Real Property Notes Blog

Landlords Beware when Evicting Tenants

In Anderson v Chaundy, an unpublished Michigan Court of Appeals opinion, the landlord evicted the tenants pursuant to a court order and, as alleged in the complaint, the tenant’s belongings were placed on the front lawn for about an hour and then removed by the landlord’s agents to an undisclosed location for disposal and destruction.  The tenant sued for conversion.

The landlord claimed immunity pursuant to MCL Sec 600.2918(3)(a), which provides for immunity from action taken pursuant to a lawful court order.  The court held, based upon a 2007 Michigan Supreme Court case, that this section does not provide immunity for actions which were neither necessary nor incidental to an order of eviction.

These decisions put a landlord in an untenable situation:  the landlord wants the tenant’s belongings out of the property, but apparently the landlord cannot dispose of them without facing the possibility that a claim of conversion will be filed.  Some municipalities have ordinances requiring landlord’s to have a dumpster available for the court officer to place the tenant’s belongings.  Will the protection of MCL Sec 600.2918(3) be extended to the court officer placing the tenant’s property in the dumpster?  If the property is piled on the curb, some cities cite the landlord for littering.

The legislature needs to act here to provide either for immunity if the tenant’s property is disposed of, or provide a different mechanism than currently exists for a landlord to get rid of the tenant’s possessions.

Holdover after Foreclosure not a “Tenant” within Meaning of Anti-Lockout Statute

In Seymore v Adams Realty, an unpublished Michigan Court of Appeals opinion, the purchaser from the grantee under a sheriff’s deed changed the locks, locking out the former mortgagor, who sued under Michigan’s Anti-Lockout Statute, MCL Sec 600.2918.  The mortgagor argued that she was a tenant within the meaning of section 2 of the statute because the title to MCL 600.5714 refers to “holding over by tenant.”  The court held that, under prior case law, the determination that an occupier of property is a tenant within the meaning of the Anti-Lockout Statute depends upon the existence of a contractual relationship between the owner and the possessor wherein the possessor pays consideration in exchange for the right to occupy the property.  Because the mortgagor had not agreement with the purchaser, the mortgagor was not a tenant.

The court also held that the former mortgagor had not pled a case for damages based upon forcible ejectment under section 1 of the Anti-Lockout Statute.  While that provision applies to any person, it requires that the person be removed or kept out by force.  Merely changing the locks is not force within the meaning of the statute.

While this case might seem to stand for the proposition that a foreclosure sale purchaser can lock out a former mortgagor with relative immunity from suit, the author of this blog cautions purchasers that this is only one courts opinion, and a non-binding one at that.  While there is some expense in pursuing an eviction of a holdover, that expense pales in comparison to the expense of triple damages and the holdovers costs and attorney fees if the holdover prevailed, in another court, on an Anti-Lockout claim.

© Steve Sowell 2018