Architectural Control in Michigan Community Associations: Can My Neighbor Install a Tiki Bar Without Permission?
Step into the world of legal enlightenment with Hirzel’s Condo Chronicles, the podcast brought to you by Hirzel Law. Join us as we explore the ins and outs of the legal landscape, share intriguing case studies, and dive into the heart of legal matters affecting your community association. Plus, don’t miss out on the monthly legal news updates with Hirzel’s Monthly Roundup, where we serve up the latest legal insights hot off the press. Get ready for a journey where law meets life, and wisdom meets the everyday!
In this episode, we dive into the world of architectural control in Michigan community associations, breaking down what needs approval, what boards should include in modification agreements, and what happens when owners skip the rules.
You can subscribe to Hirzel’s Condo Chronicles on iTunes, Amazon, Spotify, RSS, or anywhere podcasts are found.
This transcript has been edited for clarity.
Rita Khan: Welcome back to another episode of Hirzel’s Condo Chronicles. I’m Rita Khan, director of Marketing.
Kevin Hirzel: And I’m Kevin Hirzel, the managing member of Hirzel Law, here to talk all things community associations, especially the kind of issues that come up with blueprints and boundary lines.
Rita Khan: Today’s episode is all about the board members, property managers, and homeowners wondering, can my neighbor really install a tiki bar on their patio without permission? We’re diving into architectural approvals and modification requests in Michigan Community Associations. So Kevin, let’s start with the basics. What exactly is an architectural control in a Michigan condo or HOA?
Kevin Hirzel: Well Rita, Architectural Control refers to the rules and approval processes that community associations use to maintain the visual integrity and structural consistency of the neighborhood.
Whether it’s changing a paint color, building a deck, installing a fence, most governing documents require approval from either the board or an architectural control committee, sometimes referred to as an ACC before any exterior modifications are made.
A Proper Modification Agreement
Rita Khan: So let’s say a homeowner submits a request. What should the board include in a proper modification agreement?
Kevin Hirzel: Great question. So a well drafted agreement. It’s gonna describe the specific design and plans that are approved. So there’s no question as to what’s gonna go there. It’s gonna require compliance with building codes. The permits are all gonna be pulled. It will assign responsibility. For maintenance and future repairs and costs associated with the same, it’s gonna require indemnification for damages caused by the improvement.
So if the common elements or anything , are damaged in the process, the owner who submitted the request is gonna be responsible, typically is gonna require the work to be performed by licensed and insured contractors. So, cousin Todd doesn’t necessarily, , come over, and blow up the place.
It’s gonna require to clarify whether the approval is permanent or revocable. And whether that is going to transfer to future buyers as well. And some of them will even set deadlines for completion of work. So that the she said doesn’t turn into a three year project instead of a three month project.
Common Architectural Violations: Auxiliary Buildings
Rita Khan: So what are some of the most common architectural violations that you see?
Kevin Hirzel: All right, we’re gonna dig into the most common and certainly the court-worthy ones today off the top of my head, we’re gonna go with auxiliary buildings, fences, landscaping, and pools.
It’s springtime, that’s when all these things are going up. So let’s jump in before someone jumps into that unapproved swim spa, Rita.
Rita Khan: I see what you did there. So let’s start with auxiliary buildings. What does that mean for HOAs and condo associations?
Kevin Hirzel: So auxiliary buildings, they’re becoming a lot more popular, their structures beyond your primary home.
So think detached garages, in-law suites, outbuildings, pool houses, sheds, that kind of thing. So some communities are certainly just gonna have an outright ban on them. Others are gonna allow them, but then you’re gonna have to go through the ACC approval process. There may be certain restrictions on that.
And so you may need to get approval. And by approval I don’t mean asking your buddy on the board during trivia night. I mean going actually through the formal process.
Rita Khan: So what happens if they do skip that process and just don’t ask for permission at all?
Kevin Hirzel: All right, let’s cue Oakwood Meadows Homeowners Association v. Urban.
Cause this is exactly what happened there. Oh, no. In that case it basically dealt with a pumphouse for pool equipment. And so basically very considerate to the pool pump, not so much the covenants, that they wanted to go ahead and put this up.
So they pretty much ignored all the covenants and said, Hey, precious pool equipment, we’re gonna protect you. Is basically what went on there. And the court said, of course, that the structure violated the restriction against sheds, outbuildings, and detached garages.
Verdict: pump house, got the boot. Oh, no pool equipment, not protected. And don’t pass, go on trivia night there or if you’re playing Monopoly. So that, that was the lesson to be learned from that one.
Rita Khan: So definitely pumped out of there, huh?
Kevin Hirzel: Oh, definitely pumped out of there for sure.
Rita Khan: So, love thy neighbor and thy neighbor’s pool heater, but only if it doesn’t violate the rules.
Kevin Hirzel: Exactly Rita. And so something else similar happened in Newbury Estates Homeowners Association v. Cook. So that’s another interesting Michigan case. So the association, they approved a small shed. So in that circumstance, you could have a shed under 200 square feet. So the owner got the approval based on what was submitted, but then he decided, he was gonna live by the motto, go big or go home.
