[History: Tribal Act #05-23.1501 enacted by Tribal Council
on October 19, 2005.]
This chapter is intended to provide a uniform and fair procedure
governing the eviction of persons from Tribally held and/or managed
residential properties when the cause for eviction is violation of
a residential lease or for cause by a violation of a Grand Traverse
Band of Ottawa and Chippewa Indians (GTB, Grand Traverse Band) Housing
Department Policy and Procedure as established under the authority
of the Native American Housing Assistance and Self-Determination Act,
25 U.S.C. § 4101 et seq. (NAHASDA).
[History: Tribal Act #05-23.1501 enacted by Tribal Council
on October 19, 2005.]
(a)
Eviction: the recovery of real property and the termination of any
possessory interest in that property by operation of law.
(b)
Tribally held or managed: Property under the control of the Grand
Traverse Band through the GTB Housing Department. Tribally held property
are units held and managed under NAHASDA authority as low rent units
managed by the Housing Department. "Managed property" are units managed
and held as "Mutual Help Homes" under the authority of NAHASDA. "Market
Rentals" are units held and managed by the Housing Department outside
the authority of NAHASDA.
(c)
For cause: Any substantial violation of the GTB Housing Department
policy and procedure, or violation of a residential lease.
[History: Tribal Act #05-23.1501 enacted by Tribal Council
on October 19, 2005.]
If after the date set forth in the GTB Housing Department's
notice to quit possession of the property, the tenant remains in possession,
the GTB Housing Department may file a complaint for eviction and such
other relief as deemed just and proper, in the Tribal Court. The complaint
shall state:
(a)
The names of the adult tenant(s) against whom the suit is brought;
(b)
A description of the rental agreement, if any;
(c)
The address or reasonable description of the location of the premises;
(d)
The grounds for eviction;
(e)
A statement showing that the notice to quit and any required termination
notices have been served in accordance with this ordinance or other
applicable law;
(f)
A statement of the relief demanded, including any claim(s) for possession
of the dwelling unit, damages, fees, costs, or other special relief;
(g)
If violation of a federal regulation is asserted as the grounds for
eviction for cause, the federal regulation shall be cited; and
(h)
The GTB Housing Department shall declare compliance with all regulatory
processes prior to filing the complaint for eviction.
[History: Tribal Act #05-23.1501 enacted by Tribal Council
on October 19, 2005.]
(a)
The Tribal Court shall, within 13 business days of filing, review
the complaint for eviction and shall make findings regarding compliance
with § 1003. If found in compliance, the complaint shall
be served pursuant to § 1003 along with the Court's
summons requiring the defendant to answer the complaint either in
person or in writing on or before a date certain. In cases in which
the grounds for eviction is for cause as defined herein, the answer
shall be due no less than three, or more than five calendar days from
the date of the summons. In all other cases, the answer shall be filed
either in writing or in person within 10 calendar days of the date
of the summons. Proof of service of the complaint and summons shall
be required before proceeding.
(b)
Any answer to the complaint shall state any and all defenses to be
asserted as well as any factual disputes. When the defendant answers
the complaint in person, a written rendering of the answer shall be
served upon the plaintiff within five business days of receipt of
the answer.
[History: Tribal Act #05-23.1501 enacted by Tribal Council
on October 19, 2005.]
(a)
If the defendant timely files an answer either in person or in writing,
the Court shall set a date for hearing at which the defendant shall
appear and show cause why an order of eviction should not be entered.
All parties shall be notified by the court of the date, time, and
place of the hearing no less than three business days prior to the
scheduled hearing.
(b)
The hearing to show cause shall be held within 15 calendar days of
the date of filing of the answer. If the hearing date falls on a weekend
day or holiday, the hearing will held on the first business day following
the weekend or holiday.
(c)
If the stated cause for eviction is the non-payment of rents, the
defendant may, for good cause shown and upon payment in full of all
rents due from the date of filing of the complaint until the scheduled
date of the show cause hearing may, at the court's discretion,
obtain an extension of time for the hearing of no more than 15 additional
days. There shall be no extension of time of hearing when the complaint
alleges for cause grounds for eviction.
(d)
The Court may, as a matter of discretion, or upon motion of either
party, order the defendant to pay into an escrow account with the
Court rents due for the occupancy of the property pending litigation.
