It is important that Michigan condominium associations are proactive in protecting the health and safety of the co-owners during the coronavirus pandemic. As previously noted by the Michigan Court of Appeals:
Inherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property.
Cohan v Riverside Park Place Condominium Ass’n, Inc. (After Remand), 140 Mich App 564, 569, 570, 365 NW2d 201 (1985).
The above statement holds especially true in the wake of the coronavirus pandemic. In a traditional attached style condominium, the co-owners live in close proximity and certain rights must be curtailed in the name of safety. Many of the common elements, such as clubhouses, elevators, exercise rooms, hallways, laundry rooms, lobbies and pools are high traffic areas where COVID-19 could be spread. Accordingly, we recommend that condominium associations are proactive in creating rules to respond to the coronavirus pandemic, in addition to implementing increased cleaning measures. Examples of issues that condominium boards should be addressing in coronavirus rules are as follows:
- Making co-owners aware of the requirements contained in emergency orders issued by state, county and municipal government, as well as CDC recommendations, and requiring compliance with the same.
- Closing non-essential common element areas, such as pools or exercise rooms.
- Limiting loitering and congregating in any common areas.
- Limiting access to the general common elements to occupants of the condominium, essential workers and others deemed necessary by the board of directors.
- Limiting deliveries within the condominium and requiring certain deliveries to take place outside of the condominium.
- Limiting non-essential interaction between co-owners.
- Maintaining social distancing in the common areas.
- Creating procedures for co-owners to report areas that need to be cleaned due to suspected coronavirus exposures, while maintaining the confidentiality of the names of any co-owners that have been diagnosed with coronavirus.
However, given that the board’s rule making authority is limited to implementing the existing condominium bylaws, we recommend that the board of directors has an attorney draft any rules to ensure that they comply with any existing emergency orders (which are changing daily) and that the rules do not conflict with the condominium bylaws. In most cases, the condominium bylaws will contain a provision that prohibits illegal conduct, which would include the violation of an emergency order.
Generally speaking, the adoption of building access and use rules related to coronavirus can occur via a board meeting that his held via telephone or video conference. After the rules are adopted via a remotely held board meeting, the condominium association then needs to notify the co-owners of the new rules and we recommend posting the rules in high traffic areas as well. MCL 559.165 states that, “Each unit co-owner, tenant, or nonco-owner occupant shall comply with the master deed, bylaws, and rules and regulations of the condominium project and this act.” In the event that a co-owner does not comply with rules, MCL 559.206 provides the following remedy, in addition to any remedy contained in the condominium documents:
A default by a co-owner shall entitle the association of co-owners to the following relief:
(a) Failure to comply with any of the terms or provisions of the condominium documents, shall be grounds for relief, which may include without limitations, an action to recover sums due for damages, injunctive relief, foreclosure of lien if default in payment of assessment, or any combination thereof.
(b) In a proceeding arising because of an alleged default by a co-owner, the association of co-owners or the co-owner, if successful, shall recover the costs of the proceeding and reasonable attorney fees, as determined by the court, to the extent the condominium documents expressly so provide.
(c) Such other reasonable remedies the condominium documents may provide including but without limitation the levying of fines against co-owners after notice and hearing thereon and the imposition of late charges for nonpayment of assessments as provided in the condominium bylaws or rules and regulations of the condominium.
We recommend that condominium associations take swift action against any co-owner that violates building access and use rules to protect the health and safety of all co-owners. While the court system has not yet resumed typical operations, the Michigan Supreme Court issued Administrative Order 2020-08 which encouraged circuit courts to implement measures to continue conducting hearings remotely until normal operations can resume on April 7, 2019. We anticipate that the Michigan court system will begin resuming normal operations in the near future, in addition to handling emergency issues. In many cases, the courts have already started conducting remote hearings. Accordingly, Hirzel Law, PLC continues to work remotely and can help protect your condominium association during these challenging times. Accordingly, please contact us if your condominium association needs assistance with adopting or implementing building use and access rules or taking enforcement action against a co-owner that is endangering the health or safety of the community.
Kevin Hirzel is the Managing Member of Hirzel Law, PLC and concentrates his practice on commercial litigation, community association law, condominium law, Fair Housing Act compliance, homeowners association and real estate law. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country. He is also a member of the Community Associations Institute’s (“CAI”) National Board of Trustees. Mr. Hirzel has been a Michigan Super Lawyer’s Rising Star in Real Estate Law from 2013-2020, an award given to only 2.5% of the attorneys in Michigan each year. Mr. Hirzel has been named a Leading Lawyer in Condominium & HOA law by Leading Lawyers Magazine from 2018-2020, an award given to less than 5% of the attorneys in Michigan each year. He represents community associations, condominium associations, cooperatives, homeowners associations, property owners and property managers throughout Michigan. He may be reached at (248) 478-1800 or [email protected].