UPDATE: On Monday, April 20, 2020, Governor Gretchen Whitmer signed Executive Order 2020-54, extending the duration of relief in prior Order 2020-19 through May 15, 2020.
With Executive Order 2020-54, Governor Whitmer enacted a “temporary prohibition against entry to premises for the purpose of removing or excluding a tenant or mobile home owner from their home,” which can fairly be described as an “eviction moratorium.”
The text of Order 54 largely mirrors Order 19 analyzed below, save for minor changes to Section 3 thereof that seek to clarify that the traditional landlord’s “Notice to Quit” for non-payment of rent can no longer threaten to evict or re-take possession. As such, a customized demand for payment of rent will be likely for the duration of Order 54. This is also discussed below.
This is a brief summary and does not constitute legal advice. You can view our summary of Executive Order 2020-19 here. We encourage you to review Executive Order 2020-54 in its entirety, and contact your Fraser Trebilcock attorney for any questions you may have.
On Friday, March 20, 2020, Governor Whitmer signed an executive order enacting a “temporary prohibition against entry to premises for the purpose of removing or excluding a tenant or mobile home owner from their home,” which can fairly be described as an “eviction moratorium.” It was intended to stay in place until the end of the night on Friday, April 17, 2020, which effectively left it in place until Monday, April 20. On Monday, April 20 it was rescinded, and the nearly identical Order 2020-54 (“Order 54”) took its place.
Order 54 prohibits landlords and land contract vendors from evicting tenants or vendees until after May 15, 2020. It also prohibits personal delivery of demands for payment of rent, prohibits the use of Notices to Quit and other forfeiture notices that threaten eviction or seek to take possession. It has provisions that apply to court officers as well. It is both detailed and summarized below.
Legal Basis: Like all the COVID-19 executive orders, Order 54 follows the March 10, 2020 Executive Order 2020-4 and cites to updated versions, which declared a state of emergency across Michigan. It cites Michigan’s Constitution (Const 1963, art 5, sec 1) (vesting executive power in the governor) for support, along with Michigan’s 1976 Emergency Management Act, codified at MCL 30.401-421, and its 1945-era Emergency Powers of the Governor Act, codified at MCL 10.31-33 (please see links below to these statutes). Order 19 states:
“[t]he current states of emergency and disaster would be exacerbated by the additional threats to the public health related to removing or excluding people from their residences during the COVID-19 pandemic. To reduce the spread of COVID-19, protect the public health, and provide essential protections to vulnerable Michiganders, it is reasonable and necessary to provide temporary relief from certain eviction-related requirements.”
In sum, the Governor has determined that the personal interactions necessitated by the eviction process, and the possibility of people being put out “on the street,” so to speak, presents avoidable risks. Thus, the landlords of Michigan and those who sold residential property on land contract are being called on to contribute resources to the public good. At the time of writing and publication of this article, this contribution is uncompensated. Without addressing or resolving those issues, this article simply identifies what is prohibited and places those prohibitions into the context of the ordinary procedures for evictions or summary land contract forfeitures.
Prohibited Acts: Order 54 prohibits or regulates the following, described as numbered under the Order itself. The terms of Order 54 are summarized here:
- No person shall remove or exclude a residential tenant, people holding under that tenant (such as roommates, family members, and likely any other hangers-on), land contract vendees (buyers) or those holding under those vendees from the residential premises in question until after May 15, 2020. This does not apply if the “tenant, vendee, or person holding under them poses a substantial risk to another person or an imminent and severe risk to property. This order should be broadly construed to effectuate that purpose.”
In other terms, regardless of where one was at in an eviction or land contract forfeiture process, actual removal or execution on a Writ of Restitution or other eviction order is stayed, barring exception. The “severe risk” exception is discussed briefly in the “What This Means” section below.
- “This order does not affect the inherent power of a judge to order equitable relief.”
It is uncertain at this time whether this section intends to create a judicial carve out that would allow the equitable relief of eviction in circumstances not contemplated under Order 54, or whether this is a statement intended to limit the scope of Order 54 and prevent it from being mis-applied in commercial or other contexts. The later seems more likely, but this section is open to some interpretation.
- This section, translated, provides that tenants and vendees still have to pay, and will still owe money for the time they occupy the property in question. In addition, landlords and vendors may issue written demands for payment of rent,, but they may no longer mail notices to quit (and by extension, other forfeiture notices) that threaten eviction or re-possession as a remedy. These demands for rent cannot be personally delivered or served during the moratorium period – they must be mailed or e-served if allowed under the applicable lease.
