How to Fight Eviction: A DO-IT-YOURSELF GUIDE
This booklet has two parts. One part tells you about landlord tenant law and going to court. The other part tells you how to fill out the court papers that you need to tell your side of the story to the judge or jury. Your court papers are the pages at the end of this booklet, (Don’t worry about how to fill them out yet.)
If you live in PUBLIC HOUSING or receive any RENT SUBSIDIES or if you live in a MOBILE HOME PARK you may have defenses to the eviction which are not discussed in this book! You should contact an attorney as soon as possible for assistance!!!
NOTICE TO QUIT, SUMMONS AND COMPLAINT
In order to start an eviction case against you; your landlord has to follow certain steps. He cannot just throw you out. First he has to give you a Notice to Quit. Then he has to fill out court papers called a Summons and Complaint and make sure you get copies. This part of the booklet tells you about the Notice to Quit and the Summons and Complaint.
NOTICE TO QUIT-DEMAND FOR POSSESSION
A Notice to Quit or Demand for Possession is a paper your landlord gives you when he wants you to move out. This paper tells you the date when your landlord wants you out and what you can do to stay in. The Notice to Quit can give you seven (7) days or thirty (30) days, depending on the reason your landlord wants you out. You will get a seven (7) day Notice to Quit if your landlord claims one of the following things: (1) Non-payment of Rent, (2) Damage to the Property, (3) Causing a “serious and continuing” Health Hazard. Except in very few cases, you have to get a Notice to Quit or a Demand for Possession, either delivered personally to you, a member of your household who is of suitable age, or by mail, before your landlord can take you to court to evict you.
1. DEMAND FOR POSSESSION FOR NON-PAYMENT OF RENT
If a tenant either intentionally or by reason of financial circumstances does not pay rent when due, the landlord can serve a 7 day notice to quit for non-payment of rent. If the tenant vacates or pays the amount due, there is no cause of action. If the tenant does not vacate or pay the rent due within 7 days of receiving the Notice to Quit, the landlord may bring an action for eviction. In order for the Notice to Quit to be proper, the tenant must actually be in default at the time the notice is served. Therefore, a Landlord cannot serve a Notice to Quit for Non-payment on the 1st if rent is due on the 1st; he must wait until the 2nd before the tenant is in default of his rental obligation. The Notice must state the time the tenant has to take action and the amount the Landlord claims is due.
In defense of the eviction action, the tenant may establish that the rent has been paid, that it is not owing in whole or in part, or that the eviction is improper for some other reason, for example that the Landlord did not keep the premises in reasonable repair, or that the Landlord is retaliating against the tenant. If some rent is found owing, a conditional judgment for possession will enter, subject to cancellation if the amount of rent owing, plus costs, are paid within a set time. The tenant normally has 10 days from the day the judge decides what rent is due in which to pay the total amount, move, or file a post judgment motion or appeal. If the tenant fails to act, the landlord may seek a writ of restitution at the expiration of the 10-day period. The total elapsed time in a case in which the tenant raises no defenses, from the failure to pay rent to the issuance of the writ can be as little as three weeks.
2. NOTICE TO QUIT FOR HEALTH HAZARD INJURY TO THE PREMISES
If your landlord thinks that you are causing extensive and continuing physical damage to the property or causing a serious health problem, your landlord can give you this notice. This notice must give you seven (7) days from the day you get it to repair or desist and give an opportunity to correct the harm, or move out. The harm to the property must be severe, immediate and irreparable to the Landlord. This means that if the damage is minor, the Landlord cannot bring this type of action. The Landlord must provide proper notice, stating the remedial action that the tenant must take to avoid eviction and specify the time the tenant has to take such remedial action, and this notice must be properly served. There must be an actual health hazard or actual physical injury to the property that was willfully or negligently caused by the tenant. The health hazard must be serious and continuing or the physical injury must be extensive and continuing. The condition must be substantially corrected after the Notice to Quit in order to avoid eviction. Finally, the action must be brought within 90 days of the time the Landlord discovered or should have discovered the condition.
3. NOTICE TO QUIT FOR TERMINATION OF TENANCY
This notice must state the reasons for the notice and will not be considered a notice to terminate the tenancy if it states new terms upon which the tenancy can continue. The Landlord can terminate a tenancy for any reason, including that the tenancy is terminated by notice to quit, as long as the reason is not discriminatory or retaliatory. For example, a landlord cannot evict a tenant in retaliation for reporting health and safety code violations. If your complaint to a governmental agency was less than 90 days before your Landlord served you with a Notice to Quit, and has not been dismissed or denied, there is a presumption of retaliation by the landlord. You must, however, provide proof of the complaint to a governmental agency to the court. This notice has to give you a full rental period to move out, usually a month, even if you pay rent more or less frequently than on a monthly basis. If, however, at the beginning of the tenancy you and your landlord agreed that rent would be paid bi-monthly, your landlord only needs to give you ½ a month (usually about 15 days) to move out. However, if you rent year to year, one years notice must be given even if you pay rent on a monthly basis. This determination is one of the intent of the parties. The notice must give you a full rental period to move, thus if it was served on the 10th, you have until the 10th of the next month to move out. If you do not have a full rental period’s notice, the notice is no good.
Mobile Home Park-Mobile Home Owner
Just Cause termination
If you own, or have a mortgage or bank loan towards owning your mobile home, this notice MUST state the reason for terminating your tenancy. The acceptable reasons of just cause termination should be on the backside of the notice. Read this over carefully.
