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 Zelmanksi, Danner & Fioritto, PLLC.

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. – Zelmanksi, Danner & Fioritto, PLLC
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.

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COVID-19 Reflections

Everyone Matters, Reaching Out to Elderly and Vulnerable Members of Our Communities

By Zelmanksi, Danner & Fioritto, PLLC

Beginning on March 10, 2020 with Executive Order 2020-4, which declared a state of emergency in Michigan and throughout the month of March 2020, Governor Whitmer has issued a series of Executive Orders which have, with gradual swiftness, imposed severe closures and restrictions upon Michigan residents and business. At this point, with the issuance of Order 2020-21 on March 23rd, Michiganders are, subject to limited exceptions, ordered to stay at home and are not allowed to meet with anyone outside of their households. While these restrictions are part of the national and global effort to stem the rate of COVID-19 infections to avoid overwhelming healthcare capacity and to create a breathing space for augmentation of such capacity, aside from enormous economic disruption, the restrictions have resulted, temporarily, in significantly increased personal social isolation for most people. COVID-19 restrictions affect everyone to some degree regardless of age or circumstance and probably uniquely affect those who live alone, in single person households, which is an ever-growing demographic. While most can and almost universally do rely on the myriad modes of digital interconnectedness at our disposal, the temporary enforced isolation caused by COVID-19 should give everyone, including younger folks, a window into the issues surrounding social isolation, which particularly affect the elderly and more vulnerable members of our communities.

It’s worth noting that, according to federal statistics, a much higher percentage of condominium and coop households are single person households, compared to the national average, and condominium residents are much more likely to be either under 35 or over 65. So, from a statistical perspective, thinking about ways to reach out and break down social and generational gaps is of extra importance and relevance in the condo/coop setting. Given the extensive contractual obligations that already exist (Master Deed, Bylaws, etc.) among and between owners and Associations, it behooves condo and coop homeowner to work together. And as we know from annual meeting experience, by their nature, condos and coops work best when people come together.

Compounding the enforced isolation of COVID-19 restrictions is the fact that older and more vulnerable members of the community may feel additionally constrained not to venture out at all at this time due to increased risk of severe illness or death in older age groups. Michigan data alone shows that the average overall age of those deceased is 70. Further older Michiganders may (though hardly universally) be less likely to have as much facility with or desire to engage in online social media or other online modes of remote social interaction, thus further increasing isolation.

Since COVID-19 has, in a sense, made everyone at least temporarily “lonelier”, let’s take this moment of empathy to reflect on how we can strengthen bonds where they are weakening and reach out to our neighbors and community members, especially those who may be more vulnerable. Governor Whitmer’s Executive Order 2020-21 (Section 7.a.8) does specifically provide that Michiganders may leave their homes to care for the elderly, persons with disabilities, or other vulnerable persons.

While COVID-19 presents extra challenges to these efforts, we should do things such as:

  • Use community email lists, websites, and social media to get out the message that support is available for those who want or need it.
  • Seek out those in the community who are willing to volunteer to provide such support, for instance obtaining groceries or medications.
  • Take advantage of online resources, non-profits, and religious institutions that may provide ideas, tips, or training on reaching out to vulnerable members of our communities.
  • Be aware of those around us that may need assistance.
  • Break your own routine to make a friendly telephone call to a neighbor.
  • We do not need an excuse to knock on a door.
  • Gestures to show community solidarity and support while observing the restrictions of Executive Orders, including social distancing.
  • Offer a smile and “how are you” to neighbors you may see when engaging in allowed activities outside your home.

I invite readers to take this time of increased difficulty to reach out to those around them, but particularly to those who may be suffering greater hardship as a result of COVID-19 restrictions. Making people understand that they matter and contribute to the community is critical to their self-worth and to their health and well-being. I would like to think that the positive social habits and lessons we can develop at this time of difficulty will be carried forward in our communities and will result in some lasting positive change.

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WHAT’S A BOARD TO DO?

The Board of Directors as local government in the COVID-19 pandemic crisis.

By Edward J. Zelmanski, Esq.

