Now that you’ve read your condominium documents and grasped the key features of a condominium association, you’re ready (and hopefully eager) to learn more about condominium living. This article will go into more depth about maintenance responsibilities, insurance, restrictions, rules and regulations, and remedies of the association against co-owners who don’t follow the restrictions or rules and regulations.
What am I responsible for?
One of the biggest appeals of condominium living is limited responsibilities when it comes to maintenance, repair, and replacement. Every single condominium is unique, so this section is designed to help you determine your responsibilities. Although site condominiums tend to follow a “lot” approach where you are responsible for everything within the boundaries of your property line, not all of them strictly follow this model. It is still advised to read through the master deed to find any anomalies (or confirm what you think is obvious).
For this exercise, you’ll need to look at the master deed for the condominium. I recommend starting by reviewing the article (chapter) called “Unit Description (and Percentage of Value),” which is typically Article V. Near the beginning of it, there should be a long paragraph which refers to the “Condominium Subdivision Plan.” The subdivision plan is attached to the end of the master deed, labeled as exhibit “B,” and is a set of engineering drawings of the land, units, utility easements, and individual unit floor plans (unless it is a site condominium).[1] The Unit description is a description of what you are purchasing or have already bought. In an attached condominium, the standard language will include “all that space within the interior finished unpainted walls and ceilings and from the finished subfloor.” In other words, if your unit is destroyed or damaged, you will likely be responsible to repaint or re-wallpaper the walls (but not prime them), and you will likely be responsible for the flooring (including carpet padding).[2] This also means you will be responsible for things like removing and re-hanging pictures, mirrors, towel racks, closet racks, and shelves.
The next place you’ll want to look at in the master deed is the article (chapter) titled “Common Elements,” which is typically Article IV. The first section will define the “General Common Elements,” which are shared features of the condominium. The second section will define the “Limited Common Elements,” which are features that are limited in use to one unit or several units only. While an association can clarify or expand all of these definitions, it cannot change something from a general common element to a limited common element, or vice versa. A condominium can, however, change the responsibility to repair, replace, maintain, and/or decorate any of those items in the third section (typically section 3 or section C), entitled “Responsibilities.” This is the section you’ll want to carefully review. Please make sure you have all amendments to the master deed, because this section is one of the most frequently amended sections. If this section is well-written, the responsibilities will refer to the costs of maintaining, repairing, and replacing all of the general and limited common elements of the condominium. This is foreshadowing that there may be certain situations or certain items which the association repairs or replaces, but charges the costs back to a unit. Also, as you may recall from Condo Living 101, most restrictions sections in the bylaws contain a clause which holds a co-owner responsible for the costs incurred by damages which are typically the association’s responsibility to repair or replace, if the damage was cause by (negligence of) the co-owner, or any family member or guest.
Insurance Responsibilities
One of the biggest problems we see with condominium documents is that the maintenance, repair, and replacement provisions are inconsistent with the insurance requirements. This could happen because changes were made to one article, but not the other, sloppy drafting, borrowed documents,[3] or mistake. A lot of attorney time is spent trying to decipher liability, so if it is still a bit murky to you, even after reading this, chances are it isn’t just you!
Having thrown out that disclaimer, it is still worthwhile to review the insurance provisions in the bylaws (exhibit “A” to the master deed), which are typically found in Article IV. Even this section will include its own disclaimer for each co-owner to have an insurance adviser assist in determining the amount of coverage necessary. If you have a traditional site condominium, you should obtain coverage identical to a homeowner’s policy (an HO-1 policy). Attached condominiums typically require a different (thankfully cheaper!) policy, referred to as an “HO-6 policy” or “walls-in coverage.” This makes the assumption that you are responsible for the unpainted surfaces of the interior walls inwards and finished subfloor upwards. I highly recommend, when obtaining insurance, that you first provide your insurance adviser or agent with a copy of the article on insurance,[4] article on repair or reconstruction,[5] article on unit description,[6] and article on responsibilities.[7] This will help ensure that you are neither over-insured nor under-insured.
Most condominiums have overlapping association and individual co-owner coverage. That is not a mistake. It is intended to protect the association in the event that a co-owner lacks coverage, because the association is typically required to restore the unit to “developer-grade,” or the condition existing when it was originally sold. The responsibilities section in the master deed that was foreshadowed earlier also allows the association to complete the basic restoration work and then bill it back to the unit. This helps to protect your interest by ensuring timely completion of restoration work (for property value and aesthetics).
One more thing I want to reiterate is that, in certain circumstances where there is major destruction (i.e. a fire or burst pipe) to an attached condominium, the association will be responsible for completing all the repairs and restoration, even to limited common elements for which a co-owner is typically responsible.[8] In those situations, the association’s insurance agent will work with the co-owner’s insurance agent to determine reimbursement for items which the co-owner’s insurance covers. Sometimes, the association may have to proceed with the work quickly, and send the bill to the co-owner, and the co-owner will have to either pay it, or submit it to their agent for review and reimbursement.
