Condo B.E.A.T

IN ALLIANCE WITH

Zelmanski, Danner & Fioritto, PLLC and Fraser Trebilcock Davis and Dunlap, P.C.

Proudly present:

“Back to the Office: Restarting Operations for your Organization after the Covid-19 Lockdown”

June 10, 2020 at 2:00 p.m. to 3:30 p.m.

on Facebook Live and Zoom

Covering topics such as restarting contracts, handling Covid-19 related insurance claims, and the proper conducting of remote meetings for organizations

Presented by:

Edward J. Zelmanski,
of
Zelmanski, Danner & Fioritto, PLLC
Gregory J. Fioritto,
of
Zelmanski, Danner & Fioritto, PLLC
Edward J. Castellani,
of
Fraser Trebilcock, Davis & Dunlap, PC

Have all your organization’s questions about best practices for a post-pandemic reality answered live by one of these experienced attorneys during an interactive webinar presented via Facebook Live and Zoom.

Another B.E.A.T. (Board Education and Training) Session

brought to you as a community service at no charge to attendees by the law firms of

Zelmanski, Danner & Fioritto, PLLC and Fraser Trebilcock Davis Dunlap, P.C.

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STEP FORWARD MICHIGAN KEEPS MARCHING ON

By: Melissa D. Francis, Esq.

In 2010, the Michigan State Housing Development Authority (MSHDA) received funding of $499 million dollars from the Federal Hardest Hit Program to provide financial assistance to homeowners left struggling after the recession and mortgage crisis.  In response, MSHDA created Step Forward Michigan aka The Michigan Hardest Hit Fund (“Step Forward”).

Through the Step Forward program, MSHDA provides loans of up to $30,000.00 at 0% interest to qualified homeowners for payment of delinquent mortgages, property taxes, and homeowners’/condominium association assessments on their primary residence.  Homeowners are only eligible to receive one loan from the program, but may utilize that loan to pay multiple qualifying debts.  Homeowners do not need to make payments on these loans as long as they retain the property as their primary residence.  Each year the property is retained as the owner’s primary residence, 20% of the loan is forgiven, after five years, the loan is completely forgiven and any lien on the property securing the loan is discharged.

Initially, it was anticipated that Step Forward would wind down operations and be out of funds by the end of 2017.  However, as of October 2018, the program still had $19 million dollars left to disburse ( https://www.canr.msu.edu/news/how-to-apply-for-step-forward-michigan, October 12, 2018).  As of the writing of this article, the program continues to operate and accept applications, even with their staff working remotely due to the COVID-19 crisis.

In order to receive funds on accounts for homeowners that qualify to receive assistance from Step Forward Michigan, homeowners’/condominium associations must complete and submit an application with supporting documentation to Step Forward Michigan.  Once this documentation is reviewed and approved by Step Forward, the Association will be listed as a Participating Partner with the program.  Participating Partners are listed on the Step Forward Michigan website.  Currently, there are approximately 86 homeowners’/condominium associations which are participating in the program. In submitting the application, the association must agree, among other things, to communicate with MSHDA or the homeowner/co-owner regarding the outstanding balance on the account and accept payment from Step Forward via direct deposit from the State of Michigan.

If a homeowner qualifies to receive assistance and the association is already a Participating Partner, the money will be deposited into the association’s account shortly after Step Forward contacts the association for a payoff of the debt owing and the payoff is provided by the association.  However, if a homeowner qualifies for assistance and the association is not a Participating Partner, the association will need to quickly complete the application and submit it to Step Forward for review and processing before they are able to receive funds.  In some cases, the association’s application cannot be processed before the Homeowners’ Step Forward approval expires.  In these cases, the homeowner will need to re-apply to receive assistance or agree to accept assistance only as to any other qualifying debts, knowing that they will not be able to apply for the program again and get assistance for the association debt.

With many homeowners experiencing an interruption in employment and the forecasting of an increase in delinquencies, association Boards should discuss and make a decision about becoming a Participating Partner with Step Forward Michigan.  Becoming a Participating Partner with Step Forward Michigan allows the association to offer its owners another option in seeking assistance to pay the association and potentially the mortgage company and/or property taxing authority.

It is recommended that associations that are not currently Participating Partners apply for Step Forward as soon as possible to ensure that their applications are reviewed and processed before homeowners start their own application process.  Please call our main office in Plymouth (734-459-0062) or email Ms. Francis (mfrancis@zdfattorneys.com) for information on how our office can assist your association in getting the Step Forward Michigan Participating Partner Application completed, or if you have any questions about the program.

 

Melissa D. Francis joined the Firm in 2013 as an associate attorney. She is a graduate of Plymouth-Canton High School and earned her Bachelor of Arts Degree in International Relations from Michigan State University’s James Madison College in 1998. She earned her Juris Doctorate from Wayne State University Law School in 2001.  Ms. Francis is admitted to practice law in the State of Michigan, Federal District and Bankruptcy Courts for the Eastern and Western District of Michigan, and the United States Supreme Court. Ms. Francis has extensive experience representing both Creditors and Debtors in Chapter 7, 11, and 13 Bankruptcy proceedings.  Since association collections matters routinely involve bankruptcy issues, her vast experience in that field provides the Firm with a unique resource that provides tremendous value to the Firm’s Clients.  Ms. Francis is a member of the American Bankruptcy Institute.  She was a speaker at the 2019 Community Association Institute Law Conference in New Orleans discussing Consumer Bankruptcy and its impact on Community Associations.  She is also a speaker at the 2019 American Bankruptcy Institute Detroit Conference on Veteran’s Day.

