Upcoming Live Seminar

We proudly present the following seminar

“Rules Regulating Amenities During COVID-19”

July 15, 2020 from 6:30 p.m. to 8:00 p.m.

on Facebook Live and Zoom

Covering topics such as the process of adopting rules and regulations, what rules and regulations to consider as a result of COVID-19, and how to enforce them once they have been implemented.

Have all your organization’s questions about best practices for a post-pandemic reality answered live by one of our experienced attorneys during this interactive webinar.

Additionally, visit our website’s COVID-19 Support Center blog page for daily postings relating to COVID-19 http://www.zdfattorneys.com/blog/

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Michigan Supreme Court Establishes Eviction Case Protocols – Eviction Moratorium Update

By: Shane F. Diehl, Esq.

On June 11, 2020, Governor Whitmer signed Executive Order 2020-118, further extending the moratorium on evictions in Michigan until June 30, 2020 at 11:59 p.m. We anticipate this will be the last extension, as there is significant pressure to restore legal activities, including evictions, in the court system. We will continue to provide updates on this blog.

In anticipation of the resumption of eviction proceedings, the State of Michigan Supreme Court recently issued Administrative Order 2020-17 to establish statewide eviction protocols for trial courts in order to protect the health of all participants, dispose of the backlog of cases, and assure that defendants are made aware of their legal rights. Two important parts of these procedures are:

  1. Each case will be scheduled for a hearing on a specific date and time. Multiple cases will no longer be scheduled for hearings at the same time.
  2. Cases will be scheduled for hearings in the following order of priority:
    1. First, cases alleging illegal activities or extreme physical damages to the premises;
    2. Second, cases alleging nonpayment of rent for 120 days or more; and
    3. Last, cases with lesser arrearages.

Depending on the type of eviction case, parties should be prepared for some delay in the scheduling of their case for hearing.

The new landlord-tenant court system procedures also include eviction cases being set for either remote or in-court hearings. Further, tenants will be advised of their statutory right to legal counsel at the first hearing. It is important that you check back with our law firm periodically to see if there are any other changes which may affect your eviction case hearing.

You should also be aware that the FHA has extended the moratorium on foreclosures and evictions for all FHA-backed mortgages until August 31, 2020.

If you have any questions on how the Governor’s Executive Order 2020-118 or the Supreme Court’s Administrative Order 2020-17 affects your landlord-tenant relationship or case, please do not hesitate to contact our law firm at your earliest convenience. Our experienced attorneys are available to assist you through this process during these unique times.

Attorney Shane DiehlShane 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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CONSIDERATIONS FOR OPENING YOUR OUTDOOR POOL IN THE WAKE OF COVID-19

By: Melissa D. Francis, Esq.

On June 1, 2020, Michigan Governor, Gretchen Whitmer, issued Executive Order 2020-110 (more information can be found here). Paragraph 8 of this Executive order states “Unless otherwise prohibited by local regulation, public swimming pools, as defined by MCL 333.12521(d), may open as of June 8, 2020 provided they are outdoors and limit capacity to 50% of the bather capacity limits described in Rule 325.2193 of the Michigan Administrative Code, and subject to guidance issued by the Department of Health and Human Services…”. The issuance of this Executive Order caused the Health Department in Macomb, Oakland, and Wayne Counties and the City of Detroit to rescind their previous orders closing all outdoor pools indefinitely.

The issuance of Executive Order 2020-110 and the rescission by the Health Departments of their orders closing all outdoor pools indefinitely makes way for Condominium and Homeowners’ Associations in the State of Michigan to finally get the swim season started and open their pools. However, the question must now be asked, “Should an Association open the outdoor pool?”

