November 25, 2014
by Matthew B. Theunick
Trott & Trott, PC – USFN Member (Michigan)
On June 21, 2014, the Michigan Legislature enacted two bills (Act No. 223 and Act No. 224), effective September 24, 2014. These bills address, in part, the issue of squatting in residential property, providing “self-help” remedies to an owner, lessor, or licensor (or one of their agents) to re-take possession of property that was unlawfully obtained.
Act No. 223
Act No. 223 was enacted to amend 1961 PA 236, by adding sections 2918, 5711, and 5714 (MCL 600.2918, 600.5711, and 600.5714) to the Revised Judicature Act. The RJA establishes the rights and liabilities of parties, with respect to the possession (or ownership) of property or leased premises. Specifically, Sec. 5711(1) notes that, “A person shall not make any entry into or upon premises unless the entry is permitted by law.” Sec. 5711(2) notes that, “Subject to subsection (3), if entry is permitted by law, the person shall not enter with force but only in a peaceable manner.” However, the “peaceable manner” caveat of subsection 2 does not apply in the context of an unlawful or illegal entry into the property. Sec. 5711(3) notes that, “If the occupant took possession of the premises by means of a forcible entry, holds possession of the premises by force, or came into possession of the premises by trespass without color of title or other possessory interest, the owner, lessor, or licensor or agent thereof may enter the premises and subsection (2) does not apply to the entry” (emphasis added).
As such, Act No. 223 exempts an owner from the prohibition on forcible entry, and now allows entry into a dwelling to retake possession in circumstances where the occupant may have taken possession by squatting. However, any forcible entry under Sec. 5711(3) shall not include conduct proscribed by Chapter XI of the Michigan Penal Code, entitled “Assaults” (see MCL 750.81 to 750.90h), which includes standard proscribed assault and battery offenses.
Act No. 224
Act No. 224 was enacted to amend 1931 PA 328, by adding section 553 (MCL 750.553) to the Michigan Penal Code to make it a criminal offense for an individual to occupy a residential dwelling without the owner’s consent for an agreed-upon consideration. For a first offense, the individual may be convicted of a misdemeanor, punishable by a fine of not more than $5,000 per dwelling unit occupied or by imprisonment for not more than 180 days, or both. For a second (or subsequent offense), the individual may be convicted of a felony punishable by a fine of not more than $10,000 per dwelling unit occupied or by imprisonment for not more than 2 years, or both.
According to the Legislative Analysis of House Bills 5069, 5070, & 5071, the Michigan Legislature enacted Acts No. 223 and 224 under the belief that squatting in residential buildings was on the rise, and was a menace to real estate ownership by: preventing properties from being sold; by allowing persons time to strip the homes of anything of value; or by depriving the lawful owners of their right to lease payments, etc. Additionally, there was the belief that lawful owners were experiencing difficulty in getting police agencies to remove squatters under the current trespass laws. With the changes to the Michigan Penal Code and the RJA, the Michigan Legislature has now removed the prohibition against the use of (non-assaultive) force in the reclaiming of unlawfully seized or occupied real property.
These enhanced remedies may prove to be helpful for the industry’s portfolios of real estate-owned properties, and may have the intended effect of prompting certain municipalities and courts to respond to these issues more seriously. For example, it is sometimes difficult to obtain police investigations or arrests of squatters unlawfully residing in property. Additionally, some Michigan courts are loathe to grant more than one or two orders of eviction, issued in the same case, even in the face of multiple squatting entries into the property.
Still, for the practitioners counseling clients, the enhanced remedies available in these enactments are not without some need for pause. Any self-help remedy is arguably less effective and fraught with greater liability than simply resorting to the steps available in the summary proceedings process available through the courts.
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