Please click here to review the updated requirements imposed by Governor Whitmer on June 5, 2020 via Executive Order 2020-114 and Executive Order 2020-115 that were issued after this article was written.
On June 1, 2020, Governor Whitmer signed Executive Order 2020-110 which made major changes to previously prohibited conduct related to short-term rentals, indoor recreational facilities, outdoor recreational facilities and pools. All of these changes will have a significant impact on cooperatives, condominium associations, homeowners associations and summer resorts throughout Michigan. However, the fact that certain recreational facilities may be legally reopened does not necessarily mean that every community association will choose to do so based on the increased cost and potential risks. Accordingly, before making a decision to reopen any recreational facilities, you should read our guide on the appropriate steps a community association should take to limit risk. The major changes implemented by Governor Whitmer through Executive Order 2020-110 are as follows:
Short Term Rentals
Opening Date: June 1, 2020
Restrictions: None, unless imposed by the governing documents or local ordinance.
Executive Order 2020-110 lifted the ban on short-term rentals that was previously scheduled to be in place until June 12, 2020 under Executive Order 2020-100. Accordingly, community associations that have a residential use restriction, commercial use restriction, leasing restriction or nuisance restriction should continue to restrict short-term rentals by enforcing their bylaws. However, if the governing documents permit short-term rentals, community associations should consider amending their bylaws to restrict short-term rentals.
Indoor Recreational Facilities
Opening Date: To be determined
Restrictions: Executive Order 2020-110 does not permit the following recreational facilities to be open at this time:
- Indoor gymnasiums, fitness centers, recreation centers, sports facilities, exercise facilities, exercise studios, and the like.
- Indoor services or facilities, or outdoor services or facilities involving close contact of persons, for amusement or other recreational or entertainment purposes, such as amusement parks, arcades, bingo halls, bowling alleys, indoor climbing facilities, indoor dance areas, skating rinks, trampoline parks, and other similar recreational or entertainment facilities.
Accordingly, condominium associations and HOA’s should not reopen indoor fitness and recreational areas until Executive Order 2020-110 is repealed or amended.
Outdoor Recreational Facilities
Opening Date: June 1, 2020
Restrictions: Executive Order 2020-110 permits outdoor recreational activities as follows:
Unless otherwise prohibited by local regulation, outdoor parks and recreational facilities may be open, provided that they make any reasonable modifications necessary to enable employees and patrons not part of the same household to maintain six feet of distance from one another, and provided that areas in which social distancing cannot be maintained be closed, subject to guidance issued by the Department of Health and Human Services.
Additionally, the order also specifically allows the following:
Outdoor fitness classes, athletic practices, training sessions, or games, provided that coaches, spectators, and participants not from the same household maintain six feet of distance from one another at all times during such activities, and that equipment and supplies are shared to the minimum extent possible and are subject to frequent and thorough disinfection and cleaning.
Accordingly, while associations can reopen items like outdoor basketball courts (with limited participants), pickleball courts, parks, picnic areas or tennis courts, they must ensure that they have adequate safety rules in place that will be enforced in order to comply with Executive Order 2020-110. Examples of rules that a condo or HOA should consider adopting are as follows:
- Equipment Rules. Requiring residents to bring their own equipment to recreational facilities, such as basketball balls, beach chairs, grilling utensils, tennis rackets or towels.
- Health Screening Rules. Community associations should consider whether to implement health screenings, similar to those required by employers, to determine if employees have a fever or any other symptoms of COVID-19. Accordingly, community associations may want to consider installing infrared wall mounted thermometers to monitor temperatures and require users of recreational facilities complete health screening questionnaires.
- Capacity Rules. While outdoor gatherings of up to 100 people are now permitted, Executive Order 2020-110 still requires social distancing. Accordingly, the capacity of any outdoor recreational facilities should be limited to ensure social distancing at all times. Community associations with highly used recreational facilities may want to create staggered schedules so that residents may only use recreational facilities during certain time periods.
- Rules Limiting Contact. The CDC recommends that social distancing of at least 6 feet be maintained while engaged in recreational activities. Accordingly, community associations should enact rules to limit the use of areas such as basketball courts, gazebos and grills to avoid in-person contact.
- Rules Limiting or Prohibiting Guests. Limit the number of guests that may use a facility or limit the use of the facility to residents only. Similarly, limiting the time period during which a recreational facility is in use may also limit the number of users and permit additional time for cleaning.
Opening Date: June 8, 2020
Restrictions: Executive Order 2020-110 allows outdoor swimming pools to reopen a 50% capacity, but indoor swimming pools must remain closed. Specifically, the order states as follows:
Unless otherwise prohibited by local regulation, public swimming pools, as defined by MCL 333.12521(d), may open as of June 8, 2020, provided that they are outdoors and limit capacity to 50% of the bather capacity limits described in Rule 325.2193 of the Michigan Administrative Code, and subject to guidance issued by the Department of Health and Human Services. Indoor public swimming pools must remain closed.
While it is anticipated that the Department of Health and Human Services will issue additional pool rules in the future, beyond the capacity the rule, community associations should comply with other CDC guidance for operating pools as well.The CDC has issued the following guidance on best practices for operating public swimming pools and considerations for public pools, hot tubs and water playgrounds during COVID-19. Similarly, community associations may want to limit the use of pools to lap swim to prevent residents from accidentally coming in contact with each other, rearrange furniture, close locker rooms or create touchless entry points to minimize contact.Finally, it is important to note that a pool must still have a permit to legally open. In response to Executive Order 2020-110, many counties have also allowed pools to reopen. Accordingly, community associations should ensure that they have the appropriate permits to reopen, before reopening, and implement the above safety procedures before rushing to reopen. However, if a community association does not believe that it can pay the increased cost associated with cleaning or monitoring the above safety rules, it should consider keeping the pool closed.
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) 480-8758 or firstname.lastname@example.org.