SUMMONS AND COMPLAINT
If you do not fix the problem or move after being served with a Notice to Quit, your Landlord will have to file a Summons and Complaint in the District Court in order to get you out of the rented unit. The Summons and Complaint are then given to you by a sheriff or process server. If you are not home, the Summons and Complaint may be stapled or tacked to your door and another copy is mailed to you.
Usually, the Summons tells you when and where you must be in court. The Complaint may tell you why you are being evicted and what your landlord wants you to do. Your landlord may want you to move, pay money, or both. If your landlord is a private landlord, is not retaliating for your report of problems to a public agency, and has not accepted rent past the date the Notice to Quit requests you to vacate by, the Landlord does not need to have a reason to ask you to move.
WHAT TO DO WHEN YOU GET THE SUMMONS AND COMPLAINT
As soon as you get the Summons and Complaint, sit down with this booklet and fill out your own court papers called Answer, Defenses and Counter-Claim. The Answer, Defenses and Counter-Claim are printed on the last pages in this booklet. Gently pull those pages off the back of this booklet. (There is another page called and Affidavit and Order of Suspension/Waiver of Fees/Costs. You do not need to worry about that one yet.)
The next few pages in this booklet tell you how to fill out the blanks on the Answer, Defenses and Counter-Claim.
FILLING OUT THE ANSWER, DEFENSES AND COUNTER-CLAIM FORM
Top Part of the Form
District Court Number: District Courts in each county have different numbers. Look in the upper left-hand corner of the Summons and Complaint you got from your landlord to find the number. Write it in space “a”. (Berrien County is “Fifth District Court”). If you are not being sued in Berrien County, cross out the “Berrien County Trial Court – Civil Division.”
Court Address and Telephone Number: This goes in space “b”. Look near the top of the papers you got from your landlord for the Court address and telephone number. (make sure the court is located in the county where you live – if not, be sure to mention this in your answer (see below)).
Plaintiff: The Plaintiff is the person who starts the court case. On the complaint you received from your landlord, there is a box marked “plaintiff”. Write the name and address from this box in the Plaintiff box on the form.
Defendant: The Defendant is the person being sued or taken to court. Look on the complaint you received from your landlord in the box marked defendant and write the name and address in the Defendant box on your form.
Case Number: Every court case has a different number. Your case number is written at the top of the Complaint in the right-hand corner. Write the case number in space “c”. Be sure to copy it correctly!
MAIN PART OF THE ANSWER, DEFENSES AND COUNTER-CLAIM
In this form are blanks 1-34. You will be checking and filling in some of them, but not all of them will fit your situation. You should not check any blank that is not true for you. Make sure you read about each of the blanks on the next few pages. These pages will not only help you decide which blanks the check, but they will also help you know what to say in court when the judge asks you why you checked these boxes.
Blank 1. If you or your landlord have anything in writing like a lease or rental agreement, check blank 1-a. Remember that things like mobile home park rules or apartment building rules can be rental agreements even though they are not called that. If you do not have anything in writing, check 1-b.
Blank 2. Write your landlord’s name in the blank. Remember that your landlord is the owner of the building, not the manager.
Blank 3. If you are still living in the place, check 3-a. If you have moved out, check 3-b and write in the date you moved.
Blank 4. Check blank 4-a if you think the landlord is right in wanting the place back. Check blank 4-b if you do not think the landlord should get the place back.
Blank 5. If you live in public housing, or if your landlord gets money from the government or a government agency like MSHDA or FHA or HUD so that he/she can charge poor people less rent you have extra protection from eviction. As long as you are paying your rent and not breaking the law, your lease, or the apartment complex rules, and you still meet the income guidelines, your landlord cannot evict you. He has to prove to the judge that there is a very good reason – like your not paying your rent- before he can evict you. Be sure to check blank 5-a if you live in government or subsidized housing. Check blank 5-b if you do not. Check blank 5-c if you live in a mobile home that you own or are making mortgage payments on.
Blank 6. Your landlord has a legal responsibility to keep your place in good repair while you live there. This is part of the business of being a landlord. If your landlord kept your place in good repair check blank 6-a. If your landlord did not do this and your place has serious repair problems, check blank 6-b.
Blank 7. If you have done what the landlord asked you to do in the Notice to Quit or Demand for Possession (like pay the back rent or move out), check blank 7-a. If you have not done what the landlord asked, check blank 7-b.
Blank 8. Fill this out only if the landlord filled out the Supplemental Complaint part of his complaint. If the landlord did not fill out the Supplemental Complaint, skip this blank. Check blank 8-a if you don’t believe you should owe your landlord any money, because you have already paid or because you believe the repairs necessary excuse all payment of rent. If you think the necessary repairs excuse part of the rent due, figure out what you think you should fairly owe and write it in the blank. Check blank 8-b and fill out the amount if you do think you owe your landlord some money. Remember, do not fill this out unless your landlord has filled out the Supplemental Complaint part of his eviction Complaint.
Blank 9. I DENY THAT THE PLAINTIFF IS THE LANDLORD OR IS HIS AGENT. MY LANDLORD’S NAME IS:_______________. The Plaintiff in the eviction case must be your landlord. Your landlord is the person you are renting from or the person or company who owns the property you are renting. Your landlord may be an individual, partnership, or corporation. Check blank 9 if the Plaintiff is not the person you are renting from or the person or company which owns the property. Your manager cannot sue to evict you. If you check blank 9, be sure to write in the name of your landlord.
Blank 10. I HAVEN’T RECEIVED A NOTICE TO QUIT OR SOMETHING IS WRONG WITH THE NOTICE TO QUIT. You should check this blank if:
1. you did not get a Notice to Quit before your landlord had you served with the Summons and Complaint.
