Access Denied! . . . Or is it? The Condominium Association’s Right to Request Entry to a Unit to Inspect for Default

Matthew W. Heron, Esq.
Cummings, McClorey, Davis & Acho, PLC

Introduction

An association of co-owners within a condominium project is responsible for enforcing the condominium project’s master deed, bylaws and any rules and regulations. In many instances, the association will be able to determine whether an alleged violation warrants a declaration of default as soon as the allegations are brought to its attention. At times, however, the association may learn of allegations that amount to a default under the condominium documents but are not capable of being verified without entering the alleged violator’s condominium unit. Since each co-owner maintains an exclusive right to possession of their unit, gaining entry into the unit could create an issue for the association if the co-owner refuses to cooperate with an investigation, or even create liability if the association enters the unit over the co-owner’s objection. As described below, however, an association typically retains the right to request an inspection of the unit where there is a suspected default, though a refusal by the co-owner to allow an inspection may require the association to seek judicial intervention.

Discussion

1. The Condominium Project and Condominium Units

Under the Michigan Condominium Act, Act 59 of 1978, MCL 559.101, et seq., (the “Act”), a condominium project is comprised of two broad classifications of property: (1) common elements; and (2) condominium units. A condominium unit is defined as “that portion of the condominium project designed and intended for separate ownership and use . . . .” MCL 559.104(3). The common elements of a condominium project are those “portions of the condominium project other than the condominium units.” Under these definitions, anything that is not a condominium unit is a common element.

Upon the establishment of a condominium project, “each condominium unit, together with and inseparable from its appurtenant share of the common elements, shall be a sole property subject to ownership, mortgaging, taxation, possession, sale, and all types of juridical acts . . . independent of the other condominium units.” MCL 559.161. Further, “[e]ach co-owner has an exclusive right to his condominium unit and has such rights to share with other co-owners the common elements of the condominium project as are designated in the master deed.” MCL 559.163.

2. The Co-owner’s Right to Exclusive Possession of the Condominium Unit and the Association’s Obligation to Enforce the Condominium Documents

Under the above relatively straightforward principles, a condominium unit may be bought or sold, and the co-owner of the condominium unit expects an exclusive right to possession of the condominium unit. However, by purchasing a condominium unit, each co-owner yields a certain amount of control in the interest of maintaining order within the condominium project as a whole.

The act of administering the condominium project is to be conducted by an association of co-owners. See MCL 559.103(4). The “administration of a condominium project shall be governed by bylaws recorded as part of the master deed, or as provided in the master deed.” MCL 559.153. In addition, “a condominium association has an implied power to adopt reasonable rules to govern the use of common property except as limited by statute or the condominium documents.” Hunters Woods Site Condominium Ass’n v Homes of Hunters Woods Condominium Ass’n, Inc, 2011 WL 2022960 (Mich Ct App May 24, 2011) (citing 2 Restatement Property (Servitudes), 3d, § 6.7(1), p 140)). Under the Act, “[e]ach co-owner . . . shall comply with the master deed, bylaws, and rules and regulations of the condominium project and [the Condominium Act],” MCL 559.165, though a condominium association must act reasonably in administering the condominium project. Cohan v Riverside Park Place Condo Ass’n, Inc, 123 Mich App 743, 746–748; 333 NW2d 574 (1983).

3. Co-owner Default under the Condominium Documents

At times there may be a conflict between the association of co-owners and a particular co-owner. When a co-owner has defaulted under the condominium documents, the Act allows the association to pursue “an action to recover sums due for damages, injunctive relief, foreclosure of lien if default in payment of assessment, or any combination thereof.” MCL 559.206(a). The association may also seek other reasonable remedies provided in the condominium documents including “the levying of fines” after notice and hearing and “the imposition of late charges for nonpayment of assessments[.]” MCL 559.206(b). Even if the association does not pursue a co-owner for default, the Act allows a co-owner adversely affected by a violation of the condominium documents to bring an action for relief. MCL 559.215. Further, the Act also allows co-owners to bring suit against “the association . . . and its officers and directors to compel these persons to enforce the terms and conditions of the condominium documents.” MCL 559.207. Accordingly, an association through its board of directors is obligated to enforce the condominium documents or risk having a co-owner bring suit to force it to do so.

