Mich. Ct. R. 4.201
If the defendant does not appear for trial on the date and time noticed by the summons and a default was not entered, the court must verbally inform the parties of the information in this subrule at the defendant's first appearance and allow the defendant time to make a jury demand under subrule (G)(4) and to retain an attorney under subrule (G)(2).
If the judgment is in favor of the defendant, it must comply with MCL 600.5747.
The court may condition the order to protect the defendant's interest.
If a stay is granted, a hearing shall be held within 14 days after it is issued.
The court may waive the bond requirement of subrule (O)(4)(b)(i) on the grounds stated in MCR 2.002(C) or (D).
Mich. Ct. R. 4.201
Staff Comment (ADM File No. 2020-08): These amendments are the result of more than a decade of learned experience and continued innovation accelerated by unforeseen circumstances. They reflect what the Michigan judiciary has learned from the pandemic, including how to broadly conduct remote hearings, as well as what the judiciary has learned over the last 15 years from localized evictions diversion programs and over the last three years when scaling the concept of eviction diversion programs statewide.
The staff comment is not an authoritative construction by the Court. In addition, adoption of a new rule or amendment in no way reflects a substantive determination by this Court.
Welch, J. (concurring).
I write to offer further explanation for why I believe the amendments to MCR 4.201 ensure fairness in our judicial proceedings. We first posted proposed revisions to these rules on August 10, 2022, about two years after Administrative Order 2020-17 was issued as part of the Court's response to a global pandemic. In response, we received hundreds of comments from landlords, tenants, attorneys, law school clinics, and other key stakeholders. A nearly three-hour remote public hearing was held on November 16, 2022, where we received extensive additional input. After that date, a work group was assembled that included judges, attorneys, landlords, and tenant representatives. Collectively, the justices and court staff have put in hundreds of hours of work reviewing comments and making modifications based upon the input received. The final rule is the result of revisions that were based upon that input.
As former Chief Justice McCormack noted last year, "[t]he COVID-19 pandemic required us to think creatively about how to keep Michigan courts running safely." See Order Retaining and Further Amending the Michigan Court Rule Changes Adopted on July 26, 2021, 510 Mich ___ (August 10, 2022) (MCCORMACK, C.J., concurring). While this opportunity for creative thinking was forced upon us by factors beyond our control, we have used the time since the Court's initial response to consider innovative changes to how our courts operate with the goal of modernizing our court system and improving access to justice. See, e.g., Amended Administrative Order No. 2020-17, 510 Mich ___ (August 10, 2022) (adopting court rule amendments that made remote judicial proceedings the presumptive norm in most civil proceedings other than trials and evidentiary matters). It is clear from the data that remote proceedings have enabled more parties to show up for court and participate in legal proceedings. In fact, a majority of both the landlord and tenant comments we received in response to the proposed amendments enthusiastically supported the continued use of remote proceedings. Logically, the public is better served when it is easier to participate in legal proceedings. Our court rules now reflect that simple fact and a lesson learned during the pandemic.
We also learned many lessons during the pandemic about landlord-tenant summary proceedings. Because many Michiganders were required to stay home and unable to go work as the result of government orders issued in response to safety concerns, our Court had to quickly pivot to create a system to ensure a functioning judiciary and to account for the provision of government relief so that people who were unable to work would not face eviction in the midst of a public health crisis. See, e.g., Administrative Order No. 2020-8, 505 Mich cxxxv (2020); Administrative Order No. 2020-10, 505 Mich cxxxix (2020); Administrative Order No. 2020-11, 505 Mich cxl (2020); Administrative Order No. 2020-16, 505 Mich cli (2020); Administrative Order No. 2020-18, 505 Mich clviii (2020); Amended Administrative Order No. 2020-17, 507 Mich ___ (July 2, 2021). While some would prefer that nonpayment-of-rent eviction proceedings return to "business as usual" under the prepandemic rules, the revisions offer a balanced approach between the business interests of landlords and the rights of tenants to receive proper notice of proceedings against them as well as access to resources that might be available to assist them. The amendments we adopt today also reflect lessons learned from eviction diversion programs operating in courts across the state for the past 15 years.
