2006 February 24
Last update: 2009 Aug 14. See History for brief descriptions of changes and updates.
Various judicial standards exist for the interpretation and applications of Restrictive Covenants, or more particularly Covenants, Conditions and Restrictions (CCRs). (added 2009 Aug 06) See Restrictive Covenants for definitions and descriptions of restrictive covenants. Scroll down to read the various definitions and descriptions.
The continuation of this post provides some information on the Michigan case law.
Your recommendations for other sources of information is requested.
Don Nordeen
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P. S. Please be advised that I am not an attorney. This post is
concerned only with organizing information available on the internet on this
subject. Any analyses or opinions expressed or inferred are those of a lay person and are not legal advice.
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Read the continuation of this Post and any Comments.
Or Click Show All for the Above Introduction and the Continuation of this Post and any Comments.
Michigan Case Law on Restrictive Covenants (CC&Rs) (continued)
Michigan Case Law on Covenants, Conditions and Restrictions
Summary Interpretation for Restrictive Covenants — (2006 Jul 23) From a lay person's point of view, the standard for interpretation for Restrictive Covenants is restated in David Ribick v Inverrary LLC, at page 4:
“Restrictive covenants are to be read as a whole to give effect to the ascertainable intent of the drafter, and strictly construed against grantors and the parties seeking to enforce the covenants. All doubts are to be resolved in favor of the free use of property. Courts should not infer restrictions that are not expressly provided for in the controlling documents." (Case citations eliminated)
The full citation is included in a discussion of Ribick v Inverrary near the end of this post.
(added 2007 Dec 16) A frequently cited older case not on the Michigan court website is Borowski v Welch. The text from Borowski on rules for interpretation is quoted in Lake Isabella: "In Borowski v Welch, 117 Mich App 712, 716-717; 324 NW2d 144 (1982), this Court summarized the rules for construing restrictive covenants as follows:
"When interpreting a restrictive covenant, courts must give effect to the instrument as a whole where the intent of the parties is clearly ascertainable. . . . Where the intent is clear from the whole document, there is no ambiguous restriction to interpret and the rules pertaining to the resolution of doubts in favor of the free use of property are therefore not applicable. . . . In placing the proper construction on restrictions, if there can be said to be any doubt about their exact meaning, the courts must have in mind the subdivider’s intention and purpose. . . . The restrictions must be construed in light of the general plan under which the restrictive district was platted and developed. . . . In attempting to give effect to restrictive covenants, courts are not so much concerned with the grammatical rules or the strict letter of the words used as with arriving at the intention of the restrictor, if that can be gathered from the entire language of the instrument. . . . Moreover, the language employed in stating the restriction is to be taken in its ordinary and generally understood or popular sense, and is not to be subjected to technical refinement, nor the words torn from their association and their separate meanings sought in a lexicon. . . . Covenants are to be construed with reference to the present and prospective use of property as well as to the specific language employed and upon the reading as a whole rather than from isolated words. . . . [Citations omitted.]"
Examples of Strictly Construed — (added 2006 Oct 22) Two examples illustrate the application of "strickly construed".
- 2004 Jun 17 — Hickory Pointe Village Homeowners Association v Smyk — In this case, the owner constructed a deck with a railing that was directly attached to the deck. The CC&Rs stated that any rail must be spaced above the deck. The owner argued that the difference was immaterial. The association argued that the clear language of the CC&Rs was for the rail to be spaced above the deck. The court of appeals ruled that the language was clear, and that the owner shall comply.
- 2003 Nov 17 — Heather Lake Homeowners Assn v Marlo Hein — The significance of this case is an example of the meaning of "strictly
construed" against the party seeking enforcement. The owner obtained approval of plans to construct a rock wall. The plans submitted included information on what was required in the CC&Rs, but did not submit the detail that the texture of the rock would spell "JESUS IS KING"
in the rock wall as constructed. Since the CC&Rs did not require
such detail in the plans, the court of appeals ruled that the owner
complied with the CC&Rs.
Interpretation re Amendment Provisions — (revised 2007 Dec 26) The principal case on amendment requirements appears to be Ardmore Park Subdivision Ass'n, Inc v Simon, 117 Mich App 57; 323 NW2d 591 (1982). Cited in other cases, the court summarized:
"We hold that where a deed restriction properly allows a majority, or a greater percentage, of owners within a particular subdivision to change, modify or alter given restrictions, other owners are bound by properly passed and recorded changes in the same manner as those contained in any original grant and restriction."
The court also cites 20 Am Jur 2d, Covenants, Conditions, and Restrictions § 268 for this headnote in the opinion. This appears to define a general requirement because of the language "or a greater percentage" in the conclusion. The Ardmore covenants specified amendment by approval of a majority of owners.
(added 2006 Aug 27) Only one Michigan case was found concerning amendment requirements, Maatta v Dead River Campers, Inc., 689 N.W.2d 491 (Mich. App. 2004), which concerned an amendment that was not uniform for all property units. The court ruled:
"Owners of property subject to mutual restrictive covenants expect that the covenants will be enforced uniformly and mutually. Amendments to the covenants which apply to less than all the subject parcels may be obtained only by unanimous consent of the property owners."
... even though there was
"a provision of the covenants which permitted amendments by approval of two-thirds of the owners."
The opinion provides a more specific sentence,
"Non-uniform covenant amendments require the unanimous consent of the affected property owners. Holding otherwise would leave present property owners in an uncertain position whenever their covenants allowed for amendments with less than the unanimous consent of the affected owners."
Maatta was discussed at ABA Section on Real Property, Probate, and Trust Law in 2005. See RECENT DEVELOPMENTS: A PANEL OF LAW PROFESSORS.pdf at page 10. In a daily post, law professor Patrick A. Randolph, Jr., provides an explanation of the case and discusses its significance.
(added 2007 Jun 11) Prior cases concerning amendment requirements for amendments that uniformly apply are also discussed in Maatta: Ardmore Park Subdivision Ass'n, Inc v Simon (1982) and McMillan v Iserman, 120 Mich App 785; 327 NW2d 559 (1982). Ardmore Park states an amendment requirement of a majority of owners or more. McMillan "grandfathers" existing conditions that were in compliance before amendment. Please read the full opinion in Maatta for clear explanation. The opinion in Ardmore Park is quoted in Schakin v Saddle Lane HOA which "properly allows a majority" to amend the covenants.
In both Ardmore Park and Maatta, the courts discuss and adopt reasoning from similar cases in other states. More discussion and internet links for Maatta v Dead River Campers, Inc are provided near the end of this post.
(added 2007 Jun 11) Withholding Payment of Assessments over Disputes
— The Court of Appeals addresses this issue in Kingsley Manor Condominium v David Derderian. The court states there is not defense for nonpayment of assessments and that the remedy for violations by the association is a legal action, and not the withholding of fees. The language is clear, but the opinion refers to the condominium act. It may or may not apply to other owners associations. There is similar language in a North Dakota Supreme Court case which cites several similar cases from other states.