In determining whether or not to open an Association’s outdoor pool in the wake of COVID-19, Association Boards must address three basic questions:

1. WHAT IS THE HEALTH DEPARTMENT IN THE COUNTY WHERE THE ASSOCIATION IS LOCATED REQUIRING FOR POOLS TO OPEN?

In preparing this article, the writer was able to make contact with the Health Departments in Macomb County, Oakland County, Wayne County and the City of Detroit to discuss what would be required of Homeowners’ and Condominium Associations to reopen their pools following the Executive Order issued by Governor Whitmer on June 1, 2020.
While the Washtenaw County Health Department is closed until June 15, 2020 and the writer was unable to speak with someone from the Department, Washtenaw County updated the pool opening package on their website June 8, 2020

In Macomb County, Oakland County, Wayne County, and the City of Detroit, the procedures for pool openings will remain the same as they have in past years. A pre-opening inspection will need to be conducted prior to the pool opening to the public if the pool was closed by the County for violations in the 2019 season. Homeowners’ and Condominium Associations must submit the same paperwork to the Health Department required in past seasons for opening the pool. In Macomb County, the paperwork can be obtained by contacting the Health Department at (586) 469-5236. Paperwork for the City of Detroit can be obtained by contacting the Health Department’s Environmental Health Department at (313) 876-4000. The paperwork for Oakland County, Wayne County.

In addition to submitting the required opening paperwork in the above referenced counties, Associations must make certain they have a properly stocked, readily accessible first aid kit which is checked and replenished daily and adequate rescue equipment. A good reference for stocking your aquatic first aid kit can be found on Aquatic Council, LLC’s website.

While the requirements for opening the pool have not changed in Macomb, Oakland, and Wayne Counties, and the City of Detroit, each of these Health Departments stressed that Associations must reduce the capacity of their pool area to 50% of regular capacity (up to 100 people) and the United States Centers For Disease Control (CDC) guidelines must be followed regarding cleaning, personal protective equipment, and social distancing. These Health Departments will be inspecting pools throughout the summer and will be specifically reviewing each facility to verify these requirements are being met. Each pool must have a designated person available within 15 minutes if called by anyone to respond to an emergency at the facility, test water, or meet inspectors.

Unlike the other counties and the City of Detroit, Washtenaw County requires that the inspection of the aquatic facility be done prior to the facility’s opening for the season. Each pool must have a designated person available within 15 minutes if called to respond to an emergency at the facility, test water, or meet inspectors. Washtenaw County is also requiring that a pool attendant regularly inspect and clean the pool. The pool attendant does not have to be onsite the entire day, but make several trips to the pool during operating hours to monitor and properly clean in and around the pool. Further, Washtenaw County requires that each Association complete and keep a Covid-19 Preparedness and Response Plan onsite. A template for the Plan and the other documentation which must be submitted to Washtenaw County for pool opening can be found here.

If your Homeowners’ Association or Condominium Association is not within Macomb County, Oakland County, Wayne County, Washtenaw County, or the City of Detroit, it is suggested that you contact your local County and/or City Health Department and review their website for guidelines on opening your outdoor aquatic facility.

As of June 12, 2020, no new guidelines or information on requirements for opening pools had been posted by the State of Michigan Department of Health and Human Services or the Michigan Department of Environment, Great Lakes, and Energy. The writer will continue to monitor the websites of the State of Michigan, Macomb County, Oakland County, Wayne County, Washtenaw County, and the City of Detroit and will update this post as necessary with any new information.

Association Boards must analyze all of the requirements for their County and determine if they can meet these requirements before opening their outdoor aquatic facility. Boards should consider the costs and practicality of implementing these new requirements.

2. CAN THE ASSOCIATION MEET THE MINIMAL GUIDELINES SET BY THE CENTERS FOR DISEASE CONTROL (CDC) FOR PUBLIC POOLS, HOT TUBS, AND WATER PLAYGROUNDS DURING COVID-19?

Each of the Health Departments interviewed for this article stressed that each aquatic facility must be able to adhere to the guidelines devised by the Centers for Disease Control (CDC). The full guidelines can be found here.

The guidelines that may cause the biggest hurdles for Associations are the guidelines for cleaning the facility. The CDC guidelines provide that each facility, including any restrooms or locker rooms, must be fully stocked with adequate soap, hand sanitizer with at least 60% alcohol, paper towel, and facial tissues. The guidelines provide that an adequate amount of “no touch” or open trash cans be placed in the facility and frequently emptied. Additionally, the guidelines state that all frequently touched surfaces must be disinfected and cleaned daily and shared surfaces EACH time they are used, including but not limited to, handrails, slides, tables, chairs, pool toys, and bathroom surfaces. Signage should be posted regarding proper hygiene and disinfection/cleaning of surfaces. The guidelines specifically provide that lifeguards who are actively guarding the swimming pool SHOULD NOT be monitoring the cleaning of the facility and an additional person should be on staff to ensure these areas are properly cleaned.

