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Eviction Moratorium and Administrative Order on Summary Proceedings

By James E. Schaafsma posted 22 days ago

  

Residential Eviction Moratorium

On June 12, 2020, Governor Whitmer issued Executive Order 2020-118, which extended the moratorium on most evictions in the state until June 30 at 11:59 p.m. The primary justification for the executive order is the protection a home provides from the pandemic for self-quarantined and isolated persons. 

As with the prior executive orders on eviction, this order prohibits the following:

  • removal of a tenant (or land contract vendee, or “a person holding under” either) from “residential premises,” including under an eviction order or writ of restitution, unless they “pose[] a substantial risk to another person or an imminent and severe risk to property”
  • any “demand for possession or notice of forfeiture of executory contract, or threat of eviction or forfeiture, based on the nonpayment of rent” or land contract payment (note, however, that the order does not abrogate the obligation to pay rent or land contract payments)
  • service of process for an eviction or land contract forfeiture by a “sheriff, under-sheriff or constable, deputy, or other officer”
  • denial of “a mobile homeowner access to their mobile home” subject to the risk exception noted above

The order also states that it does not abrogate the judicial power or affect the inherent power of a judge to order equitable relief. And, for 30 days after its expiration, the order suspends any statutory limits on the adjournment of proceedings, the tolling of redemption or limitation periods, or the extension of any deadlines.

 

Priority Treatment and Procedures for Landlord-Tenant Cases

On June 9, 2020, the Michigan Supreme Court issued AO 2020-17 (Priority Treatment and New Procedure for Landlord/Tenant Cases). (At the same time, in conjunction with the administrative order, the SCAO issued a “Guidance Document,” which the administrative order says district courts must follow.) AO 2020-17 prescribes changes in district court handling of summary proceedings eviction cases in the face of pandemic risks and the lifting of pandemic-related restrictions on court activity. Its provisions are summarized below: 

  • Each district court may accept new filings and schedule hearings consistent with both the “Return to Full Capacity (RTFC) guidelines referred to in AO 2020-14” and “each court’s most recently [SCAO]-approved RTFC local administrative order.”

  • Courts must use a “prioritization approach” which creates six categories (“priorities”) of cases; courts may move to the next priority after scheduling hearings for all cases in the higher priority. The first priority is for cases alleging illegal drug activity on the premises or ones alleging extensive and continuing physical injury to the premises. Priorities 2-6 pertain to nonpayment of rent cases according to the alleged length of the arrearage (second priority: 120 days or more; fifth priority: 30 days or more).

  • Courts must schedule each case for a “particular date and time (whether held in-person or remotely)”, as compared to the “cattle call” hearing time practice many courts used.

  • For any case filed before April 16, before a hearing is scheduled, a filer must, without additional fee, update the complaint’s factual allegations and file the verification form that AO 2020-8 requires (pertaining to the CARES Act eviction complaint–filing moratorium for properties with a “federally-backed” mortgage or that participate in most federal rental housing programs).

  • Courts must schedule termination of tenancy cases “during or after” the later of fifth priority cases or the passage of the “statutorily-required notice period.”

  • Courts may and are encouraged to conduct hearings remotely (“to the greatest extent possible”), but must verify that all participants can proceed remotely. If a party cannot proceed remotely, a safe in-person hearing must be held.

  • Local rules requiring that a defendant file an answer before getting a hearing are suspended.

  • Courts must conduct the initial hearing as a pretrial at which the parties must be informed of the defendant’s right to seek counsel as well as the availability of rental assistance and dispute resolution programs. The pretrial must be conducted by a judge, magistrate or authorized mediator. And, in most instances, cases must be adjourned for one week after the pretrial.

  • A defendant must demand a jury trial with seven days of the first response (and pay the jury trial fee or get it waived when the demand is made).
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