Retroactive Application of Court Opinions Concerning Interpretations and Validity of Covenants and Amendments — (added 2006 Sep 24) In a recent case, Kamphaus v Burns, the court examined whether or not a 1975 amendment to covenants was valid. By its remand for more facts concerning the 1975 amendment, the court suggests that validity of covenants and any amendments is also retroactively determined and applied based on the case law at the time. The same case indicates that recent court opinions concerning interpretation of restrictive covenants are (retroactively) applied to covenants that predate the recent opinions.
Major References — An internet search was made with the search parameters in the search windows. Unfortunately, only one general paper was identified. Numerous papers on specific cases were also identified.
- (edited 2007 Dec 26) A
major reference on Covenants is the paper [William E. Hosler, Esq.,
"Restrictive Covenants in Michigan", Michigan Real Property Review,
Summer 1998]. The paper is available from two sources on the
internet.
- The full paper is available through the author's law firm.
- The full paper is also available from Stewart Title Company.
This paper discusses Standing to Enforce, Interpretation of Covenants, Recent Cases (1998), and other issues.
Apparently, the original case law is reference 5 (Sanborn v McLean, 233 Mich 227; 206 NW 496 (1925).), which defines covenants as "reciprocal negative easements". Subsequent cases have applied the standards described in Sanborn. So, the meaning of reciprocal negative easement has been around for a long time.
- (added 2007 Dec 26) Mr. Hosler has updated his research in a second 2006 paper [William E. Hosler, Esq., "Restrictive Covenants in Michigan"] available on the author's law firm. Many of the cases cited below are discussed by Mr. Hosler.
Internet Searches — (added 2006 Nov 13) A paper, Researching Property Law on the Internet, by Byron D. Cooper published in the December 2003 Michigan Bar Journal may be helpful in conducting internet searches concerning property law. This post is concerned with the subset of property law concerning restrictive covenants.
Michigan Appellate and Supreme Court Cases — These are available on line at Michigan Court of Appeals. It appears that all decisions beginning in 2001 are available online with others with earlier dates also available as described at the Michigan court website. Those concerned with covenants are summarized below.
The "Home Page" for the Appellate Digest explains the purpose and scope of the Digest. The first sentence states, "The Michigan Appellate Digest summarizes and indexes all published Michigan Supreme Court and Court of Appeals decisions." Cases on Covenants are listed under the subject "Property". Scroll down to "Covenants". Click on arrow head to reveal applicable cases. Click on the case to provide the Appellate Digest Summary. For the later opinions, the full opinion can be obtained by clicking on "opinion" at the top of the Digest summary. The standards for the various aspects relating to covenants are copied below each case.
- 1994 Apr 18 — Webb v Smith (After Remand)
—
- Covenants - Construction. "A restrictive covenant in a property deed should be construed in connection with the surrounding circumstances, including the location and character of the entire tract of land, the purpose of the restriction, whether it was for the sole benefit of the grantor or for the benefit of the grantee and subsequent purchasers, and whether it was in pursuance of a general building plan for the development and improvement of the property."
- Easement - Reciprocal Negative - Enforcement. "When a
common owner has burdened all lots retained by him with reciprocal
negative easements, the lots remain burdened when sold to separate
parties, and the right to enforcement passes to each purchaser with
notice."
- Covenants - Enforcement. "When there is no ambiguity, the meaning of a restrictive covenant cannot be enlarged or extended by judicial interpretation. Such restrictions are to be enforced for the benefit of the entire subdivision and its residents, even if to do so is a hardship upon one owner."
- 1994 Aug 16 — Canada Creek Ranch Association, Inc v Montmorency Township — Canada Creek Ranch Association, Inc v Montmorency Township, 206 Mich. App 498; 522 NW2d 690 (1994).
- Property - Valuation - Determination - Use Restrictions - Deeds/Bylaws. "Absent fraud, an appellate court must review a decision of the Tax Tribunal only for whether the tribunal committed an error of law or adopted a wrong principle. The tribunal's findings of fact must be supported by competent, material and substantial evidence on the whole record. Substantial evidence is more than a scintilla of evidence but less than a preponderance of the evidence."
- Covenants - Restrictive - Removal. "To remove a restriction in a chain of title, unanimous consent of those interested in the restriction is required."
- 1997 Apr 1 — Stuart v Chawney — SCt# 104957 (Full opinion at Stuart v Chawney. Case is discussed extensively by Hosler (above).
- Property - Covenants - Construction. "Negative covenants restricting land use are grounded in contract. In an action to enforce a covenant, the intent of the drafter controls, but the provisions are to be strictly construed against the enforcer and doubts are to be resolved in favor of the free use of the property. Equitable relief will not be granted unless there is an obvious violation."
- 1999 Feb 25 — O'Connor v Resort Custom Builders, Inc — (added 2009 Aug 14) See — added syllabus for Supreme Court Opinion for O’CONNOR v RESORT CUSTOM BUILDERS, INC (.doc) at [http://caselaw.lp.findlaw.com/data2/michiganstatecases/supreme/022599/oconnor.doc]. In addition to the standards below, the opinion provides discussion concerning the meaning of residential uses, interval ownership, and short-term rentals.
- Covenants - Restrictive - Construction - Strict. "In construing the scope of a restrictive covenant on property, all doubts must be resolved in favor of the free use of the property. A restriction will not be inferred, but must be expressly provided in the controlling documents."
- Covenants - Restrictive - Residential - Construction. "Regardless of the general rule of strict construction of restrictive covenants on property, a covenant restricting the erection of any building except for dwelling purposes applies to the use as well as the character of the building. If clearly established by proper instruments, restrictions for residential purposes are favored and will be vigorously enforced. A court will protect property owners who have not themselves violated restrictions."
- Covenants - Restrictive - Enforcement. "Owners of land have broad freedom to make legal use of their property, but courts must normally enforce unwaived restrictions on which the owners of other similarly burdened property have relied."
- Covenants - Restrictive - Residential - Violation - Determination. "Whether a use is prohibited by a covenant restricting use to residential purposes must be determined according to the particular circumstances of the case. The usual, ordinary and incidental use of property as a place of abode does not violate such a restriction, but an unusual and extraordinary use might violate such a restriction."
- Covenants - Restrictive - Waiver - Test. "The determination whether there has been a waiver of a restrictive covenant or whether enforcement is precluded by laches are to be based on the facts of the particular case."
- 2000 May 12 — Lakes of the North Association v Twiga Limited Partnership —
- Statutes - Construction - Legislative Intent. "The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. If the language is ambiguous, a court must examine the object of the statute and apply a reasonable construction which best accomplishes the purpose of the statute."
- Covenants - Restrictive - Residential - Public Policy. "Restrictive covenants, especially those pertaining to residential use, enhance and preserve the value of real estate. If clearly established by proper instruments, they are favored by public policy."
- 2001 Feb 9 — Ditmore v Michalik —
- Covenants/Conditions - Distinction. "A covenant in a property conveyance is an assurance that something will be done, while a condition provides that the legal relationship of the grantor and the grantee will be affected when an event which might or might not happen occurs."