Ms. Francis is a Past Dean of the Metro Detroit Alumni Senate of Delta Theta Phi Law Fraternity International.  She is active in the Plymouth-Canton Community as a member of the St. Thomas A’Becket Church choir, BeckRidge Productions, Spotlight Players Theater Company, and the Plymouth-Canton Marching Band Alumni Community.

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MICHIGAN SUPREME COURT RULES THAT MUNICIPALITY MAY ENACT REASONABLE RESTRICTIONS ON PRODUCTION OF MEDICAL MARIJUANA

By: Mark B. Davis, Esq.

On April 27, 2020, the Michigan Supreme Court decided the case of DeRuiter v Byron Township, Supreme Court No. 158311.   Ms. DeRuiter was a registered caregiver under the Michigan Medical Marijuana Act (“MMMA”), MCL §333.26421 et seq.   Pursuant to the terms of the MMMA, a caregiver can assist medical marijuana patients in the growing and processing of marijuana for their particular medical condition.  In exchange, each patient that is served by the caregiver transfers their right to grow their own marijuana to the caregiver.  A caregiver can support up to 5 patients and themselves if they qualify, and they are authorized to grow 12 plants per patient (up to a maximum of 72 plants).  A caregiver is allowed to be reimbursed for their costs to produce marijuana for their patients.

Ms. DeRuiter, not wanting to grow the marijuana plants in her residence, secured a lease on a commercial unit for her purposes.  The unit was appropriately situated in a commercial zone according to Byron Township’s zoning ordinance.

Byron Township had amended their zoning ordinance and classified caregiver activity as a home occupation.  The ordinance required that the home occupation be conducted “entirely within a dwelling or attached garage.”  In addition, the Byron Township ordinance required that the caregiver acquire a license.  After being warned that her caregiver activity in a commercially zoned building was a nuisance per se and that she needed a license, Ms. DeRuiter declined to move her marijuana plants or get the appropriate license.

Instead of complying with the Byron Township Ordinance, Ms. DeRuiter filed a lawsuit in the Circuit Court asking for a declaratory judgment stating that the zoning ordinance was pre-empted by the MMMA:

The MMMA states, in pertinent part, that a qualifying patient “is not subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action . . . for the medical use of marihuana in accordance with this act[.]” MCL 333.26424(a). The MMMA also provides the same immunity to a primary caregiver in “assisting a qualifying patient . . . with the medical use of marihuana in accordance with this act.” MCL 333.26424(b).

DeRuiter v Byron Township, MI Supreme Court No. 158211

Ms. DeRuiter contended that the Byron Township zoning ordinance deprived her of her right to grow marijuana under the MMMA.  The Circuit Court ruled in favor of Ms. DeRuiter.  Byron Township appealed, and the Court of Appeals confirmed the Judgment of the Circuit Court.  Both courts confirmed that the MMMA preempted the Michigan Zoning Enabling Act and therefore the Byron Township zoning ordinance was void.

The Judgment of the Circuit Court was based on an early Michigan medical marijuana case, Ter Beek v Wyoming; the Supreme Court in DeRuiter, in fact referred to the case as “Ter Beek II.”  A brief summary of Ter Beek is as follows: shortly after the MMMA was passed, the City of Wyoming amended its zoning ordinance to state that any land use that conflicted with federal law was prohibited under the zoning ordinance.   This effectively prohibited any use of, cultivation or possession of marijuana in the City of Wyoming, since marijuana is a “Schedule I” controlled substance pursuant to federal statute.  The Michigan Supreme Court eventually held that the MMMA in that case preempted the Michigan Zoning Enabling Act because it effectively prevented the use, cultivation, or possession of medical marijuana in the City of Wyoming completely and totally.

In DeRuiter v. Byron, the Michigan Supreme Court, by comparison, held that a municipality was entitled to enact reasonable restrictions on the production of marijuana under the MMMA.   In the legal world “reasonable” is a loaded term, and the parameters of “reasonableness” under DeRuiter are yet to be defined.  At the very least, we do know that limiting such caregiving to a residential home occupation (and location) and the requiring of a license is permitted under DeRuiter.

While the impact of the DeRuiter ruling on any particular dispute over medical marijuana use and cultivation is not certain, what is certain is that the legal result in each case will be greatly determined by whatever actions are or have been taken by the particular municipality in which the affected parties live.  My “crystal ball” tells me that many municipalities will take advantage of this opportunity under DeRuiter to enact what they consider to be “reasonable” regulation of medical marijuana production and cultivation. Some of these regulations will survive, while others may ultimately be struck down by a higher court as “overreaching” through litigation.