If a co-owner is in default, an association may avail itself of the remedies set forth in the Act and in its condominium documents. Often, an association does not need to gain entry to a co-owner’s unit to determine if there has been a default. For example, all of the following could be violations by a co-owner or the co-owner’s guest that do not require entry into a unit to be verified:

  • failing to pay assessments;
  • installing a shed on common elements;
  • installing a hot tub on a deck or patio;
  • improperly altering the exterior appearance of a condominium unit or a building within the condominium project;
  • improperly parking or storing a vehicle; or
  • failing to maintain a porch or balcony.

In each of the above instances it should be evident from an exterior examination of the co-owner’s unit (if that is even necessary) whether the co-owner’s actions violate the condominium documents. In some instances, however, it is impossible to determine whether a co-owner is in violation of the condominium documents without access to the co-owner’s unit. In such a circumstance, an association may not necessarily know whether the co-owner is in default, or whether remedial action is even necessary. This situation could be exacerbated if a co-owner refuses to cooperate in an investigation into the alleged violation. For example, all of the following are instances of violations by a co-owner or the co-owner’s guest that may require entry into the condominium unit to be verified:

  • keeping exotic pets within a condominium unit;
  • maintaining too many pets in violation of the condominium documents;
  • installing a hot tub in the basement of a condominium unit;
  • hoarding;
  • keeping dangerous items in a condominium unit such as firearms or explosives;
  • failing to adequately maintain fixtures within a unit, such as a furnace, hot water heater, sump pump, gas stove, or gas fireplace; or
  • growing marijuana plants inside the condominium unit.

In each of these instances, without gaining entry into the condominium unit, it is unlikely that the association could verify the default. Accordingly, the association is left with the difficult decision of whether to pursue a default it cannot verify, or to leave the situation alone notwithstanding its obligation to enforce the condominium documents.

4. The Association’s Right to Request an Inspection of the Condominium Unit

When a co-owner has allegedly violated the condominium documents, but the violation is not evident from outside the co-owner’s condominium unit, Michigan law provides an association with options as to how to determine whether the co-owner is in default. As stated above, a condominium project is a community of co-owners. In Cohan, supra, the Michigan court of appeals described with approval this relationship as follows:

Every man may justly consider his home his castle and himself as the king thereof; nevertheless his sovereign fiat to use his property as he pleases must yield, at least in degree, where ownership is in common or cooperation with others. The benefits of condominium living and ownership demand no less. The individual ought not to be permitted to disrupt the integrity of the common scheme through his desire for change, however laudable that change might be.

Cohan, 123 Mich App at 748 (quoting Sterling Village Condominium v Breitenbach, 251 So 2d 685 (Fla Ct App 1971)). In other words, Michigan courts recognize that condominium co-owners give up a certain level of control in order to live within a community of common ownership.

The application of this principle results in an impingement of the unit co-owner’s expected right to exclusive possession of the condominium unit. Ordinarily, “[t]he general concept of ‘property’ comprises various rights – a ‘bundle of sticks,’ as it is often called — which is usually understood to include ‘[t]he exclusive right of possessing, enjoying, and disposing of a thing.’” Adams v Cleveland Cliffs Iron Co, 237 Mich App 51, 57; 602 NW2d 215 (1999) (quoting Black’s Law Dictionary (6th ed 1990), p 1216). “[T]he right to exclude others from one’s land and the right to quiet enjoyment of one’s land have customarily been regarded as separate sticks in the bundle.” Adams, 237 Mich App at 57. In the circumstances described above, however, where the association suspects a breach of its condominium documents, the unit co-owner’s right to the exclusive possession of the unit yields to the association’s right (and obligation) to enforce the condominium documents. Specifically, in Cohan, supra, the Michigan court of appeals stated:

[A condominium] board must, at reasonable times, have the right to request an inspection of the premises so as to ensure compliance with the terms of the condominium agreement, statutes, rules and regulations. This is true where . . . the board merely suspects a violation may have occurred but has not yet been able to prove its existence.

