Michigan Condo & HOA Law

I recently heard from a co-owner who was complaining about a neighbor’s vicious pet and the board’s lack of concern with the problem. As a co-owner, she was wondering what her remedies to the problem might be.

Her first action needs to be a letter written to the board insisting that the board of directors enforce the condominium documents. The letter should also request that the board is insuring that the co-owner who has the pet has adequate homeowners insurance and is otherwise taking adequate measures to protect the residents and guests from the animal. She should point out to the board that if the bylaws allow the board to seek the removal of the animal, if it is in fact dangerous, that it has an obligation to seek to do so and the association may be vulnerable not only to persons damaged or hurt by the pet, but from the co-owners who have a right to pursue the board for failing to enforce reasonable condominium restrictions. Should the board refuse to act after receiving the letter, the co-owner should consult with an experienced condominium attorney in order to pursue legal action including a demand letter.

Posted by Robert Meisner at 9:47 AM | Permalink

I recently received a call from a co-owner whose condominium association has a bylaw restriction against dogs and she wanted to know what she could do to get the bylaw changed.

For any changes made to the bylaws, one must get a sufficient number of co-owners to approve the amendment. In this case the co-owner might argue that based upon a survey of the Americans' Awareness of First Amendment Freedoms developed by the McCormick Tribune Freedom Museum in Chicago, "one out of five Americans believe that the first amendment grants citizens the right to own and raise pets.” She might also indicate the real estate benefits to allowing pets in the condominium based upon the number of people that have or would like to have pets, assuming, of course, that the association has adequate restrictions to deal with them.

Posted by Robert Meisner at 10:35 AM | Permalink

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