Michigan Condo & HOA Law

A condominium president was complaining to me the other day about a judge who did not award attorney fees to the association on a bylaw enforcement matter. The attorney for the association stated that the judge was unreasonable and now the association does not feel like it received the benefit of the bargain.

The Condominium Act requires that the court award reasonable attorney fees and costs. Indeed, the documents at your association may require that the court consider awarding actual attorney fees. The court must consider the following eight factors when assessing the reasonableness of requested attorney fees: 1) The time and effort required, the novelty and difficulty of the issue involved, as well as the skill needed to perform the service properly; 2) The likelihood that acceptance of the case will preclude other employment for the attorney; 3) The fee customarily charged in the same locality for similar legal services; 4) The amount of money involved in the result obtained; 5) The time limitations imposed by the circumstances of the case or the client; 6) the nature and length of the professional relationship and ability of the attorney performing the service; 8) Whether the fee is fixed or contingent.

Something that works to the benefit of the attorney in this regard is the better known and more experienced he or she is, the greater the probability that the association will get the fees requested.

Posted by Robert Meisner at 12:54 PM | Permalink

I recently heard from a frustrated condo association board member who is upset because the association does not have the funds necessary to pursue co-owners who are not paying their assessments. The association was left with very little money for a legal budget and the co-owner in question is flaunting his violations due to this fact.

It is obvious that associations need to have sufficient economic means to deal with homeowners who violate the restrictions and/or do not pay their assessments. My reply to the frustrated board member is that hopefully the association has the right to levy additional assessments or raise the annual assessment in an effort to deal with the collection and/or bylaw enforcement issue forcefully.

If the association is not given that authority in its bylaws the documents should be amended to allow the board of directors that discretion which is typically the case in condominium communities. The board should take an aggressive position in regard to the enforcement of these restrictions as it is their responsibility to do so. An association can run more smoothly when the "inmates are not running the asylum." Associations would be well-advised to consult with their attorney in the assistance of pursuing such violations.

Posted by Robert Meisner at 5:54 PM | Permalink

I recently came across an instance where an association wanted to sue a co-owner because he refused to move his travel trailer from the driveway. The association claimed that the co-owner was in direct violation of the restrictive covenants which state that co-owners may not park camper trailers in driveways or roadways.

The co-owner stated that the restrictive covenant in question is vague because one sentence refers to only recreational vehicles while another sentence refers to travel trailers and recreational vehicles. The co-owner stated that because of the confusion brought upon by the ambiguous nature of the covenants, the association should not be able to enforce the restrictive covenant against the travel trailer.

Generally, courts construe covenants narrowly so that they must be stricly interpreted. However, a recent court case with similar facts out of Alabama ruled that the member's vehicle was covered by the restrictive covenant and the co-owner could not park the vehicle in his driveway.

The court explained that the ordinary meaning of the word "recreational vehicle" is broad enough to include the member's vehicle. It added that the purpose of the restrictive covenant is to promote esthetic uniformity, and that purpose would not be advanced by allowing such narrow distinctions as the member had proposed.

There is, of course, no guarantee that this would be the result in Michigan, or any other state for that matter, and the association is encouraged to revise their condominium or community documents to be more specific and less vague.

Posted by Robert Meisner at 10:20 AM | Permalink

I recently had a conversation with a co-owner who has a second condo in Arizona wherein the association is contemplating amending the bylaws to state that ownership is to be limited to senior citizens only. My first thought is one of concern based upon a recent decision from the Arizona Court of Appeals which held that a homeowners association could not amend its bylaws to limit residency to people 55 or over even though the amendment complied with the Federal Fair Housing laws.

In the case at hand, the Court held that the association’s compliance with the Housing for Older Persons Act clearly established that it would not act illegally by enforcing an age restriction, but that such compliance did not mean that it had contractual authority or right to impose that requirement on its members in the first instance. The Court, in that particular case, felt that the rules and regulations governing the property in accordance with the bylaws did not authorize the implementation of an age based occupancy restriction. The Court further held that although the language of the declaration did allocate certain powers to the association and its board, “these powers are largely limited to constructing, managing, and maintaining the common areas, which we assume it owns, in enforcing the other rights and restrictions contained in the declaration.”

While this is somewhat of an anomaly, associations should be careful in terms of implementing such proposed restrictions, and should, of course, consult with counsel regarding state and local laws.

Posted by Robert Meisner at 4:45 PM | Permalink

I recently had a question posed to me from a condominium board member regarding the association’s duty to repair a crack in the sidewalk. She stated that a co-owner had tripped and fallen over a crack in the sidewalk in front of her unit. The co-owner is now threatening to sue the association for negligence, claiming that the association is responsible for repairing the crack. The association is taking the stand that the crack is a trivial defect, and; therefore, the association is not responsible.

As a board of director member or simply a co-owner, you may be wondering what liability your association has in regard to trivial defects such as cracks in sidewalks and/or driveways. Based upon a recent California Court ruling, a crack that is not more than 1½ inches high, and does not have other conditions that make it dangerous, is deemed trivial. The court stated that examples of other conditions that could make the crack dangerous included broken pieces or jagged edges of pavement as well as things that concealed the crack, such as debris, grease or water.

If no such conditions existed in that instance, the Court said the defect was trivial and not dangerous and that the association had no duty to repair it. This court ruling does not mean however that the association should not consider taking care of cracks to the extent that it deems it appropriate to do so. Moreover, the association should check with its legal counsel for its own state’s law on the subject.

Posted by Robert Meisner at 5:10 PM | Permalink

On November 7, 2006, a Jefferson County District Court judge in Colorado upheld a homeowners association order barring a couple from smoking in their townhouse. The case was initiated as a result of the condo association amending its bylaws to prohibit smoking. The co-owners argued that it was unreasonable for the association to ban smoking in their home, on their patio, or anywhere on the condominium grounds.

The condo association responded to complaints from other co-owners who said that cigarette smoke was seeping into their units, creating a smoke smell that was quite strong at times. They argued that, as with loud music, the rights of the community trump the rights of an individual resident.

Jefferson County District Court Judge Lily Oeffler agreed with the condominium association when she ruled that the association could ban smoking inside co-owner’s home units because “smoke and/or smoke smell” is not contained to one area and the smell “constitutes a nuisance.” This may be the first of many cases involving this issue; therefore, it would behoove all co-owners to be aware of their condominium and/or homeowner association documents as well as the bylaw amendments that are being passed in their associations.

Reference:
Lawyers USA. (2006). Couple forbidden from smoking in their home. December 4, 2006.

Posted by Joe at 11:17 AM | Permalink