M Civ JI 101.05 Termination Action: Retaliatory Termination - Landlord Burden of Proof

The landlord has the burden of proving that [ he / she ] served the tenant with a written [ one month’s / one week’s / [ other ] ] notice to terminate the tenancy.

In this case the tenant has [ attempted to secure or enforce rights against the landlord / complained against the landlord [ describe complaint ] ] to [ name of court / name of governmental agency ] within ninety days of the commencement of this termination action, [ date action filed ], and the [ attempt / complaint ] has not been dismissed or denied.

Under these circumstances, the law places on the landlord the burden of proving that [ his / her ] termination of the tenancy was not intended primarily as a penalty or retaliation against the tenant for [ that act / those acts ].

Your verdict will be for the landlord if [ he / she ] served the tenant with the required [ one month’s / one week’s / [ other ] ] notice, and if the termination of tenancy was not intended primarily as a penalty or retaliation for [ that act / those acts ].

Your verdict will be for the tenant if the landlord did not serve the tenant with the required [ one month’s / one week’s / [ other ] ] notice or if the termination of tenancy was intended primarily as a penalty or retaliation for [ that act / those acts ].

Note on Use

This instruction should be given if there is no dispute on the facts indicated in the second paragraph.

If the tenant claims that the termination is in retaliation both for his or her complaint within the ninety-day period and for a complaint or attempt to secure rights prior to the ninety-day period, this instruction must be modified. The landlord has the burden of proof to show that he or she was not retaliating against the tenant only with regard to a complaint or attempt to secure rights within the ninety-day period, while the tenant has the burden of proof to show that the landlord was retaliating with regard to any complaint or attempt to secure rights prior to the ninety-day period.

This instruction should be used with M Civ JI 8.01 Meaning of Burden of Proof.

Comment

Requirements of notice to terminate a tenancy are found in MCL 554.134.

See MCL 600.5720(2) for burden of proof on retaliatory termination. The defense of retaliatory eviction is not applicable where the landlord is seeking repossession of premises upon the expiration of the term of a fixed lease. Frenchtown Villa v Meadors, 117 Mich App 683; 324 NW2d 133 (1982).

History

M Civ JI 101.05 was added April 1, 1981. Amended January 2020.