We received the first round of questions arising in the face of the current COVID-19 Virus pandemic. Those questions tended to be of the form “Must the Board of Directors do what we cannot do?”  These questions typically pertain to the holding of annual meetings required to be scheduled at a given time according to the governing documents of the Association or the holding of regular board meetings with Board Members in attendance. The answers tended to be that you may postpone those meetings or in some fashion conduct business electronically, being guided by the provisions of your governing documents and the Michigan Non-Profit Corporations Act.

It is important to recognize that as members of your Board of Directors you continue to be the local government for your community and you need to continue governing your community during these times with the shutdown or sheltering in place that has been ordered. There is no one else ready to step in and perform these activities. You should continue working with your professional community managers during this time.  Managers may be unable to provide the guidance necessary to continue the proper governance of your community.    Fortunately, we are part of the great American tradition, part of the culture that highly values invention and innovation.  This time of crisis is one that calls upon you to lean on that tradition and recognize that this country’s ability to be innovative provides us with an invaluable strength during these times. Common sense and practicality are premium attributes during the changing face of the crisis.

Whatever form of dialogue the Board Members might use now, this is the time for a review of the responsibilities that your Association regularly discharges in its governance. After doing that, identify those activities that are essential to the continued operation of your Association and plan to continue those and defer the performance of nonessential activities. These will vary on a case-by-case basis for each community.  A common sense approach to this would readily provide you with answers exercised in the reasonable business judgment of your Board under this declared emergency.

The powers vested in the Board of Directors are contained within the Bylaws for your Association.  These powers have not been abolished nor have they been particularly expanded by the addition of new powers due to this pandemic.  It is commonplace that the powers and duties of the Board of Directors in your Community are set forth in a separate article within your Bylaws.  Now is a good time to review those so that you are fully familiar with the stated requirements of your governance duties which will typically conclude with a statement similar to the following:  “The Board may, in general, enter into any kind of activity to make and perform any contract, or to exercise all powers necessary, incidental or convenient to the administration, management, maintenance, repair, replacement and operation of the Condominium and to the accomplishment of any of the purposes thereof not forbidden and with all powers conferred upon non-profit corporations by the laws of the State of Michigan.”

As Board Members, you are the backbone of the governance of your Community and your diligence, common sense and inventiveness are at particularly high premium now. You are encouraged to go forward with the knowledge and confidence that we have all been through tough times before and your continuing to function as the governing backbone of the Community is an important part of seeing you and all you care for through!

 

Edward J. Zelmanski is a partner with the firm Zelmanski, Danner & Fioritto, PLLC. After graduating from the University of Michigan in 1976, he earned his Juris Doctorate from the University of Detroit School of Law and has been a member of the Michigan Bar since 1979. He is a Michigan Master Lawyer and a member of the Real Estate Section of the Michigan Bar Association. He has a broad range of experience in real estate and community association matters, including the review, interpretation, enforcement and amendment of community association governing documents, as well as providing counseling and problem solving for community association boards and members. Mr. Zelmanski has experience with state and federal real estate litigation, foreclosure proceedings, real estate title and boundary disputes, as well as disputes with real estate developers and contractors. He has defended community associations in civil rights disputes and has assisted community associations and individual clients with bankruptcies, probate matters and class actions. He has contributed to the amendment of the Michigan Condominium Act, has published materials on real estate subjects and has lectured on real estate topics at Wayne State University and the University of Detroit Mercy School of Law. He has trained dozens of attorneys in law school clinics. Mr. Zelmanski has also presented lectures on community association topics for the Real Property Section of the Michigan State Bar, Community Association Institute, United Condominium Owners of Michigan, Lorman Education Services and for private community management classes.

Mr. Zelmanski joined the Firm in 1997. He has also provided pro bono services to the elderly, church groups, and the Veterans of Foreign Wars. He enjoys spending time with his family and has a myriad of other outside interests, including music, literature, cross-cultural studies, hiking, and swimming, in addition to being an avid baseball and football fan.

