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  1. #1
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    Default Re: No Security Deposit, Dispute on Damage Amount, Landlord Threatening Collections

    Mr. Knowitall;740540]Digressing for a moment, the Michigan eavesdropping statute is poorly constructed, but I think the interpretation followed by the Michigan court's is less problematic than an interpretation that says you would be "eavesdropping" by recording a conversation between yourself and one other person on the basis that it's the conversation "of others",
    of others is quite clear. You cannot be others. There is no ambiguity there.
    In relation to security deposits, the text of the statute does support the court's interpretation, and it actually makes sense to distinguish when a landlord can act to collect money from a tenant when he's not holding the tenant's money, as opposed to putting him on a short schedule to return the tenant's money if he cannot make a timely claim against it.
    Wile the case cited does state that, I do not agree that is what the statute is saying.
    54.613 Action for damages; retention of security deposit; waiver.Sec. 13.
    (1) Within 45 days after termination of the occupancy and not thereafter the landlord may commence an action in a court of competent jurisdiction for a money judgment for damages which he has claimed or in lieu thereof return the balance of the security deposit held by him to the tenant or any amount mutually agreed upon in writing by the parties. A landlord shall not be entitled to retain any portion of a security deposit for damages claimed unless he has first obtained a money judgment for the disputed amount or filed with the court satisfactory proof of an inability to obtain service on the tenant or
    within 45 days...may commence and action...for damages which he has claimed OR in lieu thereof return the balance of the security deposit held by him.
    . Failure of the landlord to comply fully with this section constitutes waiver of all claimed damages and makes him liable to the tenant for double the amount of the security deposit retained.
    failure...to comply with this section constitutes a waiver of ALL claimed damages and [read as plus but obviously cannot apply unless there has been a retention of some or all of the security deposit] double the amount...retained. It says nothing that would allow it to be interpreted it was addressing ONLY the damages of no more than the amount of the deposit held by the landlord.

    Based on the construction of the rest of the LTRA, it is clear that all actions required of either the landlord or tenant are quite precise and intended to impose strict time limits upon all actions. There is no reason to believe the legislature did not intend to also impose a precise and very limited time requirement for the landlord to act in making a claim for damages, whether there was a security deposit involved or not.

    Along with that, as many states play follow the leader with laws and the intent, it is not uncommon for a state to impose a much shorter sol upon actions involving landlord tenant issues and specifically in damages claims issues.

    what I find equally problematic, although unrelated to the case at hand is this:
    A landlord shall not be entitled to retain any portion of a security deposit for damages claimed unless he has first obtained a money judgment for the disputed amount or filed with the court satisfactory proof of an inability to obtain service on the tenant or unless:
    Based on that statement, a landlord simply cannot retain any amount of the deposit based on damages, exclusive of rent due unless they first obtain a judgment. How can that even be put into practice since, if the landlord is precluded from retaining a deposit without first having a judgment but the law requires they refund the deposit within an amount of time that would not allow the landlord to obtain a judgment. That means if there are damages (exclusive of rent due), the landlord must first refund the deposit and then sue to obtain a judgment and then collect on that judgment. Kind of defeats the purpose of the deposit, doesn't it?

  2. #2
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    Default Re: No Security Deposit, Dispute on Damage Amount, Landlord Threatening Collections

    Quote Quoting jk
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    of others is quite clear. You cannot be others. There is no ambiguity there.
    So now you're agreeing with the interpretation of the eavesdropping statute? If you record your own conversation, it's not the conversation of others?
    Quote Quoting jk
    Wile the case cited does state that, I do not agree that is what the statute is saying.
    And the original trial court agreed with you. However, your attempt to reconstruct the statute seems less compelling to me than position taken by the Court of Appeals - yours requires ignoring the stated purpose of the statute and eliding from the interpretation the references to security deposits that support the position ultimately adopted by the Court of Appeals. It is reasonable in context to interpret "All claimed damages" as "all damages claimed against the security deposit", even before considering the precedent relied upon by the court in relation to the statutory modification of periods of limitation. There are plenty of reasons to believe that the legislature would treat differently a circumstance where the landlord was holding onto somebody else's money, versus where the landlord was not. I would be more sympathetic to your argument if the landlord in the case we're discussing held a security deposit.

    Your comment on MCL 554.613 reflects more bad drafting, and it becomes necessary to read into the language an effective stay of the 45 day rule once litigation has been commenced. An argument can be made (and has been by the Michigan Supreme Court) that it's not the court's job to fix legislative mistakes of this type, although I'm not sure how diligently they adhere to that principle, and I haven't tried to determine if that particular tension has actually been litigated.

  3. #3
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    Default Re: No Security Deposit, Dispute on Damage Amount, Landlord Threatening Collections

    Mr. Knowitall;740566]So now you're agreeing with the interpretation of the eavesdropping statute? If you record your own conversation, it's not the conversation of others?
    you can record your conversation all you want. You cannot record the conversation of others without permission and that person you are having a conversation with is "another". If you can figure out how to record only your part of the conversation, then by all means, go for it. I'm just having a hard time figuring out how to actually do that though.

    I would be more sympathetic to your argument if the landlord in the case we're discussing held a security deposit.
    well, of course since that is the basis of your position.

    I just read the statute as applying to damages regardless of whether it is countered by a deposit or not. Obviously, unless I end up in court for such a matter, my perspective is truly irrelevant and I must accept the current standing of the law, regardless of whether I agree with it or not.


    I do appreciate the corrections though and especially your explanations and listening to my attempts to defend my position.

    Your comment on MCL 554.613 reflects more bad drafting, and it becomes necessary to read into the language an effective stay of the 45 day rule once litigation has been commenced. An argument can be made (and has been by the Michigan Supreme Court) that it's not the court's job to fix legislative mistakes of this type, although I'm not sure how diligently they adhere to that principle, and I haven't tried to determine if that particular tension has actually been litigated.
    has anybody thought about trashing the entire MCL and starting over? I understand a courts position in clarification but dang, many of these are so muddy to start with, a court, in my opinion should start sending bills to the guys that drafted some of that stuff due to the time required to fix their messes.

  4. #4
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    Default Re: No Security Deposit, Dispute on Damage Amount, Landlord Threatening Collections

    Quote Quoting jk
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    you can record your conversation all you want. You cannot record the conversation of others without permission and that person you are having a conversation with is "another". If you can figure out how to record only your part of the conversation, then by all means, go for it. I'm just having a hard time figuring out how to actually do that though.
    I can see why the Court of Appeals chose not to torture the language of the statute in that manner. Given a poorly drafted statute, although they arguably picked 'bad', it's better than picking 'worse'.
    Quote Quoting jk
    has anybody thought about trashing the entire MCL and starting over?
    I believe that would involve, oh... what is it called.... something that legislatures find to unduly interfere with meeting with lobbyists, fund raising, and the like....

    Oh yes...

    It would involve work.

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