MCL 559.147: How to handle unauthorized co-owner modifications to the common elements

Michigan condominium associations are often forced to deal with co-owners who are unfamiliar with condominium living, or in some instances, are not even aware that they live in a condominium that is governed by a master deed, bylaws or rules in regulations. As a result, it is not uncommon for a co-owner to unilaterally make modifications to the general common elements without discussing the proposed modifications with the board of directors. This article will discuss how the board of directors of a condominium association can remedy unilateral modifications to the common elements by a co-owner.

Does the Michigan Condominium Act permit a co-owner to modify the general common elements without approval of the condominium association?

MCL 559.147(1) provides in pertinent part with respect to a co-owner that makes a modification to the general common elements:

(1) Subject to the prohibitions and restrictions in the condominium documents, a co-owner may make improvements or alterations within a condominium unit that do not impair the structural integrity of a structure or otherwise lessen the support of a portion of the condominium project. Except as provided in section 47a, a co-owner shall not do anything which would change the exterior appearance of a condominium unit or of any other portion of the condominium project except to the extent and subject to the conditions as the condominium documents may specify.

MCL 559.147(1) generally prohibits a unilateral alteration to the general common elements without permission of the Condominium Association and typically limits co-owner alterations to a co-owner’s unit (subject to the terms of the condominium documents). The only exceptions would be as follows:

  1. The Master Deed or Condominium Bylaws expressly allow a co-owner to alter the common elements without permission of the Board of Directors.
  2. The removal of all or part of an intervening partition or create doorways or other apertures therein, notwithstanding that the partition may in whole or in part be a common element, so long as a portion of any bearing wall or bearing column is not weakened or removed and a portion of any common element other than that partition is not damaged, destroyed, or endangered by a co-owner that owns adjoining units. See MCL 559.147(2)
  3. An improvement or modification to facilitate access to or movement within the unit for persons with disabilities who reside in or regularly visit the unit, or to alleviate conditions that could be hazardous to persons with disabilities who reside in or regularly visit the unit if a Condominium Associations fails to respond to a request for alteration within 60 days. See MCL 559.147a.

Almost all condominium documents prohibit a co-owner from making unilateral modifications to the common elements. Accordingly, in most cases, a co-owner will violate the Michigan Condominium Act by making a unilateral modification to the general common elements, unless one of the above limited exceptions is satisfied.

Can a condominium association require a co-owner to remove an unapproved common element modification?

MCL 559.206 provides in pertinent part:

(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.

Accordingly, the Michigan Condominium Act allows for a condominium association to seek injunctive relief to have a co-owner remove an unauthorized modification to the common elements. The Michigan Court of Appeals has interpreted MCL 559.147 on several occasions and has ruled in favor of condominium associations that require co-owners to remove unauthorized modifications to the common elements.

In Cohan v Riverside Park Place Condominium Ass’n, Inc, 123 Mich App 743, 746; 333 NW2d 574 (1983), the Court of Appeals interpreted MCL 559.147(1) in the context of a situation where a co-owner desired to enclose an open balcony with glass. In Cohan, the Court of Appeals held that condominium bylaws prohibited “the erection of antennas, lights, aerials, awnings, doors, shutters, or other exterior attachments or modifications” without approval of the board of directors. Accordingly, the Court of Appeals held that the glass could not be installed without permission from the board.

In Hunters Pointe Condo Ass’n v Csicsil, issued November 30, 2001 (Docket No. 221603) (Unpublished Opinion) the Court of Appeals ordered a co-owner to remove a hot tub that was installed without permission from the condominium association . In Hunter’s Pointe, the Condominium Bylaws provided in pertinent part:

Alterations and Modifications. No Co-owner shall make alterations in the exterior appearance of or make structural modifications to his Unit (including interior walls through or in which there exist easements for utilities) or make changes in any of the Common Elements, Limited or General, without the express written approval of the Board of Directors including (but not by way of limitation) exterior painting or the erection of antennas, lights, aerials, awnings, doors, shutters or other exterior attachments or modifications.