First, MCR 4.201(B)(3)(c) now requires that landlords attest in their complaint that the leased premises are "in compliance with applicable state and local health and safety laws ...." Prior to the new amendment, MCR 4.201(B)(3)(c) for many years required that a landlord's complaint state that the landlord had kept residential premises "fit for the use intended and in reasonable repair" unless the parties agreed to modify those obligations. The language that has been added simply mirrors more fully MCL 554.139(1), the statutory provision upon which the original language was based. Further, based on input from landlords who shared concerns about backlogged city inspections where local ordinances require them, we modified the proposed rule to ensure that a landlord can "explain any defects" in its ability to fully comply with the attestation requirement. Specifically, the amended rule provides that a landlord can set forth a "local government's failure to inspect despite a request to do so." MCR 4.201(B)(3)(c). Moreover, a district court is not permitted to reject a complaint seeking eviction based on noncompliance with MCR 4.201(B)(3)(c). Requiring landlords to attest that they are following the law, something expected of all landlords and which they had to do under the prior rule, does not constitute a new burden.
MCL 554.139 specifically requires that:
(1) In every lease or license of residential premises, the lessor or licensor covenants:
(a) That the premises and all common areas are fit for the use intended by the parties.
(b) To keep the premises in reasonable repair during the term of the lease or license, and to comply with the applicable health and safety laws of the state and of the local unit of government where the premises are located, except when the disrepair or violation of the applicable health or safety laws has been caused by the tenants [sic] wilful or irresponsible conduct or lack of conduct.
Additionally, directly reflecting the language of MCL 554.139(1), MCR 4.201(B)(3)(c) provides that a landlord is excepted from the attestation requirement when "the disrepair or violation has been caused by the tenant's willful or irresponsible conduct or lack of conduct ...."
I disagree with Justice Zahra' s claim that it is sufficient for a district court to determine whether a rental property has a valid certificate of occupancy. Such a certificate fails to meet the statutory requirement because it often is poor evidence that a rental premises is habitable at the time an eviction is requested. Certificates of occupancy for residential properties generally do not need to be renewed unless there is a change in ownership, a change in the type of occupancy or use of the premises, or a substantial modification to the premises that required discontinuance of the existing use of occupancy. See, e.g., MCL 125.1513; Detroit Code, §§ 50-4-49, 50-4-62; Taylor Code, Zoning Ordinance § 25.06. Absent an extended period of vacancy resulting in termination of water or electrical services or a prior violation of local health and safety ordinances that must be remedied, a change in residential tenants typically does not trigger the requirement that a landlord obtain a new certificate of occupancy. While some municipalities require registration of rental properties and a separate certificate of compliance for such properties, the rules for when such certificates can be issued, renewed, or revoked vary. See, e.g., Detroit Code, §§ 8-15-35, 8-15-36; Grand Rapids Code, §§ 5.555, 5.556; Lansing Code, §§ 1460.49, 1460.50. MCR 4.201(B)(3)(c) recognizes the challenge faced by a landlord who has sought but is unable to obtain an inspection.
Second, the amendments modernize service of process requirements for eviction proceedings and make modest changes to the requirements that must be met before a landlord can obtain a default judgment when a defendant fails to appear on the date and time noticed in the summons. Under the prior rule, to perfect service, the landlord's complaint and summons had to be mailed to the tenant and additional service was required pursuant to MCR 2.105 or via personal service. If personal service failed, the former MCR 4.201(D)(3) allowed a landlord to post a notice on the door of the tenant. The original proposed amendments would have required personal service upon a tenant in order to obtain a default judgment on the first noticed proceeding date.
Under the proposed rule service by door posting was not eliminated, but such service would not have been sufficient to obtain a default judgment at the first hearing. There were also exceptions under the proposal, and those remain under the new amendment pursuant to MCL 600.5714(1)(b), (d), and (f). See MCR 4.201(G)(5)(a)(ii).
Extensive input was offered through comments and the public hearing that personal service accomplished by posting on a door was not effective and often resulted in evictions without notice because multiple people might live in a household, or a door might be shared by multiple units in a building. In contrast, concerns were also raised about a requirement of personal service given the ability of people to evade service for what is intended to be a fast-moving summary proceeding. We heard the extensive input and struck a balance. Like the prior rule, the amended rule still requires service of the summons and complaint on the defendant by mail, as well as an additional form of service. But rather than allowing reliance upon just a door posting after personal service has failed to seek a default, a landlord may now also request that the court mail a second copy of the summons and complaint directly to the defendant. This additional court mailing is now required when a landlord is seeking to evict a residential tenant, is unable to complete personal service, and is seeking a default judgment when a defendant fails to appear on the date and time noticed in the summons. MCR 4.201(G)(5). Of course, service can also be accomplished by all the other traditional methods available to parties in other litigation and that existed in the court rule before its amendment, see MCR 4.201(D)(1) through (3), but a door posting will no longer be sufficient to obtain a default judgment at the first hearing.