The other significant aspect of the DeRuiter ruling is that while many condominium associations prohibit “business uses” or “commercial activity” completely within their premises, many make exceptions for home occupations that do not unduly disrupt neighborhood/community life. There is an extensive line of cases that define what activity might qualify as an allowable “home business” in residential condominium and HOA settings.  For example, home day-cares have been allowed in some circumstances despite the extra traffic that they often produce. The outcomes in these cases have been very “language specific” meaning the prevailing party is usually the one that can better justify their activities as being “non-commercial” or “residential” in view of the particular language of their bylaws or declaration of restrictions (as the case may be).  In condominium and HOA communities where “home businesses” are allowed, I believe that a “caregiver” could potentially fit into the category of home businesses that are allowable.  Acting as a caregiver that provides or cultivates medical marijuana is low traffic activity, and (other than smell), it is not inherently intrusive – the marijuana must be cultivated in a secure, locked facility under the MMMA.

One final note, nothing in the DeRuiter ruling affects recreational marijuana under the Michigan Regulation and Taxation of Marijuana Act (“MRTMA”).  An individual may grow up to 12 plants for personal use under the MRTMA.

If private marijuana cultivation is a concern for your association, then you most assuredly should consider further action, such as amending your governing documents to expressly prohibit the growing of marijuana in your condominium/HOA in order to prevent the potential problems that may accompany the growing of marijuana plants.

Our attorneys have extensive experience in drafting document amendments to prohibit the use, cultivation, and/or smoking of marijuana in community associations.  Please contact us to discuss these and other possible solutions for any marijuana-related issues you may be encountering in your community.

 

Attorney Mark B. DavisMark B. Davis is a senior associate attorney and has been with the Firm since 2007.  Mr. Davis brings quite a diverse background of experience to the Firm.  He served in the U.S. Army from 1983 to 1987 and achieved the rank of sergeant in the Rapid Deployment Force.  After leaving the U. S. Army, Mr. Davis attended Eastern Michigan University, where he graduated with a degree in Public Law and Government.  He then attended Wayne State University Law School and obtained his Juris Doctor degree in 1997.

After graduating law school, Mr. Davis practiced law in Dearborn, Bay City, and Florida before landing in Plymouth with the Firm.  He has extensive experience in real estate, litigation and appellate matters (including federal litigation and circuit court appeals).  He also has significant experience in assisting condominium associations with lending transactions.

Mr. Davis has extensive experience in the emerging field of marijuana law and the impact that both recreational and medical marijuana can have on condominiums.  He is a member of the Marijuana Law Section of the State Bar of Michigan and frequently conducts seminars for community association organizations (such as UCOM) as well as for the ZDF Condo & HOA B.E.A.T. Program on the subject.

Mr. Davis appears in court regularly and enjoys engaging in vigorous debates with judges and opposing attorneys.  He is admitted to practice in all state courts in Michigan and Florida, the U.S. District Courts for the Eastern and Western District of Michigan and the Middle District of Florida, the U.S. Court of Appeals for the Sixth Circuit, and the U.S. Supreme Court.

Mr. Davis has many interests outside of legal practice.  He spends most of his free time with his wife, three children, and the family dog.  He is an avid follower of the Lions and Tigers, and also enjoys working on home improvement projects, wood working, and reading.

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TO AMEND OR NOT TO AMEND… THAT IS THE QUESTION

By: Richard L. Wagner, Jr., Esq.

Unless you have been living in a cave, you have assuredly been bombarded with information about COVID-19.  With all of that information flying around, one question that has arisen is whether Condominium or Homeowners’ Associations should consider amending their governing documents to better address COVID-19 related issues in the event that this type of situation arises again in the future.

First, in order to deal with the unique challenges presented by COVID-19 and the Executive Orders of Michigan Governor Gretchen Whitmer, an Association Board of Directors may consider adopting new Rules and Regulations or Board Resolutions.  These new policies, which can usually be adopted by the Board unilaterally without a full membership vote, may be used to address issues such as closing community amenities (i.e. pools and clubhouses) and the adoption of CDC-compliant safety procedures for use and cleaning of common elements and access to the community.

A Board of Directors may also consider proposing amendments to the Association’s governing documents to specifically address the operation and management of the Association and the Board during similar emergency or “crisis” events.  Relevant topics for such crises-related amendments could include the following: distribution of notices to Members/ Residents during an emergency; requirements for meetings of the Board during a crisis and the conduct of business by the Board during such events; the Board’s power to adopt Emergency Rules; and handling catastrophic Events.

If your current government documents do not allow for notices to be given via electronic means (such as email, or for the use of electronic meetings via electronic conferencing services such as ZOOM or TEAMS), then steps should be undertaken to accommodate such procedures and administration in your Association’s documents in order to fully utilize these means of communication for Association business.

When discussing the amendment of documents, the Board of Directors should keep in mind that the amendment of an Association’s Articles of Incorporation typically requires a majority vote of approval by those co-owners entitled to vote, unless a greater number is stated in the documents.  The amendment of Condominium Association Master Deeds and Bylaws requires a two-thirds vote of approval by those co-owners entitled to vote; in some situations, a vote of the mortgagees may also be required.  The voting requirements for Homeowners’ Association Declarations and Bylaws are dependent upon the specific language in those documents.