- Easement - Express - Test. "To create an express easement, there must be language in the writing manifesting a clear intent to create a servitude."
- 2002 Jul 25 — Terrien v Zwit —
- Covenants - Business - Day Care Facility - Residential/Business. "A covenant to use a property only for residential uses permits a broader scope of uses than a covenant which proscribes commercial and business uses. Although the operation of a day care business in one's home can constitute a residential use, it is also a commercial or business use and is subject to proscription."
- Covenants - Commercial Use. "A "commercial" use is one able or likely to yield a profit, and "commercial use" is use in connection with or for furtherance of a profit-making enterprise, while "commercial activity" is any type of business or activity which is carried on for profit."
- Covenants - Business. "A "business" includes a person engaged in a service, or an activity or enterprise for gain, benefit, advantage or livelihood."
- Covenants - Enforcement - Damages - Necessity. "The breach of a covenant can be the subject of enforcement, regardless how minor or how minimal the damages. A plaintiff's right to enforce a covenant is not affected by the extent of the damages which might be suffered by the breach."
- Covenants - Enforcement - Public Policy - Determination. "In identifying the public policy of the state, a court must focus upon the policies which are reflected in the state and federal constitutions, statutes, and the common law. To refrain from enforcing a covenant because it is contrary to public policy, the policy must be explicit, well-defined, and dominant. Absent a specific basis for declaring a contractual provision unlawful, a court cannot disregard a private contract or covenant in order to advance a social goal."
- Covenants - Enforcement. "Property owners may improve their properties and may create and enforce covenants affecting their properties. A covenant is a contract created with the intention of enhancing the value of property and is a valuable property right. Further, restrictions of use to residential purposes are favored by public policy."
- Covenants - Restrictive - Construction - Intent - Ordinary Meaning. "Restrictive covenants are to be construed so as to give effect to the intent of the drafter. The words of the covenants should be given their ordinary meanings and overly technical analysis should be avoided. Such covenants should be construed with reference to the present and prospective use of property as well as to the specific language employed based on reading the covenant as a whole rather than from isolated words."
- 2004 Jun 17 — Mable Cleary Trust v Edward-Marlah Muzyl Trust
— This opinion establishes standards for restrictive covenants and for interpretation of legislation.
- Covenants - Restrictive. "Negative covenants restricting land use are grounded in contract."
- Covenants - Definition. "A covenant is a contract created with the intention of enhancing the value of property and is a valuable property right."
- Statutes - Construction - Plain Meaning. "The first consideration in construing a statute is the language of the statute. The language must be read in context to determine if it is ambiguous. If the language is clear, judicial construction is precluded and the statute must be enforced as written."
- Statutes - Construction - Ambiguity - Legislative Intent. "If statutory language is ambiguous, a court must effectuate the intent of the Legislature through a reasonable construction, considering the purpose of the statute."
- Statutes - Construction - Ambiguity. "If reasonable minds can differ concerning the meaning of a statute, judicial construction of the statute is appropriate."
- Statutes - Construction - Ordinary Meaning. "Words not defined in a statute should be accorded their plain and ordinary meaning."
- Covenants - Restrictive - Construction - Intent - Context. "Restrictive covenants are to be read as a whole to give effect to the ascertainable intent of the drafter. Restrictions must be construed in light of the general plan under which the restrictive district was platted and developed."
- Covenants - Restrictive - Construction - Intent - Ordinary Meaning. "Restrictive covenants are to be construed so as to give effect to the intent of the drafter. The words of the covenants should be given their ordinary meanings and overly technical analysis should be avoided. Such covenants should be construed with reference to the present and prospective use of property as well as to the specific language employed based on reading the covenant as a whole rather than from isolated words."
- Covenants - Restrictive. "Negative covenants restricting land use are grounded in contract."
- 2004 Jun 17 — Hickory Pointe Village Homeowners Association v Smyk —
- Covenants - Restrictive - Enforcement. "A covenant is a contract created by the parties with the intent to enhance the value of the property, and is itself a valuable property right. If the intent of the parties in a restrictive covenant is clearly ascertainable, a court must give effect to the instrument as a whole."
- Covenants - Restrictive - Enforcement - Damages - Minimal - Effect. "A clear restrictive covenant should be enforced, regardless of the extent of the resultant injury."
- 2004 Sep 21 — Maatta v Dead River Campers, Inc — Removal of a lot from the restrictive covenants
requires unanimous approval of all property owners even though
restrictive covenants state that they can be amended by approval by 2/3 of property
owners.
- Covenants - Restrictive - Amendment - Not Mutual - Approval - Unanimous - Necessity. "Owners of property subject to mutual restrictive covenants expect that the covenants will be enforced uniformly and mutually. Amendments to the covenants which apply to less than all the subject parcels may be obtained only by unanimous consent of the property owners." ... even though there was "a provision of the covenants which permitted amendments by approval of two-thirds of the owners."
Other Cases of Particular Interest — Some of the cases below are published cases and provide additional information including the factual situations related to the decisions. Others are opinions of other matters affecting the interpretation and application of common law to the CC&Rs, but are not published and hence not summarized in the Appellate Digest above.
1982 — Ardmore Park Subdivision Ass'n, Inc v Simon — The full citation is Ardmore Park Subdivision Ass'n, Inc v Simon, 117 Mich App 57; 323 NW2d 591 (1982). This case is not available on the non-fee internet. Because of its importance, I created a pdf file (click on the above title) of a copy from Michigan court cases and converted the copy to the text readable pdf file in the above link. Cited in other cases, the court summarized:
"We hold that where a deed restriction properly allows a majority, or a greater percentage, of owners within a particular subdivision to change, modify or alter given restrictions, other owners are bound by properly passed and recorded changes in the same manner as those contained in any original grant and restriction."
The court also cites 20 Am Jur 2d, Covenants, Conditions, and Restrictions § 268 for this headnote in the opinion. I have included the text from this reference with the pdf file. This opinion appears to define a general requirement because of the language "or a greater percentage" in the conclusion. The Ardmore covenants specified amendment by approval of a majority of owners.
The quotation above is cited in two cases which the language above: Schakin v Saddle Lane HOA and Maatta v Dead River Campers, Inc. Search this post with "Ardmore Park" for more discussion.
Ardmore Park also quotes another case on whether or not amendments can be made retroactive: " ... the Supreme Court held that reciprocal negative easements could not be made retroactive and refused to enforce the reenacted restrictions. Sampson v Kaufman, 345 Mich 48, 51; 75 NW2d 64 (1956).
- 1998 Dec 11 — Lake Isabella Prop Owners Ass’n/Architectual Control Committe v Lake Isabella Development, Inc — (added 2007 Dec 16) Court of Appeals Opinion. Unpublished opinion per curiam. Court
of
Appeals Number 204954. This case involves the interpretation of
amendment requirements. It also provides the rules for interpretation
of restrictive covenants from Borowski v. Welch.
