Park Forest of Blackman v. Smith
| Citation | 112 Mich.App. 421,316 N.W.2d 442 |
| Decision Date | 08 March 1982 |
| Docket Number | Docket No. 51811 |
| Parties | PARK FOREST OF BLACKMAN, Plaintiff-Appellee, v. Darlene SMITH, Defendant-Appellant. 112 Mich.App. 421, 316 N.W.2d 442 |
| Court | Court of Appeal of Michigan (US) |
[112 MICHAPP 423] McLellan, Schlaybaugh & Whitbeck by Stephen D. Winter, Lansing, for plaintiff-appellee.
Legal Services of Southeastern Michigan, Inc. by James A. Keedy, Jackson, for defendant-appellant on appeal.
Before BASHARA, P. J., and R. B. BURNS and V. J. BRENNAN, JJ.
Defendant leased an apartment from plaintiff, Park Forest, beginning October 1, 1977. The one-year lease was not renewed, but defendant continued to reside in the apartment. In March, 1979, Park Forest served defendant with a notice to terminate the tenancy, and in May, 1979, Park Forest began summary eviction proceedings against defendant, M.C.L. Sec. 600.5701 et seq.; M.S.A. Sec. 27A.5701 et seq. After summary trial proceedings, the district court entered an order terminating the tenancy. On appeal, the circuit court affirmed the district court decision. From that decision, defendant appeals by leave granted.
Park Forest is a multi-family, low-income housing project built with funds provided by the Michigan State Housing Development Authority (MSHDA) which holds a mortgage on Park Forest and subsidizes the rent of Park Forest tenants. At the time of trial, defendant's rental payment was $360 per month. Her portion of the payment was $113 per month with the balance paid by MSHDA. Further, defendant's lease provided that rent was due on or before the first of the month. If the rent [112 MICHAPP 424] was not paid by the first, a $5 late fee was charged for administrative costs.
The defendant lived at Park Forest for twenty months before the summary proceedings were held. For thirteen of those months defendant paid her rent after the 5th of the month, always including the $5 late fee. The payment records indicated that defendant's rent was paid late on January 6, 1978, February 8, 1978, March 14, 1978, April 10, 1978, June 14, 1978, October 17, 1978, November 15, 1978, December 10, 1978, January 17, 1979, March 6, 1979 (for February), March 26, 1979, April 9, 1979, and May 8, 1979. These payments together with the late fee were always accepted.
On March 26, 1979, Park Forest served defendant with a notice to terminate the tenancy, demanding possession on or before April 28, 1979. The notice provided that the tenancy was being terminated because the defendant failed to pay her rent in a timely manner. On April 9, 1979, the defendant paid her rent for the entire month of April and did not vacate the premises.
On May 7, 1979, Park Forest began summary proceedings, demanding possession of the apartment. The case was scheduled to be heard on May 22, 1979. On May 8, 1979, the defendant paid the rent for the entire month of May. The defendant received notice of the proceedings on May 12, 1979. The summary proceedings were held on May 29, 1979.
The district court found that the defendant had repeatedly violated the lease by paying her rent late and, therefore, just cause existed for terminating the tenancy.
Defendant first contends that acceptance of rent by Park Forest for a period of time subsequent to [112 MICHAPP 425] the date possession was demanded in the notice to terminate the tenancy constituted a waiver of the notice to terminate or the creation of a new tenancy.
M.C.L. Sec. 600.5714(1)(b)(iii); M.S.A. Sec. 27A.5714(1)(b)(iii) permits a landlord to recover possession of a premises only after termination of a tenant's month to month tenancy by notice to quit. If a tenant refuses to vacate the premises after being served with a notice to terminate the tenancy, summary eviction proceedings are then commenced.
Park Forest served the defendant with a notice to terminate on March 26, 1979, demanding possession on or before April 28, 1979. Thereafter, Park Forest accepted rent from the defendant for the months of April and May. The defendant did not vacate the premises, and on May 7, 1979, Park Forest began summary eviction proceedings. However, the defendant did not receive notice of the proceedings until May 12, 1979. Before she received the notice, the defendant paid the rent for May on May 8, 1979.
The issue of whether a landlord waives the notice to terminate the tenancy by accepting rent for a period of time subsequent to the date possession was demanded has not been decided in Michigan. Other jurisdictions have held that acceptance of rent for days subsequent to the final date listed on the notice to terminate is a waiver of the notice to terminate. Hoefler v. Erickson, 331 Ill.App. 577, 73 N.E.2d 448 (1947), Bernstein v. Weinstein, 220 Ill.App. 292 (1920), Major v. Hall, 251 So.2d 444 (La.App., 1971), Jones v. Webb, 320 Mass. 702, 71 N.E.2d 216 (1947). A new notice to terminate then must be sent to the tenant before the summary proceedings can be commenced. Also, see 51C C.J.S., Landlord and Tenant, Sec. 150(7), p. 458, and Anno: Waiver [112 MICHAPP 426] or revocation by landlord of notice given by him to terminate tenancy, 120 A.L.R. 557.
We find that the landlord waives the notice to terminate by accepting rental payments for a period of time subsequent to the date specified in the notice. By accepting rent, the landlord leads the tenant to believe that further proceedings regarding the termination of the tenancy are not forthcoming. This is especially true in the instant case where Park Forest accepted defendant's rent for the month of May before the defendant received the notice of the summary proceedings. Defendant testified that because Park Forest accepted her rent payment for the month of May she believed that the matter was settled and her tenancy would not be terminated. We find that this was a reasonable expectation. It is inconsistent for a landlord to assert a termination of the lease and then, after the time specified in the notice has passed, accept rent for a further period of time when the tenant has not received notice that summary proceedings have been commenced. Therefore, Park Forest waived its notice demanding defendant to vacate the apartment on or before April 28, 1979. Since Park Forest waived its notice, it failed to comply with the provision of the statute requiring notice before commencement of summary proceedings, M.C.L. Sec. 600.5714(1)(b)(iii); M.S.A. Sec. 27A.5714(1)(b)(iii), and, thus, the district court did not have jurisdiction to hear the case.
Furthermore, we find that even if the rent for April 29-30 and May, 1979, had not been accepted, and waiver of the notice to terminate was not in issue, the trial court clearly erred in finding that the tardiness of the payments was just cause to terminate the tenancy.
Both parties agree that the defendant's tenancy [112 MICHAPP 427] can be terminated only for just cause. 24 CFR 880.607 ...
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