2. no Notice to Quit was attached to the Summons and Complaint.
3. You got the wrong Notice to Quit.
4. The Notice did not give you enough time.
5. Your landlord put the wrong name or date or address on the Notice to Quit.
6. You can see anything else wrong with the Notice to Quit.
(If you have any questions about your notice to quit, turn back to page 3 and read it again.)
Blank 11. I HAVEN’T RECEIVED A SUMMONS OR COMPLAINT OR SOMETHING IS WRONG WITH THE SUMMONS OR COMPLAINT.
You should receive two copies of the Summons and Complaint before you go into court. One set should be mailed to you and one set should be handed to you personally or tacked on your door by someone other than your landlord.
If the papers were tacked on your door instead of handed to you, then the person who tacked them must file a statement in court saying that he or she tried several times to serve you but was unable to. If you did not get your Summons and Complaint in this manner, check blank 11.
Both the Summons and Complaint have to be filled out correctly. Make sure that things like the names and addresses on the Summons and Complaint are right.
The Summons and Complaint also has to tell you and the judge certain things.
Summons: The Summons has to tell you when and where to come to court. It has to give you at least three days from the day you get it to the day you have to come to court. It also has to tell you that you have the right to have a lawyer with you in court and how to find one. It also has to tell you that you have the right to a jury trial, if you want one, and how to ask for one.
If your Summons does not tell you all these things, or if things like the names and addresses are wrong, check blank 11.
Complaint: First, your landlord has to use the correct form. If your landlord gave you a Seven (7) Day Demand for Possession for Non-Payment of Rent, your landlord has to use the Nonpayment of Rent Complaint form. If your landlord gave you a Seven (7) Day Notice to Quit for Health Hazard or Damage to the Premises, your landlord has to use the Health Hazard or Damage to the Premises Complaint form. If your landlord is evicting you for any other reason, he has to use the Termination of Tenancy Complaint form. Look at the top of your Complaint under the word “Complaint” to find out which form you have. If your landlord has used the wrong form, check blank 11.
If you are being evicted for Non-Payment of Rent, the complaint has to say how much your rent is, when the rent is due and how much is owed as of the date of the Complaint. If you are being evicted for causing a health hazard or damaging the property, the Complaint has to say what the problem is and how long it has been a problem. If the Complaint does not say what it is supposed to, check blank 11.
Blank 12. I LIVE IN PUBLIC OR SUBSIDIZED HOUSING AND THE LANDLORD DOES NOT HAVE GOOD CAUSE TO EVICT ME.
If you live in public housing or if your landlord gets money from the government or a government agency like MSHDA or FHA or FMHA or HUD so that he can charge poor people less rent, you have extra protection from eviction. As long as you pay your rent and are not breaking the law, your lease or the apartment complex rules, and you still meet the income guidelines, you landlord cannot evict you. He has to prove to the judge that there is a very good reason (like you’re not paying your rent) before he can evict you. If you do live in public or subsidized housing and do not think your landlord has a good reason to evict you, check blank 12.
Blank 13. I LIVE IN A MOBILE HOME PARK AND OWN OR HAVE A MORTGAGE ON THE MOBILE HOME AND THE LANDLORD DOES NOT HAVE A REASON FOR TERMINATING TENANCY FOR JUST CAUSE AS LISTED ON THE BACK OF THE COMPLAINT [MICHIGAN COMPILED LAWS 600.5775(2)].
If you live in a mobile home park but you own or are mortgaging the mobile home you have extra protection from eviction. As long as you pay your lot rent and are not breaking the law, your lease or the mobile home park regulations, your landlord cannot evict you. He has to prove to the judge that there is a very good reason (like you’re not paying your lot rent) before he can evict you. If you do live in a mobile home park and own your mobile home and do not think your landlord has a good reason to evict you, check blank 13.
Blank 14. I PAID ALL THE RENT THE LANDLORD SAYS I OWE. I PAID ___________________(amount) ON __________________ (date).
If you are being evicted because you are behind on your rent, you can pay it anytime before you go to Court to stop the eviction. Your landlord has to take the rent. Your landlord cannot have the court evict you if you have paid all the rent even if you paid it after you got the Notice to Quit or the Summons and Complaint.
If you paid your rent but the landlord won’t admit it, take all of your rent receipts and copies of money orders or cancelled checks to prove that you paid. Give these to the judge when you tell him or her that you are not behind in your rent.
If you paid the rent after you got the Summons and Complaint, the judge may make you pay your landlord’s cost of filing the court case. These costs usually run between $45.00 and $100.00. Check blank 14 if you have paid your rent.
Blank 15. I OFFERED TO PAY ALL THE RENT MY LANDLORD SAYS I OWE BUT MY LANDLORD WOULD NOT TAKE IT. I OFFERED TO PAY $________________ ON _________________ (date).
If your landlord wants to evict you because you are behind in rent, you can pay it anytime before you go to court and stop the eviction. YOUR LANDLORD MUST TAKE THE RENT. He cannot refuse to take it if he is evicting you for nonpayment of rent. If the landlord is evicting you by termination of tenancy, he can and probably will refuse your payment of rent.
If you offered to pay your rent but the landlord refused to take it, you should bring a witness to court who saw or heard this happen. Tell the judge you have a witness with you when you tell him or her that you offered to pay the rent but your landlord wouldn’t take it.
Blank 16. I PAID SOME OF THE RENT THE LANDLORD SAYS I OWE. I PAID $____________ ON ________________ (date).