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The Role of Management Companies During Michigan’s COVID-19 Shutdown

Written by Zelmanski, Danner & Fioritto

As everyone is likely aware, Governor Gretchen Whitmer has signed EO2020-21. EO2020-21 which prohibits in person work that is not necessary to sustain or protect life or conduct minimum basic operations of your business. The violation of this Order constitutes a misdemeanor. That’s great, but what does that actually mean?

In the property management industry those minimum operations could include things like the processing of accounts payable and receivable, responding to incoming telephone calls (especially maintenance calls) and other functions deemed necessary to assist individual managers working from home. The key to minimum operations according to EO2020-21 is “minimum”. The fewest number of people required to maintain the necessary tasks and those people observing the tenets of social distancing.

Property Managers should be working from home. No site visits, no in-person Board meetings, and no annual meetings should be taking place. No projects (i.e. roads, roofs, etc.) should be underway, nor should any contractors be visiting sites to produce bids (if they are, Property Managers should not be supervising or accompanying the contractors and/or workers).

With that said, for every rule there are exceptions. The Governor has deemed certain service providers, such as plumbers, and, of course, emergency personnel, exempt from the “shutdown” aspect of this Order. In other words, if you encounter an emergent situation such as a flood or fire, you should be taking normal measures to handle the emergency and mitigate possible damages.

If you have urgent matters requiring discussion with your Boards, consider using conference call or virtual meeting technology. If there are exigent circumstances leading you to not want to delay a co-owner vote, consider electronic voting measures (as long as they are permitted within the documents). If you need help interpreting the EO2020-21 relating to your concerns or needs, contact us. We will be happy to provide additional guidance.

This is unchartered territory for all of us but we will get through it together. Please stay safe and know that all of us at Zelmanski, Danner and Fioritto, PLLC are here to help you in any way we can.

 

Please visit www.zdfattorneys.com for additional information about all of our Firm’s attorneys.

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COVID-19 AND COLLECTIONS – HOW TO PREPARE YOUR ASSOCIATION FOR A POSSIBLE SPIKE IN DELINQUENCIES

By Gregory J. Fioritto, Esq.

Prior to the beginning of the COVID-19 pandemic, many Associations were experiencing record-low levels of owner delinquencies.  This is the expected result of a national (and local) economy that improved by leaps and bounds from the dark days of The Great Recession of 2007-2009.  Indeed, prior to the recent unprecedented turn of events, it was not uncommon for many Associations to have no delinquencies at all.

If the expected unemployment forecasts for the next six months hold, the COVID-19 crisis may present a sudden and significant increase in the level of delinquencies for condominium and homeowners Associations across the State of Michigan.

Fortunately, Boards should have at least a few months “lag time” before a potential recession takes firm hold of our State’s economy and starts significantly increasing Owner delinquencies.

We would recommend that Boards take the following steps in preparation for a possible increase in delinquencies:

  1. EXAMINE (AND ADJUST) YOUR 2020 BUDGET AND EXPENDITURES: A COVID-19 recession could hurt an Association in two primary ways – a decrease in the amount of assessments collected (income), and an increase in administrative costs incurred in pursuing delinquencies (expenses).

These sudden (and perhaps drastic) changes in an Association’s income and expenses could put a real damper on its financial health.

In light of this new reality, Boards should consider reducing, deferring or eliminating any unnecessary capital expenditures or costly projects that may have been planned for the year.  The Board will have to exercise its best business judgment in deciding how to re-prioritize such expenditures and projects in view of the changed financial landscape.

Given the dearth of delinquencies in recent years, many Association may have allocated very little funds to collections matters (relatively speaking) in their 2020 budgets.  Boards should review the current allocation of funds to collections matters in their 2020 budgets and consider adjusting the budget to allocate a larger share of funds to collections efforts than was originally planned.   Such re-allocations could perhaps come from excess funds that the Board had planned to put in reserves, or from contingency line items in the existing budget.

The Board, with the support and input of qualified financial professionals, should continue to monitor the COVID-19 crisis and make further adjustments to income projections and expenditures as needed through the remainder of 2020.

