises before concluding a lease or license shall not defeat his [or her] right to have the benefit of the covenants established herein.”
“The statutory protection of MCL 554.139(1) arises from the existence of a residential lease and consequently becomes a statutorily mandated term of such lease.” Jeffrey-Moise v Williamsburg Towne Houses Coop, Inc, 336 Mich App 616, 636 (2021) (quotation marks and citation omitted). The statutory protection is in addition to any common law protection. Id.
“MCL 554.139 provides a specific protection to lessees and licensees of residential property in addition to any protection provided by the common law.” Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425 (2008). “The statutory protection under MCL 554.139(1) arises from the existence of a residential lease and consequently becomes a statutorily mandated term of such lease. Therefore, a breach of the duty to maintain the premises under MCL 554.139(1)(a) or [MCL 554.139(1)(b)] would be construed as a breach of the terms of the lease between the parties and any remedy under the statute would consist exclusively of a contract remedy.” Allison, 481 Mich at 425-426.
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[.]” Additionally, the court rules governing Summary Proceedings to Recover Possession of Premises authorize the court to issue interim and final 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).
MCL 554.139(1) does not create “a duty on the part of owners of leased residential property to invitees or licensees generally.” Mullen v Zerfas, 480 Mich 989, 989 (2007) (the landlord did not owe a duty under MCL 554.139(1) to a tenant’s social guest). “The covenants created by [MCL 554.139] establish duties of a lessor or licensor of residential property to the lessee or licensee of the residential property, most typically of a landlord to a tenant. By the terms of [MCL 554.139], the duties exist between the contracting parties.” Mullen, 480 Mich at 990.
The statutory language distinguishes between property described as premises and property described as common areas. According to the Allison Court:
“ [T]he Legislature specifically set the term ‘common areas’ apart from the term ‘premises’ by applying the first covenant [(fit for the use intended)] to both terms and the second covenant [(keep in reasonable repair)] only to ‘premises.’
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The exclusion of common areas from the covenant to repair imposed by the statute does not necessarily mean that the lessor is free of any duty to repair common areas, because these areas must still be kept ‘fit for the use intended by the parties.’ The Legislature elected to impose two different duties on the lessor, one for ‘premises and all common areas’ and one for only ‘premises,’ and differentiated those duties through its choice of language, one covenant requiring ‘fitness’ and the other requiring ‘reasonable repair.’ Because both covenants imposed by the statute apply to premises, and only the covenant for fitness applies to common areas, we can reasonably infer that the Legislature intended to place a less onerous burden on the lessor with regard to common areas. Keeping common areas fit for their intended use may well require a lessor to perform maintenance and repairs to those areas, but may conceivably require repairs less extensive than those required by the second covenant.” Allison, 481 Mich at 432-433 (one to two inches of snow covering a parking lot did not render the lot unfit for its intended purpose, nor did it constitute a defect requiring repair).
“MCL 554.139(1)(a) does not require lessors to maintain a common area in ideal condition or even the most accessible condition possible. Rather, the statute requires the lessor to maintain a common area in a condition that renders it fit for its intended use.” Jeffrey-Moise, 336 Mich App at 637 (citation omitted). Accordingly, in Holder v Anchor Bay Investments, Inc, ___ Mich App ___, ___ (2024), the Court of Appeals concluded that exterior stairs “were fit for their intended use under MCL 554.139(1)” because the tenant was not impeded from accessing her apartment by way of the exteriors stairs. The Holder Court observed that the tenant admittedly used the stairway twice a day and was familiar with the danger posed by algae on the wooden steps such that she “took extra time when she used the steps.” Holder, ___ Mich App at ___ (quotation marks omitted). The Court further held that the defendant had no duty to repair because the exterior stairway was a common area and a “lessor’s duty to repair under MCL 554.139(1)(b) does not apply to common areas.” Holder, ___ Mich App at ___ (quotation marks and citation omitted).