1.5Liability of Landlord for Injury to Tenant, Invitees of Tenant, or Tenant’s Property

A.Injuries Arising Out of the Condition of the Premises

The basic rule in Michigan is that a violation of the state housing law is negligence per se. See Morningstar v Strich, 326 Mich 541, 545 (1950), citing Annis v Britton, 232 Mich 291, 294 (1925). Thus, there is a clear cause of action under such circumstances, although the tenant is subject to traditional negligence defenses, such as comparative negligence.¹

1.Landlord’s Common-Law Duty to Tenant and Tenant’s Guests

Generally, “a land possessor owes a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land.” Kandil-Elsayed v F&E Oil, Inc, ___ Mich ___, ___ (2023) (quotation marks and citation omitted). “In the context of premises liability, a landowner’s duty to a visitor depends on that visitor’s status.” Id. at ___ (quotation marks and citation omitted). “Historically, Michigan has recognized three common-law categories for persons who enter upon the land or premises of another: (1) trespasser, (2) licensee, or (3) invitee.” Id. at ___ (quotation marks and citation omitted). A trespasser enters upon another’s land without the owner’s consent; a licensee enters the land with the owner’s consent; an invitee enters upon invitation. Bredow v Land & Co, 307 Mich App 579, 585 (2014), vacated in part on other grounds 498 Mich 890, 585-586 (2015).^2, 3

“Consent to enter may be either express or implied,” and “[p]ermission may be implied where the owner acquiesces in the known, customary use of property by the public.” Kelsey v Lint, 322 Mich App 364, 371 (2017) (quotation marks and citation omitted). “Posting a notice may serve to prevent the creation of an implied license[,]” depending on “the context in which a member of the public encountered the signs and the message that those signs would have conveyed to an objective member of the public under the circumstances.” Id. at 374. “For purposes of determining a landowner’s duty in a premises liability case, the entrant’s status as an invitee, licensee, or trespasser on the land is considered at the time of injury.” Bredow, 307 Mich App at 586 (quotation marks and citation omitted).

“[A]n invitee is entitled to the highest level of protection under premises liability law.” Kandil-Elsayed, ___ Mich at ___ (quotation marks and citation omitted). “Generally speaking, invitee status is commonly afforded to persons entering upon the property of another for business purposes.” Id. at ___. “Land possessors share a special relationship with invitees that generates an affirmative duty to protect.” Id. at ___ (quotation marks and citation omitted). “Land possessors owe a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land.” Id. at ___ (quotation marks and citation omitted). “An invitee is a person who enters upon the land of another upon an invitation which carries with it an implied representation, assurance, or understanding that reasonable care has been used to prepare the premises, and make it safe for the invitee’s reception.” Id. at ___ (cleaned up). “[W]hen a land possessor should anticipate the harm that results from an open and obvious condition, despite its obviousness, the possessor is not relieved of the duty of reasonable care.” Id. at ___. “[W]hen assessing whether a defendant has breached their duty to take reasonable care to protect invitees from an open and obvious danger, courts should ask whether the possessor should anticipate the harm.” Id. at ___ (quotation marks and citation omitted). The open and obvious danger doctrine is not part of a land possessor’s duty. Id. at ___ (the “open and obvious nature of a condition is relevant to breach and the parties’ comparative fault”).

Under the common law, all invitees are also licensees. “The distinguishing characteristic that fixes the duty depends on whether the licensee’s visit is related to the pecuniary interests of the possessor of the land.” Stanley v Town Square Coop, 203 Mich App 143, 147 (1993). “[T]enants are invitees of their landlords.” Woodbury v Bruckner, 248 Mich App 684, 696 (2001). In addition, under common law, in common areas over which the landlord has control, a tenant’s guests are also the landlord’s invitees because the landlord receives a pecuniary benefit from the tenant (rent) in exchange for, among other things, the right to invite guests onto the common areas of the premises. Stanley, 203 Mich App at 148.

An invitee may “lose invitee status[] by acting in a manner inconsistent with the scope and purpose of the invitation.” Bredow, 307 Mich App at 588. “[A]n invitee is expected to use a landowner’s premises in the ‘usual, ordinary, and customary way,’ and . . . when an invitee fails to do so, he or she becomes, at best, a mere licensee.” Id. at 587-590.

2.Landlord’s Statutory Duty to Trespassers

Effective June 26, 2014, 2014 PA 226 created the Trespass Liability Act, MCL 554.581 et seq. Pursuant to the act, “[a] possessor of a fee, reversionary, or easement interest in land, including an owner, lessee, or other lawful occupant, owes no duty of care to a trespasser and is not liable to a trespasser for physical harm caused by the possessor’s failure to exercise reasonable care to put the land in a condition reasonably safe for the trespasser or to carry on activities on the land so as not to endanger trespassers.” MCL 554.583(1).

However, under limited circumstances a possessor of land may be subject to liability for physical injury or death to a trespasser. Specifically, MCL 554.583(2) provides that liability may arise if any of the following apply:

“(a) The possessor injured the trespasser by willful and wanton misconduct.

(b) The possessor was aware of the trespasser’s presence on the land, or in the exercise of ordinary care should have known of the trespasser’s presence on the land, and failed to use ordinary care to prevent injury to the trespasser arising from active negligence.

(c) The possessor knew, or from facts within the possessor’s knowledge should have known, that trespassers constantly intrude on a limited area of the land and the trespasser was harmed as a result of the possessor’s failure to carry on an activity in that limited area involving a risk of death or serious bodily harm with reasonable care for the trespasser’s safety.