 

  1. REVIEW YOUR COLLECTIONS POLICY (OR ADOPT ONE):

We recommend that all Associations have a collections policy in place at all times so that the procedures and standards that the Board will apply in pursuing collections matters are clearly understood by all and fairly administered.

If an Association has not had a policy in place to date, then it should consider adopting one.  If it already has a policy, then it should consider whether or not the policy needs to be amended to best suit the needs of the Board and the Association in the current crisis.

For example, a policy that currently provides for delinquencies to be turned over to the Association’s attorney after 90 days may need to be shortened to require such turnover after 60 days if the Board decides that a more aggressive approach is warranted.

If the Board plans on granting concessions to those Owners who are hardest hit by this crisis, then the standards that the Board will apply in granting such concessions should be laid out in their policy.  For example, the policy could provide that a delinquent Owner whose financial hardship is directly related to the Owner (or one of their family members) contracting COVID-19 is eligible for a payment plan of a longer term, or automatic forgiveness of all late charges on their account.

 

  1. PLAN AND REVISE YOUR 2021 BUDGET:

Again, given the very low overall level of Association delinquencies in recent years, an Association’s 2020 budget may well have been rendered obsolete in many ways, especially in regard to expenditures related to delinquencies.

Boards should plan their 2021 budgets to account for expected decreases in income and increased delinquency-related expenditures.  As we move through 2020, Board should gain a better understanding of just how large these budget adjustments will need to be.

For further guidance on how to plan their 2021 budgets, Boards may be well-served to examine old budgets from years past (say, from 2007-2015) to gauge how their 2021 budgets may need to be adjusted to properly manage the financial fallout of the COVID-19 pandemic.

 

  1. REVIEW YOUR RELATIONHIPS AND CONTRACTS WITH YOUR ASSOCIATION’S COLLECTIONS PROFESSIONALS:

It almost goes without saying that (ideally) every Association should already have experienced and qualified professionals in place to handle their collections matters.

If an Association has sustained good financial health through the recent economic recovery, the Association’s Board may not even know which firm or collections agent their Association has used in the past to handle their delinquencies.

Each Board should review the existing relationships (and contracts) with their collections professionals/attorneys and make sure that such professionals are well-versed in handling Association collections issues and that the Board is comfortable with the existing contractual arrangement with such professionals (e.g., how much they charge, which methods of collections they employ, etc.)

 

  1. REACH OUT TO THE MEMBERSHIP AHEAD OF TIME:

As with almost all Association issues, good communication (i.e., open, honest and transparent) between the membership and the Board can go a very long way.

In the collections context, this may mean that the Board mails (or re-mails) a copy of the Association’s collections policy to the membership so that all Owners are aware of how such matters will be handled by the Board and its agents.

It may also mean that the Board keeps the Association apprised on a regular basis as to the total amount of current Association delinquencies, so that all Owners are aware of the impact that the pandemic may be having on the Association’s financial status.

Of course, it bears mentioning that the Board should never disclose specific information about individual Owner delinquencies to the membership at large, as such disclosures could result in violations of the Owner’s right to privacy, generate ill will, and create possible legal liability for the Association and the Board.

In sum:  the bad news is that Michigan Associations are likely to face an increase in Owner delinquencies through the remainder of 2020, and perhaps beyond.  The good news is that there is still time for Boards to take action now to minimize the adverse impact that COVID-19 may have on their Association’s financial health.

 

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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Governor Suspends Rental Evictions

With the advent of the coronavirus crisis and the subsequent “Stay Home, Stay Safe” Executive Order, and all other Executive Orders issued by Governor Whitmer, many folks are finding themselves without a paycheck to pay for necessary expenses, including rent.

The City of Detroit recognized early that the shutdown of business was going to be a problem and the District Court Chief Judge issued a moratorium on all evictions in the 36th District Court in early March, 2020. President Trump took similar action a few days later by suspending all evictions and foreclosures involving the U.S. Department of Housing and Urban Development properties.

Governor Whitmer announced a State of Emergency in Michigan on March 10, 2020, extended the tax foreclosure deadline in Michigan until after May 29, 2020, and then, on March 20, 2020, issued her Executive Order 2020-19 which temporarily prohibits the eviction of a tenant from their house or mobile home.