Rita Khan: Oh.
Kevin Hirzel: And he made a significantly larger shed than 200 square feet. To make a long story short, the court said, nope, the oversized shed had to be removed.
Rita Khan: So moral the story. Don’t pull a shed and switch.
Kevin Hirzel: Yeah. No shed and switches here if I can get that one out. Certainly so nice.
If you’re building anything other in the house, read the documents, get approval, and don’t go rogue with the measuring tape, okay?
Rita Khan: Because the only thing worse. Than a HOA violation is realizing you spent $10,000 on a structure that ends up on Craigslist or Facebook marketplace maybe.
Kevin Hirzel: Yeah. I realize we grew up in the nineties.
Yeah, but who uses Craigslist anymore? Come on, Rita.
Rita Khan: We’re showing our age.
So let’s fence in the next topic. Literally. What about fences?
Common Architectural Violations: Fences
Kevin Hirzel: Oh, so this is gonna take me to Dearborn Hill Civic Association v. Merhi. So this was a fence case owner puts up a fence without permission or argument.
We didn’t know that we needed approval. It’s just, it’s in these recorded covenants. We didn’t read ’em. Excuse me. And, let’s go ahead and keep our fence. So the court’s response, ignorance of restrictive covenants is not a defense. The fence had to be removed, in that circumstance.
And certainly, the adage of asking for forgiveness instead of permission did not apply in that case.
Rita Khan: Definitely sounds like saying, I didn’t know Monopoly had any rules. But that doesn’t mean you can build hotels without permission.
Kevin Hirzel: Oh, that’s, people are always trying to steal those from the bank.
Oh yeah. Yeah, for sure. So, and there’s a lot of fence cases in Michigan. Another one Sedlar v. Glenmar Place Subdivision. So the court there, they also cited with the HOA, basically stating that they had broad discretion over fence design and placement. So they, the owner put in a fence, they didn’t match the restrictive covenant.
Even if your fence looks great on Pinterest, still needs approval. And there may be restrictions, as part of your governing documents. The ACC is gonna be able to say yes or no.
Rita Khan: I mean, good fences do make good neighbors, but only if they’re legal fences.
Kevin Hirzel: Exactly. Otherwise, the only thing your fence is keeping out is your property value.
Rita Khan: Ooh.
Common Architectural Violations: Landscaping
So let’s talk landscaping. How can a tulip turn into a lawsuit?
Kevin Hirzel: Well, easily. The governing documents often prohibit landscaping on common areas and require architectural approval. So for, that’s trees, fountains, Rita, your gnome army that you’ve been secretly, planting and I see you bring, on eBay every time I walk over there, each week adding another one there.
All that kind of stuff requires approval.
Rita Khan: There goes my secret gnome society.
Kevin Hirzel: Right? I hate to out you, you did on our podcast here, but somebody had to do it, you had to be stopped. But we had a speaking, moving from gnome armies to fountains here.
There was a case, called Steeplechase of Northville v. Taulkder. And that one, basically what happened is somebody, they wanted one of those grand fountains. Maybe they spent a little bit too, much time, in Italy, Trevi fountain, something like that. This grand vision.
So they decided they were gonna put this smack dab in their front yard. They installed a large fountain without, board approval. And there the court found that it altered the visible landscape, even though they didn’t have a specific fountain restriction. And that violated the bylaws. So queue up the injunction.
Rita Khan: So even if your fountain is fancy, you still need the board’s blessing, or it might become the world’s most expensive bird bath.
Kevin Hirzel: Yeah. Unless, your gnome army comes in. Yes. And defends it. So that may be your only hope in that situation. On the flip side of things, we had another case here that was kind of interesting, and it dealt with what constitutes a structure.
So that was Oliver Wendell Holmes INC v. Hall. That was a case involving a developer and owner. And basically what happened is they didn’t have any specific landscaping restrictions, but the developer there, they didn’t really like that they put in these evergreen trees. And so they went to court on the basis that these evergreen trees were structures, governing documents require approval, for structures, even though you didn’t have to submit a landscaping plan under this declaration.
And basically the court said, Nope. The evergreen tree until it’s cut down and actually turned into a building doesn’t constitute a structure. So you gotta be careful as to the language of your documents.
Rita Khan: So it definitely all depends on how those documents are written.
Kevin Hirzel: Oh, exactly. And if you’re ever tempted to DIY, your yard without checking the rules, just remember the grass may be greener on the other side. But not as green as the money you spend fighting in injunction.
Rita Khan: Ooh.
Let’s end with the splash, pools! What are the legal swim lanes for boards?
Common Architectural Violations: Pools
Kevin Hirzel: So most communities are gonna allow in-ground pools.
You’re gonna need to get approval for that cause those are big projects. Above ground pools are typically a no-no. I’ve seen very few documents that will allow the above ground type of pool. And so certainly, we’ve seen cases where you give approval for an in-ground pool, except it never goes into the ground and is above.
