Michigan Court Rules that Delayed Enforcement of Condo Bylaws for Unauthorized Deck May Create Laches Defense
Failing to enforce the condominium bylaws promptly and consistently can negatively affect condominium associations. In Powers v Bone, unpublished opinion of the Court of Appeals, issued February 11, 2025 (Docket No. 367748), 2025 WL 466349, the Michigan Court of Appeals highlighted the importance of timely and consistent bylaw enforcement. Specifically, the Michigan Court of Appeals held laches, which is best described as a prejudice resulting from the passage of time, was a viable defense to an action to enforce an unauthorized modification to the condominium bylaws.
Facts
Plaintiff David Powers was a co-owner and member of the Hideaway Valley Condominium Association. He filed a lawsuit against neighboring co-owners—Mark and Michelle Bone, Scott and Cristina Decius, and Albert Kehren Mooney, Jr. after the defendants expanded their shared deck to approximately 19 feet, exceeding the 13.5-foot limit specified in the condominium bylaws. The pertinent provisions of the condominium bylaws relating to deck modifications were as follows:
A co-owner shall be permitted to enlarge the main floor deck, which is a Limited Common Element appurtenant to his condominium unit, subject to the following conditions:
i. Plans and specifications for any enlarged deck must be approved in writing by the Board of Directors prior to construction.
ii. Any enlarged deck shall reasonably conform with existing decks on adjoining units and the architecture and appearance of the project in general.
iii. No deck on units 1 through 42 shall extend in width more than eight (8) feet, six (6) inches measured from the outside of the building. End units shall not extend the deck beyond eight (8) feet, four (4) inches from the existing side of the building.
iv. No deck on units 43 through 72 shall extend in width more than thirteen (13) feet, six (6) inches measured from the outside of the building at the door wall. End units shall not extend the deck beyond eight (8) feet, four (4) inches from the existing side of the building.
As of 2021, four decks in the condominium, including the units currently or formerly owned by defendants, exceeded the 13.5-foot limit in the bylaws. The board conducted a vote to approve the deck extensions, but the plaintiff challenged the validity of the vote on the basis that an amendment to the master deed was required. In 2022, the condominium association attempted to obtain 2/3 co-owner approval under MCL 559.190 to amend the master deed, but the association could not get the necessary votes. Plaintiff filed a lawsuit requiring that the decks be restored to their original size under the condominium bylaws and requesting the removal of kayaks stored under the decks after the failed vote. The defendants argued that the doctrine of laches barred plaintiff’s claims. The trial court ruled in favor of the defendants and the plaintiff appealed.
Laches is a Valid Defense to a Bylaw Enforcement Claim
In relying on Bayberry Group, Inc v Crystal Beach Condo Ass’n, 334 Mich App 385 (2020), the Court of Appels stated that laches could bar a claim to enforce the governing documents when there is an unreasonable delay in bringing the action prejudiced a party. The defendants argued that the plaintiff should have acted sooner to challenge the nonconforming decks. The trial court found that the plaintiff was not diligent in enforcing his rights, mainly because he did not attend an annual meeting where the deck extension was discussed. The Court of Appeals determined that there was an issue of fact as to whether the plaintiff had reason to know that the deck issue would be discussed at the annual meeting, as prior communications and meeting minutes did not explicitly highlight the deck issue. The Court remanded the case for a factual determination as to whether the plaintiff’s delay in attempting to enforce the condominium bylaws was unreasonable.
Anti-Waiver Provisions in Condominium Bylaws are Enforceable
The Court of Appeals ruled that the anti-waiver clause in the condominium bylaws was enforceable. The anti-waiver clause in the condominium bylaws stated as follows:
The failure of the Association or of any co-owner to enforce any right, provision, covenant or condition which may be granted by the Condominium Documents shall not constitute a waiver of the right of the Association or of any such co-owner to enforce such right, provisions, covenant or condition in the future.
The Court held that a condominium association or co-owner that chooses not to enforce a restrictive covenant against another co-owner still retains the right to do so in the future based on the plain language of the anti-waiver clause. The Court of Appeals held that a dismissal of the plaintiff’s claims contradicted the anti-waiver clause and that the trial court erred to the extent that it determined that plaintiff had waived his ability to enforce the condominium bylaws.
Storage of Personal Property under the Decks Was Not a Modification of the Common Elements
The Court of Appeals held that the storage of kayaks under the extended decks was not an unauthorized modification of the common elements. The plaintiff argued that storing the kayaks under the decks violated the following provision of the condominium bylaws:
No co-owner shall make alterations in exterior appearance or make structural modifications to his apartment (including interior walls through or in which there exist easements for support or 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, nor shall any co-owner damage or make modification or attachments to common element walls between units which in any way impairs sound conditioning provisions. The Board of Directors may approve only such modifications as do not impair the soundness, safety, utility or appearance of the Condominium.
The Court held that the bylaw was designed to prevent co-owners from making alterations that could fundamentally change the condominium’s original construction or modify the structure of the condominium. While the list of prohibited modifications was not exclusive, it provided examples such as “exterior painting, erection of antennas, lights, aerials, awnings, doors, and shutters,” concluding with the phrase “other exterior attachments or modifications.” All these examples involve modifications intended to be permanent or, at the very least, semi-permanent modifications to the common elements. The Court held that storing personal property, such as a kayak used for recreational boating, was not a long-term structural modification. The Court of Appeals affirmed the grant of summary disposition in favor of the defendants on this issue. However, many condominium bylaws contain provisions that prohibit the storage of personal property on the common elements. While it is unclear whether the bylaws in this case had such a provision, it demonstrates the importance of identifying the correct provisions of the condominium bylaws in the complaint.
Conclusion
The decision of the Michigan Court of Appeals in Powers v Bone, unpublished opinion of the Court of Appeals, issued February 11, 2025 (Docket No. 367748), 2025 WL 466349 underscores the importance for condominium associations to be proactive in enforcing the condominium bylaws. Community associations that hesitate or inconsistently enforce the governing documents may weaken their position in potential litigation, increase litigation costs in the long run, or create unnecessary insurance claims that result from co-owner lawsuits. To prevent these issues, condominium associations should:
- Enforce Condominium Bylaws as Written – If the master deed imposes restrictions on common element modifications, condominium associations must enforce them as written. Approving unauthorized changes without proper legal grounds, such as compliance with the Fair Housing Act, exposes a condominium association to litigation.
- Quickly Respond to Bylaw Violations – Delays in enforcing governing documents allow co-owners to assert defenses like laches. Proactively addressing bylaw violations, adopting a bylaw enforcement policy, and ensuring consistent enforcement of the master deed, bylaws, and rules can avoid unnecessary disputes.
- Enforce Attorney Fee Recovery Provisions – Most bylaw violations are an unbudgeted expense. However, the Michigan Condominium Act, specifically MCL 559.206(b), and most condominium bylaws allow a condominium association to recover attorney fees and costs for successfully enforcing a bylaw violation. Failing to enforce bylaws can lead to discord in the community and create even greater legal fees in the future, so taking prompt action to remedy a bylaw violation is best.
Condominium associations that proactively enforce their master deed, bylaws, and rules protect property values, reduce overall legal expenses, and safeguard the interests of all co-owners. By promptly addressing bylaw violations and seeking legal guidance from a community association attorney, condominium associations can maintain a well-regulated, legally compliant, and harmonious community.
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 Community Associations Institute’s 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 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.
