By: Lee Schofield, Esq.
In response to the COVID-19 health crisis, since March 2020, Michigan Courts have been operating at less than full capacity. Priority has been given to emergency and essential matters, which are defined as those matters which involve an immediate liberty or safety concern–for instance, cases involving personal protection orders, child safety and welfare, domestic matters involving children, etc. Typical community association litigation has not fallen within “emergency” or “essential” definitions and therefore has been delayed, often significantly, with scheduling orders extended, filing deadlines tolled, and jury trials delayed. Those hearings held during the pandemic have generally been heard to the maximum extent possible via remote videoconferencing, and Courts are now encouraged to live stream proceedings to facilitate public remote access.
The Michigan Supreme Court has general superintending control over all courts in Michigan and has issued a significant number of COVID-19-related Administrative Orders, which can be found here: https://courts.michigan.gov/News-Events/Pages/COVID-19.aspx. These orders concern a range of issues, from the handling of cases, including specific types of legal matters to providing guidance on existing Orders and model rules or orders with respect to court access and operations. For instance, on June 29th, the Court issued a Phase 3 Model Local Administrative Order for Michigan courts to follow for Phase 3 reopening. It is hoped that Michigan Courts, along with the State as a whole, will be able to continue a safe re-opening trajectory.
In following and implementing Administrative Orders and guidance issued by the Supreme Court, local court administrators have developed their own local procedures, often based on the model rules but with some variation. While COVID-19 has caused significant delays in pending litigation, Courts have been quick to adapt to remote operations and most matters have, by now, been rescheduled to adjust to the new reality. This adaptation to virtual court and new procedures has happened with remarkable and impressive speed, especially considering the judiciary has made technological and procedural changes at quite a measured pace in the past.
Special mention should again be made with respect to how COVID-19 has affected evictions/landlord-tenant cases. Community associations would typically file such a case if a tenant fails to pay rent to the association after demand, under MCL 559.21(5), if a tenant is persistently violating Condominium Bylaws or Rules under MCL 559.212(4)(b), or in order to obtain possession of a unit following an association foreclosure on a unit.
Governor Whitmer’s latest Executive Order 2020-134, issued on June 24, 2020, extends the moratorium on most evictions in Michigan to July 15, 2020 and simultaneously states that the moratorium will end on July 16. The Order encourages landlords and lenders to take advantage of COVID-19 housing debt remedy funds (termed “Eviction Diversion Program”) rather than proceed with evictions. This fund is available to pay claims for breach of a residential lease, residential executory contract, or residential mortgage due to failure to make a required payment during a state of emergency or state of disaster arising out of the COVID-19 pandemic and, therefore, does not apply (unfortunately) to most community association eviction situations.
In addition to the latest pronouncements from the Governor’s office, the Michigan Supreme Court has a specific subsection related to Landlord-Tenant/Evictions at the link above. On June 24th, the Court issued a new Administrative Order 2020-17 regarding treatment and procedures for evictions.
Further guidance on Order 2020-17 was issued by the Court on July 6, 2020. Among many other things, Order 2020-17 requires:
- eviction hearings to be scheduled at a specific time, one at a time, regardless of whether they are remote or in person;
- a Plaintiff to amend the complaint to update facts and also file a verification form for any cases older than April 16, 2020;
- a new procedure for entry of defaults in remote hearing situations if there has not been personal service under MCR 2.105(A).
Previous contributors have discussed what COVID-19 has meant for matters that a community association might bring to court. For instance, our firm’s discussion of the eviction moratorium and Attorney Tracy Danner-Bond’s Q&A regarding collections. However, the Michigan Supreme Court and Governor continue to issue orders and guidance. Depending on data, re-opening may continue, or restrictions may be re-imposed. In short, this area continues to evolve at a rapid pace. Pending litigation has been significantly delayed for Associations, and given the most recent orders, some Associations may want to re-evaluate pending evictions matters, depending on whether facts and circumstances have changed since filing. If you have any questions about how COVID-19 affects a case that is pending or may affect prospective litigation for your community association, please contact our office and we will be happy to assist you.
Lee S. Schofield is an associate attorney with the Firm. He earned his Bachelor of Arts in Comparative Literature at Brigham Young University in 1996, where he was a Trustee Scholar. He obtained his Juris Doctorate at Michigan State College of Law in 2000, where he was an officer of the MSU chapter of Amnesty International. Prior to joining the Firm in 2005, Mr. Schofield practiced commercial law with a firm in Dearborn, Michigan that had an affiliate relationship with an Anglo-Kuwaiti law firm. Mr. Schofield has handled a diverse range of commercial litigation and transactional matters, including litigation and arbitration in state, federal, and international courts, defense contract negotiation and management, small and medium-sized business and real estate transactions, Islamic finance issues, corporate issues, and trademark registrations and disputes.
Mr. Schofield has extensive experience in condominium law, and enjoys advising condominium boards and membership on the diverse array of legal questions that face condominium associations, housing cooperatives, and HOAs. Mr. Schofield’s practice and experience with the Firm has also included a myriad of commercial litigation, real estate and transactional matters.
Mr. Schofield has numerous outside interests, including literature and literary theory, violin, and cooking. He is also a fitness enthusiast and enjoys keeping in shape through running and other physical activities.