of the rent was withheld for the purpose of
addressing the maintenance or repair issue(s),
it must have been deposited into an escrow
account. (That portion of rent must reasonably
relate to the cost of repair or to the damage
that the tenant incurred because of the
problem.) The tenant must show that “but for
the repair and maintenance required, he or she
was ready, willing, and able to pay the rent.”
Having a defense and being able to prove it
are two different things. If the tenant is suc-
cessful in offering his or her proofs, the tenant
is generally allowed to remain in possession of
the rental property. The Court may not order
eviction if the Court believes that the tenant
complied with the law and acted only to
protect his or her rights, even though the
landlord may have had a lawful reason to
evict.
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If the parties to a lawsuit for eviction
cannot otherwise reach an agreement, they will
have to go to court to have things decided for
them. Even when they first get to court, most
cases are resolved in the hallways. The judges
generally encourage the parties to reach a
settlement; the attorneys who are there on
behalf of the parties also encourage their
clients to do so. If they cannot, the parties
then proceed to trial where the judge or jury
will decide the outcome.
At trial, both parties will be given an
opportunity to tell their side to the judge (or
jury). They will be allowed to offer testimony
and show documentation that may persuade
the judge (or jury), by a preponderance of the
evidence (51 percent), to rule in their favor.
In the courtroom, there is an order to
things. The landlord must first prove that a
lawful reason for eviction exists and that he or
she is entitled to regain possession as owner
of the rental property. The tenant, on the other
hand, may next offer evidence that even
though there is a lawful reason, a legal defense
exists that protects him or her from being
removed. (See a list of landlord’s lawful
reasons and tenant’s possible defenses, pages
13 and 16, respectively.) After both parties
have had an opportunity to offer their proofs
to the judge (or jury), a decision will be made
either for the landlord (to regain possession)
or for the tenant (to remain in possession).
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Even if the landlord wins the lawsuit for
eviction, the court cannot issue an Order of
Eviction for at least 10 days. This allows time
for the tenant to appeal the decision; it allows
time for the tenant to cure by paying the rent
owed if that was the reason for eviction, and it
allows time to work things out by agreement.
Only after waiting 10 days can a prevailing
landlord request that the judge issue an Order
of Eviction. However—even then—Michigan
law does not allow the landlord to forcibly
remove the tenant or the tenant’s property.
Only an officer of the court, by a judge’s order,
can remove the tenant and tenant’s property
from the rental property; and that officer is
generally the sheriff or someone from the
sheriff’s office. This is called executing the
Order for Eviction, and there is little the tenant
can do but start packing.
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Yes. In addition to regaining possession of
the rental property, the landlord may have
persuaded the judge (or jury) that he or she is
entitled to a money judgment. The judge may
award the landlord a money judgment for such
things as unpaid rent, unpaid utilities, damages
to the rental property beyond reasonable wear
and tear caused by the tenant, and any other
damages incurred because of the tenant’s
violation of the lease agreement.
Avoiding a money judgment is always a
good idea. If the option to pay is still available,
the losing party (if financially able) should
remit what is owed. Once a money judgment is
awarded, the prevailing party, through a lawful
collection process, can garnish wages, garnish
bank accounts, and garnish tax refunds. The
prevailing party may also be entitled to
another remedy—executing the money
judgment against personal property (a car, fine
jewelry, collectibles, and the like).
Remember that a lease agreement—
whether written or oral—is a contract,
enforceable by law. Both parties have rights
and obligations under the lease. Simply having
the tenant removed from the rental property
may not provide the landlord with all that he
or she is entitled to receive under the lease.
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