The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5224

September 8, 1977

CONSTITUTIONAL LAW:

Due process of law

LANDLORD AND TENANT:

Self-help repossession with assistance of police officer

POLICE:

Self-help repossession by a landlord with assistance of a police officer

A policy of a city police department allowing a police officer to accompany a landlord while attempting a self-help repossession is unlawful.

Honorable Edgar A. Geerlings

State Representative

The Capitol

Lansing, Michigan 48901

You have requested my opinion as to whether a landlord seeking to repossess premises from a tenant may call upon a police officer to accompany him. Your letter of request states that a city police department has a policy of allowing its police officers to accompany landlords when an attempt at a self-help eviction is being made and that this occurs before any court hearing is held.

The procedure by which a civil action may be maintained to recover possession of premises is contained in Chapter 57 of the Revised Judicature Act which was added by 1972 PA 120; MCLA 600.5701 et seq; MSA 27A.5701 et seq. RJA, supra, Sec. 5714 lists the circumstances under which summary proceedings may be employed to recover possession of premises. Therefore, when proper grounds exist for recovery of possession, a judgment for possession will be entered against the defendant and, if the court finds that the plaintiff is entitled to possession, the judgment may be enforced by a writ of restitution, RJA Sec. 5741.

In Emmons v Easter, 62 Mich App 226; 233 NW2d 239 (1975), the court held that a statutory provision for summary proceedings to recover possession of a premises does not abrogate the common law right of self-help repossession if the repossession may be accomplished without a breach of the peace. In Emmons, a land contract-vendor repossessed premises that were vacant and it was held that where a land contract purchaser is not in physical possession of the land and possession can be recovered peaceably, the purchaser's rights may be declared forfeited by the seller without proceedings in court. 62 Mich App at 232; 233 NW2d at 242.

However, the court also dealt with the question of whether a self-help repossession would violate the due process rights of the person in possession. The court discussed this issue as follows:

'Plaintiff [land contract purchaser whose possession of the premises was terminated by exercise of self-help] also contends that MCLA 440.9503; MSA 19.9503 (the statute that permits self-help repossession of chattels) is violative of his Federal due process rights. Sniadach v Family Finance Corp of Bay View, 395 US 337; 89 S Ct 1820; 23 L Ed 349 2d (1969), Fuentes v Shevin, 407 US 67; 92 S Ct 1983; 32 L Ed 2d 556 (1972), Watson v Branch County Bank, 380 F Supp 945 (WD Mich, 1974). To prove his claim, it is essential for plaintiff to show state action was involved in the repossession of his chattels. . . .'

In a case where a landlord calls upon a police officer to stand by while he (the landlord) is exercising a self-help repossession, it is clear that state action is involved since the presence of the police officer will have a psychological effect on a tenant whose premises are being repossessed as the tenant will be justified in assuming that the police officer is present to assist the landlord in regaining possession of the property. Such involvement by the state would, in my opinion, constitute sufficient action as to make the self-help repossession of taking of property without due process of law in violation of the Federal and State Constitutions.

It may also be noted that RJA Sec. 2918(1) provides that any person who is ejected or put out of any lands or tenancy in a forcible and unlawful manner may recover three times the amount of actual damages or $200.00 whichever is greater in addition to recovering possession.

RJA Sec. 2918(2) states that an unlawful interference with a possessory interest includes the use of force or threat of force as well as any other action which physically or psychologically causes a tenant to leave the premises.

RJA Sec. 2918(3) provides that sub-section (2) does not apply under the following three circumstances:

(a) Where the lessor acted pursuant to court order;

(b) Where the interference was only temporary and was made to make repairs or inspection and such repairs and inspections are provided for by law; or

(c) Where the lessor in good faith believes that the tenant has abandoned the premises, does not intend to return and the current rent is unpaid.

The foregoing list of circumstances pursuant to which a lessor may repossess property does not include a situation in which the landlord 'persuades' a tenant to leave and psychologically reinforces his persuasive powers by the presence of a police officer.

Therefore, where a landlord accompanied by a police officer seeks to exercise a self-help repossession of premises from a tenant in the company of a police officer, the tenant has the right to recover possession of the premises and, in addition, may recover three times the amount of his actual damages or $200.00 whichever is greater.

It is therefore my opinion that the policy of a city police department allowing a police officer to accompany a landlord while attempting a self-help repossession is unlawful.

Frank J. Kelley

Attorney General