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Michigan Court Rules That Deck Installed in Violation of HOA Restrictions Must Be Removed

Don’t sweat the small stuff.  While it may be a good tip for reducing stress in your life, it is almost certainly not a good tip when it comes to following the governing documents for your condo or HOA.  In fact, ensuring that all of the rules are followed—yes, all the small things—may in fact reduce your overall stress by avoiding a potential lawsuit.  And for HOAs and condo associations, ensuring that the owners follow all the rules can lead to an efficient and well-run association.  This blog article examines a case from the Michigan Court of Appeals that discusses whether an HOA or condo association can require an owner to remove their deck for a minor violation of the governing documents.

All the Small Facts

In Village of Hickory Pointe Homeowners Ass’n v Smyk, 262 Mich App 512; 686 NW2d 506 (2004), the Michigan Court of Appeals discussed whether an HOA could require the owners of a lot to remove their deck because of what the trial court considered to be a small, technical violation of the HOA’s restrictions.

The HOA’s restrictions included architectural controls that required all owners in the subdivision to submit building plans and specifications, including “the nature, kind, shape, height, [and] materials,” that would be used to construct a building, fence, wall, or structure on a lot.  After the plans and specifications were submitted, the HOA would review the plans and specifications before either approving or disapproving of the proposed construction.  The restrictions also explained that the purpose of the architectural controls was “to promote an attractive, harmonious residential development having continuing appeal.”  Accordingly, the HOA could consider the proposed construction in the context of the other structures in the subdivision and disapprove of plans for aesthetic reasons.

The owners submitted plans for the construction of a deck to the HOA.  The owners’ deck plans showed that the railing was connected to the deck floor around the entire perimeter of the deck.  This was contrary to the HOA’s specifications for deck railings, which were required to have a gap between the deck floor and the bottom of the railing.  The HOA explained that the space allowed for better maintenance and upkeep of the deck than if the railing was connected to the deck floor.  Also, the HOA wanted to maintain harmony with the other decks in the subdivision that had a gap between the railing and deck floor.

Because of the issue with the deck railing in the owners’ plans, the HOA did not approve the plans.  Undeterred, the owners built the deck anyway with their railing instead of the railing design that the HOA wanted.  The HOA filed a lawsuit against the owners based on their violation of the restrictions.

The Trial Court’s Decision

The trial court judge agreed with the HOA that the owners’ deck violated the restrictions because it was built without the HOA’s approval.  However, the trial court found that the breach was de minimis and “a technical violation without any substantial injury” to the HOA.  Accordingly, the trial court dismissed the HOA’s lawsuit.

The Court of Appeals’ Decision

On appeal, the Michigan Court of Appeals disagreed with the trial court.  The HOA’s restrictions were a contract that, when clear, must be enforced as written.  The Court of Appeals reviewed the provisions of the restrictions and found that they were clear: the architectural controls were established to promote an attractive, harmonious subdivision and required owners to obtain the HOA’s approval before constructing a structure.  Accordingly, the Court of Appeals agreed with the trial court that the owners’ violated the restrictions by constructing the deck without the HOA’s approval.

But the Court of appeals disagreed that the design of the deck railing was a de minimis, technical violation that did not harm the HOA.  The Court explained:

It is a “well-understood proposition that a breach of a covenant, no matter how de minimis the damages, can be the subject of enforcement…. If the construction of the instrument be clear and the breach clear, then it is not a question of damage, but the mere circumstance of the breach of the covenant affords sufficient ground for the Court to interfere by injunction.”

[Village of Hickory Pointe Homeowners Ass’n, 262 Mich App at 516, quoting Terrien v Zwit, 467 Mich 56, 65; 648 NW2d 602 (2002).]

Because the owners clearly violated the covenants and restrictions, the HOA was entitled to require the owners to remove their deck.


As the Village of Hickory Pointe Homeowners Ass’n case shows, the details in a condo’s or HOA’s governing documents matter.  For owners, the case is an example of what could happen when the rules are not followed, which could require that the owner remove a modification because of a small or technical violation of the governing documents.  For a condo or HOA, the case exemplifies the authority that an association has to enforce its governing documents.  Even if an owner’s violation is slight, the HOA or condo association can seek to require the owner to fully comply with the governing documents, even if it means removing a deck because the deck’s railing does not leave a space between itself and the deck floor.  In either situation, an experienced community association attorney can provide guidance on how to comply with or enforce the details in the governing documents.

Michael T. Pereira is an attorney with Hirzel Law, PLC, and focuses his practice on community association law.  Mr. Pereira received his Bachelor of Arts in Political Science from the University of Michigan and his Juris Doctor degree from the University of Detroit Mercy School of Law, where he graduated second in his class and served as the Executive Editor of Outside Articles on the Detroit Mercy Law Review.  After law school, Mr. Pereira worked as a research attorney and law clerk at the Michigan Court of Appeals.  Mr. Pereira can be reached at (248) 986-2290 or

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