“Patio” is listed as a limited common element under Art IV, § 4.02 of the master deed, and is defined as follows:
(1) Patio. Each patio in the Project, where such is constructed, which is assigned to the Unit which opens onto such deck as shown on Exhibit B.

“Electrical,” including “[t]he electrical wiring network contained within Units or Unit walls, floors or ceilings or located in any other portion of the Common Elements,” also is identified as a limited common element in § 4.02 of the master deed.

While the co-owner did not tap into the Association’s water supply, and filled the hot tub with a hose, it was placed on the common element patio and hooked up to the condominium association’s common element electrical system. In interpreting MCL 559.147 and the condominium bylaws, the Court of Appeals held:

We conclude that the trial court erred in its interpretation of the statute and condominium documents at issue. First, § 47 prohibits, subject to conditions in condominium documents, “changes to the exterior appearance of a condominium unit or any other portion of the condominium project.” Defendants maintain, and the trial court agreed, that the statutory prohibition applies only to changes in the real estate, including fixtures. However, the language of § 47 is not so limited. Rather, the first sentence of the provision prohibits improvements or alterations inside a condominium unit that impair the structural integrity of a structure, and the second sentence prohibits anything that would alter the exterior appearance of a unit or of any other portion of the condominium project, except to the extent allowed by condominium documents. Thus, the plain language of the statute leaves to the discretion of the individual condominium communities what aspects of exterior appearance they choose to regulate. The question then becomes whether, under the relevant condominium documents in this case, the condominium association acted reasonably in demanding the removal of defendants’ hot tub.

At the time defendants installed the hot tub, the condominium association by-laws did not explicitly prohibit hot tubs. However, Art VI, § 3 explicitly prohibits, without written permission of the condominium association board of directors, “changes in any of the Common Elements, Limited or General” (emphasis added).

…Although the hot tub in this case is described as “portable” and could be disconnected from the power source and taken with defendants if they moved, while defendants are living in their condominium unit, the tub is continuously situated on the deck, a common element….Further, the tub is wired to an electrical box that had to be installed on the deck to bring power through the exterior wall of defendants’ condominium unit. Because the hot tub is situated on the deck year-round and a separate box with a dedicated 220-volt circuit had to be installed to power the hot tub, under the condominium association documents, installation of the hot tub constitutes a change in a common element, and could reasonably be prohibited by the condominium association board of directors.

Conclusion

In order to avoid unilateral modification to the common elements, it is important for condominium associations to have well drafted condominium bylaws. If the condominium bylaws do not spell out a specific procedure to follow with respect to co-owner modifications to the common elements, it is wise for a condominium association to adopt rules to create a procedure that requires written permission  and a written modification agreement. When co-owners have made unauthorized modifications to the common elements the Michigan courts have demonstrated that they will enforce the condominium bylaws as written and require a co-owner to remove an unauthorized modification. As indicated above, in most cases MCL 559.206 and the condominium bylaws also permit a condominium association to recover attorney’s fees and costs related to obtaining an injunction to remove an unauthorized common element modification as well.  Accordingly, condominium associations should not permit unauthorized modifications to remain in place, as there are strong enforcement mechanisms and failing to enforce the condominium bylaws often leads to a domino effect of non-compliance by other co-owners.

Kevin Hirzel is a Partner and Chair of the Community Association and Real Estate Practice Group at CMDA. He concentrates his practice on commercial litigation, community association law, condominium law, construction law and real estate law. Mr. Hirzel has been a Super Lawyer’s Rising Star in Real Estate Law from 2013-2017, an award given to only 2.5% of the attorneys in Michigan each year. He was named an Up & Coming Lawyer by Michigan Lawyer’s Weekly in 2015, an award given to only 30 attorneys in Michigan each year.  Mr. Hirzel represents builders, community associations, condominium associations, cooperatives, co-owners, developers, homeowner’s associations, investors, property owners and property managers throughout Michigan. He is available to represent clients out of CMDA’s Michigan offices in Clinton Township, Livonia, Grand Rapids or Traverse City. He may be reached at (734) 261-2400 or khirzel@cmda-law.com.