Additional guidelines of importance to Associations are guidelines dealing with social distancing. The CDC guidelines lists no gatherings, or meetings both in and out of the water if social distancing between people who don’t live together cannot be maintained. An exception is made for patrons and/or staff providing or receiving first aid or CPR or rescuing a distressed swimmer. Associations may need to change the layouts of their pool areas to provide for proper social distancing. It is recommended that visual cues be utilized in and out of the water to encourage social distancing using lane lines, tape, cones, etc. Face masks or other adequate coverings should be worn at all times when not in the water. Signage regarding social distancing and face mask usage should be posted.

Prior to opening their outdoor aquatic facilities, Associations will need to adopt new rules, regulations, and procedures for these facilities which take into account all of the CDC guidelines. In order to minimize the number of surfaces needing to be cleaned, Associations should consider storing all pool equipment and furniture for the summer in an area that cannot be accessed by patrons and advising patrons to bring their own furniture and pool equipment. Associations may also want to consider keeping restroom and locker room areas closed, again to minimize areas that need to be cleaned.

3. ARE THERE COST OR INSURANCE BARRIERS TO REOPENING AN ASSOCIATION’S OUTDOOR POOL?

The third consideration for reopening Association pools is cost. Associations must determine how they will implement the requirements set forth by the health department and the CDC guidelines. Will implementation of these requirements increase the operating budget for the pool due to costs of additional cleaning supplies, barriers, and staff? If yes, how will these costs be covered by the Association? Associations should also thoroughly investigate whether their insurance policies will cover Covid-19 related claims. A thorough review of the Association’s insurance policies and contacting your insurance agent should be considered. Attorneys from Zelmanski, Danner & Fioritto, PLLC have spoken with several insurance professionals specializing in insuring Community Associations and concluded that there will likely be no insurance coverage for claims brought against an Association or its Board related to a person contracting Covid-19 at a community pool. More information regarding insurance considerations can be found in the webinar, “Back to the Office: Restarting Operations” jointly presented by Zelmanski, Danner & Fioritto, PLLC and Fraser Trebilcock Davis and Dunlap, P.C. which can be found here.

In conclusion, Homeowners’ and Condominium Association Boards must do a thorough analysis of the above factors before deciding to open the Association’s outdoor pool for the summer of 2020. This type of analysis will save the Association from potential problems arising from a quick decision to reopen.

Attorney Melissa FrancisMelissa 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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IT’S TIME TO WORK OUT PAST DUE RENT ARRANGEMENTS – EVICTION MORATORIUM UPDATE

By: Shane F. Diehl, Esq.

As Governor Whitmer slowly reopens the State, now is the time for landlords and tenants to work out final arrangements on past due rent payments and cooperative occupancy charges. As we have indicated in previous articles, there has been a moratorium on evictions and actions to displace tenants during the COVID-19 state of emergency. Executive Order 2020-85, the Governor’s most recent moratorium, is set to expire at midnight on June 12, 2020. While it is possible that the moratorium will be extended, it is our opinion that an extension will not be given.

The Michigan Supreme Court has recently authorized the trial courts in Michigan to submit their plans to reopen. Once the courts have an approved and established plan in place for reopening, we expect that the District Courts will again start accepting landlord-tenant eviction complaints. Barring any extension of the previously mentioned moratorium, we expect the District Courts will have a solid backlog of cases that they will move through the system as quickly as possible. Therefore, it is recommended that tenants who have not made arrangements to pay their past due rent should do so immediately. Landlords should expect to hear from those tenants shortly or prepare to file their eviction actions.

Please keep in mind that the expiration of the moratorium and the reopening of the courts does not at this time have any effect on the federal moratorium on evictions under federally backed mortgage loan properties or federally supported low-income housing, which continues until it expires under the terms of the CARES Act (July 26, 2020). Also, remember that any intentional action to evict a tenant prior to the expiration of the state’s moratorium will be considered a misdemeanor. It is important that you check back with our law firm periodically to see if the moratorium has been further extended.