2003 Sep 04 — Kingsley Manor Condominium v David Derderian — (added 2007 Jun 11) Court of Appeals Opinion - Memorandum - Unpublished, September 4, 2003, Court of Appeals Number 239909. This case involves the withholding of fees by an owner regarding a dispute with the condominium association.
The above language is clear, but the opinion refers to the condominium act. It may or may not apply to other owners associations. There is similar language in a North Dakota Supreme Court case which cites several similar cases from other states."An owner of a condominium unit is required to comply with association bylaws, rules, and regulations promulgated under the condominium act. MCL 559.165. The remedy for violations by the association is a legal action, and not the withholding of fees. Newport West, supra, 13. A co-owner may not assert in an answer or setoff to a complaint for non-payment of assessments the fact that the association has not provided services or management. Id.; MCL 559.239.
Defendant had no defense for the non-payment of the assessments, yet he obtained the relief he sought. In return for the payment into trust of his assessment, he received a judgment requiring plaintiff to expend an amount in excess of the assessment for the benefit of defendant’s unit. Plaintiff was not successful, and the court did not err in denying attorney fees."
- 2003 Nov 18 — Heather Lake Homeowners Assn v Marlo Hein — (added 2006 Oct 22) Court of Appeals Opinion - Per Curiam - Unpublished, November 18, 2003, Court of Appeals Number 241860. The significance of this case is an example of the meaning of "strictly construed" against the party seeking enforcement.
We agree, however, that the trial court erred in ordering defendants to remove the challenged stonework. The court granted plaintiff’s request for injunctive relief on the basis that defendants failed to obtain approval of the stonework from plaintiff’s Architectural Control Committee, contrary to article IV, paragraph 34, of the subdivision’s recorded deed restrictions. That provision provides that construction plans and specifications “shall show the nature, kind, shape, height, [and] materials” of the structure to be built, and gives plaintiff “the right to refuse to approve” anything it felt was “not suitable or desirable.”
In this case, it is not disputed that defendants’ construction plans, including defendants’ proposed stonework, was approved by plaintiff. Nonetheless, the construction plans did not disclose that the stonework would be arranged to read, “JESUS IS KING.” Thus, at issue here is whether the deed restrictions required defendants to disclose that their stonework would be arranged to display the message, “JESUS IS KING,” such that plaintiff’s approval was required. In Sampson v Kaufman, 345 Mich 48, 50; 75 NW2d 64 (1956), our Supreme Court stated:When a question arises as to the meaning of restrictions as set forth in a deed, such covenants are construed strictly against those claiming the right of enforcement and all doubts are resolved in favor of the free use of the property. Courts of equity will not grant relief in cases of this nature unless the right thereto is clear.
Here, paragraph 34 of the deed restrictions only requires that construction plans show the nature, kind, shape, height and materials of the structure. There is no requirement that the plans show the exact arrangement of the building materials for the structure. Furthermore, there is no restriction on signage. Under these circumstances, paragraph 34 is, at best, ambiguous as to whether disclosure of a particular brick arrangement is necessary. Given this ambiguity, any doubts must be resolved in favor of permitting defendants the free use of their property, so as to allow them to arrange the bricks in the manner they desire. Because defendants’ submitted plans indicated that their structure would have stone facing and plaintiff approved these plans, there was no clear violation of paragraph 34. Accordingly, plaintiff was not entitled to a court order requiring defendants to remove the stonework.
- 2004 Mar 06 — Schakin v Saddle Lane HOA — (added 2006 Sep 05) Court of Appeals Opinion - Per Curiam - Unpublished, March 16, 2004, Court of Appeals Number 243187. The significance of this opinion is its reference to a 1982 opinion concerning amendments to restrictive covenants in Ardmore Park Subdivision Ass’n, Inc v Simon, which isn't available in the internet.
"Plaintiffs’ reliance on Ardmore Park Subdivision Ass’n, Inc v Simon, 117 Mich App 57; 323 NW2d 591 (1982), ... . Rather, the specific question before this Court was whether property owners who did not vote for the amendment could be bound by the amendment. This Court held that “where a deed restriction properly allows a majority, or a greater percentage of owners within a particular subdivision to change, modify or alter given restrictions, other owners are bound by properly passed and recorded changes in the same manner as those contained in the original grant and restriction.” Id. at 62."
This opinion predates the opinion in Maatta v Dead River above, but is not cited in Maatta.
- 2004 Jun 17 — Hickory Pointe Village Homeowners Association v Smyk — (added 2006 Oct 22) Court of Appeals Opinion - Per Curiam - Official Reported Version, June 17, 2004, Court of Appeals Number 242060. This published case is included in the summaries from the Appellate Digest above.
Defendants submitted plans for approval by the association; however, these plans were not approved because of plaintiff's assertion that an architectural element contained in the plans was nonconforming to the association's specifications. Specifically, plaintiff contends that defendants' deck plans called for the railing to be connected to the deck floor around the entire perimeter, contrary to plaintiff's specifications requiring a clearance of some inches between the deck floor and the bottom of the railing. Plaintiff claims that its required design provides both a greater utility for maintenance and upkeep and an aesthetic consistent with image goals the association is trying to advance.
After submitting the plans, but without first receiving approval, defendants constructed the deck, utilizing the railing design with the allegedly nonconforming architectural element. Plaintiff then brought this action seeking equitable relief.
The trial court erred, however, in finding for defendants on the basis that the breach constituted a "technical violation" that imposed no substantial injury upon plaintiff. It is a "wellunderstood proposition that a breach of a covenant, no matter how de minimis the damages, can be the subject of enforcement. . . . If the construction of the instrument be clear and the breach clear, then it is not a question of damage, but the mere circumstance of the breach of the covenant affords sufficient ground for the Court to interfere by injunction." Terrien, supra at 65 (citations omitted). Because the covenant and the breach thereof are both clear in this case, plaintiff was entitled to summary disposition as a matter of law.
- 2004 Sep 21 — Maatta v Dead River Campers, Inc — (added 2006 Sep 24) Court of Appeals Opinion - Per Curiam - For Publication, September 24, 2004, Court of Appeals Number 248848. This published case is included in the summaries from the Appellate Digest above. The opinion in this case includes rulings of the court that are beyond the facts in Maatta in setting the background for the specific ruling described in the Appellate Digest. That analysis by the court has application in other cases concerning whether or not approval of all property owners is required to amend the covenants. The analysis includes reviews of other Michigan cases and cases from other states as well, and relies strongly on a New Mexico case, Montoya. The court includes their conclusions in their ruling at page 7:
"We agree with the principles so well articulated in Montoya. Moreover, as a number of courts have noted, property owners expect that covenants will be enforced uniformly and that owners will enjoy a degree of mutuality under the restrictions. See, e.g., Lakeshore, supra, 481 S.W.2d at 575 (noting that "[p]ersons who purchase lots in a subdivision subject to such use and occupancy restrictions do so upon the expectation of a benefit as well as the obvious burden or obligation of compliance"; and that "[t]hey expect the protection that compliance on the part of the rest of the lot owners affords them and absent their consent, they may not continue to be burdened when others are relieved" unless the modification applies uniformly to all lots); Cowherd, supra, 238 S.W.2d at 348 (noting that a prospective purchaser, when reading the restrictive covenants, would not expect "that the owners of a majority of . . . [the lots] in the subdivision would have the power to release the lots adjoining his lot from the restrictions and continue them as to others"); Montoya, supra, 473 P.2d at 365 (noting that traditionally, "restrictive covenants have been used to assure uniformity of development and use of a residential area to give the owners of lots within such an area some degree of environmental stability"). Consequently, "[t]o permit individual lots within an area to be relieved of the burden of such covenants, in the absence of a clear expression in the instrument so providing, would destroy the right to rely on restrictive covenants which has traditionally been upheld by our law of real property." Id. at 365." (Emphasis by underline mine.)
