Architectural control and the authority to approve modifications are some of the most important responsibilities of a residential association and can present difficult issues. Both homeowners associations and condominium associations will often have the authority to approve or disapprove architectural plans, structures, landscaping, and will usually have at least some authority over changes by Co-owners or homeowners that affect exterior appearance. In all cases, a residential association should, with the assistance of legal counsel, examine governing documents and relevant law closely to determine how to properly deal with requests for modifications as well as how to deal with modifications in the community that may have been undertaken without association approval.
General Considerations for Handling Modification Requests
1. Does the modification concern something that actually requires the approval of the association or is within the scope of its authority to grant?
In the case of a homeowners association, the governing documents themselves will dictate what authority a homeowners association has over modifications. This also holds true for a condominium association, given that the Michigan Condominium Act often provides that basic requirements may be modified by the terms of the condominium documents. In the case of condominiums, MCL 559.147(1) provides that, subject to the conditions of the condominium documents, co-owners may make changes within their units that do not impair the structural integrity of a structure or otherwise lessen the support of a portion of the condominium project. That provision also provides that, subject to the rights of co-owners to make modifications related to access or alleviate hazards for residents or regular visitors with disabilities under MCL 559.147(a), co-owners may not make modifications that change the exterior appearance of a unit or any other portion of the condominium project, except to the extent that the condominium documents specify. MCL 559.147(2) also affords rights to a co-owner of adjoining condominium units to create doors or apertures between adjoining units or portions of units.
2. Does the request implicate federal fair housing laws?
While I will not discuss in any detail the myriad of ways federal fair housing law may impact requests for modifications, the Federal Fair Housing Act (“FHA”) provides that it is unlawful to refuse to make reasonable accommodations to rules, policies, practices, or services when such accommodations may be necessary to afford persons with disabilities an equal opportunity to use or enjoy their dwelling or common areas. As referenced above, MCL 559.147(a) provides rights and duties to condominium associations and co-owners for making modifications or improvements to facilitate access for certain persons with disabilities, however, the FHA goes beyond merely providing for accessibility and the association, with the assistance of legal counsel, should consider whether, given the information available, a specific modification request could present issues under the FHA.
3. Set standards and procedures for modification requests
While an association should not absolutely require as a condition for consideration that a modification request be made in writing or be on specific forms, the Association should have forms and procedures in place to set expectations in the community for how the Association will handle modification requests and to provide for uniformity. Records should be kept regarding all modification requests. Communities should make modification request forms available. Such forms typically echo requirements in governing documents for approval, request plans and a description of the proposed modification, require requesters to use licensed and insured contractors, provide that maintenance of the modification will fall on the requesting owner, make approval contingent on compliance with all laws and local building code, and may impose other reasonable conditions for approval, including advice that all costs related to the approval are the responsibility of the requesting owner. Such forms can be developed with the assistance of a professional manager and legal counsel. If the association has promulgated specific standards for approval as may be allowed by governing documents, to avoid confusion, they should be kept up-to-date and should not overlap with standards in governing documents or older standards. The question of whether to use the 2012 standards, the 2016 standards, or the 2022 standards, all of which cover the same or similar issues, should never arise. New rules regarding the same issue should, for clarity, explicitly state that they supersede prior rules.
4. Communications regarding modifications
Associations and managers should take care in communicating concerning a modification request, especially when communicating with the person making the request. Managers should not make any binding statements regarding a modification request until authorized by the board. The association should only approve a modification once it is satisfied that the modification as a whole complies with existing standards and restrictions and should not ever “partially” approve a modification as that creates a wide opening for confusion. The Association may, in advance, define what constitutes approval of a modification, so long as the definition is not in conflict with governing documents.
5. As a condition of approval, the Association should require a modification agreement in recordable form
Assuming that the Association has communicated with counsel and determined that it may grant approval, it is appropriate for a formal modification agreement to be executed between the requesting owner and the Association that sets forth the terms under which the modification is approved. The agreement should be prepared by legal counsel and should recorded on county land records to define the modification and so that future purchasers are aware of the modification and the terms under which consent to the modification was granted by the association.
Issues surrounding modifications, alterations and architectural control can be confusing and also present significant risks for a residential association. We are experienced in navigating those issues and are available to help in answering questions, to help develop appropriate policies and procedures, and to draft recommended documentation to protect the association. Please either submit and inquiry using the form below or give us a call at (248) 349-6203.Disclaimer:
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