Local courts will be permitted to charge a fee as determined by the State Court Administrative Office. MCR 4.201(D).
Third, the amended rule now requires that if the plaintiff elects to request eviction for nonpayment of rent, then the court must advise the residential defendant of certain legal rights under MCR 4.201(K)(2)(a), including the potential availability of rental assistance. If a default is not entered and, subject to MCR 4.201(K)(1)(b) (no triable issue) and MCR 4.201(K)(2)(e) (setting forth list of reasons a court can resolve the case without adjournment), the court must adjourn the trial for at least 7 but not more than 14 days after providing the advice of rights. MCR 4.201(G)(5)(d) (if a default is not entered, the court must adjourn "for at least 7 but not more than 14 days, unless a jury demand is made . . . or good cause is shown"). A stay must also be put in place for no more than 14 days "unless the defendant demonstrates to the court that an application [for rental assistance] is still pending or has been approved and rental assistance will be received." MCR 4.201(I)(3)(b). While the adjournment and stay are in place, a tenant defendant must act quickly-within five days of receiving the advice of rights-to provide written proof to the court that an application for assistance has been submitted. MCR 4.201(K)(2)(a)(iv). Otherwise, the stay will be lifted. The total stay period is automatically lifted after 28 days. MCR 4.201(I)(3)(b).
Feedback was provided by judges that the advice of rights is often provided via a prerecorded video or computer presentation, that the presentation is often made to groups, and that having to record all these standard presentations would be time-consuming and onerous. The amended rules make clear that group advice-of-rights presentations are permitted, MCR 4.201(K)(2)(b), and that these standardized advice-of-rights presentations do not need to be recorded, MCR 4.201(E).
This Court's authority to regulate the practice and procedure of trial courts through its rulemaking power has "been exclusively entrusted to the judiciary by the Constitution and may not be diminished, exercised by, nor interfered with by the other branches of government without constitutional authorization." In re 1976 PA 267, 400 Mich 660, 663 (1977). Requiring a stay of an initiated proceeding-a docket management tool-is a procedural requirement that is within the Court's exclusive constitutional authority to promulgate rules regulating the "practice and procedure" of the judiciary under Const 1963, art 6, § 5. The Legislature has acknowledged as much by enacting MCL 600.223 ("The supreme court has authority to promulgate and amend general rules governing practices and procedure in the supreme court and all other courts of record, including but not limited to authority: . . . (2) to prescribe the practices and procedure in the supreme court and other courts of record concerning: . . . (g) the staying of proceedings . . . and (k) other matters at its discretion[.]") (emphasis added).
When compared to the prior version of MCR 4.201, the amended version will result in most cases being resolved within 14 to 21 additional days. Some will extend to the stay maximum of 28 days. Having a case resolved within two weeks to one month hardly writes the "summary" out of "summary proceedings" as the dissent suggests. Moreover, if a trial is adjourned by more than 14 days and the landlord shows a "clear need for protection," then a court may order a tenant defendant to pay into an escrow account "a reasonable rent for the premises . . . including a pro rata amount per day between the date of the order and the next date rent ordinarily would be due." MCR 4.201(I)(2)(a). In summary, eviction proceedings seeking a judgment of eviction for nonpayment of rent will continue to move through the courts rapidly while offering protections to plaintiff landlords and defendant tenants.
The timeline will be determined by how the court manages the case. If a defendant appears on the date of the summons, most cases will be resolved within 14 days. Some nonpayment cases will extend to 28 days (the maximum stay period) for those defendants. Even if the defendant fails to appear on the summons date and is not defaulted at that time, the maximum time to resolve the matter pursuant to the rule will be less than 56 days as required by law. MCR 4.201(K)(1)(c).