There is an interesting discussion of this case by Patrick A. Randolph, Jr. at <http://dirt.umkc.edu/SEP2004/DD_09-29-04.htm> in Daily Development for Wednesday, September 29, 2004; University of Missouri, Kansas City, School of Law.
- 2004 Nov 30 — Torch Lake v Ackermann — (added 2006 Aug 31) Court
of Appeals Opinion - Per Curiam - Unpublished, November 30, 2004, Court
of Appeals Number 246879. This case is concerned with whether or not
residential is interpreted to include short-term rentals and vacation rentals. It restates
the interpretations from O'Connor at page 4:
"In O’Connor v Resort Custom Builders, Inc, 459 Mich 335; 591 NW2d 216 (1999), our Supreme Court set out the sometimes-conflicting principles that govern review of deed restrictions. The O’Connor opinion distills four touchstones for analyzing the applicability of deed restrictions. First is the concept that restrictive covenants are to be construed strictly against grantors and those claiming the right to enforce them, that is, all doubts are to be resolved in favor of free use of property. Second is the admonition that courts not infer restrictions that are not expressly provided in the pertinent documents. Third is the balancing of the valuable right of privacy for homes with the importance of protecting property owners who rely on restrictions. Finally, O’Connor instructs us that deed restrictions that limit use for residential purposes are favored by public policy, but only if they are “clearly established” by the documents wherein they are found. Id. at 341-342. See also Hickory Pointe Owners v Smyk, 262 Mich App 512, 515-516; 686 NW2d 506 (2004)."
The court also provided a definition for residential, at page 4:
"The meaning of “residential” in a restrictive covenant is not an issue of first impression in this state, but does require a fact-specific inquiry into the use. Wood, supra. A restriction allowing residential uses is generally viewed as permitting wider uses than a restriction prohibiting business uses. Beverly Island Ass’n v Zinger, 113 Mich App 322, 326; 317 NW2d 611 (1982); see also Terrien v Zwit, 467 Mich 56, 62; 648 NW2d 602 (2002). Hence, incidental uses to a prescribed residential use may not violate the covenant if it is casual, infrequent, or unobstructive, and causes neither appreciable damage to neighboring property nor inconvenience, annoyance, or discomfort to neighboring residents. Wood, supra at 288-289."
The court also adopted an expanded description (rationale) for residential written by the trial court at page 4.
- 2004 Nov 30 — Brzozowski v Wondrasek — (added 2006 Sep 04) Court of Appeals Opinion - Per Curiam - Unpublished, November 10, 2005, Court of Appeals Number 256701. The court excerpts the opinion concerning the interpretations of covenants in Borowski v Welch at pp 3-4. The opinion in 1982 Borowski v Welch (not on the internet) is often referenced in later opinions and referenced in Hosler above. A summary of the interpretation rules in Borowski v. Welch is posted from another case.
- 2005 Aug 23 — Kamphaus v Burns — (added 2006 Sep 24 ) Court of Appeals Opinion - Per Curiam - Unpublished, August 23, 2005, Court of Appeals Number 261586.
This case involves a number of issues including whether or not a 1975
amendment to restrictive covenants is valid and enforceable. It
appears that (1) most recent case law on interpreting restrictive
covenants is applied (retroactively) to covenants that predate the
recent case law, and (2) covenants or amendments thereto that are
invalid for whatever reason are not enforceable no matter how long the
covenants have existed without challenge. The second observation is based on the court's remand for more facts concerning the 1975 amendment, which indicates the court considers that validity of covenants and any amendments is also
retroactively determined and applied. The same case indicates that recent court opinions concerning
interpretation of restrictive covenants are (retroactively) applied to
covenants and amendments that predate the recent opinions. The opinion involves some
legal/technical arguments that may affect the observations in the
preceeding sentence. See footnote 4 at page 6. The reader is advised to read the entire 6-page opinion to understand the context and analysis. .
- 2006 Jun 6 — David Ribick v Inverrary LLC — (added 2006 Jul 11) Court of Appeals Opinion - Per Curiam - Unpublished, June 6, 2006, Court of Appeals Number 257468. With regard to restrictive covenants (defined as reciprocal negative easements in Sanborn; see Hosler paper), opinion states at page 4:
“Restrictive covenants are to be read as a whole to give effect to the ascertainable intent of the drafter,” Mable Cleary Trust v Edward-Marlah Muzyl Trust, 262 Mich App 485, 505; 686 NW2d 770 (2004), citing Borowski v Welch, 117 Mich App 712, 716; 324 NW2d 144 (1982), and strictly construed against grantors and the parties seeking to enforce the covenants. All doubts are to be resolved in favor of the free use of property. O’Connor v Resort Custom Builders, Inc, 459 Mich 335, 341-342; 591 NW2d 216 (1999); Stuart v Chawney, 454 Mich 200, 210; 560 NW2d 336 (1997). Courts should not infer restrictions that are not expressly provided for in the controlling documents. O’Connor, supra at 341, citing Margolis v Wilson Oil Corp, 342 Mich 600, 603;70 NW2d 8111 (1955)."
The Michigan Appellate Digest summaries above include all but Borowski and Stuart, which are older than the cases indexed. Stuart v Chawney is discussed extensively by Hosler (above). Borowski is one of the references in Hosler. A summary of the interpretation rules in Borowski v. Welch is posted from Lake Isabella.
From a lay person's point of view, the above standard for interpretation reads easier with the elimination of the case references:
“Restrictive covenants are to be read as a whole to give effect to the ascertainable intent of the drafter, and strictly construed against grantors and the parties seeking to enforce the covenants. All doubts are to be resolved in favor of the free use of property. Courts should not infer restrictions that are not expressly provided for in the controlling documents."
____________________________________________________________________________
Copyright 2009 © Donald L. Nordeen. All Rights Reserved. See Copying Posts on This Weblog.
••• End of Post •••
2006 Feb 27
I found your website, at http://swagman.typepad.com/poa_governance/.