In order to prepare for future crises similar to COVID-19, amendments to an Association’s documents should address the following:

  1. How will an Association provide notices to its members? If notice is to be provided electronically, members must consent to receive electronic notices.  What will be the procedure for members to consent to receive electronic notices, and how will the Association disseminate electronic notices?
  2. Will the Association allow actions to be taken without a formal meeting or by written ballot without a formal meeting? The Michigan Nonprofit Corporation Act (MNPCA) allows for the taking of corporate action by the membership by written consent without a meeting, provided certain procedures are followed and proper authority for such action exists in the Association’s Articles of Incorporation. The MNPCA also allows for the taking of corporate action without a meeting by the membership by written ballot, only if there is authority in the Articles of Incorporation or the Bylaws permit such action and certain procedures are followed.  How will the Association implement the procedures for taking action without a formal meeting?  Will the Association allow for voting by written ballot without a meeting?
  3. Will the Association allow action by the Board of Directors via electronic means or without a formal meeting? The MNPCA also allows actions by the Board without a meeting as prescribed in the Bylaws. Subject to the terms of the Association’s documents, the Board can participate in a meeting electronically via conference call or other means of remote communications if all participants can communicate with the other participants.  Action by the Board without a meeting also requires all members of the Board to consent in writing or by electronic transmission and such action is subject to any provisions in the documents which impacts same.

While amending an Association’s documents takes time, it is important to note that  subject to any limitations set forth in the MNPCA, other applicable laws (e.g. the Michigan Condominium Act), or the Association’s Articles of Incorporation, an Association, acting via its Board of Directors, “can exercise all powers necessary or convenient to effect any purpose for which the corporation formed.”  These purposes are generally stated in the Association’s Articles of Incorporation and further set forth in the other governing documents of the Association.  As such, subject to the terms of the Association’s documents, the Association and its Board may have further options and powers for addressing crisis-related concerns while any needed amendments are pending.

As we continue to work through the new “normal” brought about by COVID-19, our firm will continue to work with Association’s to update their policies, rules and governing documents to fit our changing times.

 

Richard L. Wagner, Jr. joined the Firm in 2016 as a long-time practitioner with over 40 years’ experience.  He is a Senior Associate Attorney with the Firm.  Prior to becoming an attorney, Mr. Wagner gained valuable experience working in the fields of construction, real estate, and property management.  He is truly a “veteran” in the realm of community association law, having provided real estate and community association legal services since 1976.  Before joining Zelmanski, Danner, and Fioritto, PLLC, Mr. Wagner was principal owner of the law firm of Schlottman & Wagner, PC, which focused heavily on the practice of community association law and represented hundreds of associations throughout the State of Michigan, with a particular focus on the Metro Detroit area.  Schlottman & Wagner, PC was highly-regarded in the world of community associations as one of the primary law firms in Michigan practicing in the field.

Through years of dedication and hard work, Mr. Wagner gained a depth of experience in the field of community association law which few Michigan attorneys can match.  His primary practice areas include civil litigation, collections matters, document amendments, general counsel, board education, and developer disputes and litigation.

Mr. Wagner is admitted to practice in the Michigan and Federal Bar Associations.  He is a member of the Real Property Law Section of the State Bar and its Legislative Sub-Committee for Condominiums, Cooperatives, and PUD’s.

Mr. Wagner’s professional affiliations include the State Bar of Michigan, the Community Associations Institute (CAI), the United Condominium Owners of Michigan (UCOM), the Macomb County Chamber of Commerce, and the Bar Associations for Macomb and St. Clair Counties.  Mr. Wagner formerly served as the Chairperson and, later, Vice Chairperson on the Clay Township (St. Clair County) Downtown Development Authority for several years.  Mr. Wagner works in our Mt. Clemens office and resides in Clay Township, Michigan.

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“SHELTER IN PLACE” ORDERS AND THE HANDLING OF NUISANCE COMPLAINTS DURING A PANDEMIC

By: Mark B. Davis, Esq.

I hope this writing finds everyone healthy and in good spirits.

My intent is to address some of the specific issues that might develop for community associations from the “shelter in place” orders.  Being locked in (or “locked up”, as some may feel) with folks who are starting to get on our nerves can be hard. Since many condominium owners live in multi-family buildings, such close quarters may quickly seem overwhelming.

The “shelter in place” order is likely to magnify already-existing issues, especially with school age children being home for the rest of the school year. The natural result will be an inevitable increased level of activity in and around everyone’s home and condominium unit.

If someone is doing anything that is dangerous, clearly illegal (more on that later) or an extreme annoyance (think garage band practice all night long), then Boards should call whoever is necessary (the police) to make sure that those behaviors are stopped ASAP. This has not changed due to the pandemic.  What I want to discuss in relation to COVID-19 is what the Board can do to address certain items that are normally a mild frustration but may be turning into a major aggravation under “Shelter in Place” because everyone has a limited ability to get out of the house.

Complaints about excessive noise, pets, smoking, cooking odors, marijuana smoke and any number of other items can cause controversy between neighbors. I would urge Board members and Co-owners that the first step should always be to talk to your neighbor and see if the problem can be resolved without the intervention of a third party. If that does not work, then it may be possible for the Property Manager or Board Member to intervene and help craft a solution between neighbors that resolves any friction.

Keep in mind that the avenues Associations have for resolving owner disputes might not be enough to directly address an issue where one co-owner is somehow offending another.  For example, in a recent case, Davis v. Echo Valley (a case that originated right here in Michigan), one co-owner sued her neighbors, her Association,  the management company, and others because smoking in one nearby unit was travelling into her unit causing issues and complications with her alleged already-existing medical conditions.  Ms. Davis brought suit alleging that the Association denied her request for a reasonable accommodation in violation of the Federal Fair Housing Act and the provisions of the Bylaws that prohibited offensive conduct (most Bylaws have similar anti-nuisance provisions).  The matter was ultimately dismissed on summary judgment by the U.S. District Court, and that dismissal was later confirmed by the Sixth Circuit Court of Appeals.

