Executive Order 2020-92: Michigan maintains ban on short-term rentals and areas of public accommodation
On April 24, 2020, Governor Whitmer signed Executive Order 2020-59 and banned short-term rentals, except for certain limited circumstances. On May 7, 2020, Governor Whitmer signed Executive Order 2020-77, which extended the ban on short-term vacation rentals until May 28, 2020. On May 18, 2020, Governor Whitmer signed Executive Order 2020-92, which commenced the process for reopening Michigan. Executive Order 2020-92 divided Michigan into eight separate geographic regions as follows:
Region 1 includes the following counties: Monroe, Washtenaw, Livingston, Genesee, Lapeer, Saint Clair, Oakland, Macomb, and Wayne.
Region 2 includes the following counties: Mason, Lake, Osceola, Clare, Oceana, Newaygo, Mecosta, Isabella, Muskegon, Montcalm, Ottawa, Kent, and Ionia.
Region 3 includes the following counties: Allegan, Barry, Van Buren, Kalamazoo, Calhoun, Berrien, Cass, Saint Joseph, and Branch.
Region 4 includes the following counties: Oscoda, Alcona, Ogemaw, Iosco, Gladwin, Arenac, Midland, Bay, Saginaw, Tuscola, Sanilac, and Huron.
Region 5 includes the following counties: Gratiot, Clinton, Shiawassee, Eaton, and Ingham.
Region 6 includes the following counties: Manistee, Wexford, Missaukee, Roscommon, Benzie, Grand Traverse, Kalkaska, Crawford, Leelanau, Antrim, Otsego, Montmorency, Alpena, Charlevoix, Cheboygan, Presque Isle, and Emmet.
Region 7 includes the following counties: Hillsdale, Lenawee, and Jackson.
Region 8 includes the following counties: Gogebic, Ontonagon, Houghton, Keweenaw, Iron, Baraga, Dickinson, Marquette, Menominee, Delta, Alger, Schoolcraft, Luce, Mackinac, and Chippewa.
Under Executive Order 2020-92, workers located in Regions 6 and 8 that work in retail, office settings, restaurants or bars may resume limited activity, subject to new social distancing and safety requirements. However, homeowners associations should be aware that the restrictions related to recreational facilities and short-term rentals have remain unchanged, even in Regions 6 and 8.
Condominium and HOA Recreational Facilities
Executive Order 2020-92 bans activities in places of “public accommodation that are closed under Executive Order 2020-69” and keeps Executive Order 2020-69 in place. Executive Order 2020-69 defines a place of public accommodation or a place of public amusement as follows:
“Place of public accommodation” means a business, or an educational, refreshment, entertainment, or recreation facility, or an institution of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the public. Place of public accommodation also includes the facilities of private clubs, including country clubs, golf clubs, boating or yachting clubs, sports or athletic clubs, and dining clubs.
“Place of public amusement” means a place of public accommodation that offers indoor services or facilities, or outdoor services or facilities involving close contact of persons, for amusement or other recreational or entertainment purposes. A place of public amusement includes an amusement park, arcade, bingo hall, bowling alley, indoor climbing facility, skating rink, trampoline park, and other similar recreational or entertainment facilities.
Executive Order 2020-69 states that the following items must remain closed to the public:
- Gymnasiums, fitness centers, recreation centers, indoor sports facilities, indoor exercise facilities, exercise studios, and facilities offering non-essential personal care services.
- Places of public amusement not otherwise listed above.
In the context of condominiums and HOA’s, most common areas recreational facilities, such as basketball courts, fitness centers, pools, gyms, spas or tennis courts will need to remain closed until at least May 28, 2020, even if they are located in Regions 6 or 8. Accordingly, while Executive Order 2020-92 is the first step in easing coronavirus restrictions in Michigan, recreational facilities in Michigan community associations should still remain closed until at least May 28, 2020 under Executive Order 2020-69.
Paragraph 8(c) of Executive Order 2020-92 states that “All other travel is prohibited, including all travel to vacation rentals.” Paragraph 13 of Executive Order 2020-92 also provides as follows, “No one shall rent a short-term vacation property except as necessary to assist in housing a health care professional aiding in the response to the COVID-19 pandemic or a volunteer who is aiding the same.”
In the context of condominiums, many condominium documents already prohibit short-term rentals. Accordingly, associations that have a residential use restriction, commercial use restriction, leasing restriction or nuisance restriction can already restrict short-term rentals. Similarly, some municipalities have limited or banned short-term rentals in certain locations, and if the governing documents contain a restriction that precludes an owner from engaging in any activity that is “illegal”, such a restriction could also be used to restrict short-term rentals. However, if the governing documents permit short-term rentals, we recommend that community associations enact rules that temporarily suspend any short-term rental activity in order to comply with Executive Order 2020-92.
A co-owner is required to notify a condominium association that it is renting a unit pursuant to MCL 559.212. Specifically, MCL 559.212(2) provides as follows:
A co-owner, including the developer, desiring to rent or lease a condominium unit shall disclose that fact in writing to the association of co-owners at least 10 days before presenting a lease or otherwise agreeing to grant possession of a condominium unit to potential lessees or occupants and, at the same time, shall supply the association of co-owners with a copy of the exact lease for its review for its compliance with the condominium documents. The co-owner or developer shall also provide the association of co-owners with a copy of the executed lease. If no lease is to be used, then the co-owner or developer shall supply the association of co-owners with the name and address of the lessees or occupants, along with the rental amount and due dates of any rental or compensation payable to a co-owner or developer, the due dates of that rental and compensation, and the term of the proposed arrangement.
However, many co-owners who rent their units do not comply with the notification requirements in MCL 559.212. Accordingly, if your condominium association becomes aware that Executive Order 2020-69 or Executive Order 2020-92 is being violated, or any provisions of the condominium documents or rules are being violated, we recommend that you contact the attorneys at Hirzel Law, PLC to take immediate enforcement action.
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].