If you have any questions regarding how the Governor’s Executive Order 2020-85 affects your landlord-tenant relationship, please do not hesitate to contact our law firm at your earliest convenience. Our experienced attorneys are available to assist you through this process during these unique times.

 

Attorney Shane DiehlShane 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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Q & A: Handling Collections During COVID-19 Pandemic

By: Tracy Danner-Bond, Esq.

Q: What should we do in preparation for an increase in delinquencies due to the COVID-19 pandemic?

A: Check out Greg Fioritto’s article posted March 30, 2020 on our website’s special COVID-19 Support Center (www.zdfattorneys.com) entitled COVID-19 and Collections – How to Prepare Your Association for a Possible Spike in Delinquencies. Here are some highlights from his article:

  1. Examine (and adjust) your 2020 budget and expenditures.
  2. Review your collections policy (or adopt one).
  3. Plan and revise your 2021 budget.
  4. Review your relationships and contracts with your association’s collections professionals.
  5. Reach out to the membership ahead of time about how the Association will handle collections.

Q: Should the Association waive assessments due during the COVID-19 pandemic?

A: NO.

Q: Does the Board of Directors have the authority to waive late fees due to the COVID-19 pandemic?

A: YES.

Q: Should the Association waive late fees during the COVID-19 pandemic?

A: YES, if the Co-owner’s delinquency is directly related to the COVID-19 pandemic. Collection of late fees is generally not an income line item on an Association’s budget, so waiving late fees during the pandemic will not have a direct effect on the Association’s current budget.

Q: Should the Association make a community-wide announcement that Co-owners can postpone payment of their assessments during the COVID-19 pandemic?

A: NO. Such an announcement could invite abuse. Reviewing Co-owner requests for payment plans or waiver of late fees should be reviewed on a case-by-case basis, as some Co-owners may be financially affected more severely than others.

Q: Should the Association make a community-wide announcement that late fees will be waived during the COVID-19 pandemic?

A: NO. Such an announcement could invite abuse. Reviewing Co-owner requests for waiver of late fees should be reviewed on a case-by-case basis, as some Co-owners may be financially affected more severely than others.

Q: What should we do if a Co-owner who was delinquent prior to the COVID-19 pandemic requests a waiver of fees due to the COVID-19 pandemic?

A: If the delinquent Co-owner had a payment plan in place, that plan could be revised to take into consideration their change in financial circumstances. Documentation to support the change in financial circumstances due to COVID-19 should be required from the Co-owner before the payment plan is revised. The revised payment plan terms should be put in writing.

Q: Should the Association automatically file a lien against the Unit of a Co-owner who became delinquent due to COVID-19.

A: It depends. If the Association has a Collection Policy in place, the provisions of that policy must be followed. If the Co-owner is requesting a payment plan with a term that extends past the time a lien would be filed against their Unit pursuant to the Collection Policy, the Association should proceed with filing the lien to protect the Association’s interest.

Q: What should we do if a Co-owner contacts the Association because they can’t pay their assessments due to the COVID-19 pandemic?

A: The Association’s Property Management Company should communicate directly with the Co-owner regarding the delinquency. If the Co-owner is requesting a waiver of late fees, that request should be put in writing by the Co-owner for the Board of Directors’ review and consideration. If the Co-owner is requesting a payment plan, that request should be put in writing by the Co-owner for the Board of Directors’ review and consideration. Regardless of the type of request, the Co-owner should describe their financial hardship (ex. job loss or reduction in wages due to COVID-19) and provide documentation to support their claim. The Board of Directors may review each request on a case-by-case basis, or it can develop a standard policy for Co-owners who become delinquent solely due to the COVID-19 pandemic.

Q: If the Board of Directors agrees to a payment plan with a delinquent Co-owner, what details should be in the payment plan?

A: Payment plans should be in writing, either drafted by the Association’s Property Manager or the Association’s legal counsel. The payment terms should be clear, including the following:

  • Length of the payment plan
  • Start date of the payment plan
  • Amount of the monthly payment toward the account arrearage, in addition to the current regular monthly assessment
  • Whether late fees will be waived or applied during the payment plan term
  • Consequences for default of the payment plan

Q: How long should a payment plan be with a Co-owner who became delinquent due to the COVID-19 pandemic?