If you are behind in rent but don’t owe as much as your landlord says you owe, check blank 16. Write in the dates and amounts of rent money that you paid recently. When you go to court, show the judge all of your rent receipts and copies of money orders or cancelled checks.
If your landlord is evicting you for non-payment of rent, you will be given ten (10) days after the date of your hearing to pay the rest of the rent. If you pay on time, you will not have to move. Make sure you tell the judge if you have already paid some of the rent. The judge may also have you pay your landlord’s cost of filing the court case. As said earlier, this will usually run between $45.00 and $100.00. If you have paid part of the rent but not all, check blank 16.
Blank 17. INSTEAD OF RENT, I PAID $_________________ FOR NECESSARY HOME REPAIRS WHICH MY LANDLORD REFUSED TO MAKE.
Your have a right to live in a house or apartment which is in reasonable repair. If you asked your landlord to make repairs in your place and he or she refused, you may pay for the repairs yourself and deduct the cost of the repairs from your rent. Check blank 17 and write in the amount you spent.
When you go to court, you must report that your landlord knew repairs were needed that he did not make the repairs even though you asked, and that the cost of the repairs you made yourself was reasonable. Take to Court with you:
1. Pictures of the repair problems, before and after.
2. Your receipts for the repair work and material.
3. Any estimates you got before hiring a repair-person.
4. Any letters you wrote to your landlord asking for repairs.
5. Copies of any housing inspector’s reports.
6. Your rent receipts and copies of money orders or cancelled checks.
Blank 18. MY LANDLORD ACCEPTED RENT AFTER SERVING ME WITH A NOTICE TO QUIT FOR TERMINATION OF TENANCY AND THE AMOUNT ACCEPTED GOES BEYOND THE DATE I WAS TO BE OUT BY.
Payment of rent past the date you were to be out is considered to renew the tenancy for that period and would require the Landlord to serve another Notice to Quit. The Landlord has the choice of whether to accept the money and renew the tenancy or refuse the money and continue with the eviction action. Check blank 18 if your landlord is evicting you by termination of tenancy and accepted rent beyond the date you were supposed to be out by.
Blank 19. I CLAIM THAT I DO NOT OWE SOME OR ALL OF THE RENT THE LANDLORD SAYS I OWE BECAUSE MY HOME IS NOT ALWAYS KEPT IN GOOD CONDITION BY THE LANDLORD.
It is your landlord’s duty under Michigan law, to keep your place in good repair. Read through the list of problems after blank 19. If any of these apply to you, check them and blank 19. Write down any other serious problems you have had.
You may be able to get the amount of rent you owe reduced because of repair problems in your house or apartment. To do this it is helpful for you to show that you told your landlord about those problems. If there are repair problems you haven’t told your landlord about, write to him or her as soon as possible and ask that the problems be corrected. Keep a copy of the letter.
If you try to prove to the judge that there were serious or dangerous problems in your place that your landlord knew about and refused to fix, you should take to the court with you if you have them:
1. Witnesses who testify that you had the problem and the landlord refused to fix it.
2. Copies of a housing inspector’s report that shows there are housing code violations.
3. Letters that you wrote to your landlord asking for repairs.
4. Pictures or other things which show the problem.
5. Your rent receipts and copies of money orders or cancelled checks.
Blank 20. MY LANDLORD MADE PROMISES AND DIDN’T KEEP THEM.
Check blank 20 if you are being evicted because your landlord made promises to you that he didn’t keep, then describe them. For example, if your landlord promised to lower your rent in return form your repair work, you should write this down. Explain any other broken promises your landlord made.
Blank 21. LANDLORD WANTS TO EVICT ME BECAUSE OF SOMETHING I HAVE DONE THAT I HAVE A RIGHT TO DO. (Describe).
If you do not have a written lease, usually your landlord can evict you for any reason at all, as long as he or she gives the right amount of notice. However, as a tenant, you have certain rights under the law. Your landlord cannot evict you for using your rights. If he or she tries to evict you for doing something you have a right to do, this is a retaliatory eviction. Blanks 21, 22, and 23 are about this kind of retaliatory eviction. Here are some of the rights you have:
1. To insist that your lease be followed.
2. To organize or join a tenant’s group and to take part in its lawful activities
3. To live in any area regardless of handicap, religion, race, color, national origin, age, sex, or marital status.
4. To engage in any other lawful activities which do not harm your landlord or other people.
If you are being evicted because you have done something you had a right to do, check blank 21. Then explain what you did and when. In court, describe what happened. Take witnesses or letters if you have them.
Blank 22. LANDLORD WANTS TO EVICT ME BECAUSE I TRIED TO GET HIM TO REPAIR THE PREMISES.
Unless you have a written lease, your landlord can usually evict you for any reason at all, after a rental periods notice. However, you have the right to live in a place that is fit for living, that is in reasonable repair, and that meets health and safety laws. Your landlord is not allowed to evict you for complaining about repairs. If your place needs repairs, and if you asked your landlord to do them and he then decided to evict you, check blank 22.
In court you will need to show the judge that you have repair problems and that you landlord is evicting you for complaining about them. Take to court with you things like the following:
1. Pictures or other things which show the problems.
2. Copies of a housing inspector’s report that shows there are housing code violations.
3. Letters you wrote to your landlord asking for repairs.
4. Proof that you complained to the housing inspector.
5. Witnesses that you had the problems that your landlord refused to fix it and that he got angry with you for complaining about it.
Blank 23. MY LANDLORD WANTS TO EVICT ME BECAUSE I COMPLAINED TO THE HEALTH DEPARTMENT, BUILDING INSPECTOR, FIRE DEPARTMENT, CODE ENFORCEMENT OFFICE, OR ANY OTHER GOVERNMENT AGENCY.
