SENATE BILL NO. 232

March 19, 2019, Introduced by Senator RUNESTAD and referred to the Committee on Judiciary and Public Safety.

"Revised judicature act of 1961,"

by amending sections 3801, 3810, 3815, and 3825 (MCL 600.3801, 600.3810, 600.3815, and 600.3825), sections 3801, 3810, and 3825 as amended by 2014 PA 387 and section 3815 as amended by 2015 PA 153.

the people of the state of michigan enact:

Sec. 3801. (1) A building, vehicle, boat, aircraft, or place is a nuisance if 1 or more of the following apply:

(a) It is used for the purpose of lewdness, assignation, prostitution, or gambling.

(b) It is used by, or kept for the use of, prostitutes or other disorderly persons.

(c) It is used for the unlawful manufacture, transporting, sale, keeping for sale, bartering, or furnishing of a controlled substance.

(d) It is used for the unlawful manufacture, transporting, sale, keeping for sale, bartering, or furnishing of vinous, malt, brewed, fermented, spirituous, or intoxicating liquors or mixed liquors or beverages, any part of which is intoxicating.

(e) It is used for conduct prohibited by section 49 of the Michigan penal code, 1931 PA 328, MCL 750.49.

(f) It is used for conduct prohibited by chapter LXVIIA of the Michigan penal code, 1931 PA 328, MCL 750.462a to 750.462h.

(g) It is used to facilitate armed violence in connection with the unlawful use of a firearm or other dangerous weapon.

(2) All Subject to subsection (5), all furniture, fixtures, and contents of a building, vehicle, boat, aircraft, or place described in subsection (1) and all intoxicating liquors in the building, vehicle, boat, aircraft, or place are also declared a nuisance.

(3) All controlled substances and nuisances shall must be enjoined and abated as provided in this act and the court rules.

(4) A person, or a servant, agent, or employee of the person, who owns, leases, conducts, or maintains a building, vehicle, or place described in subsection (1) is guilty of a nuisance.

(5) Subsection (2) does not apply to any portion of the contents of a building, vehicle, boat, aircraft, or place described in subsection (1) if the prosecuting attorney of a county has determined that a portion of the contents are not nuisances under subsection (2) and are legally owned by a person that is not a party to an action or order of abatement under this chapter.

(6) (5) As used in this section, "controlled substance" means that term as defined in section 7104 of the public health code, 1978 PA 368, MCL 333.7104.

Sec. 3810. (1) For purposes of this chapter, the grantee or vendee of the last recorded deed or contract that describes the premises, or any part of the premises, on which a nuisance exists as described in section 3801 is considered to be the owner of the premises. The naming of a grantee or vendee as a party defendant in an action under this chapter gives the court authority to abate the nuisance by closing the premises and the defendant is subject to the order and judgment of the court.

(2) For purposes of this chapter, any person in whose name a vehicle, boat, or aircraft is titled, and any secured party or other lien holder whose secured interest in or lien against the vehicle, boat, or aircraft has been filed with the secretary of state or in the office of the register of deeds before the commencement of an action under this chapter, is considered to be the owner of the vehicle, boat, or aircraft. The plaintiff shall join any such secured party or lien holder as a party defendant to an action under this chapter.

(3) A court shall not enter an order or judgment against a defendant under this chapter unless if the prosecuting attorney determines the property at issue must be returned under section 3815(5) or if a copy of the summons and complaint has not been served on the defendant as provided by Michigan court rules and the defendant has not been given an opportunity to be heard.

Sec. 3815. (1) In All of the following apply to an action under this chapter: , evidence

(a) Evidence of the general reputation of the building, vehicle, boat, aircraft, or place is admissible for the purpose of proving the existence of the nuisance.

(b) (2) In an action under this chapter, proof Proof of knowledge of the existence of the nuisance on the part of 1 or more of the defendants is not required.

(c) (3) In an action under this chapter, it It is not necessary for the court to find the property involved was being used as and for a nuisance at the time of the hearing, or for the plaintiff to prove that the nuisance was continuing at the time the complaint was filed, if the complaint is filed within 90 days after any act, any violation, or the existence of a condition described in section 3801 as a nuisance.

