LANDLORD EVICTION
While rather majestic in name,
being a landlord can be difficult in practice... or sometimes a difficult
individual to deal with. One of the most common property questions
is: "My landlord is trying to kick me out; How much time do I have before
actually moving?" Another common question, from the opposite side, is "How
long before I can evict someone?"
Whether residential or commercial,
there are normally five different eviction situations. [A possible
sixth situation, wherein the landlord takes matters into his own hands,
is illegal and can result in a wrongful eviction and detainer action, where
triple damages are assessed to the landlord.]
The first situation is when
the leased premises are vacant or abandoned: so long as the lease period
has expired, the Landlord can retake possession immediately. For the rest
of the situations, the landlord must go to court if the renter does not
leave the premises voluntarily. When a landlord files a complaint in the
local District Court (where all landlord-tenant cases are heard), the case
is scheduled approximately two weeks later before a Judge. Presuming the
landlord wins, the renter is given ten days from the date of the hearing
to move out. If the renter fails to do so, the landlord can go back
to the District Court and have the court clerk issue a Writ of Restitution,
which commands a court officer or bailiff to restore the landlord to possession
of the premises. Upon payment of the bailiff's fee, the renter
and all personal items will be physically removed and put out near the
curb. Total running time from filing the complaint: about 25 to 40
days. However, depending upon the type of eviction sought, more time is
added on to the beginning; i.e. before the landlord can file a complaint
with the court.
The shortest time situation
assumes that the party to be evicted has no right to possession of the
premises, hence the name trespasser. More common than some people
think, this can include a live-in friend who has overstayed the welcome.
In this situation, the landlord (homeowner?) can immediately file the complaint.
The last three all require
a notice period: if the action is for Nonpayment of Rent or because the
renter is creating a Health hazard that must be abated right away, a Notice
to Quit must be given to the renter at least seven days before the complaint
if filed. However, if the action is for Termination
of Tenancy (your lease has expired, I want you out no matter what), the
notice period is at least 30 days.
ISO 9000 - Will the Law Change with it?
A new buzzword within industrial
circles is ISO 9000. ISO 9000 was created ten years ago by the International
Organization for Standardization, a federation of national standard organizations
from 89 countries. ISO 9000 is a sort of 'scorecard' on supplier
performance and procedures, and more and more business supplier organizations
are adopting it. In Michigan, the Big 3 auto manufacturers are increasingly
making adoption of ISO 9000 (or as they sometimes refer to it, QS 9000)
a requirement for Tier I suppliers. In a sense, this pushes more
quality control responsibility from the buyer to the seller supplier. While
a supplier can implement ISO 9000 on its own, many local companies have
hired outside consultants to assist in implementing the standards and getting
certified.
So what has this got to do
with the law? Adoption of ISO 9000 could significantly affect the contract
between an ISO 9000 seller and its' buyer. Currently, a contract
involving the sale of goods is controlled by the Uniform Commercial Code
(UCC), which is a set of statutory (legislatively passed) laws.
Adoption of ISO 9000 could
be construed as an unspoken but binding supplier statement that the goods
supplied will not only meet the UCC warranty requirements, but also
met ISO 9000 standards. While UCC warranty requirements focus on seller's
product quality or quality control (i.e. did the supplier make it right?),
the ISO 9000 requirement focuses on the buyer's satisfaction.
While similar, the difference is significant: irrespective of whether the
goods were made the right way, if the buyer is not satisfied,
it could be found that the supplier
has nonetheless failed in its performance, and therefore be in breach of
contract. Another example: under the UCC, if a seller's product is
somehow defective when delivered to the buyer, the seller usually has
the right to cure (fix it up and get it right).
Under ISO 9000, the buyer may be able to reject the nonconforming product
out of hand, without a chance to cure.
No one knows yet exactly how
ISO 9000 will change the existing law of supplier - buyer relationships,
but caution is well dvised at this stage. Source: Legal Implications
of ISO 9000 Under the UCC, Michigan Bar Journal, October 1996, p. 1076.
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Why Can't I Recover my Attorney Fees?
One frustrating aspect of law
is not being able to recover attorney fees from litigation. Whether you
are plaintiff or defendant in a civil action, it seems very unfair that
you cannot also recover your expenses (especially attorney fees) incurred
in having to rosecute or defend a claim in which you are ultimately
proven right. "The Judge ruled that I was right, but I still wind up losing
because it cost me money to defend myself. Shouldn't
the loser also have to pay my expenses to put me back to even?"
Maybe the loser should pay,
but that is not the way our legal system works. Under the "American
Rule", each party pays for their own attorney fees. Across the Atlantic,
the "English Rule" provides that the losing party must pay the prevailing
party's reasonable expenses incurred, including attorney fees. The
reason for the American Rule is to facilitate access to the courts by people
of all types of means. If a potential litigant knew that she or he
faced the possibility of having to pay the other side's costs (which
could be sizable), many otherwise proper and meritorious claims would never
be brought, even if the potential litigant knew that he or she was
in the right. The risk could be too great.
CASE IN POINT: Fraudulent Conveyances
Most people know that when
you owe a debt to another, it is not sufficient to say "Sorry, I just don't
have any money to pay you." And many suspect there may be something
illegal in transferring all of a debtor's assets to a spouse, friend or
related business in advance of a creditor coming around to collect.
What many don't know is that these rules are contained in a set of laws
called "Fraudulent Conveyances."
In brief, a fraudulent conveyance
is a transaction in which a debtor conveys (sells, transfers or assigns)
property to another party in exchange for insufficient consideration.
In some fraudulent conveyances, the effect is to leave the debtor insolvent;
in others, the Court only looks to see if the transaction harmed creditors'
claims. The ends that some debtors will go to in fraudulent conveyances,
thinking they have outwitted their creditors, never ceases to amaze.
In a recent Michigan Court
of Appeals case, owners of one corporation transferred to another corporation
they owned a bank debt of almost $400,000 (which the owners had personally
guaranteed). Now the new corporation was saddled with a huge debt,
and got nothing in return. Unknowingly, a supplier kept sending goods
to the new corporation, and got stuck for $700,000 then it folded
with only enough assets to pay off the bank (and extinguish the guarantee).
The supplier sued the corporations, owners and the bank, claiming
a fraudulent conveyance. The supplier lost in the trial court, but
got the case (and the transaction) overturned on appeal as the appeals
court found this transaction to be a fraudulent conveyance.
The Court addressed how far
reaching the fraudulent conveyance law is: "The power of equity [this type
of law] is far-flung; no device to defraud is so circuitous that it can
avoid pursuit by its searching principles. Equity will not allow
itself to be outwitted or cheated, or to be frustrated or lost in mazes;
it will go the lengths requisite to achieve to achieve results ... No masquerade
is too subtle for detection by equity." Foodland Distributors
v Metropolitan Grocers, Inc.
REFERRALS
If you have been pleased with the service and professionalism
you have received from our office, it would be greatly appreciated if you
passed the good word along. Referrals are always appreciated and
encouraged, and we look forward to the opportunity of being of service
to your associates and friends. If we can not immediately service
their needs, we will be happy to refer them to the appropriate attorney
specializing in their specific area of need.
However, if you have not been pleased, contact
us directly!
David B. Forest, JD, MBA
Attorney and Counselor at Law
(810) 263-5690
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