Proceedings may be delayed further if a defendant at risk of eviction demands a trial by jury. MCR 4.201(G)(4), (G)(5)(d). However, this right has long been held by all residential tenants in Michigan and is fundamental to our justice system. See Const 1963, art 1, § 14; MCR 4.002(D); MCR 4.201(C)(3)(d); MCR 4.201(G)(4). Moreover, the Legislature has long prohibited residential rental agreements from containing a waiver of the right to a trial by jury. MCL 554.633(1)(f). Two other potentials for delay include when the parties stipulate to adjournment of the trial and when the defendant shows "good cause" to adjourn the trial up to 56 days under MCR 4.201(K)(1)(c); such adjournments are unrelated to the automatic stay required by MCR 4.201(I)(3).
We have thoughtfully considered the concerns of all stakeholders and attempted to strike a balance that protects the interests all members of the public who are likely to be affected by these amendments. Moreover, we know that our courts need time to adjust to rule changes. As a result, this rule will not go into effect until 60 days from today with further opportunity for extensions with good cause. Additional changes can be considered as needed after implementation of these amended rules, but all change begins with an initial step. I believe we have taken a step in the right direction, and accordingly, I fully concur with the Court's decision to repeal most of Administrative Order No. 2020-17 and to modernize the court rules governing eviction proceedings.
Zahra, J. (dissenting).
Contrary to the assertion in the staff comment, the Court adopts substantive changes to court rules concerning summary proceedings to recover the possession of premises; rules that have long formed the foundation for adjudicating landlord/tenant disputes in Michigan. These proposed changes were the subject of much scrutiny. This Court heard from an unprecedented number of speakers at our November 16, 2022 public hearing. We also received hundreds of written comments directed at these proposed changes. The majority of people who commented on these changes opposed them. The process effectuating these changes commenced during the COVID-19 pandemic, when the Court implemented these changes (and many more) as necessary to permit landlord/tenant courts to function during a state of emergency. More than three years have passed since this emergency order entered.
Today, the Court finally addresses this emergency administrative order. In so doing, the Court recognizes that "[m]any people believe that our state is finally at the end of the pandemic," that federal moratoria on evictions "have since been lifted," and that "direct [federal] aid to states to provide for rental assistance programs . . . is also coming to an end." Nonetheless, rather than vacate Administrative Order No. 2020-17 in its entirety and return Michigan's landlord/tenant practice to the efficient state in which it existed prepandemic, the Court elects to substantively change the law in ways that were entirely unnecessary during the pandemic and remain equally unnecessary today.
The amended administrative order is purportedly based on lessons learned from the pandemic, but these amendments have very little to do with the pandemic response. The only change that legitimately relates to the pandemic is the addition of MCR 4.201(F), pertaining to videoconferencing. Indeed, when the government for all intents and purposes shut down in-person human interaction, we learned a great deal about conducting video court proceedings.
Yet, instead of commending our trial courts for managing their dockets during a pandemic, this Court over the past year has seen fit to strip trial courts of discretion on whether and how to use remote court proceedings Now, this Court further enshrines by court rule that whether proceedings are to be conducted remotely is a matter left entirely to the discretion of the defendant. A court that wants to proceed in person must now "state its decision and reasoning, either in writing or on the record[.]" I would remove the presumption of videoconferencing adopted by this Court in MCR 2.407 and instead require a party desirous of proceeding via videoconferencing to provide the trial court with reasons why videoconferencing is necessary to the administration of justice. We should trust that the same trial courts who managed to operate through a pandemic will likewise effectuate the sound and efficient administration of justice when determining whether videoconferencing is appropriate.
See Order Retaining and Further Amending the Michigan Court Rule Changes Adopted on July 26, 2021, 510 Mich ___ (August 10, 2022) (Zahra, J., dissenting; Viviano, J., dissenting; and Bernstein, J., dissenting).
Id. at ___ (ZAHRA, J., dissenting).
MCR 2.407(B)(5)(b).
Nonetheless, even though the balance of the proposed changes are ushered into our court rules under the false premise of lessons learned from the pandemic, not all of the changes today implemented by the Court are adverse to the sound administration of justice in the landlord/tenant context. Indeed, some of these changes may provide litigants greater access to justice; for these reasons, I do not oppose the mandatory administration of advice of rights and changes to the jury-demand process.
Other changes, however, unduly interfere with the efficient operation of the district courts and materially change landlord/tenant litigation. Such changes remove the "summary" from the Legislature's directive that landlord/tenant matters be "summary proceedings to recover possession of premises." For example, stripping the district courts of the ability to implement a local rule requiring a written answer within five days or face default needlessly obstructs the functioning of courts that have such rules in place.