In its opinion, the District Court stated (referring to cigarette smoking but with reasoning generally applicable to all smoking) that smoking is “- but one of the annoyances one must endure in a multiple dwelling building.”  The reality of the matter is that living in close quarters in the condominium setting inherently requires a certain tolerance for acts which are outside of one’s control and which might not necessarily be present in a single-family dwelling. Regardless of what sort home you have, no one is assured “annoyance free” living. As with most things in life, there is a trade-off of sorts between not having to mow your lawn and dealing with other people’s sometimes perturbing habits. Some of these nuisance items can be addressed by one’s Association, while some likely cannot absent very extraordinary circumstances (i.e., very egregious nuisances).

In addition to creating a high threshold for being able to sue under such provisions, the Davis Court also determined that proof of any such intrusions or annoyance must be proven through scientific evidence.  For example, smoking infiltration would need to be collected and measured, sound intrusions would have to be recorded and charted, etc.  That type of rigorous approach, if applied by all Courts in condominium nuisance disputes would make such cases much more expensive, and would require a substantial monetary investment by the complainant before the matter could even make it to Court.

In the Davis case, the parties expended a huge amount of resources from both sides only to find out that, absent some extraordinary circumstance, that simply smoking inside one’s own unit did not violate the law, and the association could not be held responsible for failing to prohibit such smoking via a bylaw amendment.  The confusion over these types of problems has also been compounded by Michigan’s recent ballot initiative legalizing recreation marijuana. Indeed, in a recent Detroit Free Press article, police have stated there is little that that can be done legally on account of marijuana smell emanating from a neighboring dwelling. It is likely that your Association will not have any better luck using the police to enforce prohibitions against marijuana smoking in your community (again, absent some highly unusual circumstances).

In conclusion, I offer two specific pieces of advice to Board and condominium unit owners on these issues.  First, if you have a nuisance issue, see if the parties can simply work it out between themselves. Inquire whether the nuisance is really the result of unusual or egregious nuisance activity, or whether it is just a product of people living in close quarters under the COVID-19 lockdown.

Second, assess whether there may be a specific solution that can be crafted by your Association to ease some of the friction between the neighbors or feuding parties, such as amending the Association’s bylaws or any applicable rules, policies or regulations. For example, if the issue is smoking (be it marijuana or otherwise), it is possible for an association to amend its condominium documents to prohibit smoking on the entire condominium premises, just like in any public building.

Thirdly, for any issues that involve medical or disability questions, the Board should always consult with experienced legal counsel, as civil rights laws (e.g. Fair Housing laws) may apply to the Board’s decisions on such matter. Our attorneys are here to assist community associations and their board and managers with resolving these and other types of disputes when they arise.

During these trying times, it is more important than ever for boards and community members to work together rather than against each other in resolving owner-on-owner disputes and complaints.  With that noble idea in mind, I leave you with a quote from the late Rodney King, who perhaps said it best: “Can’t we all just get along?”

 

Attorney Mark B. DavisMark B. Davis is a senior associate attorney and has been with the Firm since 2007.  Mr. Davis brings quite a diverse background of experience to the Firm.  He served in the U.S. Army from 1983 to 1987 and achieved the rank of sergeant in the Rapid Deployment Force.  After leaving the U. S. Army, Mr. Davis attended Eastern Michigan University, where he graduated with a degree in Public Law and Government.  He then attended Wayne State University Law School and obtained his Juris Doctor degree in 1997.

After graduating law school, Mr. Davis practiced law in Dearborn, Bay City, and Florida before landing in Plymouth with the Firm.  He has extensive experience in real estate, litigation and appellate matters (including federal litigation and circuit court appeals).  He also has significant experience in assisting condominium associations with lending transactions.

Mr. Davis has extensive experience in the emerging field of marijuana law and the impact that both recreational and medical marijuana can have on condominiums.  He is a member of the Marijuana Law Section of the State Bar of Michigan and frequently conducts seminars for community association organizations (such as UCOM) as well as for the ZDF Condo & HOA B.E.A.T. Program on the subject.

Mr. Davis appears in court regularly and enjoys engaging in vigorous debates with judges and opposing attorneys.  He is admitted to practice in all state courts in Michigan and Florida, the U.S. District Courts for the Eastern and Western District of Michigan and the Middle District of Florida, the U.S. Court of Appeals for the Sixth Circuit, and the U.S. Supreme Court.

Mr. Davis has many interests outside of legal practice.  He spends most of his free time with his wife, three children, and the family dog.  He is an avid follower of the Lions and Tigers, and also enjoys working on home improvement projects, wood working, and reading.

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UPDATE TO EXECUTIVE ORDER 2020-54

“GOVERNOR SUSPENDS RENTAL EVICTIONS”

By: Shane F. Diehl, Esq.

We had previously written and informed you that Governor Whitmer had issued several Executive Orders, including Executive Order 2020-19, which suspended rental evictions through April 17, 2020.

