On July 17, 2020, the Michigan Supreme Court issued an unanimous decision, finding that the retention of surplus proceeds from a tax-foreclosure sale under the General Property Tax Act (“GPTA”) is an unconstitutional taking without just compensation under Article 10, § 2 of Michigan’s Constitution of 1963. Before the decision by the Court, Michigan was among a minority of states who permitted the retention of surplus proceeds from tax-foreclosure sales. Accordingly, property owners that have lost their property as a result of a tax foreclosure sale now have a claim against the county for the difference between the amount of taxes owed and the amount realized at the tax sale by the County.
The Coronavirus and the State of Emergency
On March 10, 2020, the Michigan Department of Health and Human Services identified the first two presumptive cases of coronavirus, also known as COVID-19, in the State of Michigan. On March 16, 2020 Governor Whitmer signed Executive Order 2020-9 which closed restaurants, bars, cigar lounges, movie theaters, casinos, libraries, and gyms from the public. On March 23, 2020, Governor Whitmer signed Executive Order 2020-21 which imposed a temporary stay-at-home order for non-essential matters, which was later extended and expanded through Executive Orders 2020-42, 2020-59, 2020-70, 2020-77, and 2020-92, and is currently in effect for the majority of the State through at least May 28, 2020.
In Michigan, as in most states, the state authority has significantly limited access to public places, stores, restaurants, movie theaters, offices, and other businesses through the issuance of executive orders prohibiting such access. For businesses whose viability depends on the public’s ability to access that business’ physical location, the issuance of such orders has resulted in a loss of use of the property and a severe interruption in business. For some, their insurance policies may appear to insure against loss of use of the insured property when a civil authority prohibits the insured from using the insured property, such as through issuance of an executive prohibiting such access, or there is damage to the property resulting in its loss of use. While it may seem as though the business climate created by the Coronavirus (COVID-19) is unique to our generation, this is not the first time a Governor’s executive order has impacted businesses in Michigan and there are several cases from the Michigan Court of Appeals which can provide guidance.
The novel coronavirus disease (“COVID-19”) has impacted nearly every aspect of life, including residential housing. People living in communal living spaces and apartment buildings need to take particular care to prevent and address community spread. Landlords and tenants alike may be affected by economic uncertainty and strain due to the pandemic. In is therefore crucial that landlords and tenants prepare to respond to the unique issues raised by the spread of COVID-19. This article will highlight some of those concerns and give insight into how landlords and tenants may tackle them.
Law & Crime Network recently interviewed Kevin Hirzel regarding national issues that are arising due to the Covid-19 crisis . In this Q & A, Kevin Hirzel addresses rent and mortgage concerns, loan modifications, State Executive Orders and Federal stimulus efforts. Viewers from around the nation have questions and concerns about this pandemic and want to know what rights they have. Covid-19 is causing housing concerns across the nation and Kevin Hirzel provides advice on how to navigate this national crisis. The interview can he found here.
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 has been a Michigan Super Lawyer’s Rising Star in Real Estate Law from 2013-2019, 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 in 2018 and 2019, 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]
On May 9, 2017, the Michigan Court of Appeals issued an opinion in ‘In re $55,336.17 Surplus Funds. The Surplus Fund case is important as the Court was called on to interpret the procedure for distributing foreclosure sale surplus funds and determining the priority of parties claiming an interest in the surplus funds.
On January 12, 2017, the Michigan Court of Appeals issued an unpublished opinion in the matter of JPMorgan Chase Bank v Zair. The Zair case is important as a reminder that a mortgagor may, for the first time in any proceedings, contest the validity of the foreclosure by advertisement sale in the summary proceeding.
The case involves real property located in West Bloomfield. Defendants Kays Zair and Patrice Zair (“Zair”) were the record title owners of the real property and executed a promissory note and mortgage against the property in favor of Peoples State Bank in April of 2002 (“Peoples mortgage”). In December of 2006, the Zairs executed a promissory note and mortgage in favor of JPMorgan Chase Bank (“JPMorgan mortgage”). JPMorgan Chase claimed that a subordination agreement was entered into between Peoples State Bank and JPMorgan Chase Bank so that the Peoples mortgage was made subordinate to the JPMorgan mortgage, placing the JPMorgan mortgage in a first/senior lien position against the property.