Numerous condominiums in Michigan restrict (or outright ban) sculptures, statues, lawn ornaments, birdbaths or other items pursuant to the condominium documents. Many of these provisions were drafted by the developer when creating the condominium in order to provide uniformity during the sales process. Likewise, many declarants subject a platted subdivision to deed restrictions that also restrict or ban the use of the above described items. Whether in a condominium or homeowners association (“HOA”), many people purchase without knowing the restrictions. The purpose of this article is not to say what restrictions or bans are appropriate in every circumstance. Such decisions are best left to each individual association or democratically handled through the amendment process. However, this article discusses common restrictions and common traps that Michigan community associations handle.
Michigan Condominiums: Michigan Condominium Act
The Michigan Condominium Act, MCL 559.101, et seq., does not prohibit sculptures, statues, lawn ornaments, birdbaths and other items from the condominium premises. While some condominium documents do not contain explicit restrictions related to sculptures, statues, lawn ornaments, birdbaths and other items, more often than not such restrictions are explicitly contained in the governing documents of the condominium. Such restrictions are permitted under MCL 559.153, which states, in part, “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.” Therefore, in the condominium context, the first place to check for restrictions of items on the condominium premises is in the condominium bylaws and in the vast majority of cases, the restrictions are contained within Article VI of the condominium bylaws.
A second place to look for restrictions is in the rules and regulations duly adopted by the association. Under MCL 559.165, “Each unit co-owner, tenant, or nonco-owner occupant shall comply with the master deed, bylaws, and rules and regulations of the condominium project and [the Condominium Act].” Failure to comply with the condominium documents may expose the offending co-owner to a lawsuit by the Association. MCL 559.206 states:
A default by a co-owner shall entitle the association of co-owners to the following relief:
(a) Failure to comply with any of the terms or provisions of the condominium documents, shall be grounds for relief, which may include without limitations, an action to recover sums due for damages, injunctive relief, foreclosure of lien if default in payment of assessment, or any combination thereof.
(b) In a proceeding arising because of an alleged default by a co-owner, the association of co-owners or the co-owner, if successful, shall recover the costs of the proceeding and reasonable attorney fees, as determined by the court, to the extent the condominium documents expressly so provide.
(c) Such other reasonable remedies the condominium documents may provide including but without limitation the levying of fines against co-owners after notice and hearing thereon and the imposition of late charges for nonpayment of assessments as provided in the condominium bylaws or rules and regulations of the condominium.
Therefore, it is important to check the specific language of your condominium documents to determine the nature and extent of restrictions, if any.
Michigan Homeowners Associations: Michigan Nonprofit Corporation Act
Michigan does not have a “Homeowners Association Act.” Accordingly, restrictions relating to sculptures, statues, lawn ornaments, birdbaths and other items are either governed by recorded deed restrictions or association bylaws adopted pursuant to the Michigan Nonprofit Corporation Act, MCL 450.2101, et seq. Absent a restriction in the recorded deed restrictions or in the association bylaws, which are typically not recorded, a homeowners association typically cannot prohibit sculptures, statues, lawn ornaments, birdbaths and other items from the owners’ lots.
Similar to condominiums, there are some homeowners associations whose documents do not contain explicit restrictions related to sculptures, statues, lawn ornaments, birdbaths, sheds and other items; however, more often than not, association documents do restrict such items. In the homeowners association context, the first place to check for restrictions is within the deed restrictions, which is often called the declaration of restrictions. In the vast majority of cases, such restrictions are contained in either Architectural Control or Building and Use Restrictions.
A deed restriction represents a contract between the buyer and the seller of property. Uday v. City of Dearborn, 356 Mich. 542, 546, 96 N.W.2d 775 (1959). “Undergirding this right to restrict uses of property is, of course, the central vehicle for that restriction: the freedom of contract, which is deeply entrenched in the common law of Michigan.” Terrien v. Zwit, 467 Mich. 56, 71, 648 N.W.2d 602 (2002), citing McMillan v. Mich. S. & N. I. R. Co., 16 Mich. 79 (1867). The United States Supreme Court has listed the “right to make and enforce contracts” among “those fundamental rights which are the essence of civil freedom.” United States v. Stanley, 109 U.S. 3, 22 (1883). We “respect[ ] the freedom of individuals freely to arrange their affairs via contract” by upholding the “fundamental tenet of our jurisprudence that unambiguous contracts are not open to judicial construction and must be enforced as written,” unless a contractual provision “would violate law or public policy.” Rory v. Continental Ins. Co., 473 Mich. 457, 468, 470, 703 N.W.2d 23 (2005). In Michigan,
A covenant is a contract created with the intention of enhancing the value of property, and, as such, it is a “valuable property right.” City of Livonia v. Dep’t of Social Services, 423 Mich. 466, 525, 378 N.W.2d 402 (1985). “The general rule [of contracts] is that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid and enforced in the courts.”
Terrien v Zwit, 467 Mich 56, 71; 648 NW2d 602, 611 (2002). Therefore, under Michigan law, restrictions or bans of specific items on the lots subject to deed restrictions is typically permitted.
There are Restrictions: Now What?
Once the appropriate provisions in the condominium documents or the deed restrictions are located, the question becomes whether the items are restricted/regulated or altogether banned. Our office routinely encounters arguments by co-owners or owners that specific items are not prohibited by the governing documents. For example, if birdbaths are prohibited, someone may claim that an item is not a birdbath, but the item is a “fountain”. As another example, if statues are prohibited, someone may claim that an item is not a statue, but the item is a “lawn ornament”. These are but a few examples of the types of nuances utilized in an attempt to circumvent restrictions. Whether such arguments are successful depends on a case-by-case basis. It is advisable for associations to define (to the extent possible) what is and what is not allowed.
One way to handle such circumstances is to address each situation on a case-by-case basis through an architectural control committee. The committee is given the ability to review and approve/disapprove any items on the condominium premises or lots. If an owner/co-owner is not happy with the decision of the committee, the owner/co-owner usually has multiple avenues of recourse, depending on the language of the governing documents, such as 1) convincing the committee it is wrong through logic or persuasion, 2) modifying the original request 3) attempting to alter the composition of the committee via political means or 4) amending the governing documents to add, remove or modify certain restrictions.
As with any restrictions when living in a community association, whether to permit, restrict or ban sculptures, statues, lawn ornaments, birdbaths and related items is up to the discretion of each particular association. However, it is important for the board to enforce these restrictions when enacted according to their plain language to avoid a claim for selective enforcement or waiver. Rather, the best approach is to consistently enforce restrictions as written and amend the restrictions if they do not satisfy the needs of the community.
Joe Wloszek is a Member of Hirzel Law, PLC where he focuses his practice on condominium and homeowner’s association law, commercial litigation, commercial real estate, large contractual disputes, and related real estate matters. Mr. Wloszek has been a Super Lawyers Rising Star in Real Estate Law from 2013-2018, an award given to only 2.5% of the attorneys in Michigan each year. He was also named a Top Lawyer in commercial law by DBusiness Magazine in 2014, a Michigan Top Lawyer in real estate law by Michigan Top Lawyers in 2016 and the Pro Bono Volunteer Attorney of the Year in 2014 by Michigan Community Resources. He is a Certified Real Estate Continuing Education Instructor through the State of Michigan and the past Chair of the Oakland County Bar Association Real Estate Committee. He can be reached at (248) 480-8758 or email@example.com.