Under the terms of the Executive Order, a landlord is prohibited from evicting a tenant from the rental property except in the case where the tenant poses a substantial risk to others or imminent and severe risk to the property. The Order is effective until the end of the day on April 17, 2020. The Order may be extended by the governor at any time.

This Order does not mean that the tenant is no longer obligated to pay rent or comply with all statutes or terms of the lease. It just means that they cannot be removed from the property until the Order expires. It should also be noted that the Order prohibits any attempt to personally serve or deliver a demand for payment to the tenant during the moratorium period. The governor does not want parties meeting face to face at this time or at least until after April 17.

If a landlord has already obtained a writ to take back possession of the property pursuant to a previously obtained judgment, the landlord is prohibited from executing on that order in attempting to remove the tenant from the property. Again, unless the tenant poses an imminent risk to others or the premises. All court officers are prohibited from serving those writs and orders until after April 17. Further, the landlord may not prohibit the tenant from accessing the leased premises during this moratorium.

If a landlord has already filed an eviction action or has served a notice or taken some other action which requires the eviction to move forward, all statutory requirements or limits on the Courts to move forward are adjourned and tolled for 30 days and the deadlines are suspended. This means that if a landlord has already filed an action, the date for the hearing on that action will not occur until after the moratorium has expired and the statutory requirement that the hearing be held within a certain period of time is suspended.

Everyone should understand that a willful violation of any of the terms of the governor’s Order is considered a misdemeanor and will be prosecuted.

This moratorium period is not to be considered a tenant’s rent-free holiday. Once the Order has expired, all proceedings may and are expected to move forward. As such, tenants should, if they can, take this time to try and raise the past due rent or correct the violations which led to the impending eviction. Landlords should take this time to make sure that they have taken all appropriate steps in the eviction process and be prepared to proceed, if necessary, once the moratorium has been lifted.

If you have questions with regard to how the Governor’s Executive Order affects your landlord-tenant relationship, please contact us at your earliest convenience.  Our experienced attorneys are available to assist you through this process during these unique times.

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COVID-19 Update

We’re here to help.

Our experienced attorneys have always been in the business of problem-solving for condominium and homeowners associations and their members.

This unprecedented pandemic will raise difficult questions for our association clients and their board and managers.  We remain as always at your service during these unique and challenging times. 

Due to Executive Order 2020-21 (Covid-19), our physical office locations in Plymouth and Mt. Clemens will be closed to the general public from March 24, 2020 through April 13, 2020. 

Our attorneys will be checking email and voicemail while they work remotely during this time.  Our telephone system will be operational – we will have minimal staff in our offices to route calls.  

Due to these exigent circumstances, you may experience delays in response times.  We thank you for your patience!

In the meantime, please stay well and be safe.

ZELMANSKI, DANNER & FIORITTO,  PLLC

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Q&A: The Effects of COVID-19 Pandemic on Community Association Meetings

By: Tracy Danner-Bond, Esq.

Q:        Our Annual Meeting is to be held in April or May, 2020 and the Board of Directors is concerned that large group gatherings will still be banned by the government at that time.  When should we reschedule our Annual Meeting?

A:        It is still uncertain whether Governor Whitmer’s temporary restrictions on large events and assemblages of 50 people or more will be extended past April 5, 2020, which makes it difficult to determine when to reschedule your Annual Meeting.  On March 16, 2020, the Trump administration and the federal COVID-19 task force recommended keeping group events and gatherings to 10 people or less.

Pursuant to the Michigan Nonprofit Corporation Act (Nonprofit Act), if your Annual Meeting is not held on the date designated for the meeting by the Bylaws, the Board of Directors may schedule the meeting as soon after that date as convenient.  At this time, it is reasonable to inform the Co-owners that the Board of Directors will reschedule the Annual Meeting once the temporary restrictions on large events and assemblages of 50 people or more has been lifted by the government.