Cohan, 123 Mich App at 749. In Cohan, supra, the unit co-owner had refused the association’s request for access to the unit, and then brought suit against the association. The association filed a counter-claim seeking a court order requiring the unit co-owner to allow an inspection. The trial court ordered an inspection and the court of appeals affirmed.

5. Risks Associated with a Request to Inspect

The association’s right to request an inspection is a powerful tool, especially when coupled with a judicial order mandating the inspection. An association, however should exercise this tool only when absolutely necessary, and even then the association should consult with counsel regarding its application and additional less intrusive options. The rights and powers of every association are largely determined by a review of the association’s master deed and bylaws, and any attempt to exercise a right or enforce an obligation not contained in these documents could lead to liability for the association. Further, the fact that a right appears to be contained in condominium documents does not mean that the assertion of that right will not be challenged by the unit co-owner, or that a court will not be sympathetic to the co-owner’s position.

For example, if an association entered a unit over a co-owner’s objection, even if the association considered the unit co-owner to be in default, and even if the association claimed that such entry was for the purpose of investigating the alleged default, there is a significant risk that the unit co-owner would attempt to maintain a suit for trespass against the association, especially if the inspection failed to identify a default. “Recovery for trespass to land in Michigan is available only upon proof of an unauthorized direct or immediate intrusion of a physical, tangible object onto land over which the plaintiff has a right of exclusive possession.” Adams, 237 Mich at 67. The unilateral entry by an association of a co-owner’s unit could be construed as a trespass under this standard. In addition, under Michigan’s anti-lockout statute, MCL 600.2918(1), “[a]ny person who is ejected or put out of any lands or tenements in a forcible and unlawful manner, or being out is afterwards held and kept out, by force, if he prevails, is entitled to recover 3 times the amount of his or her actual damages or $200.00, whichever is greater, in addition to recovering possession.” MCL 600.2918. If a co-owner believes that he or she has been wrongfully kept out of his or her unit during an inspection, that co-owner may also claim a violation of the anti-lockout statute.

Summary

In summary, under the Act a co-owner retains an exclusive right to possession of the condominium unit. If, however, the association suspects that the co-owner is violating the condominium documents, and that an inspection of the unit will determine whether a violation exists, then an association may be able to request to inspect the condominium unit. If the unit co-owner refuses a valid request to inspect the unit, then the association may be able to declare a default and commence a judicial proceeding requesting a court order mandating that the unit co-owner permit an inspection of the unit. Any actions by the association must comply with the condominium documents. In addition, though not discussed above, most condominium documents provide that if there is an emergency, the association has the right to gain immediate entry in order to stop further destruction of the common elements or other units. For example, if a pipe bursts during the winter, the association may be able to immediately gain entry to stop the leak and prevent damage to common elements or other units. In either situation, however, any association considering a request to inspect a co-owner’s unit should consult with an attorney to review its options and minimize the risk that an inspection results in a trespass or anti-lockout claim.

Matthew W. Heron is an attorney with the law firm of Cummings, McClorey, Davis & Acho, P.L.C. where he focuses his practice on dispute avoidance, condominium law, commercial litigation, commercial real estate, land use, large contractual disputes, and title litigation. He has extensive litigation and trial experience in state and federal courts involving commercial litigation issues and real estate matters. He can be reached at (734) 261-2400 or mheron@cmda-law.com. You can also follow him on Twitter at @mwheron75.