You have a right to complain about your place to the health department, building inspector, fire department, code enforcement office or other government agency. Your landlord cannot evict you just because you made a complaint to one of these places. If it has been less than 90 days since your complaint to one of these places, the landlord has to prove that he is not evicting you because you complained. If it has been more than 90 days your landlord still cannot evict you because you complained but you will have to prove that this is the reason your landlord is trying to evict you.
If you think your landlord is trying to evict you because you complained, check blank 23.
Remember that you will have to show the judge that you really did complain to the Health Department, Building Inspector, Fire Department, Code Enforcement Office, or other Government Agency, so you will need a copy of the inspection report and any letters these places might have written about your place. Have them with you when you go to court.
Blank 24. OTHER.
Write in this space any other important things that you think the judge should know about your living situation. Write any other reasons why you should not be evicted.
Blank 25. MY LANDLORD HAS DONE ONE OR MORE OF THESE THINGS TO EVICT ME ILLEGALLY.
Your landlord must go to court to evict you. Your landlord cannot put you out or evict you for any reason without first getting an order signed by a judge. This is the law in Michigan.
Your landlord also cannot hassle you or try to make you move out by doing any of the following things:
1. Threatening you with violence.
2. Changing or adding locks to the rental unit (your place) without giving you a key right away.
3. Taking, keeping or destroying your things.
4. Boarding up the doors and/or windows so that you either cannot get back in or have a hard time getting back in.
5. Taking the doors, windows or locks off the rental unit (your place).
6. Putting your things out in the street.
7. Turning off you electricity, heat, hot water, etc., no matter whose name they are in.
8. Not paying a utility bill that is in the landlords’ name so that the utility company cuts off your gas, heat, hot water, etc.
9. Doing anything else to put you out or make you move without going to court first.
If your landlord puts you out or hassles you or tries to make you move without a Court Order, you can sue your landlord. The law says that if you win in court, the landlord has to pay you at least $200 and maybe more depending on what the landlord did and how much damage occurred. You can also sue your landlord to get back in to your place or to have the utilities turned back on.
If your landlord has done any of these things, check blank 25 and then check what your landlord has done and fill in the date or dates when he did it. Remember that you will have to prove that your landlord really did what you say. So, have pictures, letters, shut-off notices, witnesses, and so on with you when you go to court.
Blank 26. BECAUSE MY LANDLORD DID ONE OR MORE OF THESE THINGS, I WAS DAMAGED $ ,
The law says that you should get at least $200.00 for each of the illegal things the landlord did. Or you can get your actual damages, if that is more. For certain actions, such as being put out and held or kept out of a property with force or threat of force or in an unlawful manner, you may be able to collect up to 3 times your actual damages or $200, whichever is greater. Actual damages means money that you lost or had to pay out because of what your landlord did. For example, if you had to stay in a motel because your landlord locked you out, your motel bill is an actual damage. If the landlord destroyed you furniture, the value of your furniture is your actual damage. Remember that you will have to prove your actual damage in Court, so be sure to have bills, receipts, witnesses and so on.
Add up what your landlord owes you just because he broke the law - $200.00 for each illegal thing. Add these up. Then add up your actual damages. Compare your actual damages with the damages for doing illegal things and write the larger number in blank 26. You cannot claim both. Only one or the other. If your actual damages were because the landlord used force to put you out, you may be entitled to three times your actual damages. Be sure to tell the judge if this is the case.
IV. Prayer for Relief
Blank 27. I ASK THE COURT TO DISMISS THIS ACTION.
This means that you believe that your landlord does not have the legal right to evict you and you want the judge to drop the case. IF you have checked any one of the blanks 10, 11, 12, 13, 14, 18, 20, 21, 22, 23, or 24 then check blank 27.
Blank 28. I ASK THE COURT TO EXCUSE ALL OR PART OF THE RENT
If you have checked 17, 19, 20, 21, 22 or 23, then check blank 28.
Blank 29. I ASK THE COURT TO LET ME KEEP LIVING IN THE PREMISES
If you have checked blanks 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23 or 24 and you want to keep living in the place, then check blank 29.
Blank 30. I ASK THE COURT TO ORDER THE LANDLORD TO MAKE REPAIRS
The judge can order the landlord to make repairs if you can prove that the repairs are necessary. If you want to stay and your place needs repairs, you should check blank 30.
Blank 31. I ASK THE COURT TO GIVE ME MY ACTUAL DAMAGES (THREE TIMES MY ACTUAL DAMAGES) OR A MINIMUM OF $ FOR EACH VIOLATION OF PUBLIC ACT 300 OF 1976.
If you check blank 25 and you filled out blank 26, you should check blank 31.
Blanks 32 and 33. Be sure that you only check one of these blanks. There are good things and bad things about both kinds of trials.
Blank 32. I WANT A TRIAL BY JUDGE
If you ask for a judge trial, then you will probably have your trial right away. A judge trial is usually easier for someone who doesn’t have a lawyer to handle it. But sometimes, juries are friendlier to tenants than judges are.
Blank 33. I WANT A TRIAL BY JURY
If you ask for a jury trial, you will not have your trial the first day you go to court. You will have to come back later, sometimes as much as a month later.
Remember, if you ask for a jury, you will have to tell your side of the story to a judge and six people on the jury. Some people are good at this, others are not.
