Can Michigan tenants withhold rent if a landlord won’t make repairs?

If a landlord isn’t making repairs in a rental home, can a tenant withhold their rent?

In short, yes, but it’s complicated.

A lease is essentially a contract between the landlord and tenant, saying the former will keep the property in good repair while the latter will pay rent, said Donovan McCarty, director of Michigan State University College of Law’s Housing Justice Clinic.

“If there are repairs, that means that the landlord has breached that contract, so the tenant then will often withhold rent,” McCarty said. But that is typically treated as a defense, meaning that once a landlord takes a tenant to court for nonpayment, the tenant can raise the issue of repairs and tell the judge that is why they were withholding payments. The money must be set aside in a separate escrow account.

Here’s what else to know:

What Michigan law says about withholding rent

Both tenants and landlords are responsible for maintaining a property, according to a guide for tenants and landlords by the state of Michigan’s Legislative Service Bureau. Michigan law requires landlords to keep properties in “reasonable repair” during the lease term and ensure the premises and common areas are fit for the intended use. These are referred to as “covenants of habitability and fitness,” or promises, from the landlord.

The law does not define “reasonable repair,” however. That means it is up to the discretion of a judge or jury if it’s brought before a court, the Legislative Service Bureau guide notes.

Michigan’s housing law is a floor, McCarty said, and municipalities can protect their residents beyond state law as needed. Detroit has its own rental ordinance. Ann Arbor has a housing code that outlines rules for rentals.

What can a tenant do if their landlord isn’t making repairs?

If a tenant needs repairs, they should let their landlord know as soon as possible and put it in writing, according to the Michigan Legal Help website, which is funded, in part, by the Michigan Supreme Court. If the landlord doesn’t respond, renters may withhold their rent by putting it into an escrow account or pay for the repairs themselves and deduct it from their rent.

The escrow account should be separate and hold only the rent money, the Michigan Legal Help website notes. The tenant should let their landlord know in writing that they’ve put the money into escrow. If a tenant decides to pay for the repairs, they should keep the receipts.

“Either should be done carefully and deliberately, ideally with advance notice (and an opportunity to cure the repair problems) to the landlord,” Jim Schaafsma, a housing attorney with the Michigan Poverty Law Program, said in an email. A renter can also make a complaint to their local building, housing or code enforcement agency.

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How long should a tenant wait before putting their rent in escrow? How much rent can a tenant withhold pending repairs?

There’s no clear answer to either question, MSU’s McCarty said. There are, however, a couple of questions renters should consider: How would a judge — someone who is a neutral arbiter of the facts — view the action? In this case, is the act of withholding rent reasonable?

The city of Detroit is reworking its escrow program following a change in the rental ordinance, which meant administration of the program moved from the Buildings, Safety, Engineering, and Environmental Department to the Housing and Revitalization Department, and now the new Department of Human, Homeless and Family Services. The new program is expected to roll out by summer. The city is working with partners on the administration, rules and technology of the program, according to the city of Detroit’s Chelsea Neblett. The 36th District Court in Detroit has a process for accepting escrow payments but only if there is a pending case and order for escrow. Renters can also set up their own account.

For more information, go to Michigan Legal Help michiganlegalhelp.org/resources/housing/tenant-rights-and-responsibilities or refer to the Legislative Service Bureau’s Practical Guide for Tenants and Landlords at www.legislature.mi.gov/Publications/tenantlandlord.pdf.

Reach reporter Nushrat Rahman at nrahman@freepress.com.

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