It is highly unlikely that any judge will construe this section as prohibiting a landlord or vendor from knocking on a tenant’s door to conduct other business, to check on a tenant, or to provide assistance to a tenant. The landlord just cannot knock on a tenant’s door to deliver the “bad news” of a demand letter, and in no circumstances may a landlord deliver or send a notice to quit or other document threatening eviction. The damages to the landlord for non-payment of rent continue to accrue, however.
- Further, no person may enter residential property to remove a tenant, vendee or anyone claiming under them, even if they have already obtained a Writ of Restitution or other eviction order. Like Section 1 above, there is an exception where the tenant, vendee, or person holding under them poses a substantial risk to another person or an imminent and severe risk to property.
This is largely a re-hash of Section 1: if no person can remove or evict under Section 1, it follows that no person may enter a rental unit or residential property subject to a land contract for those purposes.
- There is a moratorium preventing any court officer, sheriff or deputy from serving process (i.e., new lawsuits) that seek eviction of forfeiture as a remedy.
This section governs law enforcement, as opposed to the landlords or land contract vendors. It does not, on its face, bar lawsuits that only seek money damages. Assuming your local district court will take the filing and issue process (which remains uncertain at this time), one may theoretically initiate a new contract-based suit for money damages and seek to amend to add an eviction remedy when the moratorium is lifted.
- “[N]o person may deny a mobile home owner access to their mobile home, except when the mobile home owner’s tenancy has been terminated because the mobile home owner poses a substantial risk to another person or an imminent and severe risk to property.”
This section basically brings mobile home parks under the same prohibitions applicable to residential landlords and land contract vendors.
- For 30 days after the restrictions in sections 1 through 6 expire, courts have latitude to adjourn proceedings, toll redemption periods, toll limitations periods, and extend deadlines.
This appears to be a “housekeeping” section granting court latitude with scheduling that likely already would be found to exist under Michigan’s rules of Court and revised Judicature Act.
- As used in this order, all terms have the meaning provided by the Revised Judicature Act.
- This section rescinds Order 19 .
- This section provides that a willful violation of this Order is a misdemeanor.
This section requires little or no translation.
- A copy of this order will be transmitted to the State Court Administrative Office.
This is a mechanical section that will mean little to landlords or land contract vendors.
What This Means: Landlords and those who sold residential property on land contract must either challenge the legality of Order 54, or wait out all evictions until it expires or is amended to allow evictions.
Order 54 excepts situations where a tenant is creating substantial risk to another person or an imminent and severe risk to property. While Order 54 is silent as to what those situations are, the case-by-case determinations that a court might make in that regard will be governed and informed by existing statute and common law. Owing to the numerous pronouncements in Order 54 regarding the necessity for people to shelter in place, along with the “Stay At Home” Order issued March 23, 2020 (and its successor orders), it seems clear that having a tenant or vendee with COVID-19 will not likely be deemed an exception, unless that person is taking assaultive or offensive actions to spread it to others in the building. If you are confronted with that situation, nothing in Order 54 prevents a landlord from calling the police along with pursuing legal remedies.
Landlords may still mail and e-mail demands for payment, but (unlike Order 19 that was rescinded), landlords and land contract vendors may no longer deliver, mail, email or otherwise tender notices to quit, notices to terminate tenancies and related land contract forfeiture notices. This is the substantive change in Order 54 that may create problems for landlords and land contract vendors. Order 54 does not technically prohibit a contract-based lawsuit against a tenant or vendee for money damages, but your counsel may advise that, in these uncertain times, such a suit may be of limited utility, unless it is later amended to add the eviction remedy.
In the meantime, Michigan’s prohibitions against landlord self-help and retaliatory eviction remain in place. While it was never a good time for landlords to take certain matters into their own hands before the current state of emergency, now is an even worse time to do so. It is anticipated that courts would treat lockouts or landlord utility shutoffs or service denials harshly at this time. It is unknown whether courts would likewise be lenient with landlords regarding repair issues at this time, but there are good arguments to support a rule of reason in that regard.
In Conclusion: Every situation is different. This general discussion cannot be used as a substitute for legal advice, pursuant to an established attorney-client relationship. Thus, contact your legal counsel or the undersigned if you have questions. The attorneys at Fraser Trebilcock remain ready and able to serve.
We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.
Jared Roberts is a shareholder at Fraser Trebilcock who works in real estate litigation and transactions, among other areas of the law. Jared also “walks the walk” as a landlord and owner of residential rental properties and apartments in Downtown Lansing. He may be reached at email@example.com and (517) 482-0887.