Rules and Regulations
By now, you have no doubt memorized the article on restrictions after reviewing it several times after reading Condo Living 101. All joking aside, it truly is a section you should be familiar with, or at least have it easily accessible for future reference. Typically, section 9 or 10 will be on “Rules and Regulations.” This section allows the Board of Directors to make new restrictions as long as they do not conflict with what is already in there or are contrary to the law. It is common for (well-run) associations to have a collections policy, a parking policy, a facility use policy, and/or a fine policy. None of those are recorded with the register of deeds. They must be distributed to all co-owners at the time they are adopted by the Board, but you are then relying on those documents to be passed along to future co-owners. A well-informed co-owner will request a copy of all of the rules and regulations from the Board of Directors or the property manager (and, at the very least, scan it and save it electronically for later reference). Like the bylaws, you are charged with not only knowing that additional rules and regulations (may) exist, but knowing the contents of them even if you have never read them. There’s nothing worse than having to tell a co-owner who just installed a beautiful garden bed that it is too large and needs to be removed, has the wrong color mulch, or uses unapproved edging materials. Believe me – lawsuits have been filed over such seemingly trivial things. It’s always safest to assume all restrictions and rules and regulations will be strictly enforced,[9] because, even if they aren’t now, there’s typically a provision in the bylaws that outright says if things have been overlooked in the past, the Board can still enforce them in the future. Don’t rely on your buddy on the Board giving you the nod of approval, because Board members frequently change and mindsets change over time.
Enforcement
Let’s say you’re they type of person who thinks that you bought a condominium, you own it, and you can do whatever you want to it. What is the association going to do about it? The answer may actually surprise you (and frighten you into submission or selling).
The first step is usually assessing fines. Most bylaws contain a provision near the end allowing the association to assess fines for violations of the restrictions or the rules and regulations. Well-drafted documents will even have a separate article near the end of the bylaws which solely addresses fines and the fining procedure. If it is not there, it may be in the rules and regulations as a separate fine policy. The association is required to send you notice of an alleged violation (even if it is painstakingly obvious) and give you a chance to dispute that it was you or that it is a violation. While I recommend to all my associations that they invite the co-owner to their next board meeting and include the time/date/location in the first notice letter, a lot of associations simply include a response sheet for you to fill out.[10] The Board must then review the response or listen to you at a hearing, and then have a private discussion as to whether they find you have committed a violation. Even if it is determined to be a violation, unless there is a separately stated policy for a specific fine (like for failing to provide a lease or proof of insurance), the first fine will be a warning. You will be told to fix it (if it hasn’t been fixed already). Please note: the association does not need to repeat this process for a continuing violation. They can simply send you notice of a subsequent fine. The typical fine structure is in increasing increments: a warning for the first violation; a fine of $25 for the second violation; a fine of $50 for the third violation; and a fine of $100 for a fourth and any subsequent violation.
Fines will be charged to your account, just like assessments. In Condo Living 101 (https://www.tilchinandhallpc.com/CondoLiving101), I discussed what can happen if you don’t pay assessments. All of that applies to unpaid fines as well. This means the association can record a lien, file a lawsuit, or even foreclose. In addition to those remedies, the association typically has two additional options: it can remove and abate (correct the violation themselves and charge any related costs back to your account), or it can file a lawsuit asking the court for an order forcing you to comply (which is referred to as an “injunction”). Over the years, I have seen lawsuits to force a co-owner to: change the color of their house; provide a lease; remove a shed; allow access so the association can fix a window; power wash and re-stain a deck; remove pets; remove wind chimes; and remove holiday lights, to name a few examples. Spoiler alert: the association typically wins. And, as you will also recall from Condo Living 101, the bylaws almost always contain a provision where the association, if successful, shall recover its attorneys’ fees from the co-owner. To recap, this means you could also be on the hook for the association’s legal fees, as well as your own if you hire an attorney to defend you. My advice to a co-owner who disagrees with the restrictions and/or rules and regulations is that it is often cheaper to move than to be a rebel or stubborn. (And don’t forget to do your research next time to make sure you purchase a house not subject to restrictions or a declaration or strict municipality ordinances.)
Our experienced team is dedicated to helping condominium associations run smoothly, whether this includes determining insurance responsibilities, maintenance requests, help navigating the tricky fine process, or simply advising our clients of their rights and duties, we are here to help you with all aspects of association living. Please give us a call at (248) 349-6203 .
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[1] The original drawings are done on 24” x 36” paper and shrunken down by the Register of Deed’s office to 8.5” x 11” for recording. Some of the text may appear very tiny, blurry, or hard to read for that reason.
[2] I deliberately use the word “likely,” because some condominiums have what’s referred to as “an incidental damages clause.” This may state that the Association is liable for any damages caused by a general common element, or it may set a monetary limit as to how much it will contribute to repair such damages.
[3] You would be surprised how many documents contain irrelevant sections because the developer just borrowed a set of documents from another site (or, worse, another state!).
[4] Typically the bylaws, article IV.
[5] Typically the bylaws, article V.
[6] Typically the master deed, article V.
[7] Typically the master deed, article IV, section 3 or C.
[8] This clause is typically found in the bylaws, article V.
[9] Because, after all, who has time to volunteer on the Board of Directors but your retired, nosy, curtain-twitching neighbor.
[10] The Michigan Condominium Act, MCL 559.206(c) allows associations to levy fines against co-owners “after notice and hearing thereon.” Therefore, a response sheet does not technically meet this requirement and a court may not uphold the fines if a co-owner is not given the opportunity for a hearing on the violation.
