Top 4 Legal Considerations for Gated Communities in Michigan: What Condos and HOA’s Need to Know
Imagine living in an exclusive, gated condominium community where security and privacy are top priorities. Whether your home is nestled in a suburban site condominium or perched in a sophisticated downtown high-rise, the added peace of mind a gated community provides is a major selling point for many. In fact, a recent study shows that homes in non-gated communities are 33% more likely to be burglarized than homes in a gated community. While gated communities certainly offer additional benefits related to security and privacy, they also pose a unique set of legal issues for condominium and homeowners associations. Specifically, community associations need to be aware of the following issues that non-gated communities typically do not need to deal with:
- Gated community associations must ensure that appropriate parties of easements and access to the community.
- Gated community associations that appropriately handle legal issues with cameras.
- Gated community associations should include liability disclaimers related to security issues in their governing documents.
- Gated community associations must ensure that the common element gate access is appropriately maintained.
This article will delve into four common legal concerns that gated communities must address to ensure smooth operations and avoid legal pitfalls.
1. Easements for Emergency Vehicles in Gated Community Associations
Most gated communities composed of single-family homes are typically site condominiums with private roads that are general common elements. Likewise, in attached condominiums, the gated entrance will typically provide access to a carport, parking garage, parking lot, or garage assigned to a particular condominium unit. In both scenarios, co-owners will have a right of access over the general common elements to access the condominium. Accordingly, it is important to ensure that the master deed contains the appropriate easements. The Michigan Condominium Act requires that all easements be contained in the master deed. Specifically, MCL 559.135 states that all “easements shall be created in the condominium documents or in other appropriate instruments and shall be reasonably described in the condominium documents.” MCL 559.135 further states that all easements shall include the following:
- A description of the permitted use.
- If less than all co-owners are entitled to utilize the easement, a statement of the relevant restrictions on the utilization of the easement.
- If any persons other than those entitled to the use of the condominium units may utilize an easement, a statement of the rights of others to utilization of the same and a statement of the obligations, if any, of all persons required to contribute to the financial support of the easement.
Given these legal requirements, it is important to verify that a master deed contains easements that meet the above requirements, especially for governmental services, such as police, fire, ambulances, school transportation or the postal service. By way of example, common easement language that is included in a master deed or declaration is as follows:
The City and any emergency service agency or other governmental unit has an easement over all roads and driveways in the Condominium. This easement is for ingress and egress to provide, without limitation, fire and police protection, ambulance and rescue services, both public and private school transportation, and other lawful governmental or private emergency services to the Condominium. The U.S. Postal Service has an easement over the Condominium roads for its vehicles for delivery of mail. The granting of these easements is not to be construed as a dedication of any streets, roads, or driveways to the public.
Beyond establishing easement rights, it is important for a community association to ensure that appropriate governmental agencies have an access code, or otherwise have a means to enter in case of an emergency or while performing services.
2. Access Rules for Co-Owners and Guests
In most cases, Michigan condominium associations have the authority to enact rules and regulations relating to the use of the general common elements. Examples of rules and regulations that community associations should consider enacting are as follows:
- Rules and regulations related to the use of assigned gate codes, gate openers, and key fobs.
- Rules and regulations related to reporting of lost key fobs and openers and how to replace the same.
- Rules and regulations related to guest access, vendor access, sharing gate codes, and the creation of temporary gate codes.
3. Cameras in Gated Community Associations
The vast majority of gated communities will also have security cameras. While some co-owners may express privacy concerns, both courts have consistently ruled that there is no reasonable expectation of privacy regarding license plate information, as it is publicly displayed. In Michigan, the Court of Appeals has ruled that license plates are in plain view and can be lawfully checked without a traffic violation or suspicion of a crime. See People v Jones, 260 Mich App 424, 427–28; 678 NW2d 627, 630 (2004). Similarly, the Sixth Circuit Court of Appeals has held that no expectation of privacy exists for license plate information under federal law, as license plates are designed to be visible and accessible for identification purposes. See United States v Ellison, 462 F3d 557, 561 (6th Cir, 2006).
However, once a community association installs security cameras at a gated entrance, it may have a duty to maintain them. This responsibility is similar to providing security guards, where negligence in maintaining a voluntarily assumed duty could lead to liability. See Holland v Liedel, 197 Mich App 60, 64–65; 494 NW2d 772, 775 (1992). However, for a liability claim to succeed, a co-owner must show they suffered damage due to relying on a malfunctioning or inoperable camera. See e.g. Great N Ins Co v Ruiz, 688 F Supp 2d 1362, 1379 (SD Ga, 2010). Additionally, community associations should adopt clear rules for data security, specifying who can access the information, how it will be stored and encrypted, how long it will be kept, and whether it will be shared with law enforcement. Ensuring adequate insurance coverage for potential security breaches or camera failures is also essential.
4. Liability Disclaimers in Master Deeds and Declarations
MCL 559.156 of the Michigan Condominium Act states that the condominium bylaws may contain provisions as “are deemed appropriate for the administration of the condominium project not inconsistent with this act or any other applicable laws.” The Michigan Court of Appeals has held that the mast deed condominium bylaws are contractual in nature. Rossow v Brentwood Farms Dev, Inc, 251 Mich App 652, 656; 651 NW2d 458 (2002). Moreover, the Michigan Court of Appeals Court has held that a contractual disclaimer of liability for negligence is enforceable. Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003). Accordingly, condominium associations should consider amending their bylaws to include language that would disclaim liability as a matter of contract for criminal acts of third parties if a camera or the gate fails.
Conclusion
Security and privacy are paramount in gated community associations, but it is important to understand gated communities have distinct legal issues. Specifically, community associations must ensure that the governing documents drafted by the developer contain appropriate easements for emergency access, that the association has rules and regulations related to guest access, that policies related to the use of security cameras are enacted, and that the master deed or declaration contain appropriate liability disclaimers Failure to address these legal issues could lead to costly litigation or community disruption. Accordingly, condominium and HOA board members should consult with an experienced community association attorney to address the unique issues presented by gated communities.
Kevin Hirzel is the Managing Member of Hirzel Law, PLC and concentrates his practice on commercial litigation, community association law, condominium law, Fair Housing Act compliance, homeowners association law and real estate law. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country. Mr. Hirzel has been recognized as a Michigan Super Lawyer’s Rising Star in Real Estate Law by Super Lawyers Magazine, a Leading Lawyer in Condominium & HOA law by Leading Lawyers Magazine, and as a Best Lawyer in Real Estate Law by U.S News and World Report’s Best Lawyers Publication. Hirzel Law, PLC represents community associations, condominium associations, cooperatives, and homeowners associations, in Michigan and Illinois. He may be reached at (248) 986-2290 or kevin@hirzellaw.com.
