Michigan Condo & HOA Law

A co-owner replied to a blog I posted about “for sale” sign prohibitions. He stated that his condominium also bylaws prohibit signs, but a number of the members want to put up political signs stating that they have a constitutional right for free speech.

Up to this point, the Federal Constitution has not been interpreted to apply to private organizations such as condominiums because no “state action” is involved, although the Courts appear to be moving in that direction. Accordingly, if the bylaws prohibit the display of signs, which would include political signs, you are best advised to enforce that uniformly and vigorously, especially because of the upcoming election season in 2010.

Posted by Robert Meisner at 12:42 PM | Permalink

Cigarette smoke is a touchy subject these days, and I was approached recently by a board member whose association is considering passing a restriction in their documents concerning smoking in their units, but they are obviously concerned about the merits of their concerns.

Fortunately for their association and for others that are considering a ban on smoking, there is a Colorado case that supports that position and there is much literature available on second hand smoke causing damage to the condominium units and residents. Moreover, if the association does not take a stand against it, at some point, the board may be accused of encouraging that situation. If your association is entertaining such a prohibition, you are best advised to consult with your attorney.

Posted by Robert Meisner at 5:11 PM | Permalink

Many condominium associations have a prohibition on “for sale” signs in unit windows. I recently heard from a co-owner whose real estate agent put a “for sale” sign in their unit and the owner was wondering if they had a basis to stop the association from interfering.

The short answer is probably not. There was a similar case in the State of Georgia wherein a homeowner claimed that the prohibition against signs did not apply to a real estate agent’s right to erect a “for sale” sign on the property. The court rejected the claim stating that the agent may not do any more than his or her principal and that the agent; therefore, lacked the authority to erect the sign on the homeowner’s behalf The Georgia court also rejected the homeowner’s argument that the restrictive covenant was an unenforceable restraint on trade. Based upon these facts, one is likely to get a similar result in Michigan if they choose to fight the “for sale” sign prohibition.

Posted by Robert Meisner at 12:43 PM | Permalink

I recently heard from a co-owner who lives in a community that restricts pet ownership. As a board member, she was unsure of how to handle a situation where a co-owner needs to have a dog used for “support.” The board member is concerned about the ramifications of the Fair Housing Act.

She certainly should be concerned about precluding a homeowner from keeping a support animal in their townhouse or condominium unit even though her community is subject to a restriction prohibiting dogs. The association may well have violated the Federal Fair Housing Amendment Act if in fact the person is disabled. In a Florida case, the person was disabled by diabetes and depression and the Court granted an injunction requiring that the association allow the dog, assert certain limitations on the use of the dog in the premises, as well as making the homeowner accept responsibility for any damage to the common areas caused by the dog.

Posted by Robert Meisner at 11:18 AM | Permalink

I recently fielded a complaint from a co-owner regarding the fact that her association has a declaration that gives the board authority to govern common areas and to suspend a member’s golf privileges even though there is no explicit reference to the golf course in the declaration. She wondered if the board had authority in that area even though the documents were not specific.

Even though authority depends on your documents, the Appellate Court found, in a similar case, that the association had broad authority to properly enforce rules and regulations covering the use and enjoyment of the common areas. The Court took judicial notice of the fact that the conduct of the co-owner in question was inherently dangerous and could have subjected the association to liability if a third person was hurt by a golfer’s actions, which include a list of bad conduct. The Court found that it depends on the documents and in this co-owner’s situation I would suggest that they consult with a community association attorney to review their documents.

Posted by Robert Meisner at 2:21 PM | Permalink