The coronavirus pandemic and the Governor's stay home executive orders have not resulted in the extinction of restriction violations nor have they extinguished the ability to enforce a community's restrictions. While executive orders requiring most Michiganders to spend a majority of their time at home may seem like the perfect opportunity to address these violations, associations should take a moment to consider the content of a violation letter before sending it. Since the coronavirus outbreak began in the United States, there have been multiple news stories about an association going after a member for any variety of reason and, whether right or wrong, the association seems to be framed as the bad guy.
The pandemic should not be used as an excuse to ignore violations by Boards or owners. However, individual circumstances may require more leniency than normal when it comes to the time for an owner's compliance and the association escalating enforcement actions. Take these factors into consideration when sending a violation letter and requesting a time for an owner to cure a violation.
The current stay home executive order1 requires individuals living within Michigan to stay at home or their place of residence subject to defined exceptions.2 Individuals are ordered to stay home except to, "perform tasks that are necessary to their health and safety, or to the health and safety of their family or household members…."3 Michiganders may leave their homes to secure, "products necessary to maintain the safety, sanitation, and basic operation of their residence or motor vehicles"4 but are encouraged to limit, "the number of household members who leave the home for any errands."5
The Association should provide owners additional time to comply with restrictions if a violation does not involve the health, safety, and welfare of the community. The replacement of dead landscaping is unlikely to arise to this level. The owner can be put on notice of the violation but should be provided time to cure after expiration of any applicable executive order. Contrast that with an owner whose leaking toilet is damaging common elements or neighboring property. That individual should cure the problem as quickly as possible as this repair is necessary to the safety and sanitation of the community.
Certain violations can still be immediately cured without the owner being required to leave their home. The owner who is playing the radio too loudly or late at night can be required to immediately comply with the restriction against unreasonable noise levels. The owner who has decided not to pick up after their dog during the stay home order can likewise be required to immediately comply with the pet regulations.
Some violations may seem like they can be cured without owners leaving their home, but take time to determine if this is actually the case. Consider the owner who is improperly storing personal belongings in a shared basement. Being confined at home may seem like the perfect time to deal with this clutter. But the basement is shared and there may be multiple owners accessing this space, thus creating a greater chance of virus transmission. Maybe the owner would struggle with lifting and carrying the items to unit, thus requiring the help of a family member, friend, or moving company. The cure for this violation may result in unnecessary visits from third-parties, thus creating a greater change of virus transmission. This violation may also not affect the health, safety, and welfare of the community, thus warranting delayed enforcement.
The pandemic and executive orders should not be considered a license to violate a communities restrictions. Special circumstances may, however, give an Association reason to delay enforcement of a restriction. Many communities prohibit the long-term parking of campers and RVs. Yet some of our essential workers are now using their campers and RVs for temporary housing as a way to protect those they live with from an increased risk of infection. Even if an owner has the ability to cure this violation, the association may want to work with the individual to determine a more reasonable time for a cure, especially if the resident provides evidence supporting a delay in enforcement.
Coronavirus and the executive orders have not provided owners with a get-out-of-jail-free card. A community's restrictions are still valuable property rights and the Board of Directors has a continuing duty to enforce the restrictions. It is an unfortunate fact that some owners will attempt to use our current situation as a way to excuse their bad behavior. Associations should continue to document violations and to send enforcement letters. The severity of a violation should be taken into consideration when making a demand for a cure; is curing the violation essential to the health, safety, and welfare of the community? If a violation does not impact the health, safety, or welfare of a community or cannot be cured without requiring an owner to leave their home or involving outside help, consider demanding that the violation be cured within a number of days after expiration of the applicable executive order.
*Benjamin J. Henry is an attorney at Makower Abbate Guerra Wegner Vollmer PLLC. Mr. Henry focuses his practice primarily in the areas of community association law. Mr. Henry is a member of the Community Association Institute and the Real Property and Litigation Sections of the State Bar of Michigan.
1: Executive Order No. 2020-59
2: Executive Order No. 2020-59(1)
3: Executive Order No. 2020-59(6)
4: Executive Order 2020-59(7)(A)
5: Executive Order 2020-59(7)(C)