Upon final determination of the Court regarding eviction, the funds
in escrow may be released entirely or in part to the plaintiff or
its agent in satisfaction of terms of the lease or other GTB Housing
Department agreement. Funds not released to the plaintiff or its agent
pursuant to a final judgment shall be released to the defendant.
[History: Tribal Act #05-23.1501 enacted by Tribal Council
on October 19, 2005.]
The Court shall grant remedies provided within this ordinance
unless clear and convincing evidence is presented demonstrating:
(a)
The premises of the property that is the subject of the lease or
other housing agreement are untenable, uninhabitable or present a
condition constituting constructive eviction by the plaintiff or its
agent and that defendant provided reasonable and proper notice to
the plaintiff of the condition and that plaintiff failed to timely
remedy any serious hazard to human health and safety. Infringement
upon an aesthetic use of the property, whether adversely affecting
the quiet use and enjoyment of the property by the defendant, shall
not constitute a serious hazard.
(b)
The plaintiff has failed or refused to make repairs for which plaintiff
is responsible resulting in an adverse effect on defendant's
quiet use and enjoyment of the property. Defendant must have provided
the plaintiff notice of the defect and plaintiff either, without good
cause, failed to make timely repairs or refused to repair the defect.
(c)
There are monies due and owing to the defendant because defendant
has been required to make repairs on conditions over which the plaintiff
is responsible and plaintiff has, after reasonable notice, failed
or refused to make the repairs. Sums owing to the defendant may be
a complete or partial defense to complaint for eviction, but only
to the extent that such sums set off monies validly owed to the defendant
pursuant to the lease or other housing agreement. Eviction may be
ordered after offset, if defendant fails or refuses to comply with
the terms of the lease or other housing agreement.
(d)
Due to improper conduct of plaintiff, there has been injury to the
defendant or lawful members of the household to the degree that justice
is served by modification or denial of remedies including but not
limited to the equitable defenses of estoppel, laches, fraud, misrepresentation
and breach of material obligations to public health and safety to
a degree that offends community standards of peace and justice.
(e)
Serious and material breach(es) of applicable housing federal and
Tribal statutes by the plaintiff such that a grant of remedy would
be adverse to justice and against public policy.
(f)
The cause for eviction is apparently the race, color, national origin,
religion, sex, familial status or handicap [The Fair Housing Act,
42 USCA § 3601 et seq.] of the defendant or lawful members
of the household.
(g)
The termination of the tenancy and/or housing agreement is clearly
in retaliation for the defendant's assertion of rights under
this ordinance or defendant's efforts to compel plaintiff to
comply with responsibilities defined in this ordinance.
(h)
Other material facts presented by the defendant that clearly demonstrate
that eviction is unjust and contrary to public interest.
[History: Tribal Act #05-23.1501 enacted by Tribal Council
on October 19, 2005.]
Extensive, prolonged or time consuming discovery and pre-hearing
procedures are impermissible except in the interest of justice and
for good cause shown by the moving party. Extensions of time for discovery
and pre-hearing shall only be granted upon written motion to the Court.
Discovery shall be informal, and reasonably reciprocal, completed
within five calendar days of the date of hearing. Discovery requests
shall be made within three calendar days after the show cause hearing
has been set. The court may enter reasonable orders requiring discovery
or to protect the rights of the parties upon receipt of reasonable
notice.
[History: Tribal Act #05-23.1501 enacted by Tribal Council
on October 19, 2005.]
The presentation and admission of evidence under this ordinance
shall comport with the following:
(a)
All relevant and material evidence may be admitted.
(b)
The interests of justice and fairness shall be the determinative
factors in ruling on challenges to the admissibility of evidence.
(c)
The Court may avail itself of any recognized authoritative materials,
books or documents to guide it in reaching a ruling on the admissibility
of any evidence.
(d)
Evidence of the customs, traditions and mores of Native American
tribes, particularly those of the Ottawa and Chippewa, are admissible.
(e)
The Court may admit reasonable and reliable hearsay evidence. Determinations
regarding hearsay objections shall be based upon the materiality and
relevance of the evidence under the circumstances. Evidence may be
excluded if its probative value is outweighed by a substantial likelihood
of prejudice, confusion, unfair surprise or misleading of the trier
of fact. Hearsay is freely admissible when all parties to the hearsay
are present before the court and qualified to testify regarding the
hearsay evidence.
(f)
Incident reports generated by law enforcement agencies shall be admissible
hearsay under this ordinance.