On Friday, April 17, 2020, Governor Whitmer rescinded that Executive Order and replaced it with Executive Order 2020-54, which extends all of the dates in the original Executive Order from April 17, 2020 to May 15, 2020.  As such, landlords cannot take action to remove a tenant from their property until the Order expires.  Further, until 30 days after the restrictions on eviction provided by sections I through 6 of the order, any statutory limits on the court to adjourn any proceedings, toll any redemption periods or limitations periods, or extend any deadlines are suspended.

We suspect that this may not be the final extension on this moratorium.  We recommend that you check back with this blog on a periodic basis for any further updates.

If you have any questions with regard to how the governor’s Executive Order 2020-54 affects your landlord-tenant relationship, please do not hesitate to contact us at your earliest convenience.  Our experienced attorneys are available to assist you through this process during these unique times.

 

Shane F. Diehl is a senior associate attorney with the Firm and has been with the Firm since 2008.  He has over 26 years of experience in representing condominium, subdivision and co-operative associations in Southeast Michigan and has represented hundreds of such associations in addressing all aspects of community association representation.  In addition, Mr. Diehl has 10 years of experience in the banking industry and is a former instructor for the American Institute of Banking.  He also has extensive experience in estate planning, and has served as an officer, trustee and member of numerous non-profit and civic organizations, including the Four County Community Foundation and the Armada Village Planning Commission. Mr. Diehl resides in Armada, Michigan and works from our Macomb County office in Mt. Clemens.

Mr. Diehl holds an Associate in Arts Degree from Ferris State University and a Bachelor of Business Administration from the University of Toledo, Ohio.  He earned his Juris Doctor Degree from the University of Toledo College of Law in 1989.  He is licensed to practice in the State of Michigan since 1990, and is admitted to practice in the United States District Court for the Eastern District of Michigan.

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Special COVID-19 Support Center Seminar

Creating solutions and accessing resources to COVID-19 issues
in your community
A seminar to support Board Members and Managers

Wednesday, April 22, 2020 | 2:00 p.m.
Presenters: Edward J. Zelmanski  and Gregory J. Fioritto, Esq.

Right now, we know many communities like yours are facing challenges as a result of the COVID-19 pandemic and are having to make many decisions about whether to inform your communities about an infected person, weighing safety and privacy concerns, how to keep residents safe, landscaping and maintenance, dealing with increased costs for emergency issues or obtaining financial relief through government programs.

Join us on Wednesday, April 22 at 2:00 p.m. for a special Zoom meeting about these significant issues featuring Zelmanski, Danner & Fioritto attorneys who will explain and address some of the most common questions we are hearing from communities and associations during this unprecedented time.

This meeting is interactive and your questions will be answered by a panel in real-time. Share ideas with other Board Members and other attendees.

For the Zoom meeting details and to submit any questions or concerns you would like addressed, please contact Marsha Williams via email mwilliams@zdfattorneys.com, or call us at 734-459-0062 x224.  If you are new to Zoom and need assistance, please contact Melissa Francis via email mfrancis@zdfattorneys.com or 734-459-0062 x233.  This Zoom presentation will be fed through our Facebook Event page. 

Be sure to bookmark our online COVID-19 Support Center page for regular
updates relating to COVID-19 implications and how your community can respond appropriately as the situation evolves.

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BUILDING COMMUNITY IN THE TIME OF COVID-19

By: Melissa D. Francis, Esq.

Sidewalk Chalk Art in Canton, MI
Photo Credit:  Laura Kitzman

As Community Association attorneys, one of the things I hear most often from Community Association Boards and Homeowners is that they do not feel connected to their neighbors.  Residents of the community come home, do their own things, and (with the exception of perhaps a few close neighbors) only see each other occasionally.  Many Community Association residents do not attend meetings, volunteer for committees, or participate in any other community events.  Now is the time to work on changing these patterns by making connections we may not have been able to make before COVID-19 interrupted our daily lives.

With Governor Whitmer’s stay-at-home order and the Federal social distancing guidelines remaining in place until at least April 30, 2020, many community residents are spending more time than ever before at home.  Many individuals and families are looking for activities to keep their time occupied, within the social distancing and stay-at-home guidelines, as many activities and events have been cancelled.   Why not use this time to plan some simple community events to build a sense of belonging?

Messages of Encouragement and Happiness– Across the United States, many people are leaving messages of encouragement on their driveways for neighbors to see as they walk or drive by, or look out their windows-Happy faces, hearts, children’s pictures, encouraging words. A Florida friend recently reported that her daughters’ pre-school teachers came to the house early in the morning and left the girls chalk messages for their birthdays.  The girls were so excited when they looked outside and saw what their teachers left!  Invite community residents to decorate their driveways and email a picture to the Association’s email, or post on the Association’s Facebook page, or challenge community members to find as many chalk messages as they can on their daily walks.  Associations with restrictions on sidewalk chalk use may consider making a temporary change in policy to allow residents to participate in this activity.  If sidewalk chalk is not an option, have people participate by leaving pieces of paper with these messages in their front windows.

Nightly Neighbor Check In– A group in Plymouth, Michigan started the “Plymouth Pause”.  Each night at 7 p.m. these residents and their families turn on their porch lights and go out on their front porches to wave to each other, say “hello”, and make sure everyone is alright. With a little communication, this would be easy to implement in any Community Association.  This gives people an opportunity to see people they do not see often, and introduce themselves to their neighbors.