I was looking for any information on HOA, specifically on how the Board can enact a “pet park ban” in the common area as a “rule”, but don’t bother to change the CC&R. Is this a loophole? The Statute say that the Developers are required to state in the CC&R “any” restrictions (i.e. pet ban) for the common areas. How come the Board is not under this same obligations? I still can’t find this answer.
The only restrictions we have for animals (in the CC&R) is stated as “no livestock…except reasonable number of household pets”.
The Bylaw say that the Board can regulate “use” in the common area. The Board say that this gives them the “right” to ban pets. They say they don’t need to have a homeowners vote to change the CC&R.
It’s been an uphill battle with the Board who are not accountable and don’t care what homeowners think. Where can I find this answer. I have considered asking an attorney. Is there anywhere on the website where I should look. We are in Oregon.
After reading through your website, I find that my own problems with our HOA Board are similar everywhere else. It was reassuring to see that I was not alone in fighting the injustices of the HOA.
My local TV news channel came to do a story on the pet ban in our HOA. This will be aired this week.
Thank you for your website and bringing all the information into one location.
- RT
Here is the official HOA website: http://www.orencogardenshoa.com
It is maintained by the Board.
============================================
Reply
2006 Feb 28
RT,
Yours is not an unusual problem. Please refer to "Thoughts on Problem Solving for CIDs/POAs" at http://swagman.typepad.com/poa_governance/2006/01/thoughts_on_pro.html#more for a general approach. However, much of your problems appears to be related to the content in your governing documents and the interpretation of those documents.
Determine which of the provisions in the CC&Rs apply to the common areas. If the common areas are not subject to specific restrictions, then examine the legal descriptions to determine whether or not the common areas are included.
Also, determine whether or not the CC&Rs give the board authority to promulgate rules and/or regulations for the common areas. If the board does have such authority, then the board's rules and regulations are likely valid unless they are unreasonable, arbitrary and capricious. Please refer to "Michigan Case Law on Restrictive Covenants (CC&Rs)" at http://swagman.typepad.com/poa_governance/2006/02/michigan_case_l.html and "Michigan Case Law on Corporation Bylaws" at http://swagman.typepad.com/poa_governance/2006/02/michigan_case_l_1.html information on how one state, Michigan, interprets the governing documents.
Read the Welcome and Home page for information on how to use my weblog. Cleck on "Main" at the top of the weblog. Use the search engine near the top of the left column to locate posts that may also apply to your situation. You will need to look at your state's legislation and maybe the extensive references.
I did review the website for your property owners association. It seems like the message is negative. Rather, I believe the emphasis should be on the common interests and why it is in everyone's interest to keep the community in conformance with the CC&Rs. Everyone benefits. Property values increase, Etc.
Don Nordeen
========
added 2006 Mar 2
This problem made the local news. Read the story, Homeowner associations' effectiveness varies, at http://www.katu.com/team2/story.asp?ID=83776. Select the video link, “Watch this story”.
Posted by: RT | 2006.02.27 at 18:00
2006 Jun 27
If homes purchased in a new sub-division have deed restrictions, yet when the developer turns over control of the properties to the residents of the sub-division and no home owners assosciation is enacted (done by vote of residents), what does this do to the restrictions? Can they be enforced without an assosciation? If the deed restrictions are violated now, can an association if formed 5 years from now change what has been essentially allowed by the neighborhood?
Jeff Poirier
===========================================
Reply — 2006 Jun 27
I am not an attorney so I can only relate my understand which is not legal advice. The enforcement likely depends upon the language in the deed restrictions. However, most likely the restrictions would be interpreted as "reciprocal negative easements" under Michigan case law. The would likely mean that any property owner whose property is subject to the deed restrictions can enforce the restrictions.
With regard to forming a property owners association (POA), it can be done at any time but probably would be best done through an amendment to the deed restrictions (CC&Rs). The added provisions would define the mandatory membership, voting rights, etc. My recommendation is that the POA should have defined responsibilities for the POA of stewardship for the common interests of the members as defined in the deed restrictions and protection of the rights of the members. Don't give the POA open-ended responsibilities because such is an invitation to abuse. I also recommend including provisions that guarantee preservation of constitutional rights for members and a clear definition of other members' rights (sometimes refered to as a "Members' Bill of Rights." Make sure that the governance of the POA is based on democratic principles. The POA would likely be organizaed under the Michigan Nonprofit Corporation Act, which is not based on democratic principles. The democratic principles would have to be defined in the amendment to the deed restrictions. More of those ideas are contained in this weblog. You might start with the Democratic Model for Governance of CIDs/POAs at http://swagman.typepad.com/poa_governance/2005/12/democratic_mode.html. Most likely, attorneys who write deed restrictions (CC&Rs) and other governing documents will not have this point of view.
Don Nordeen
Posted by: Jeff Poirier | 2006.06.27 at 01:28
2006 Oct 12
I have been unable to find an answer this question, they tell me it has never been decided in MI. But it seems so basic and common.
Can a land contract vendee create valid land restrictions? Or does he need to wait until he has the deed? In my case, the land contract vendee created restrictions and then defaulted. But others want to say his restrictions are valid.
Jon Zeeff
=====Reply=====
2006 Oct 13
From my research, I have not noted any cases or references that addresses your question. A Google search with the search string ["restrictive covenants" "land contract" michigan] yields 480 hits. You may be able to narrow the search with additional terms related to your specific situation.
Don Nordeen
Posted by: Jon Zeeff | 2006.10.12 at 19:21
2006 Dec 17
I appreciate the excellent case references on this location. I am not an attorney either. Just another believer that injustice anywhere, weakens justice everywhere. I can't remember who to give credit for the paraphrase! I was directed to your site via a google search in which I am trying to find case references for original CCRs having just been ignored or in the case I am dealing with the placement of Fraudulent CCRs averring to be imposed by virtue of a merger of two corporate entities. Any direction you might give in this regard will be appreciated! Thanks.
RLM
=====reply=====
2007 May 06
I suggest that you narrow your search to focus on amendments to CC&Rs. I am not an attorney so cannot provide legal advice. In Michigan, the controlling case appears to be Dead River v. Maatta which states that any amendment that creates different provisions for different properties requires unanimous approval. This Michigan opinion provides references to similar opinions in other states.
It merging would be considered a new covenant, then by Dead River and other similar cases, approval by all affected owners might apply.
Don Nordeen
Posted by: RLM | 2006.12.17 at 20:18
2007 Mar 14
Hello - I too found this site via Google...
Understanding that you are not an attorney, can you direct me to any kind of case law for the following 2 proposed changes that would be effective retroactively to existing property owners:
1) Vacant lots must be developed with in 1 year of the next transfer or upon ratification of the new restriction. The point here is that there are a couple owners that want the vacant lots to get built for various reasons. On the other hand, the lot owners at this point are all investors that have no plan to develop or sell their lot. This would probably enhance the value of existing home owners, but would be very detrimental to lot holders.