If you ask for a jury trial, you must pay the jury trial fee of $40.00 at the time you ask for the trial. If you get public assistance (ADC, SSI, etc.) the court can waive (cancel) your fee. In order to get your fee waived, you must fill out the AFFIDAVIT, which is attached to this booklet in front of the ANSWER and DEFENSES form. Also, if you ask for a jury trial, the judge will probably want you to pay your monthly rent to the court until you have your trial. If you don’t pay your rent in to the court while you wait for the jury trial, you will not get a jury trial and a judge will hear your case.
Blank 34. Check this blank if you want the judge to do something else such as order your landlord to turn the electricity back on or let you back into your place or stop hassling you. Be sure to write in exactly what you want the judge to do.
Bottom of the form
After you are done checking and filling out the blanks on the form, sign and date the form at the bottom. Put your address and telephone number under your signature. If there is more than one defendant, all defendants should sign the form if possible.
SPECIAL NOTE: make at least two copies of the Answer, Defenses and Counter-Claims form. You will need them for court.
HOW TO FILL OUT THE AFFIDAVIT TO SUSPEND FEES AND COSTS
TOP PART: The top section of the Affidavits is filled out just like the top of the Answer and Defenses form. Fill in the District Court number, case number, and names of Plaintiff and Defendant.
1. Write the name of the person filing this affidavit (probably your own name) and check the correct box.
2. Check box A or B, whatever describes the source and amount of your income. Then list your assets and your obligations in the space provided on the form.
NOTARIZATION. Fill out everything on the form except for signing your name and putting a date on the bottom. On the day of your trial, go to the Clerk’s office early. There will be a deputy clerk or a notary public there who must watch as you sign this form and then sign it him or herself.
GETTING READY FOR COURT
Remember that there is no way that this booklet can get you ready for everything that might happen in court and every case is different, but here are some ideas about what usually happens and some hints about what to do.
If you ask for a judge trial you can have your trial on the very first day that you go to court (the date on the summons) so you have to be ready on that date. You must have all your evidence and witnesses in court with you ready to go. But if you want a jury trial, your trial will not be on that first court date. So you do not need to have all your evidence and witnesses with you the first time you are in court. But make sure that you have the $40.00 jury fee or the completed Affidavit and Fee Waiver form with you the first time your appear in court or you will not get a jury trial. It’s a good idea to have the $40.00 with you just in case the judge denies your fee waiver.
The ideas and hints on the next few pages are written as if you were going to have a judge trial on the first day you go into court, not a jury trial on a later date. But you should be able to figure out what you need to do to get ready for a jury trial from these hints and ideas.
BEFORE THE TRIAL DAY
Get all your evidence together. Evidence is anything that has to do with your rental agreement or why you shouldn’t be evicted. Evidence can be things like your rent receipts, your lease, letters or notes to your landlord or from your landlord, a Health Department Inspection report, or photographs of things that need repair, receipts of repairs you have had done on the place. Some people have brought dead rats or jars of cockroaches into court as evidence.
Get all your witnesses ready. Witnesses are people who know things about your rental agreement or why you should not be evicted. Witnesses can by anybody, friends, relatives, neighbors, former tenants, code enforcement inspectors and so on. Be sure to talk to people ahead of time so that you know what they are going to say to the judge.
Make sure that your witnesses will be in court. The best witness in the world is no good if that witness does not show up for court. Make sure that your witnesses will come to court. If there is anyone important who might not show up, go to the District Court Civil Department (Berrien County Trial Court – Civil Division if your case is in Berrien County) and ask for a SUBPOENA. It is a court paper that instructs the person to come to court. IF you want to subpoena someone you may have to pay a witness fee, ($6.00 for a half day), mileage to the courthouse for the witness, and possibly a service fee.
Fill out the Pro Se Answer Defenses and Counter-Claim form and make two copies, one for you and one for your landlord. The court gets the original.
Practice what you want to say in court. Go over what you want to say in court. Make notes on the important things that you want to remember to tell the judge. It sometimes helps to have a friend who does not know all the facts in your case listen to your story to see if it makes sense.
ON THE DAY OF YOUR TRIAL
Dress up. How you look is important in court. Wear good clothes, be neat, and clean. Do not chew gum. Too little makeup is better than too much.
Show up on time. The judge can be late but you cannot.
Make sure your witnesses are in Court on time. Again the best witness in the world is no good if he or she does not appear in Court.
Have three filled out Pro Se Answer and Defense forms with you. Have on for yourself and one for your landlord. You will have to give the original, the one you really signed, to the judge.
Have evidence marked. If you have evidence as letters or photographs ask the court clerk to mark them. He or she will put little stickers with numbers or letters on your evidence.
Have notes on what you want to say, so that you won’t forget to say something important. But do not read your notes to the judge or jury.
Relax. EVERYBODY IS NERVOUS IN COURT.
Remember you should be very polite to everybody, including your landlord. Do not interrupt. Call the judge “your honor” and stand up when you talk to the judge.
IN THE COURT ROOM
When the judge or the judge’s clerk calls out the name of your case, go up to the judge’s bench and give him the original (the one you really signed) of the Answer, Defense and Counter-Claim form (and the Affidavit of Indigency form if you have filled it out). Give a copy of the Answer, Defense and Counter-Claim form to your landlord or his lawyer.
The judge will read over your papers. Then he will probably ask you and your landlord to talk about a SETTLEMENT.
A settlement is the result of two people agreeing to work out the problem between themselves. They then both go back to the judge in the courtroom and tell him what they have agreed upon.
The judge will listen to the settlement agreement. If he approves it, he will ask you and your landlord if you understand what each of you have agreed to do, or not to do, and you will sign a court paper called a Consent Judgment. Never leave the court until the judge has approved the settlement.
