Michigan's top court split 3–3 on short-term rentals, so nothing was settled
Michigan's top court split 3–3 on short-term rentals, so nothing was settled
2026-09-12 · Michigan · Courts
What happened. The Michigan Supreme Court granted leave, took briefing and argument, and then on 9 July 2025 affirmed by equal division of the Court in Melvin R. Berlin Revocable Trust v Rubin, SC No. 166228.1
That disposition is the whole story, and it is routinely reported as though the Court had decided something. It did not.
What an equal-division affirmance means
Three justices would affirm, three would reverse, and the judgment below stands. It sets no Supreme Court precedent. The decision it leaves in place — a Court of Appeals per curiam issued 20 July 2023, Docket No. 359300 — was itself unpublished, and under MCR 7.215(C)(1) an unpublished Michigan opinion is not precedentially binding either.
So after a full grant of leave in Michigan's highest court, the state's operative law on whether a “single family residence purposes” covenant bars short-term rentals still rests where it did: on Court of Appeals authority.
The lineup, which is the interesting part
Justice Welch concurred to affirm, joined by Justice Zahra. Justice Thomas dissented and would have reversed, joined by Chief Justice Cavanagh and Justice Bolden. Justice Hood did not participate, the case having been considered before he took office.
Notably, Justice Welch — who voted to affirm — expressly disagreed with the Court of Appeals' reasoning that a summer home cannot constitute a permanent residence where the owner's domicile is elsewhere, and would narrow O'Connor v Resort Custom Builders on that point. Justice Thomas would have found no unambiguous exclusion, noting that the high courts of thirteen sister states read analogous covenants the other way.
The facts, because they are unusually strong for the association side
Swift Estates is a nine-home, 22-acre lakeside subdivision in Berrien County with a private Lake Michigan beach, governed by a 1977 Declaration limiting lots to “single family residence purposes.” The association barred short-term rentals and denied renters access to the amenities. The owners who were sued — Thomas Rubin and Nina Russell — were domiciled in England and Washington State, and the homes were mass-marketed almost exclusively as short-term rentals.
Berrien Circuit Court and the Court of Appeals both held the covenant prohibited the use. If a Michigan association was ever going to get a clean statewide rule from these facts, this was the case, and it did not.
What a 3–3 means for a Michigan board
Three things, and the first is the least comfortable.
- Your covenant's outcome is panel-dependent. Half the current Supreme Court was prepared to hold that a covenant of this kind does not unambiguously exclude short-term rentals. A board budgeting for enforcement litigation should not price it as a settled question.
- Explicit language beats interpretive argument, and it always did. A declaration that says “no lease of less than 30 days” does not need Terrien, Eager v Peasley or O'Connor. Associations spending money litigating “single family residence purposes” are litigating a drafting problem. Amending is usually cheaper than one appeal.
- The domicile argument is now visibly weak. Justice Welch's concurrence signals that the “a summer home cannot be a permanent residence” line of reasoning has no majority behind it. An association leaning on where an owner is domiciled should expect that to be attacked.
The case that runs in the opposite direction
Michigan's covenant law is not uniformly owner-friendly, and one 2025 decision goes considerably further than Berlin in the association's direction.
In Timber Lake Drive Property Owners' Association v Gribi, No. 369520 (18 September 2025, unpublished), the Court of Appeals held that a nine-month residential lease violated a 1967 restriction confining lots to “residential purposes only” and barring “business or commercial purposes.” Renting for money was a commercial use “even if that activity is residential in nature.”
Read together, the two decisions describe a body of law where the reach of a covenant depends heavily on which panel reads it — and where the Supreme Court has now looked at the question once and declined, by tie, to fix it.
What to watch next
Another vehicle. Justice Hood did not participate in Berlin, so the tie is an artefact of timing as much as of doctrine, and a full Court might resolve it. There is no condominium, homeowners association or restrictive-covenant case on the Michigan Supreme Court's oral-argument calendar for the 2025–2026 term.
Related Michigan HOA Topics
Stay on top of Michigan HOA law
Every week: new Michigan legislation, court rulings, and regulatory developments affecting condos, planned communities, and property managers. Free.
No spam. Unsubscribe anytime.