Real Property Notes Blog
Landlords Not Required to Lease to Marijuana Users
The Michigan Legislature recently amended the Michigan Medical Marihuana Act to add a provision clarifying that nothing in the act requires "A private property owner to lease residential property to any person who smokes or cultivates marihuana on the premises, if the prohibition against smoking or cultivating marihuana is in the written lease.”
In order to effectively bar a tenant from using marijuana on the leased premises, and to have the right to evict a tenant from the premises for using marijuana, the landlord must have a written lease, and that lease must contain a provision prohibiting smoking or cultivating marijuana on the premises. Since leases for less than one year need not be in writing in Michigan, it is unclear whether this amendment can be construed as requiring landlords to allow tenants to smoke or cultivate marijuana if there is no written lease.
Having a written lease, even if the term will be less than one year, is good business practice for landlords.
Dower Abolished in Michigan
By a series of bills passed late last year, a woman’s dower interest in Michigan has been abolished. Divorce judgments are no longer required to contain a bar of dower (since it does not exist), and actions to determine dower interests, either under the Revised Judicature Act or the Estates and Protected Individuals Code, have been abolished as well.
Dower was a legislative protection for wives: a wife whose husband attempted to write his wife out of his will could take against the estate a 1/3 interest in his real property for life. However, since the Supreme Court’s decision in Obergefell, holding that states must license same-sex marriages, Michigan’s dower was in question, since it applied only to “wives” and not to “spouses.” Rather than extend the protection to husbands (sometimes known as curtesy), the Michigan Legislature decided to abolish dower entirely.
HUD’s Harassment and Quid Pro Quo Rules Affect Condominiums
Effective October 14, 2016, the federal Department of Housing and Urban Development (HUD) issued a final rule formalizing standards for use in investigating and deciding allegations of discrimination on the basis of race, color, sex, religion, national origin, familial status, or disability under the anti-discrimination provisions of the Fair Housing Act. This rule makes it clear that condominium associations have a duty to investigate claims of co-owner-on-co-owner harassment and to pursue violations in accordance with the remedies under the governing documents.
The rule defines two types of harassment: “quid pro quo” harassment and hostile environment harassment. In the condominium context, quid pro quo harassment refers to an unwelcome demand or request to engage in conduct which is made a condition to the provision of services, and hostile environment harassment means unwelcome conduct which is sufficiently severe or pervasive so as to interfere with the use or enjoyment of a dwelling.
Under the rules, a board of directors may be held liable when it fails "to take prompt action to correct and end a discriminatory housing practice by a third-party, where the [board] knew or should have known of the discriminatory conduct and had the power to correct it.”
Most condominium documents ban conduct which is a nuisance, which is an annoyance to other co-owners, or which is unlawful. Some condominium documents grant the association power to impose fines (after notice and a hearing) or to seek injunctive relief. If the association were made aware that one co-owner were harassing another co-owner on the basis of a protected characteristic (race, color, sex, religion, national origin, familial status, or disability), the association now has a clear-cut obligation under the new rule to intervene to the extent provided by the condominium documents.
The following are some scenarios in which an association’s duty to intervene might arise:
- A co-owner blocks a handicapped parking space.
- A co-owner exposes himself to one or other co-owners.
- A co-owner makes racist remarks at the annual meeting.
- A co-owner defaces or destroys another co-owner’s religious holiday decorations.