Please note that the Nonprofit Act states that if the Annual Meeting is not held for 90 days after the designated date for the meeting or if no date is designated for 15 months after the last Annual Meeting, a Co-owner may petition the Circuit Court to summarily order that the Association hold the Annual Meeting at the time and place ordered by the Court.  We do not expect that a Co-owner would pursue a court order if the Annual Meeting is not held for 90 days after the designated date for the meeting, due to the COVID-19 pandemic.  Practical thinking and common sense are important as we work through this crisis.

Q:        Aside from postponing the Annual Meeting, are there any other options for our Association regarding holding the Annual Meeting while the COVID-19 pandemic is still an issue?

A:        Postponing the Annual Meeting is the easiest and cheapest way to handle this issue if large gatherings are still prohibited when your Annual Meeting is to be held.  Another option is to hold the Annual Meeting by means of remote communication.  If your Association’s Articles of Incorporation and Bylaws do not specifically prohibit participation at the Annual Meeting by remote communication, it is allowed under the Nonprofit Act.

The Nonprofit Act states that Co-owners and proxy holders that are not physically present at a meeting of Co-owners may participate in the meeting by means of remote communication and are considered present in person and may vote at the meeting if all of the following are met:

  • The Association implements reasonable measures to verify that each Co-owner that is considered present and permitted to vote at the meeting by means of remote communication is a Co-owner or proxy holder.
  • The Association implements reasonable measures to provide each Co-owner or proxy holder a reasonable opportunity to participate in the meeting and to vote on matters submitted to the Co-owners, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with the proceedings.
  • If any Co-owner or proxy holder votes or takes other action at the meeting by a means of remote communication, a record of the vote or other action is maintained by the Association.

There are means of remote communication that could be utilized by Associations for holding Annual Meetings and voting at Annual Meetings.  You may check with your Community Association Manager or Technology Provider to inquire about the availability of such options for your Association.

Q:        Our Board of Directors has important business that it needs to attend to during the COVID-19 crisis, but we don’t want to meet in person.  What options are available for the Board to meet virtually?

A:        Unless specifically restricted in your Association’s Articles of Incorporation or Bylaws, the Nonprofit Act allows Board Members to participate in a Board Meeting by conference telephone or other remote communication as long as all individuals participating in the meeting can communicate with each other.

 

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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2020 Schedule of Free Educational Seminars for Board Members and Property Managers – East side

Board Education and Training
brought to you by
Zelmanski, Danner and Fioritto, PLLC
Experienced Condominium & HOA Attorneys

The Condo & HOA B.E.A.T. (Board Education and Training) program is designed to educate condominium and HOA board members regarding the vast array of legal issues that they may face in serving their associations. This program is open to any condominium/HOA board member regardless of whether their association is currently represented by the firm. Property managers are also welcome. Free of Charge!!

Continuing in 2020, attorneys from Zelmanski, Danner and Fioritto, PLLC will present a one-hour class on a different topic each month. These classes will be held from 6:30 p.m. to 7:30 p.m. at the Mount Clemens Public Library (150 Cass Ave, Mt Clemens, MI 48043).

Come join us! If you plan to attend, please contact Marsha Williams via email to reserve your spot (mwilliams@zdfattorneys.com), or call us at 734-459-0062 x224.

2020 MOUNT CLEMENS PROGRAMS • 6:30 PM – 8:00 PM
Mount Clemens Public Library:
150 Cass Avenue, Mt. Clemens, MI 48043

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

Wednesday, February 26 2020 –  Melissa D. Francis
Elections: How to Generate Community Interest and Create a Smooth Process

This session will explore ways to generate interest in your annual Community Association Board Elections to meet quorum and encourage new recruits.  We will also discuss managing the election process, and what to do if you don’t meet quorum.

Wednesday, March 25, 2020
Managing Major Projects without Losing Your Mind

You’ve decided that your community needs new roads, so what’s next? This session will go over the steps for planning, getting bids, financing, and managing your major projects leading to a more successful and less stressful outcome.

Wednesday, April 29, 2020
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.