(g)
Upon request of any party, the Court may take judicial notice of
specific facts which, by reason of common certainty in the community,
are undisputable.
[History: Tribal Act #05-23.1501 enacted by Tribal Council
on October 19, 2005.]
The burden of proof for issuance of an order of eviction shall
be a preponderance of the evidence that lawful reason exists to terminate
the lease or other housing agreement.
[History: Tribal Act #05-23.1501 enacted by Tribal Council
on October 19, 2005.]
Judgment on eviction shall be rendered within five calendar
days of the hearing to show cause and take the following forms:
(a)
Order of eviction stating the date and time for complete delivery
of the property to plaintiff.
(b)
Grant of actual damages as provided for in the agreement of the parties
or this ordinance, including interest.
(c)
Order parties to execute an obligation required by law.
(d)
Establish a payment plan for the defendant.
(e)
Establish and grant power of attorney in another person or entity
to fulfill the rights and/or obligations of either party.
(f)
Remediate the action in part or in whole through appropriate recalculation
of rents or sums due.
(g)
Order the defendant to perform specific work for the plaintiff in
consideration of sums due and/or damages.
(h)
Order payment of attorneys' fees and, where allowed by law or
agreement, costs and expenses of litigation.
(i)
Order the parties into negotiations as provided for in this ordinance.
(j)
Grant any other relief allowed in law or equity and provided for
in this ordinance.
[History: Tribal Act #05-23.1501 enacted by Tribal Council
on October 19, 2005.]
If a defendant fails to answer the complaint for eviction or
appear for the hearing to show cause, the Court shall enter a default
judgment in favor of plaintiff which presumes all facts presented
in the complaint to be true. If plaintiff fails to appear for the
hearing to show cause, the Court may dismiss the complaint with or
without prejudice.
[History: Tribal Act #05-23.1501 enacted by Tribal Council
on October 19, 2005.]
The judgment shall be in the form of an order and specifically
state the relief granted but need not state findings of fact or law.
The judgment may offer a brief statement in support of the order.
The Court should, whenever possible, render an immediate judgment.
[History: Tribal Act #05-23.1501 enacted by Tribal Council
on October 19, 2005.]
The order of eviction may be executed by a duly authorized law
enforcement officer or other officer of the Court, or one appointed
by the Court for that purpose. Execution of an eviction order shall
entail:
(a)
Removal of the defendant and all members of that person's household
from the dwelling with verbal notice not to return or re-enter the
premises.
(b)
Provision of a copy of the order of eviction to all adult tenants/occupants
of the property.
(c)
The posting of the order of eviction upon the door of the premises
if no legal occupant of the property is present at the time of execution.
(d)
Supervision of the removal of all possessions of the tenant and/or
legal occupants.
(e)
Judgment shall be executed within five days of the entry of judgment
unless the order specifies a date certain for execution of the order.
The person who executes the order of eviction shall make a report
to the Court within 48 hours of the execution of the order. The report
shall include the date and time of execution and a brief description
of the action taken to execute the order. Failure to properly and
timely execute an order of eviction in good faith shall be subject
to payment of reasonable damages, costs and the expenses of either
party arising directly from the failure to properly execute in good
faith. Additionally a person who fails to properly execute an eviction
order in good faith may be subject to suspension or termination from
employment. This section shall apply to any judgment for the defendant
obtained under this ordinance and the general civil procedure, small
claims procedure of the Grand Traverse Band.
[History: Tribal Act #05-23.1501 enacted by Tribal Council
on October 19, 2005.]
If a judgment favors the plaintiff, the defendant may apply
for a stay of execution of the eviction order if within five days
of judgment being rendered, the following is established:
(a)
Good and reasonable grounds affecting the well being of the defendant
are stated;
(b)
There would be no substantial prejudice or injury to the plaintiff
during the period of the stay;
(c)
Execution of the judgment could result in extreme hardship for the
defendant(s); or
(d)
A bond is posted or monies are paid to the Court, to satisfy the
judgment or payment for the reasonable use and occupancy of the premises
during the period of time following the judgment. No stay may exceed
three months in the aggregate. The Court Clerk shall distribute such
arrearages to the plaintiff in accordance with any order of the Court.
[History: Tribal Act #05-23.1501 enacted by Tribal Council
on October 19, 2005.]
