Liability Protection: How to Protect the Condo Association Against Increased Premises Liability Exposure
As recently decided by the Michigan Supreme Court in Janini v London Townhouses Condominium Association, issued July 11, 2024 (Docket No. 164158), a co-owner on the condominium’s common elements is now classified as an invitee under Michigan law entitled to have the premises made safe and warnings of known dangers thereon by the condominium association. The condominium association under Janini now has a substantially greater duty of care towards a co-owner on the common elements and a co-owner may now file a premises liability lawsuit against its association for injuries sustained on the common elements.
Disclaiming Liability for Ordinary Negligence
However, despite the possibility of a premises liability lawsuit by a co-owner following Janini, an association may disclaim liability for ordinary negligence on the common elements in the language of the condominium’s master deed.
Michigan law dictates that rights and obligations arising under a master deed or condominium bylaws are contractual in nature. See Tuscany Grove Ass’n v Peraino, 311 Mich App 389, 393; 875 NW2d 234 (2015) (interpreting bylaws as a contract); Rossow v Brentwood Farms Dev, Inc, 251 Mich App 652, 658; 651 NW2d 458 (2002) (applying contract principles to dispute regarding mandates of condominium master deed).
Understanding Contractual Waivers of Liability
In Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003), the Michigan Court of Appeals determined that a contractual waiver of liability serves to insulate against ordinary negligence claims, but not gross negligence.
“A release of liability is valid if it is fairly and knowingly made.” Xu, 257 Mich App at 272 quoting Wyrembelski v St Clair Shores, 218 Mich App 125, 127; 553 NW2d 651 (1996). A release is knowingly made even if it is not labeled a “release,” or the releasor fails to read its terms, or thought the terms were different, absent fraud or intentional misrepresentation designed to induce the releasor through a “strategy of trickery.” Xu, 257 Mich App at 272-73. A release is not fairly made if the nature of the instrument was misrepresented or there was other fraudulent or overreaching conduct. Xu, 257 Mich App at 273.
The Xu Court concluded that at a minimum, a release should explicitly inform the reader regarding the effect of the release. Xu, 257 Mich App at 275. In other words, the language of the release should clearly express the intention to disclaim liability.
In light of Janini and as provided under Xu and other Michigan law governing a release of liability, Hirzel Law, PLC recommends that condominium associations update the liability protection language in the damage, loss, or injury from common elements section of their master deeds. Hirzel Law, PLC has drafted updated standard liability language that can be included in a condominium’s master deed and is available to assist condominium associations with amending their master deeds to protect themselves from their new post-Janini exposure to co-owner premises liability claims.
Chris Jacobson, Esq., is a Senior Attorney with Hirzel Law, PLC, specializing in general counsel matters and document amendments. Mr. Jacobson earned his LL.M. in Taxation from Wayne State University Law School in 2011. He received his Juris Doctor from Cooley Law School in 2006, graduating with Certificates of Merit in Advanced Writing, Research and Writing, and Business Planning, and was awarded the Fitzgerald Class Honors Scholarship. He completed his undergraduate studies cum laude at Western Michigan University’s Lee Honors College in 2003. Before joining Hirzel Law, Mr. Jacobson served as a Supervising Staff Attorney at Honigman LLP, where he gained extensive experience in both the public and private sectors. His legal career is marked by a commitment to excellence and a collaborative approach to resolving complex legal issues. He can be reached at (248) 478-1800 or cjacobson@hirzellaw.com.
