Blog Viewer

Last year, the legislature created a fourth exception to the statute prohibiting self-help evictions, this time for situations involving a tenant’s death (2013 PA 127). Under that amendment, a landlord may repossess the premises only if all of the following requirements are met:

• the landlord must have informed a tenant in writing of the tenant’s option to provide contact information for an authorized person the owner could contact in the event of the tenant’s death;
• current rent has not been paid; and
• the landlord believes in good faith that the tenant has been dead for at least 18 days, and there is no surviving tenant.

 When those requirements are met, and not less than 10 days before the landlord reenters to take possession,

• the landlord must make a reasonable attempt to contact the authorized person to request the person to open a probate estate within 28 days after the tenant’s death,
• the landlord must place on the door of the premises a notice of intent to reenter after 10 days have elapsed,
• the landlord must notify the public administrator for the county that the tenant is deceased and that the landlord intends to take possession of the premises if a probate estate is not opened, and
• a probate estate has not been opened.

MCL 600.2918(3)(d). But does this amendment adequately protect both parties to a lease?

ICLE contributor Roger Chard points out that tenants may not be adequately protected under this amendment. Consider the following possible scenario that leaves a tenant’s estate without recourse for the loss of a major asset, even when all parties perform as required under the act:

• The landlord leases to a single tenant.
• The landlord informs the tenant in writing of the tenant’s option to provide contact information for an authorized person in the event of the tenant’s death.
• The tenant provides accurate contact information.
• The tenant timely pays rent for six months.
• In the seventh month, the landlord receives no rent.
• The landlord reasonably believes, as of the 19^th of that month, that the tenant has been dead for 18 days.
• On that day, the landlord contacts the authorized person and requests the person to open a probate estate within 28 days of the tenant’s death.
• Also on that day, the landlord places a notice on the door of the premises that the landlord intends to reenter, take possession of the premises, and dispose of its contents after 10 days have elapsed.
• The landlord also notifies the county public administrator on that day that the landlord believes that the tenant has died and that the landlord intends to reenter, take possession, and dispose of the contents if a probate estate is not opened.
• The authorized person receives notice from the landlord, but the coroner confirms that the tenant died on the 10^th of the month.
• The public administrator cannot open a probate estate before the landlord’s 10-day notice of intent to repossess expires.
• On the 30^th day of the month, the landlord reenters and disposes of the contents.
• On the 4^th of the next month (25 days after the tenant’s death, and 3 days before the filing deadline), the authorized person opens a probate estate, and delivers notice to the landlord.

As described, the landlord and the tenant’s representative have fully complied with the statute, but the tenant’s estate has experienced a loss. We will need to wait to see how this amendment plays out in the courts and if the legislature takes steps to fix this issue. In the meantime, figuring out how to advise clients about this exception will require some thought.

For more information on the Forcible Entry and Detainer Act, see chapter 2 of Michigan Lease Drafting and Landlord-Tenant Law.