(d) The trespasser is a child injured by an artificial condition on the land and all of the following apply:

(i) The possessor knew or had reason to know that a child would be likely to trespass on the place where the condition existed.

(ii) The possessor knew or had reason to know of the condition and realized or should have realized that the condition would involve an unreasonable risk of death or serious bodily harm to a child.

(iii) The injured child, because of his or her youth, did not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it.

(iv) The utility to the possessor of maintaining the condition and the burden of eliminating the danger were slight as compared with the risk to the child.

(v) The possessor failed to exercise reasonable care to eliminate the danger or otherwise to protect the child.” MCL 554.583(2)(a)-(d).

“[MCL 554.583] does not increase the liability of a possessor of land and does not affect any immunity from or defense to civil liability established by or available under the statutes or common law of this state to which a possessor of land is entitled.” MCL 554.583(3).

3.Landlord’s Statutory Duty to Residential Tenants

“In addition to the general common-law duties that a possessor of land owes to invitees, MCL 554.139 imposes further covenants and duties on landlords who lease or license their property to residential tenants.” Jeffrey-Moise v. Williamsburg Towne Houses Coop, Inc, 336 Mich App 616, 636 (2021). MCL 554.139(1) provides:

“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 this 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.”⁴

“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, 336 Mich App at 636 (quotation marks and citation omitted).

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 statute “establishes 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.” Id. at 990. By the statute’s terms, the imposed duties “exist between the contracting parties.” Id. The Mullen Court held that the defendant-landlord did not owe a duty to the plaintiff, the tenant’s social guest, under MCL 554.139(1). Mullen, 480 Mich at 990.

“A defendant’s duty [under MCL 554.139(1)] depends on whether the area is considered part of the ‘premises’ or whether it is a ‘common area.’” Holder v Anchor Bay Investments, Inc, ___ Mich App ___, ___ (2024). “Under MCL 554.139(1)(a), a landlord must ensure that common areas are fit for their intended use.” Holder, ___ Mich App at ___ (emphasis added). Additionally, 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).

“MCL 554.139(1)(a) does not require lessors to maintain a common area in an ideal condition or even in 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).

Although “the open and obvious doctrine did not shield [a landlord] from liability under [MCL 554.139],” Royce v Chatwell Apartments, 276 Mich App 389, 397-398 (2007), the Michigan Supreme Court overruled this doctrine and the related special-aspects doctrine in Kandil-Elsayed v F & E Oil, Inc, ___ Mich ___, ___ (2023), “holding instead that when a land possessor should anticipate the harm that results from an open and obvious condition, despite its obviousness, the possessor is not relieved of the duty of reasonable care.” Holder v Anchor Bay Investments, Inc, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted).

4.Tenant’s Common-Law Duty to Tenant’s Guests

“Because the tenants do not receive any pecuniary benefit from [their social guests’ use of the common areas], those [individuals] invited as social guests of [a] tenant[] are licensees for the purpose of defining the duty their host[] owe[s] them.” Stanley, 203 Mich App at 147-148. A licensee “‘assume[s] the ordinary risks associated with [his or her] visit.’” Yousif v Mona, 474 Mich 891 (2005), quoting James v Alberts, 464 Mich 12, 19 (2001).

B.Landlord’s Common-Law Duty to Protect Against the Foreseeable Criminal Acts of a Third Party

“[W]hen [a landlord is] put on notice of criminal acts that pose a risk of imminent and foreseeable harm to an identifiable tenant or invitee[,] [the landlord has] a duty to reasonably expedite police involvement.” Bailey v Schaaf, 494 Mich 595, 600 (2013). “Only when given notice of such a situation is a duty imposed on a landlord. Notice is critical to determination whether a landlord’s duty is triggered; without notice that alerts the landlord to a risk of imminent harm, [the landlord] may continue to presume that individuals on the premises will not violate the criminal law.” Id. at 615. However, a company contracted by a landlord to provide security has no common law duty to protect individuals from criminal acts by third-parties or to involve the police. Bailey v Schaaf (On Remand), 304 Mich App 324, 340 (2014), vacated in part on other grounds 497 Mich 927 (2014).⁵ Moreover, the fact that a landlord contracts with a security company to meet its duty to involve the police does not relieve the landlord of direct liability if the security company fails to perform its contractual duty. Schaaf, 304 Mich App at 354.

“Because a landlord exercises exclusive control over the common areas of the premises, the landlord is the only one who can take the necessary precautions to ensure that the common areas are safe for those who use them.” Stanley, 203 Mich App at 146.

See Johnston v Harris, 387 Mich 569, 572-573 (1972), where the landlord was liable to his tenant who was mugged on the front porch of his dwelling because the landlord failed to provide adequate lighting in this public area and did not maintain the lock to the front door in reasonable repair.

C.Residential Lease Provisions Waiving Liability

Clauses that attempt to exempt a landlord from liability for his or her negligent acts are prohibited and declared void by the Truth in Renting Act, MCL 554.633(1)(e):⁶

“(1) A rental agreement shall not include a provision that does 1 or more of the following:

* * *

(e) Exculpates the lessor from liability for the lessor’s failure to perform, or negligent performance of, a duty imposed by law. This subdivision does not apply to a provision that releases a party from liability arising from loss, damage, or injury caused by fire or other casualty for which insurance is carried by the other party, under a policy that permits waiver of liability and waives the insurer’s rights of subrogation, to the extent of any recovery by the insured party under the policy.”