Wednesday, May 27, 2020  – Gregory J. Fioritto
The ABC’s of Creating an Association’s Annual Budget
Guest Speaker: Customized Property Management

One of the most important duties of a community association Board is planning the annual budget. Learn how to plan your Association’s budget from two key perspectives – an experienced community association attorney and a veteran property manager. We will discuss the basics of how Boards should design an annual budget and the important role of including contingency and reserve funding line items. The importance of reserve studies will also be examined. Legal concerns, such as budget shortfalls, additional assessments, and the annual audit requirements of the Condominium Act will also be discussed. This session is a “can’t miss” learning opportunity for Boards looking to improve their annual budgeting and assessment procedures.

Wednesday, June 24, 2020 – Edward J. Zelmanski
Managing the Unexpected: How to Handle Fire, Water, and Mold Losses
Guest Speaker: Concraft

Boards do their best to manage maintenance, budget, insurance, and other administrative needs of their communities. Then, losses caused by fire, water, mold, and other unexpected occurrences can threaten to unhinge the best laid plans. This joint presentation by restoration contractor Concraft and ZDF attorney Edward Zelmanski will help community board members understand and manage the process of casualty remediation and restoration. The discussion will emphasize timeliness, efficiency, and thoroughness in responding to casualties so that you can help to get your community back on an even keel.

Wednesday, July 29, 2020 – Gregory J. Fioritto
RULES? We Don’t Need Rules!

Do you ever feel like there are gaps in your Association documents?  This session will address the purpose and reason to adopt rules and regulations, what rules and regulations to consider, the process for adopting and implementing them, along with how to enforce them once they have been adopted and disseminated to members.

Wednesday, August 26, 2020 – Richard L. Wagner, Jr.
Working Relationships

In this session, we will explore the 3 legs of the Community Association Triangle (Board, Management and Counsel) and their roles in administering the affairs of your Community with particular focus on the role of Association Counsel. Do you need an attorney? Why? When? How? What are the Attorney’s functions or roles in working with the Board and Management? How many hats does or should the Attorney wear? Guard dog or attack dog or Both? Can we afford an Attorney? Where does the Attorney’s loyalty lie? Who do they work for?

Wednesday, September 23, 2020 – Gregory J. Fioritto
Association Insurance Issues – Some Things that Every Board Should Know
Guest Speaker: Sterling Insurance Group

Handling association insurance issues can be one of the most complex issues that condominium Boards face.  Having adequate knowledge of insurance policies and procedures can be the difference that saves a Board literally thousands of dollars on a casualty loss.  This session will provide an outstanding learning opportunity for Boards regarding insurance matters, directly from professionals who have decades of valuable experience with association insurance policies and casualty losses.  We will lay out the basics of association insurance coverages, such as liability, property, D & O, and workers’ compensation.  Learn the difference between “bare walls” and “single entity” insurance levels, and how to identify the coverage levels in your Bylaws.  We will also discuss key insurance exclusions that Boards should watch out for, and on the proper handling of deductibles by Association Boards.

Wednesday, October 28, 2020 – Richard L. Wagner, Jr.
Amending Your Condominium Documents: Preparing for Success

This session will explore the fundamentals of amending Condominium Master Deeds and Bylaws, with a focus on the most effective practices for completing a project.  Specific tips for conducting a successful project through to its conclusion will be offered, including an examination of the best ways to explain proposed changes to both Board Members and Co-owners.  We will discuss tactics, such as Co-owner surveys and informational meetings that are most likely to lead to a successful document amendment project outcome and a satisfied membership.

Wednesday, November 18, 2020
Interviewing and Choosing your New Property Manager

Have you ever wondered what the best process is for choosing a new property manager? Whether you are self-managed or interested in a change, this session will explore how to find candidates that will be a good fit for your community, how to schedule and conduct interviews, and what to look for in a management contract.

Wednesday, December 9, 2020
The Hit List: Updates and Trends in Marijuana Law

We will delve into recent updates regarding State and Federal marijuana laws, governmental enforcement, recent case law development, and enforcement options for community associations.

Posted in CONDO Beat, Education, Firm News, seminars | Leave a comment