2) Establish a minimum percentage of landscaping as measured against the home's SEV. For example, if the home were assessed at 400k, you would have to put in or prove you put in 40k worth of landscaping. There are many homes that have been in place for up to 10 years…
In my opinion, doing this will open the association (small - 25 lots only) to a huge amount of litigation, which we will have to pay for with no discernable benefit… So, any case law or other places to look will be greatly appreciated!
Steve
=====Reply=====
Steve,
I need additional information before posting a comment:
Your State:
Your Property Owners Association:
Send by clicking "email me" near the top of the left column if you want the information to be confidential.
Don Nordeen
Posted by: Steve | 2007.03.14 at 10:40
2007 Aug 08
Our Association has been in existence for many years. It is a large project and after more than 25 years of existence the developer still has nearly 900 unsold lots. There are approximately 900 sold lots. Amendments to the Covenants require 51% approval of lot owners. The developer gets to vote his lots even though he has never paid $1 into the Association. In the Covenants there was a one time $1,000 Initiation Fee paid by all third party buyers. It gave membership into the club that operates the common area amenities. The Common Area amenities are still owned by the developer. The membership Initiation Fee runs with the property and thus was a one time fee. Now the developer wants to amend the covenants to say that the Membership expires each time a home is sold and a new $3,000 initiation fee is due. The problem is that the developer has been accumulating lots and will soon be able to vote a majority with little or no input from the homeowners who have actually footed the bills for more than 20 years. Can the developer really vote himself this windfall which will enrich him by more than $150,000 per year?
====Reply====
2007 Oct 18
Sorry you are having a problem. This is a fine print issue. Buyers didn't read the CC&Rs before they bought their property units. I believe that one has to assume that the developer serve his own interests in the CC&Rs. The developer appears to have recorded CC&Rs that require the owners pay and the developer controls.
I am not an attorney so this is not legal advice. Is there any land development law in your state that defines the obligations of developers in planned developments? Are there no provisions in the CC&Rs re max time limit before conveying the Common Area amenities to the owners association? The developer may have been required to provide Property Reports with the initial sale of lots that would likely include some representations that you can now use. Those are likely on file with your state.
Can you get the vote of all the property owners to support an amendment that all lots will be assessed the annual dues including the developer's while there is still a majority of third-party owners.
Under the circumstances, the developer may have a fiduciary responsibility to not engage in what appears to be self dealing.
I wouldn't be surprised that litigation will be required to solve the problem with the developer. You will need an attorney who has handled such cases for owners. I would move very carefully re engaging an attorney who also has developer clients.
Don Nordeen
Posted by: KKR | 2007.08.08 at 07:26
2007 Dec 02
I am a co-owner within an HOA. The HOA states that I cannot display a "For Lease" sign affixed to the inside of a window of my unit. The sign is small but is visible to the public from outside the unit. Their reasoning is that no signs of any kind are permitted in the condo project per the bylaws. The controlling provision in the bylaws is cited below:
"Section 1. SIGNS No sign of any kind shall be erected with the Condo Project with the ACCs prior approval, except entry and directional signs installed by the Developer, and such signs as may be required by legal proceedings. If permission is granted to any Person to erect a sign within the Condo Project, the ACC reserves the right to restrict the size, color, lettering and placement of such sign. The Board and the Developer shall have the right to erect signs as they, in their discretion, deem appropriate. Not withstanding the above, no signs, flags, banners or similar items advertising or providing directional information with respect to activities being conducted outside the Condo Project shall be permitted within the Condo Project."
At issue is whether the HOA has authority to prohibit me from displaying a sign affixed to the inside portion of a window of my unit.
I contend that the bylaw language is clear and unambiguous in that only erected signs are prohibited. I assert that Blacks Law Dictionary defines "erected" as being synonymous with "constructed", which is further defined as "to build; erect, put together, make ready for use."
HOA attorney has written me stating that I am in violation of the bylaw prohibiting signs, and demand I remove the sign in my window, or the HOA will proceed with a petition for permanent injunctive relief preventing me from displaying the sign. In addition the HOA seeks costs and attorney fees for proceeding with such action.
I contend the HOA has grossly misinterpreted the bylaw with respect to signs.
Has anyone had a similar issue?
Leasing of units by co-owners is permitted in the bylaws. The ACC has separately approved co-owners to display approved "For Sale" signs in unit windows.
Bill Gabriel
====Reply====
2007 Dec 05
My recommendation is to carefully read the governing documents and the applicable case law in Michigan. It appears that the board is using a personal preference in the administration of the governing documents, rather than applying them according to the case law. The association's attorney is not helpful.
Please refer to my post, Thoughts on Problem Solving, at http://swagman.typepad.com/poa_governance/2006/01/thoughts_on_pro.html for ideas on how you might address the problem.
The State of Michigan does have a complaint system for condominiums through the Michigan Department of Labor & Economic Growth (DLEG) . Information on Michigan is available at http://swagman.typepad.com/poa_governance/2005/08/references_on_p.html#LinkDL*Mich*. Scroll down to DLEG for some information on how to use.
Don Nordeen
Posted by: Bill Gabriel | 2007.12.02 at 20:47
2008 Jan 12
I found this web site to be very useful. Unfortunately there is really no case law in Idaho regarding CC&R's. However, I think it would be reasonable to cite other state case law if it exists. What do you think?
My situation is this. I live on a one + acre lot in Ada county Idaho and belong to the Danskin Ridge HOA. Our sub is about 5 years old and we moved here three years ago because it was listed as "Horse property." The current CC&R's allow for 2 large animals during irrigation months (ambiguous), and county ordinances allow for 2 1/2 livestock per 1 acre lots. The problem is, every since we moved in, the HOA pres has stated there was a "Vote" to amend the CC&R's and horses were prohibited. I advised the HOA that no such amendment had been recorded in the CC&R's and he has since held 2 votes on the issue at the general meetings. The CC&R's specify 75% majority needed to amend the CC&R and that has never been attained. At the last meeting, 39 people showed up, 11 voting not to amend, and 23 voting to amend. Since there are 50 homes in the HOA, 38 votes would be needed to amend the rule. I asked the HOA pres if we could get a horse and he said, "I can't legally prevent it now, but we are going to vote on it by ballots at the next meeting, and it may be prohibited."
My main issue is that we have been deprived by his assertions for the past two years that we could not have a horse in the HOA. Secondly, I believe his actions are arbitrary, unreasonable, and the land use to have a horse is legal by county ordinance. I have not violated the CC&R's in any way, but I am concerned that my property rights and home value will be diminished if the HOA continues in their attempts.
Is there any case law regarding this and do you have any advice? Thank you very much.
John Hust
====Reply====
2008 Jan 14
As I explain on my welcome page, my specific concern is with Michigan which is the focus of my research.
I am not an attorney so this is not legal advice. But maybe my thoughts can be helpful.
You will have to do the Idaho research or consult an attorney to provide same. Covenants are interpreted in similar ways among the various states, but not exactly the same. Any prohibition against horses would have to be approved by amendment of the CC&Rs which you indicate as requiring 2/3 of all owners to approve. It could be higher than that since since such an amendment might be considered as changing the character of the community, in which case unanimous approval would be required.