Appeals under this ordinance shall be handled according to the
general Tribal appellate provisions, with the exception that the party
taking the appeal shall have only five days from the entry of the
order of judgment to file an appeal. All orders from the Court will
remain in effect during the pendency of an appeal under this ordinance
unless otherwise ordered by the Court.
[History: Tribal Act #05-23.1501 enacted by Tribal Council
on October 19, 2005.]
Any miscellaneous complaint or claim including a complaint or
claim by a tenant which does not fall within the procedures of this
ordinance may be made under the general Tribal civil procedure code
and/or Tribal small claims procedure code.
[History: Tribal Act #05-23.1501 enacted by Tribal Council
on October 19, 2005.]
Any notice to leave the premises shall be by written order of
the Court, and shall be delivered to the defendant in the following
manner:
(b)
Delivery will be effective when it is:
(c)
If the notice cannot be given by means of personal delivery, or defendant
cannot be found, the notice may be delivered by means of:
(1)
Certified mail, return receipt requested, at the last known address
of the plaintiff or defendant; or
(2)
Securely taping a copy of the notice to the main entry door of the
premises in such a manner that it is not likely to blow away, and
by posting a copy of the notice in some public place near the premises,
including a Tribal office or other commonly frequented place and by
sending a copy first class mail, postage prepaid, addressed to the
defendant at the premises.
[History: Tribal Act #05-23.1501 enacted by Tribal Council
on October 19, 2005.]
(a)
Where the Court orders an eviction, and the defendant or any other occupant of the premises refuses to vacate voluntarily by the effective date of that order, the defendant or other occupants may be forcibly removed from the premises by a Tribal law enforcement officer. At the hearing where the eviction is ordered, the Court shall inform the defendant that if defendant does not vacate the premises voluntarily by the effective date, defendant and the other occupants will be subject to forcible eviction, and their property will be subject to storage, sale and disposal as set forth in Subsection (c) below.
(b)
Following eviction, the Court may allow the GTB Housing Department
or the United States government access to any property leased by either
of them for purposes of preserving and securing it.
(c)
Following forcible eviction of the defendant and/or other occupants,
the former occupant's personal property shall be stored by the
owner of the premises for at least five days, either on the premises
or at another suitable location. In order to reclaim their property,
the former occupants shall pay the reasonable costs of its removal
and storage. If they do not pay such costs within five days, the owner
is authorized to sell the property in order to recover those costs.
The landlord shall not condition return of the former occupant's
personal property on the payment of any costs or fees other than those
of removal and storage of those personal possessions. Should the landlord
attempt to condition return of personal; possessions on payment of
any other cost or fee, the landlord shall forfeit his right to the
costs of removal and storage. Upon request by the former occupants,
the landlord shall provide them with pertinent information concerning
the sale, including the time, date and location. Any proceeds from
the sale in excess of the storage and removal costs shall be remitted
to the former occupants. Nothing in the section shall be construed
to prevent the former occupants from reclaiming property remaining
after the sale if they can arrange to do so in a manner satisfactory
to the owner. If the abandoned property is of cultural, religious,
or ceremonial significance, the landlord shall have an affirmative
duty to locate next of kin and/or contact the Tribe in order to return
these items.
(d)
A copy of the police report be attached to executor's report
to the court.
[History: Tribal Act #05-23.1501 enacted by Tribal Council
on October 19, 2005.]
No landlord may compel a tenant to vacate any premises in a
forceful fashion or way which causes a breach of the peace. All landlords
shall give a notice to quit and obtain a court order as provided in
this ordinance.
[History: Tribal Act #05-23.1501 enacted by Tribal Council
on October 19, 2005.]
(a)
Security Deposit Limits. A landlord may demand a security deposit
of an amount equal to $100 or one month's periodic rent, whichever
is greater, which may be in addition to the current month's rent.
Additional security deposits may be allowed for special circumstances
such as animals or pets or tenant history or prior damages.
(b)
Payment of Security Deposit at Termination of Tenancy. The person
who is the landlord at the time a tenancy is terminated shall pay
to the tenant or former tenant the amount of the security deposit
that was deposited by the tenant with the person who was landlord
at the time such security deposit was deposited less the value of
any damages which any person who was a landlord of such premises at
any time during the tenancy of such tenant, has suffered as a result
of such tenant's failure to comply with such tenant's obligations.
Damages shall not include normal wear and tear.
(c)
Action to Reclaim Security Deposit. Any tenant may bring a civil
action in Tribal Court to reclaim any part of his security deposit
which may be due.
