You just spent the last 4-6 weeks patiently working through Michigan’s landlord-tenant eviction procedures to get a judgment of possession against your tenant. A few days later you receive notice that your tenant has filed a motion to set aside the judgment or for a new trial.
By itself, the filing of a motion does nothing to stop your judgment from being enforceable. In order for a motion to act as a stay of proceedings on your ability to enforce the landlord-tenant judgment and evict the tenant, the tenant is required to deposit with the court one month’s rent. Absent a stay of proceedings, the court is actually required – as in must – issue the order of eviction.
Unfortunately for most landlords a vast majority of district courts in Michigan don’t understand how motions challenging possession judgments in a summary proceeding effects your ability to proceed. This usually results in the court issuing a de facto stay of proceedings as they will schedule the tenant’s motion for a date in the future and sit on your file until that motion is heard.
Think it seems patently unfair to allow a non-paying tenant or terminated tenant to continue to occupy your property at your expense while this proceeding gets delayed? Think it seems impossible that our legal system would allow someone to continue to occupy someone else’s property without consequence? If so, you would be right.
The Michigan Supreme Court has actually passed court rules to prevent tenants from playing the delay tactic game that these motions so often turn out to be. MCR 4.201 (M) requires ANY motion that challenges a possessory judgment in a summary proceeding eviction to be accompanied by one month’s rent. The court rule actually says that the court may not grant a stay unless the motion is accompanied by the rent or the court separately issues an order waiving the requirement. In all my years of practice I have never seen a court issue a separate order waiving the escrow requirement.
That means that the tenant’s failure to post escrow with his/her motion does nothing and the court – absent a stay – is required to sign and execute your order of eviction.
A landlord’s attorney that knows what he is doing will be able to take steps to protect his landlord clients in these circumstances. Either he can get the landlord monetary protection for having to deal with the motion, or he can get the landlord possession of the property without having to deal with the merits of the motion at all.
By the way, in the off chance that a tenant and court actually comply with the court rules and a stay is granted, the court rules require that a hearing on that motion must be held within 14 days. Landlords shouldn’t be victims of the eviction process in Michigan; knowing the rules and having an experienced advocate on your side can make a world of difference to your case.
Judge Denise my motion how much time do I still have before the final eviction to leave my apt