SHOULD I AGREE TO A SETTLEMENT? There is nothing wrong with making an agreement with the other side if you decide that it is best for you. By making a settlement, you will know what will happen in the case. You will not have to worry about whether the judge or jury will decide in your favor or in your landlord’s favor. Many times, you can get what you want by settling with the other side. You will not run the risk of losing or not getting what you really want.
DO I HAVE TO AGREE TO A SETTLEMENT? No, nobody can force you to settle the case. You have the right to have a trial and to tell your story to a judge or a jury. The judge cannot make you settle, the other side or the lawyer for the other side cannot force you to settle. You have to agree to settle. Never agree to a plan that you do not want. Never agree to a settlement without some good reason. You should always get something out of a settlement - - less rent to pay, more than ten days time to move, repairs by the landlord, or avoiding a trial which you think will be embarrassing or a waste of time. Always think about what you stand to win or lose if you don’t settle.
WHAT SHOULD I DO IF I HAVE AGREED TO SOMETHING I CANNOT DO? If you agree to a settlement that you cannot keep, you have three (3) days from the day you sign the agreement, to go back to court and ask the judge to change it. You must have a good reason for changing it, such as the landlord was pushing you to sign it or you didn’t understand what you agreed to.
If you cannot work out a settlement, the judge can go ahead with the trial right away. But sometimes the judge decides that he needs more time to listen to the case. IF this happens the judge will adjourn the case. This means that everybody has to come back on another day or another time. If this happens be sure to ask the judge to tell your witnesses that they have to come back on the new date too.
If you do not have your trial the first time you come into court (if it is adjourned), or if you ask for a jury trial, the judge will probably ask you to pay your rent to the court clerk. This is called and Escrow Order. You will have to pay rent to the court clerk starting the day you are in court and after that every time the rent is due. You will not have to pay rent into escrow that was due before you came to court.
If your place needs repair or has other problems, the judge may ask you to pay only part of your rent to the court clerk. If you ask for a jury and you don’t pay whatever the court orders, you lose your right to a jury trial and a trial without a jury can be held within 14 days.
When the judge (or jury) does start listening to the facts of your case, your landlord will get to tell his side of the story first. Do not interrupt your landlord or his lawyer even if the landlord (or lawyer) is lying. Be polite. You will have your chance later.
Many judges want to start with a short statement of what the case was about. Sometimes that judge just asks, “what is this case about?” But sometimes, he asks, “do you have an opening statement?” You should have a very short statement, just a few sentences, ready to tell the judge what the case is about. Example: My name is Rita Renter. I rent a house from Louie Landlord. My house has a hole in the bathroom floor, rats in the basement, and no hot water. I asked my landlord to fix these problems three months ago. He has not fixed them. I have complained to the Health Department. Mr. Landlord wants to evict me because I complained to the Health Department.
Remember: Make it short, but not so short that you leave something important out.
After you and your landlord make your opening statements, your landlord will testify (tell his side of the story). He will also show evidence, and have his witnesses testify.
After the landlord testifies, and after each of his witnesses testifies, the judge will let you ask them questions. Now is not the time for you to tell your story. You can only ask questions like “Mr. Landlord, isn’t it true that I wrote you on June 1, 2001 to tell you about the rats in my apartment?”
This is called cross-examining the witness. Do not argue with the landlord, his lawyer, the witnesses, or the judge. This only makes you look bad and can get you into trouble.
When the landlord is done telling his story, and questioning his witnesses, you will have your chance to tell your story and to ask your witnesses questions. Remember: The landlord has the right to cross-examine (question) you and your witnesses.
If you have evidence, like letters or photos, you have to get them introduced into evidence before the judge or jury will look at them. This means that when you are testifying, you have to say what the evidence is, how you know what it is, and why it is important. When you are testifying, you should:
1. Give the letter or number of the sticker on the evidence. Say something like “This is Defendant’s exhibit A.”
2. Say what it is. For example, “this is a jar of cockroaches that I collected in my apartment on July 12, 2001”.
3. Say how you know what it is. For example, “I put the cockroaches in the jar.”
4. Say anything else that you want to say about the evidence. For example, “My place has had cockroaches like these since I moved in, and they are still here.”
5. Ask that the exhibit be admitted into evidence. For example, “I ask that Exhibit A be admitted into evidence.”
After you and your landlord have told your stories and questioned all your witnesses, the judge will ask you and your landlord if either of you have a closing statement.
The closing statement is a chance for you to remind the judge or jury about the things that you think are important about your case and to tell the judge or jury what you want to happen and why. After you and your landlord finish with your closing statements, the judge or jury will decide who to believe and what will happen.
After the judge or jury have reached a decision, you will get a paper from the court called a verdict or judgment that tells you what you and/or your landlord have to do and when it must be done.
If you think what the judge or jury decides is wrong, you have the right to take your case to a higher court. This is called an appeal. Appeals must be filed within ten days of the day you received your verdict or judgment. Appeals can be complicated and most people need a lawyer’s help to file an appeal. (Note: Your landlord also has the right to appeal.)
If your case is appealed, the circuit court will look over the district court’s decision. The circuit court with either agree with the judge or jury, disagree with the judge or jury, or send the case back for further action. But the higher court will not hold a new trial. That court will only look at what was done and said at the trial.
If you decide to appeal your case, you will have to pay rent to the court clerk (escrow).
IF YOU NEED A LAWYER
If you do not have a lawyer, but can afford to hire one, you can find one through Lawyer Referral Service by calling this toll-free number 1-800-968-0738. (There is a fee for this service.)
