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: This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this Blog, you understand that there is no attorney client relationship between you and lawyer, law firm, and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.]]>“NOTICE: Michigan law establishes rights and obligations for parties to rental agreements. This agreement is required to comply with the Truth in Renting Act. If you have a question about the interpretation or legality of a provision of this agreement, you may want to seek assistance from a lawyer or other qualified person.”
MCL 554.634(2). I usually advise clients to place the statement set forth in paragraph 2 above in bold type in larger than 12 point font at the top of one of the pages of the lease. Handling Violations of TIRA All hope is not lost if you discover that your lease violates TIRA, either on your own or because you received notice from your tenant alerting you to the violation. If you discover the violation on your own, may cure a violation of the notices required under MCL 554.634 or with the prohibited provisions of MCL 554.633 by giving written notice to all tenants who are current parties to the lease with the notice setting forth the statement as provided in MCL 554.634 and advising them that the prohibited provisions are being removed from the lease. If a tenant who is a current party to the lease notifies you of a violation, you must respond to and correct the violation by sending the notice discussed in the previous paragraph within 20 days of receiving notice of the violation from the tenant. MCL 554.636(1). Penalties for Failing to Cure Violations of TIRA If a landlord fails to cure TIRA violations in a lease, a person that is a current tenant to the lease[1] has several forms of relief under MCL 554.636:Such coverage shall also include unpainted surface of interior walls within any Unit and the pipes, wire, conduits and ducts contained therein and shall further include all fixtures and equipment within a Unit which were furnished with the Unit as standard items in accord with the plans and specifications thereof as are on file with the Association (or such replacements thereof as do not exceed the cost of such standard items).
Co-owner Insurance Responsibilities The Michigan Condominium Act specifically requires the Co-owners to maintain insurance in one situation: when they make exterior improvements or modifications to facilitate access. The normal examples are wheelchair ramps or elevators. In that case, MCL 559.147a(3) provides that the Co-owner must maintain insurance on the improvement or modification, naming the Association as an additional insured, and covering personal injuries caused by the improvement or modification. Condominium Bylaws will at least recommend that the Co-owners obtain additional insurance on their Units. Sample language may state:Each Co-owner may obtain insurance coverage at his own expense upon his Unit. It shall be each Co-owner's responsibility to determine by personal investigation or from his own insurance advisors the nature and extent of insurance coverage adequate to his needs and thereafter to obtain insurance coverage for his personal property located within his Unit or elsewhere on the Condominium and for his personal liability for occurrences within his Unit or upon Limited Common Elements appurtenant to his Unit, for improvements to his Unit or Limited Common Elements appurtenant to his Unit, and also for alternative living expense in the event of fire or other catastrophe, and the Association shall have absolutely no responsibility for obtaining such coverages.
Some newer Condominium Bylaws affirmatively require the Co-owners to obtain their own insurance, usually an HO6 Condominium Owner’s Policy, and provide proof of insurance to the Association. Overlapping Responsibilities There may be overlapping coverage between the Association’s insurance policy and the Co-owners’ insurance policies. Newer Condominium Bylaws may specifically address priority. For example, the Co-owner’s policy is primary when the damage is to the Unit, its contents, another Unit, or Limited Common Elements that the co-owner is responsible to repair. The Association’s policy is primary when damage is to the General Common Elements or Limited Common Elements that the Association is responsible to repair. For Condominium Bylaws without language addressing priority, it is likely that both the Association and Co-owner will make claims, and the insurance companies will negotiate the allocation between them. Making the First Claim When damage clearly originates from outside a Unit, such as a fallen tree, then the Association makes the first insurance claim. If it becomes apparent that that there is damage to Units not covered by the Association’s insurance, then individual Co-owners may make their claims. When damage first appears within a Unit, such as a water leak, then the Co-owner makes the first insurance claim. If the Co-owner’s insurance adjuster determines that there is damage to Common Elements that the Association insures, then the Association may make a claim. Conducting Repairs If the damage is only to a Unit or a Common Element that the Co-owner is responsible to maintain, then the Co-owner is responsible to conduct the repairs. If there is damage to General Common Elements or items that the Association is responsible to maintain, then the Association conducts the repairs. However, the Co-owners or their insurance policies may still be responsible for costs. Shifting Responsibility or Deductible: Incidental Damage Clauses Some Condominium Bylaws contain incidental damage clauses. These may shift responsibility from the Co-owner to the Association when a Common Element causes the damage. Sample language may state:The Association shall be responsible for the reconstruction and repair of the Common Elements and for any incidental damage to a Unit and the contents thereof caused by such Common Elements or the reconstruction or repair thereof.
Examples may include water damage from a roof leak or water main break. The trend in newer Condominium Documents is to eliminate the clause, or to cap the shift at a specific dollar amount or the deductible on the Co-owner’s own insurance policy. Shifting Responsibility or Deductible: Co-owner Negligence Many Condominium Bylaws provide that Co-owners are responsible when the negligently damage or misuse the Common Elements. Sample language may state:Each Co-owner shall also use due care to avoid damaging any of the Common Elements including, but not limited to, the telephone, water, gas, plumbing, electrical or other utility conduits and systems and any other Common Elements in any Unit which are appurtenant to or which may affect any other Unit. Each Co-owner shall be responsible for damages or costs to the Association resulting from negligent damage to or misuse of any of the Common Elements by him or her, or his or her family, guests, tenants, agents or invitees, unless such damages or costs are covered by insurance carried by the Association (in which case there shall be no such responsibility unless reimbursement to the Association is limited by virtue of a deductible provision, in which case the responsible Co-owner shall bear the expense to the extent of the deductible amount).
A Co-owner negligently drives a nail in to a General Common Element water line, causing damage to a General Common Element exterior wall. The Association would normally be responsible because the water line and exterior wall are General Common Elements, however:
A Co-owner negligently drives a nail in to a General Common Element water line, causing damage to a General Common Element exterior wall. The Association carries insurance on the water line and exterior wall. The Association would normally be responsible because the water line and exterior wall are General Common Elements, however:
1. The Co-owner would be responsible because the Co-owner negligently damaged and misused the Common Elements, however; 2. The Association would be responsible because it carries insurance on the water line and exterior wall.
A Co-owner negligently drives a nail in to a General Common Element water line, causing damage to a General Common Element exterior wall. The Association carries insurance on the water line and exterior wall. The repair cost is $9,000. The insurance policy has a $10,000 deductible. The Association would normally be responsible because the water line and exterior wall are General Common Elements, however:
1. The Co-owner would be responsible because the Co-owner negligently damaged and misused the Common Elements, however; 2. The Association would be responsible because it carries insurance on the water line and exterior wall, however; 3. The Co-owner would be responsible because there is a deductible, and the Co-owner bears the deductible expense.
Do you have questions about a current insurance repair situation? Do you need to amend your Condominium Documents to address potential future repairs? We are available to advise you regarding administration, or to draft amendments. Please reach out to us at (248) 349-6203 or email us using the form below.
Disclaimer: This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this Blog, you understand that there is no attorney client relationship between you and lawyer, law firm, and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
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