See Chapter 57 of the Revised Judicature Act, MCL 600.5701 to MCL 600.5759.
Changing MCR 4.201(B)(3)(c), the complaint rule, to require landlords to allege they are in compliance with all "applicable state and local health and safety laws" is also problematic. This change sounds innocent, but there are many building regulations at the state level that have nothing to do with whether the property is habitable. District courts currently have access to local records to determine whether a property obtained a certificate of occupancy. This is enough. Broadening this provision will needlessly delay the eviction process.
The automatic stay of proceedings found in MCR 4.201(I)(3)(a) will also cause unnecessary delay in summary eviction proceedings. This rule, which itself may be outside of our constitutional authority to regulate "practice and procedure," requires landlords to wait to see if state agencies will subsidize a tenant's rental deficiency. This sounds like an honorable objective, but not everyone who applies for assistance will receive it. Moreover, the state will soon run out of free money for such causes. I certainly do not object to informing litigants that financial-aid programs exist and asking the litigants whether they are interested in stipulating to a stay, but the automatic stay upon a request for funds by the tenant places the speed of the process in the hands of the government, which rarely acts with expediency. Many mom-and-pop landlords will go into default on their mortgages because of this stay provision.
See Amended Administrative Order No. 2020-17, 507 Mich ___ (March 22, 2021) (Zahra, J., dissenting), and Proposed Amendments of Administrative Order No. 2020-17 and MCR 4.201, 510 Mich 1201, 1213 (August 10, 2022) (VIVIANO, J., dissenting).
It has been suggested that this stay is appropriate because the action brought by the landlord is for eviction for nonpayment of rent, which allows the tenant to remain in possession of the property upon prompt payment of past-due rent. But this argument is meritless. A tenant served with a complaint to recover possession of the premises has seven days to either pay the rent or evacuate the premises. MCL 600.5714(1)(a). Nothing in the summary-proceedings provisions of the Revised Judicature Act authorizes the landlordtenant court to issue a stay to permit a tenant to pursue financial aid to pay past-due rent sometime in the future. Further, nothing in these statutory provisions supports the inference that landlords must accept payment of rent from third parties. A tenant who has failed to pay rent on or before the rent is due is in breach of the rental agreement. A landlord may choose to evict that tenant in favor of a tenant who will be more respectful of the contractual obligations between the parties.
Further, additional delay in the summary eviction process will result from stripping the trial courts of the ability to enter a default judgment upon the failure of a defendant to appear in court at the first trial date unless the plaintiff posts the summons and complaint on the residence and effectuates service by mail and the trial court also duplicates service by mailing "a second copy of the summons and complaint and all attachments to the defendant in a court envelope - the same envelope as used for other court business which is clearly identified as coming from the court." The rule further states that "[t]his court mailing must be delivered to the US Post Office at least 7 days before the date of trial, and a record must be kept." Like the other provisions, this sounds innocent. But why require duplicative service by mail in order to obtain a default judgment? Duplicating service by mail through required court action will unduly burden the courts and needlessly delay the eviction process, as courts must guarantee that the court's service by mail is sent to the post office at least 7 days prior to the scheduled trial date. When trial courts are unable to timely send out service before the initial trial date, a second trial date will be required. What purpose does this additional layer of court action serve? Perhaps it ensures that the landlord will not commit perjury by falsely claiming service by mail was effectuated. But no evidence was presented before, during, or after entry of this Court's emergency pandemic order that supports any inference that landlords were not adhering to the requirements of our court rules. This additional layer of protection is a solution in search of a problem. For more than 40 years, an affidavit from plaintiff showing that the landlord was unable to accomplish personal service and instead served defendant through the United States mail proved effective, efficient, and sufficient. There is absolutely no reason to not return to this original and functional process.
Like Justice Viviano, "I fail to understand why a landlord or landlord's attorney should be forced to return to court a second time to secure a judgment of possession if the tenant was properly served by some method other than personal service yet fails to appear at the initial hearing." See Proposed Amendments of Administrative Order No. 2020-17 and MCR 4.201, 510 Mich at 1212 (VIVIANO, J., dissenting).
For all these reasons, I dissent from the failure of this Court to repeal in full each and every aspect of Administrative Order No. 2020-17.
Viviano, J., joins the statement of Zahra, J.