And that’s certainly a bylaw violation. But sometimes there’s the dispute as to what constitutes an aboveground pool. So, recent case Hills of Oakland Subdivision v. Seibert, the owner installed a swim spa. So it is basically like an above ground hot tub on steroids,
Rita Khan: Huh?
Kevin Hirzel: As the best way to describe that.
But the court said that it violated the rules. It had to be removed within 30 days. And it was essentially was an above ground pool.
Rita Khan: So you might call it a spa, but if it floats above ground, it’s not floating past the bylaws.
Kevin Hirzel: Absolutely. And then the other one, there was one called Mill Point of Heartland Condo Association v. Cipolla, in that particular case, the pool was built too close to the lot line, once again, court ordered it to be removed. And so that’s why it’s important to go through the ACC process. There’s typically gonna be setback requirements. And just because you may want to sunbathe, right next to your properties, your, neighbor’s property line, that’s not always gonna be allowed by the bylaws.
Rita Khan: You know, those pool parties seem to have ended faster than a kid cannon balling into cold water.
Kevin Hirzel: Absolutely. So, bottom line, whether it’s landscaping, fences, pools, or sheds, get written approval and boards be ready to enforce violations, or you risk setting a bad precedent. I’ll tell you, I mean these are gonna grow bylaw violations grow like bad weeds in your yard if you just let ’em, continue on over time.
Rita Khan: So what happens if someone just skips the entire process of asking for permission or submitting an application entirely?
Kevin Hirzel: So, Michigan courts have been pretty clear on this, even if it’s De minimis violation, that could be subject to an injunction. So we had, one of my favorite cases is Hunter’s Point Condo v. Csicsila. So there a cone owner installed a hot tub without approval. There was no specific restrictions on hot tubs. But it did alter the appearance of basically the limited common elements.
They also had to tie into the general common element, electricity, as well in order to, make sure that hot tub worked. And so certainly, basically, what the court said there is that, injunction is granted, don’t just ask for forgiveness instead of permission. That’s a, it’s a surefire way to end up in court.
Hirzel’s Hot Take
Rita Khan: So, Kevin, what’s your advice for boards that wanna stay out of trouble?
Kevin Hirzel: Three key things. Review your governing documents, what needs approval, and who gives it. Make sure that process actually happens. Use written modification agreements every single time. Can’t tell you how many times somebody will say, oh, that’s a bylaw violation.
And a person comes back and says, three boards ago they approved it. And I was at the board meeting, or the person I bought it from told me that this was approved. And so, written modification agreements are a great way to document exactly what the approval was, not have issues in the future.
The other thing I’d say be proactive and enforce consistently. Don’t prove one neighbor’s gazebo and deny the others without justification. If that gazebo goes up, do something about it right away. Don’t let it sit there for five years. And certainly, don’t forget to update your documents.
Architectural trends and legal standards change. So do your rules too. And certainly. If that luxury vinyl fence, looked good in the nineties , When we were growing up there. Not everybody wants that. Now. Maybe it’s the black aluminum or wrought iron seems to be in style.
And make sure that what’s actually on paper matches up with what you’re doing in practice.
Rita Khan: And definitely don’t approve that rooftop chicken coop idea without a second opinion.
Kevin Hirzel: Well, unless it comes with eggs for the whole neighborhood, right?
Rita Khan: Oh,
Well, eggs are pretty expensive these days, so that might be something to think about.
But definitely start with an application. Of course. Kevin, why don’t you provide us with a Hirzel’s hot tip for this episode?
Kevin Hirzel: So if you build it without approval, they will come and by they, I mean the HOA with a lawsuit for an injunction.
Rita Khan: Ah, well that wraps up this episode of Hirzel Condo Chronicles.
Whether you’re planning a pergola or plotting your pool paradise, start with your governing documents.
Kevin Hirzel: And if you’re unsure, ask the board. Or better yet, ask your lawyer. Don’t just ask for forgiveness from the court. Judges don’t love surprise fountains.
Rita Khan: Thanks for tuning in. And remember at Hirzel Law, we help you stay out of court and out of HOA hot water. Catch you next time.
Kevin Hirzel: Unless you’re installing a hot tub without permission, then we’ll see you in court
Rita Khan: Each month. Step into the world of legal enlightenment with Hirzel’s Condo Chronicles the podcast brought to you by Hirzel Law. Join us as we explore the ins and outs of the legal landscape, sharing intriguing case studies, and dive into the heart of legal matters affecting your community association.
Plus, don’t miss out on the monthly legal news updates with Hirzel’s Monthly Roundup, where we serve up the latest legal in insights hot off the press. Get ready for a journey where law meets life and wisdom meets the every day. The information on this podcast is intended for informational purposes only.
This podcast is not intended to provide legal advice. The purpose of this podcast is to provide general education and information. This podcast may not reflect the most recent legal development or future changes in the law. Hirzel Law disclaims all liability in respect to actions taken or not taken based on any or all of the contents of this podcast, including the accuracy of any content to the fullest extent permitted by law.
No business or client relationship is established by listening to this podcast. Any cases, laws, or other scenarios discussed during this podcast are unique. To that specific situation and are not indicative of a specific outcome in any other legal matters.