(2) The law enforcement agency that is investigating or responding to an alleged nuisance shall immediately provide notice to the prosecuting attorney of the county if any property is seized by the law enforcement agency. The law enforcement agency shall provide a list of the property that was seized to the prosecutor and to the owner of the property.

(3) If the owner of property seized under subsection (2) disputes that the property is a nuisance, the owner may seek the return of the property by filing a motion in the district court having jurisdiction in the location where the property was seized.

(4) If a motion is filed under subsection (3), the prosecutor shall review the list of property provided by the seizing law enforcement agency under subsection (2) and determine all of the following:

(a) Whether or not all or a portion of the property seized under subsection (2) likely constitutes a nuisance.

(b) Whether or not the owner of the property is a party to an action brought under this chapter.

(d) Whether or not the property presents a hazard to public safety or is otherwise safe to return to the owner.

(5) If the prosecutor determines based upon his or her review of the list provided under subsection (2) that all or a portion of the property seized under subsection (2) may be returned to the owner, the prosecutor shall provide a list of returnable property to the seizing law enforcement agency and ensure that the property is returned.

(6) If the prosecutor determines that the property must not be returned under subsection (5), the prosecutor must object to the return of the property by a motion in writing to the district court.

(7) If the prosecutor objects under subsection (6), the property must not be retuned until the final disposition of an abatement action under this chapter.

(8) (4) In an action under this chapter, on finding that the plaintiff has satisfied the burden of proof and that the material allegations of the complaint are true, the court shall enter a judgment and order of abatement as provided in this chapter. However, if the plaintiff seeks abatement of a nuisance by forfeiture or sale of a vehicle, boat, aircraft, or other personal property, the plaintiff has the burden of proving by clear and convincing evidence that the vehicle, boat, aircraft, or property was used for or in furtherance of the activity or conduct that constituted the nuisance as described in section 3801.

Sec. 3825. (1) If the existence of the nuisance is established in an action under this chapter, the court shall enter an order of abatement as a part of the judgment in the action. The order of abatement may order all of the following:

(a) The removal from the building or place of all furniture, fixtures, and contents.

(b) The sale of the furniture, fixtures, and contents in the manner provided for the sale of goods under execution.

(c) The effectual closing of the building or place against its use for any purpose, and so keeping it closed for a period of 1 year, unless sooner released as provided in this chapter.

(d) Any other equitable relief the court considers necessary.

(2) Any vehicle, boat, or aircraft found by the court to be a nuisance under this chapter is subject to the same order and judgment as any furniture, fixtures, and contents under subsection (1).

(3) If the existence of the nuisance is not established with respect to all or some portion of property seized under this chapter, the court shall enter an order requiring the return of that property to the owner.

(4) (3) On the sale of any furniture, fixtures, contents, vehicle, boat, or aircraft as provided in this section, the officer executing the order of the court shall do the following in the following order:

(a) Deduct the expenses of keeping the property and the costs of the sale.

(b) Pay all secured interests and liens according to their priorities as established by intervention or otherwise at the hearing or in other proceedings brought for that purpose as being bona fide and as having been created without the secured party or lien holder having any notice that the property was being used or was to be used for the maintenance of a nuisance as described in section 3801.

(c) Subject to subsection (5), (6), pay the costs incurred in the prosecution of the action, including reasonable attorney fees for services necessitated as determined by the court.

(d) Subject to subsection (5), (6), pay the balance to the state treasurer to be credited to the general fund of this state.

(5) (4) If any person uses a building or place ordered to be closed under this section with knowledge that the building or place is closed by order of the court, the person is subject to punishment for contempt as provided in section 3820.

(6) (5) If the court in an action under this chapter declares property to be a nuisance under section 3801(1)(f), the officer executing the order of the court shall first pay from the proceeds any amount determined by the court to be due to the victim. If there is any balance remaining, the officer shall pay the costs of prosecution as provided in subsection (3). For purposes of determining the amount due to a victim under this subsection, the court shall consider the loss suffered by the victim as a proximate result of the conduct and may shall use as guidance the items of loss enumerated in section 16b of the William Van Regenmorter crime victim's rights act, 1985 PA 87, MCL 780.766b.

Enacting section 1. This amendatory act takes effect 90 days after the date it is enacted into law.