Organize a Bear Hunt–  Based on the children’s book classic, “We’re Going on a Bear Hunt” by Michael Rosen and Helen Oxenbury, even your oldest residents will enjoy participating in this activity.  Invite community members to place teddy bears in their windows during the week of the event.  As families and individuals are taking their daily walks, bike rides and runs, they can search the neighborhood for bears.  How many bears can you find?  Are they all similar?  What are the bears doing?  Create a Facebook event and have residents post their finds or their favorites in the event discussion.  Have residents vote for their favorite bear and award small prizes to the winners later in the spring or summer.

A Commerce, Michigan home ready for a Bear Hunt
Photo Credit:  Julia Kondoff

Neighborhood “Graduation” Ceremony–  With the 2019-2020 school year ending abruptly in early March and the Governor and universities ending face-to-face instruction for the year, many 5th graders, 8th graders, high school and college seniors will not be able to experience their milestone end-of-year traditions and ceremonies.  However, that doesn’t mean they cannot get recognition of their accomplishments from their community.  Choose a day to celebrate these milestones in your community.  Have the “graduates” stand on their porches or driveways while other community members walk or bike at a safe distance or safely drive through the neighborhood pausing briefly at each graduates home to clap for them and congratulate them for their accomplishments.  List the names of your Community’s graduates, by category, in your Community Newsletter.

Now is also an excellent time to start planning your Spring and Summer, 2020 committees.  Get an invitation out to members to join committees and start planning committee meetings using conference calling and other technology.  Engaging in building a sense of community now, will strengthen your community as we come out of the Covid-19 crisis.

Sidewalk Chalk Art in Canton, MI
Photo Credit:  Laura Kitzman

The activities listed above are only a small sampling of things you can do as a Community Association to strengthen your bond as a community and get to know your neighbors.  Be creative while working within the confines of the stay-at-home order, social distancing, and general community safety.

Melissa D. Francis joined the Firm in 2013 as an associate attorney. She is a graduate of Plymouth-Canton High School and earned her Bachelor of Arts Degree in International Relations from Michigan State University’s James Madison College in 1998. She earned her Juris Doctorate from Wayne State University Law School in 2001.  Ms. Francis is admitted to practice law in the State of Michigan, Federal District and Bankruptcy Courts for the Eastern and Western District of Michigan, and the United States Supreme Court. Ms. Francis has extensive experience representing both Creditors and Debtors in Chapter 7, 11, and 13 Bankruptcy proceedings.  Since association collections matters routinely involve bankruptcy issues, her vast experience in that field provides the Firm with a unique resource that provides tremendous value to the Firm’s Clients.  Ms. Francis is a member of the American Bankruptcy Institute.  She was a speaker at the 2019 Community Association Institute Law Conference in New Orleans discussing Consumer Bankruptcy and its impact on Community Associations.  She is also a speaker at the 2019 American Bankruptcy Institute Detroit Conference on Veteran’s Day.

Ms. Francis is a Past Dean of the Metro Detroit Alumni Senate of Delta Theta Phi Law Fraternity International.  She is active in the Plymouth-Canton Community as a member of the St. Thomas A’Becket Church choir, Beckridge Productions, Spotlight Players Theater Company, and the Plymouth-Canton Marching Band Alumni Community.

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HOW TO HANDLE DISCLOSURE OF COVID-19 CASES IN YOUR COMMUNITY – WEIGHING PRIVACY AGAINST SAFETY

By: Gregory J. Fioritto, Esq.

The ongoing pandemic has raised many new and difficult questions for community association boards.  One of the most frequently-asked questions is whether a board should disclose the presence of a known case of COVID-19 in the community to the other residents.

The issue is complex because it raises two equally compelling interests and seemingly pits them against each other.  On the one hand, you have the privacy concerns of the individual resident with the virus, who may not want their identity disclosed to the community in any way, shape or form.  On the other hand, you have the very substantial interest of the board in protecting the health and safety of the community from a highly contagious and (in some cases deadly) virus.

We have, in our country’s laws, a well-established and highly-prized “right to privacy.”  A member of a community association can and should reasonably expect, all things being equal, that their present health and medical status is their own private concern and not something that can or will ever be disclosed to the membership by the Board of Directors or the association’s management in any manner.

However, as we all know in this unprecedented time, all things are not equal.  Never before have association boards been forced to weigh, in such stark terms, the disclosure of private, sensitive information about an individual member against the potential deadly harm that could result to other members of the community if the board does not disclose the information.

It is well-accepted that a board should not disclose to the community any specific identifying information (e.g., name or address) about a resident who is COVID-19 positive without their express written permission.  This is true regardless of whether the resident in question is also a member of the association (i.e., both tenants and owners are equally entitled to protection of their privacy).

That boundary being established, a board does have a duty to disclose potential dangers to its community members once they become known.  Indeed, a board that knows about the presence of a COVID-19 positive resident in the community and that fails to advise the members in any manner about this fact may well be subjecting the board and the association to potential liability.

