Eviction Moratorium Extended with Guidance for Courts Once the Moratorium is Lifted

Hours before it was set to expire, Michigan’s moratorium on evictions was further extended on June 11, 2020 with Executive Order 2020-118 (the “Order”). Pursuant this Order, unless the occupant of the dwelling poses a substantial risk to another person or an imminent and severe risk to property, no individual may be removed or excluded from a leased residential premises through June 30, 2020.

The moratorium has been in effect since March 20, 2020 by Executive Order 2020-19 and was subsequently extended via Executive Orders 2020-54 and 2020-85. The Order is premised on the idea that threats to remove or exclude people from their residences while the COVID-19 crisis is ongoing may exacerbate the already heightened risks to the public health.

While the Order is in place, no person may enter residential property to remove or exclude occupants from the dwelling or execute a writ of eviction to restore possession of the premises to the owner under an eviction action. The Order specifically states that it does not alleviate the obligation to pay rent, nor prohibit the landlord from making a demand for the payment of rent. However, any demand for payment of rent must be limited to just that, and not include a demand for possession while this Order is effective. It should also be noted that pursuant to this Order, any demand for payment of rent may not be made by personal delivery, due to recommendations to continue self-quarantine and self-isolation. Further, the Order also relieves courts from certain statutory restrictions so they can stay eviction related proceedings until 30 days after the expiration of the Order. Landlords should carefully follow these requirements as any willful violation of the Order is a misdemeanor.

This extension comes on the heels of Administrative Order No. 2020-17 (the “Administrative Order”) from the Michigan Supreme Court, which was issued on June 9, 2020 and details how trial courts are to handle the expected influx of landlord-tenant cases once the moratorium expires. Under the Administrative Order, trial courts are to assign landlord-tenant cases one of five priorities, with the greatest priority on evictions concerning illegal activity and extensive and continuing physical injury to the premises, followed by nonpayment of rent complaints – with the oldest delinquencies being a higher priority, and the lowest priority assigned to complaints seeking possession only of the premises. When proceeding with a new eviction action, landlords should consider what relief they are requesting from the court and the priority the court will assign to their case. Where a landlord may have previously sought possession only, it may make more sense to file the eviction for nonpayment of rent in order to have a greater priority assigned to the case.

The Administrative Order also details how the trial courts will need to operate once the eviction moratorium is lifted. Previously, many trial courts would assign a certain date and time for its landlord-tenant docket and hear numerous cases over the course of a few hours. Under the Administrative Order, trial courts are to schedule each case for a particular date and time, regardless of whether the hearing is to be in person or held remotely. However, if a party cannot appear remotely, in-person proceedings must be scheduled that provide for the safety of all parties. Further, it was the practice of certain trial courts to require a written answer pursuant MCL 600.5735(4) in order to schedule a hearing, and in the absence of a written answer, a default would be entered by the court. Under the Administrative Order, that prior practice has been suspended and all trial courts must comply with MCR 4.201 in regards to summary proceeding and hold a hearing regardless of whether a written answer has been filed. Finally, the Administrative Order provides that unless the complaint is dismissed without conditions or the defendant was personally served and fails to appear at the pretrial, all eviction actions must be adjourned for seven days after the pretrial hearing is conducted, and any party that fails to appear at the adjourned date will be defaulted. Landlords should familiarize themselves with this guidance and anticipate possible delays in obtaining relief through the trial courts.

If you have any questions regarding the current Order and Administrative Order, please contact one of the experienced attorneys at our firm.