Lawyer Referral Service will give you the name of a lawyer in private practice. You will have to call the lawyer yourself. Be sure to ask the lawyer if he handles landlord/tenant cases and also ask what he charges. (Attorneys listed with the State Bar of Michigan Referral Service have agreed to charge at a reduced rate for the first half-hour.)
If you have no money for a lawyer, you may be able to get legal help through your local Legal Services office. See our website: www.legalaidwestmich.org for the location of the Legal Aid of Western Michigan office nearest you.
Prepared by Staff of
Legal Aid of Western Michigan
STATE OF MICHIGAN
BERRIEN COUNTY TRIAL COURT – CIVIL DIVISION
a. _______ District Court c. Case Number:_______________
Court Address Court Telephone Number
ANSWER, DEFENSES, AND COUNTER CLAIM
Plaintiff: v. Defendant:
1. a. ____ There is a written lease or rental agreement between my landlord and me.
b. ____ There is no written lease or rental agreement between me and my landlord.
2. The owner of the property is _____________________________________.
3. a. _____ I am still living in the property.
b._____I moved out on __________________________________________.
4. a. _____ My landlord has the right to have his/her place back.
b. _____ My landlord does not have the right to have his/her place back.
5. a. ____ The house or apartment is public or government subsidized housing.
b. ____ The house or apartment is not public or government subsidized housing.
c. ____ This is a mobile home and I own the mobile home.
6. a. ____ The house or apartment was kept in reasonable repair.
b. ____ The house or apartment was not kept in reasonable repair.
7. a. ___ I have done what the landlord asked me to do in the Notice to Quit.
b. ___ I have not done what the landlord asked me to do in the Notice to Quit.
II. ANSWER TO SUPPLEMENTAL COMPLAINT
8. a. ____ I do not owe the landlord back rent or damages.
b. ____ I do owe the landlord $_________ in back rent and/or damages.
9. ____ The Plaintiff is not my landlord. My landlord is: ___________________________________________________.
10. ____ I haven’t received a Notice to Quit or something is wrong with the Notice to Quit.
11. ____ I haven’t received a Summons and/or Complaint and/or something is wrong with the Summons and/or Complaint.
12. ____ I live in public or subsidized housing and my landlord does not have good cause as required by law to evict me.
13. ____ I live in a mobile home that I own or am paying on a mortgage for and no acceptable just cause explanation was given to me.
14. ____ I paid all the rent the landlord says I owe. I paid $__________ (amount) on ___________________ (date).
15. ____ I offered to pay all the rent my landlord says I owe buy my landlord would not take it. I offered to pay $__________(amount) on _____________ (date).
16. ____I paid some of the rent the landlord says I owe. I paid a total of $___________ (amount) on ______________(date).
17. ____ Instead of rent I paid $___________ for necessary home repairs which my landlord refused to make.
18. ____ My landlord accepted rent after serving me with a Notice to Quit for termination of tenancy and the amount accepted goes beyond the date I was to be out by.
19. ____ I do not owe some or all of the rent the landlord says I owe because the landlord does not always keep my home in good condition. My home has the following problems:
a. _____Rats or Mice
b. _____Roaches or Bugs
c. ____Broken plaster in walls and ceiling
d. ____ Faulty or missing doors and locks.
e. ____Areas like halls and steps not kept clean and safe
f. ____Broken or Missing windows and screens
g. ____Bathroom or kitchen floors or carpets damaged
h. ____No heat or heating problems
i. ____No water
j. ____No hot water
k. ____Not enough water pressure
l. ____Faulty plumbing pressure
m. ____Leak in roof or ceiling
n. ____Faulty lights or electricity
o. ____Appliances in poor repair
p. ____Other problems (describe below).
20. ___ My landlord made promises and didn’t keep them (describe) ______________________________________________________________________________________ (Describe) ___________________________ _____________________________________________________________________________________
22. ___ My landlord want to evict me because I tried to get him/her to repair the premises.
23. ___ My landlord wants to evict me because I complained to the Health Department, Building Inspector, or Code Enforcement Office.
24. ___ Other (Write any other defenses you feel you may have).
25. ____ My landlord has done one or more of these things to evict me illegally:
a. ___ Used force or threatened to use force to put me out of the rental unit. Date:_____________
b. ___ Removed, retained and/or destroyed my personal property. Date:__________________
c. ___ Changed, altered and/or added locks or other security devices to the rental unit without giving me keys immediately. Date: ____________
d. ___ Boarded up the rental unit so I could not get back in or had a hard time getting back in. Date:_________________
e. ___ Removed doors, windows and/or locks from the rental unit. Date: ________________
f. ___ Caused termination or interruption of ______ heat, ______ hot water, _____ water, ______ gas, _____ electricity, _____ and/or some other necessary service. Date: _________________
g. ___ Introduced noise, odors, and/or other nuisance into the rental unit or failed to get rid of noise, odors, and/or other nuisance from the rental unit. Date: _________________
26. ____ Because my landlord did one or more of these things, I was damaged $______________.
Because of the above:
27. _____ I ask the court to dismiss this action.
28. ____ I ask the court to excuse all or part of the rent.
29. ____ I ask the court to let me keep living in the premises.
30. ____ I ask the court to order the landlord to make repairs.
31. ____ I ask the court to give me my actual damages or a minimum of $200.00 for each violation of Public Act 300 of 1976.
32. ____ I want a trial by judge.
33. ____ I want a trial by jury. ($40.00 jury fee or an affidavit stating you are receiving public assistance or are indigent must be attached.)
34. ____ Any other information you want to give to the court: _____________________________________________________________________________