A North Carolina Supreme Court case may be on point: Armstrong v Ledges HOA, No. 640PA05 FILED: 18 AUGUST 2006. This court held that a proposed amendment would change the character of the community and therefore would require unanimous approval as a new contract. It cites cases from other states that have drawn similar conclusions. You can access the case at
http://www.aoc.state.nc.us/www/public/coa/opinions/2005/050088-1.htm.
Two other aspects of case law may be important in your situation. The first is that any amended CC&R is not effective until recorded with your county's register of deeds. The second is that amendments cannot be made retroactive. The meaning is probably that if you have horses before any amendment, they would be grandfathered. If you had an opinion from an attorney confirming the grandfathering, you would likely be on solid ground to acquire the horses you want.
My observation from your comment is that the president of your HOA is involved in bureaucratic bullying.
Don Nordeen
Posted by: John Hust | 2008.01.12 at 20:13
2008 Oct 31
Re: Rules and Regulations for subjects not in the CC&Rs
I understand you are not an attorney. I live in Michigan and in a condo association. Many of the cases are applicable to my situation. We moved in our house in March, 2008. No where in the by-laws was the word "pool" ever mentioned and there were 3 pools in the sub when we moved in.
The rules and regs required all pools to be approved. We submitted several plans; all denied. Finally, we were told that they were going to require us to completely surround the above ground pool with a deck. We questioned this because our next door neighbors pool is only 50% surrounded. We were told they were "grandfathered" in.
The other two pools were enclosed. We submitted a plan fully surrounding because the president of the board said that was the requirement and we wanted the pool in before summer ended.
We figured we would continue to fight it because we felt strongly it was not in the by-laws. We were sent a letter stating we were in violation; no specific violation was mentioned, nor was the fact that were we allowed a hearing. According to MI condo law, that is a requirement. We called and asked for a hearing; which we were afforded, but nothing was resolved.
We were repeatedly told we were being asked to do what the other homeowners with pools had been required to do. We know one of the homeowners and he had his approval letter. He was approved to do half deck but decided to do full (which in our eyes is a violation too if he was only approved to do half). Was asked to do the same and were denied. Finally, the board agreed to half deck, but we were fined $100 for noncompliance from when the pool was first installed. We asked why we should be fined if the by-laws and rules do not require a deck around the pool. We were told the president doesn't like pools or the way they look.
We are to the point where we want them to take us to court, because we feel they are misinterpreting the by-laws. No where does it say that pools have to be surrounded by a deck. The president says the board has the authority to approve or deny anything in the limited common element (flowers, trees, swing sets, anything!).
Any suggestions??
Alycia
====Reply====
2008 Nov 04
Dear Alycia,
Please be advised that I am not an attorney and that the information in this correspondence is not legal advice. There are probably no easy answers to your situation and questions. The devil is in the detail.
You have identified that there are no pool requirements in the Bylaws, which I presume are the restrictive covenants for your condo development. You also should determine the authority assigned to the Association of Co-Owners, and more specifically its Board of Directors, in the Bylaws to write rules and regulations. If either has authority without restriction, then each owner is likely bound by the R&R. Elect a different board. My reading of case law is that courts would intervene only if the rules are arbitrary, capricious, non-uniformly applied and/or not reasonable.
If the Bylaws are written to clearly define the restrictions for owners without open-ended authority to the association, then the actions of the board that you describe should be outside the scope of the board's authority. Do the research of the Bylaws and write an appropriate letter to the board explaining your conclusion that the board doesn't have the authority to regulate pools and politely ask for the board's understanding.
Also, examine all the documents you signed when you purchased the condo. You may have signed a document agreeing to abide by the R&R. It may have been in the deed.
You should also consider whether or not the board is abusing its power. Such in not an uncommon occurrence in owners associations. Somethimes, Board members think they know better and want to impose their views on everyone else. This occurs with judges (black robe disease), policy (badge heavy) and in situations where people want to have power over others and sit at the front of the room. They serve themselves rather than the members. Check the synonyms for proud.
I would be interested in the name of the attorney who drafted the Bylaws. It should be stated at the end of the document.
If your research and persuasive powers are not effective with the board, you may wish to consult with an attorney.
Don Nordeen
Posted by: Alycia | 2008.10.31 at 21:35
2008 Nov 11
We elected a new board last night. The board president that caused us so many problems resigned but "reminded" the one existing board member that had continuously voted in our favor that he could be voted off the board at any time. Not controlling, eh? We also had issues with the fact that they were trying to fine us amounts that had not been adopted by the board, which according to the Michigan Condo Act makes the fine null and void. The old board refused to acknowledge this was true but we are hoping the new board uses some common sense. While all is still not settled with our pool issue, at least the dictator board president is gone, though we are still waiting for her to do something to get the last word. Her husband was sneaking at our property line yesterday taking pictures of our backyard if that expresses to you what we are dealing with!
Alycia
Posted by: Alycia | 2008.11.11 at 21:19
2009 March 08
Re: Statute of Limitation on Enforcement
Is there a statute of limitation on enforcing a deed restriction violation?
Andy Cosentino
====Reply====
2009 May 03
Unless there is a specific statute in your state, there is probably no simple answer. It likely depends on the specific conditions and the language in the specific deed restrictions. The concept of waiver may also be involved.
Don Nordeen
Posted by: Andy Cosentino | 2009.03.08 at 13:29
2009 May 04
Re: Amendment Time Frame Restrictions
I've been reading your site and the cases you have posted. I'm afraid I can't find the one clarification I've been looking for...when deed restrictions run for 10 year periods can they be amended and effective before the 10 year renewal date or are they "on hold" until the 10 year date and subject to another 2/3 majority amendment until the 10 year date? Is there a MI court case that speaks to this issue? Not the original 25 years (we are past that timeframe), but the effective date of amendments when there is successive 10 year periods language.
Thanks for your time.
Kammy
====Reply====
2008 May 12
Kammy.
My reading of the case law is that the CC&Rs cannot be amended during the 25- or 10-year period except by unanimous agreement. With unanimous agreement, the parties to the contract (CC&Rs) can change the CC&Rs at any time. In effect, they are agreeing to rescind the CC&Rs and then agreeing to new CC&Rs. Consequently the 25- or 10-year limitations do not apply. See LAKE ISABELLA PROPERTY OWNERS V LAKE ISABELLA DEV.
The only other case I am aware of concerning the 25- or 10-year periods is ROBERT KAMPHAUS V DAVID A BURNS.
Neither of these addresses the issue of what is the time window for amendment. The courts would likely opine that the time window must be shortly after the expiration of the time limit. Evidence of preparation prior to the expiration would help.
The time-period provisions are common. Case law from other states may exist and could be helpful. The Michigan Courts sometimes use the reasoning from the cases from other states in their opinions.
Don Nordeen
Please be advised that I am not an attorney and that the information in this correspondence is not legal advice.
Posted by: Kammy | 2009.05.04 at 15:30