As a lawyer, one can easily conceive of a possible “nightmare” scenario where the board has knowledge of a COVID-19 case but does not apprise the community of the increased danger presented, and another member in the community (perhaps living in the same building as the COVID-19 infected person) becomes seriously ill or dies.  The owner who becomes ill (or their estate, if they pass) may assert that the Board was negligent in failing to warn the community in some fashion of the increased threat level presented by the infected resident.

Regardless of whether a COVID-19-infected resident has given any permission to the board to disclose their illness or identity, a board may inform other residents in a more generalized way about the presence of the infected person in the community without unduly compromising the infected person’s privacy.  A board could adequately apprise its community’s residents about the presence of the COVID-19 infected individual without disclosing any specific, identifying information about the person.  For example, if the infected resident lives in a 4-unit building, the Board could reasonably decide, in balancing the privacy rights of the infected individual against the safety of the community, to advise only the residents within that particular building that a person with COVID-19 is living in the building.  Disclosure of the COVID-19 case beyond that particular building to the rest of the community may be unnecessary if the community does not have any other shared amenities (e.g., no clubhouse, pool or grouped mailbox stacks).

As with anything, the “right” advice for each community board in acting on COVID-19 issues cannot be decided within a vacuum.  There is no “one size fits all” – such advice and judgment must always be tailored to the nature of each unique community in light of the particular facts and circumstances in play.  Board members should examine these issues with care as they arise, act in reliance on the advice of the appropriate professionals, and make the most well-informed and balanced decisions that they can in these challenging times.

Gregory J. Fioritto is a partner with the Firm.  He graduated from the University of Michigan in Ann Arbor with High Distinction in 1997, where he obtained his Bachelor of Arts in Psychology and received numerous honors, including Phi Beta Kappa and recognition as an Angell Scholar.  Mr. Fioritto earned his Juris Doctorate from the University of Michigan Law School in 2000.  He joined the Firm in 2003 and has spent nearly his entire legal career practicing in the field of condominium, HOA and community association law.

Mr. Fioritto has extensive experience in virtually every facet of condominium and HOA law, including, but not limited to: drafting master deed and bylaw amendments and guiding associations through the amendment process, drafting rental restriction amendments (including rental caps and bans), managing condominium conversions, handling Fair Housing disputes and claims, counseling boards and managers on insurance and casualty loss matters, collecting  assessments, conducting lien foreclosures, assisting associations with bylaw enforcement, and the handling of FHA certification issues.

He is also well-versed in the many developer-related matters that can and do affect associations, including the application of the Condominium Act and other laws to “unfinished” condominium and HOA projects, “transition of control” issues, defect litigation, and the enforcement of association rights in developer disputes.  He has significant expertise in assisting new associations with maximizing and protecting their legal rights and leverage in transition negotiations with new project developers and builders.

Mr. Fioritto has attended literally hundreds of board and association meetings over the course of his career.  His experience has given him a particular interest in educating co-owners and board members on the many benefits of the proper application and use of parliamentary procedure at meetings.

He has lectured on a frequent basis for many years on condominium and HOA-related topics at seminars sponsored by the Community Associations Institute (CAI) and the United Condominium Owners of Michigan (UCOM).

As a partner with the firm, Mr. Fioritto helped pioneer the firm’s exclusive “Condo & HOA B.E.A.T. (Board Education and Training)” program, an ongoing monthly series of free educational sessions held in Canton and Mt. Clemens and which are open to all (not just firm clients).

In further service of the firm’s dedication to the ongoing education of condominium and HOA boards and their association members, Mr. Fioritto recently helped create the firm’s “Neighborhood Know How” educational program.  As part of this program, the firm provides valuable free educational sessions in conjunction with local municipalities.

In addition to community association law, Mr. Fioritto has experience with commercial and residential real estate transactions and small business formation (including corporations and limited liability companies).

Mr. Fioritto currently serves as President of his own condominium association in Canton, Michigan.  His years of service on his own Michigan condominium board give him a unique and more complete perspective among attorneys of the many practical problems and legal issues that are encountered by community association boards on a daily basis.

He enjoys spending his free time with his two sons, attending Michigan football games (Go Blue!) as well as vacationing up north in the state’s “thumb area.”

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CONDO AND HOA

Board Education and Training (B.E.A.T.)
brought to you by
Zelmanski, Danner and Fioritto, PLLC
Experienced Condominium & HOA Attorneys

Join us tonight, Wednesday, April 15 at 6:30 p.m. for the presentation

Effective Enforcement for Your Community by attorney Lee Schofield.

For the Zoom meeting details, please contact Marsha Williams via email mwilliams@zdfattorneys.com , or call us at 734-459-0062 x224.

This Zoom presentation will be fed through our Facebook Live page!

Visit ZDF’s Event page to attend virtually, give feedback in real-time, and have your questions answered by an attorney for free!

Wednesday, April 15, 2020 | 6:30 p.m. – Lee S. Schofield
Effective Enforcement for Your Community
Now that you have great documents and rules and regulations that go along with them, how do you enforce all of it? This session will explore options to enforce your documents including equal enforcement, the use of fines, the property manager’s role in enforcement, and when to get your attorney involved.

Be sure to bookmark our online COVID-19 Support Center page for regular updates relating to COVID-19 implications and how your community can respond appropriately as the situation evolves.

Posted in CONDO Beat, Condominiums, Education, Firm News, HOAs, Hot Topics, seminars | Leave a comment