A: It depends. It is still uncertain when the entire state will be back to work, so consideration must be taken when determining when a payment plan should start and how long the payment plan should be. For example, there is talk that hair and nail salons and spas will be one of the last group of businesses to reopen. It may be reasonable for a payment plan to start 30 days after the Co-owner is back to work in their industry and last 90 days. If a Co-owner will not have a job to return to because their job has been eliminated due to the COVID-19 pandemic, it may be reasonable for a payment plan to start later than 30 days and last longer than 90 days. In most cases, a payment plan for up to 6 months will be reasonable. Assuming everyone is back to work and able to start making payments by July 1, 2020, most delinquent accounts will be current by December 31, 2020.

Q: How should an association respond to a Co-owner’s request for a reduction in assessments if common areas or facilities have been closed during the COVID-19 pandemic?

A: The association’s property manager should remind the Co-owner that the common areas or facilities were closed for health and safety concerns, pursuant to Governor Whitmer’s Executive Orders. Cleaning costs for these common areas or facilities will increase once they are open for use, due to new health and safety guidelines.

Q: What if Co-owner delinquencies have decreased an association’s income so much that the association can’t sustain its current operating budget and pay its bills?

A: The Board of Directors has several options available to counteract decreased association income due to increased Co-owner delinquencies:

  • Review and revise the current budget. The Board should consider postponing projects scheduled for the spring/summer that could be completed in the fall, when Co-owners’ finances have (hopefully) improved.
  • Revise the annual budget and reallocate reserve funds to pay Association’s immediate expenses. Condominium Bylaws generally indicate that reserve funds shall be used for major repairs and replacements of Common Elements and for emergency expenditures. The COVID-19 pandemic is arguably an emergency.
  • Increase the annual assessment or levy an additional assessment. Condominium Bylaws generally indicate that the Board has the authority to increase the annual assessment or to levy an additional assessment as it deems necessary, to meet deficits incurred or anticipated because current assessments are insufficient to pay the costs of operation and maintenance of the association or for any emergencies, without a vote of the Co-owners. While those Co-owners who have become delinquent due to the COVID-19 pandemic will not be able to pay the increased annual assessment or additional assessment, those Co-owners who are in a better financial position will be able to assist the association in meeting its short-term financial shortfall.

 

Tracy Danner-Bond

Tracy N. Danner-Bond is a partner with the Firm. She graduated from Michigan State University with Honors in 1993, where she obtained her Bachelor of Arts in General Business Administration-Prelaw and was a member of the Spartan Marching Band and Spartan Brass. Ms. Danner-Bond earned her Juris Doctorate from the University of Detroit Mercy School of Law in 1997, where she was the Managing Editor of the University of Detroit Mercy Law Review and a member of the American Inn of Court. Prior to joining the Firm in 2004, Ms. Danner-Bond practiced estate planning, probate, and tax law with a firm in downtown Ann Arbor.

In addition to being certified in probate and estate planning law by The Institute of Continuing Legal Education, Ms. Danner-Bond has extensive experience in community association law. She handles assessment collection matters, lien foreclosure, bylaw enforcement, master deed and bylaw amendments, as well as FHA certification issues. Ms. Danner-Bond has presented lectures on community association topics for United Condominium Owners of Michigan and for private community management classes. Ms. Danner-Bond has been licensed to practice law in Michigan since 1998 and has been admitted to practice before the United States Federal District Court for the Eastern District of Michigan and the United States Tax Court. She has spoken at several events for United Condominium Owners of Michigan, the Michigan Chapter of the Condominium Association Institute, and the Firm’s Condominium and HOA Board Education and Training (B.E.A.T.) program.

Ms. Danner-Bond served 8 years on the Board of Directors for her own condominium association in Canton, Michigan. This first-hand experience as a Co-owner and Director, in addition to being a Community Association Attorney, allows her to relate well to the many challenges that community association Boards face each day.

Ms. Danner-Bond resides in Plymouth with her husband, two children, and their rescue dog. She has numerous interests, including spending time with family and friends, riding her Harley, reading, cooking, and traveling.

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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).  On June 8, 2020, it was announced that the Step Forward Michigan Program is being extended through June 30, 2021.

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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