By Robert Meisner
Over many years of representing community associations, I have been asked, on hundreds of occasions, why it is necessary for the association to vigorously pursue the enforcement of Bylaw Restrictions. The answer is not that difficult given the obligations of the Board of Directors under the Condominium Documents and the problems which I have observed in the operation and governance of community associations. First and foremost, the Condominium Documents require that the Board of Directors enforce the Deed Restrictions, except in those instances where it believes it is not appropriate or necessary; for example, a dispute among two co-owners which does not involve the rest of the condominium project and will not have an adverse effect on same.
Simply stated, the restrictions in the Condominium Documents are to be observed by all co-owners, and the Board of Directors is given primary responsibility to ensure that these restrictions are followed. The Board has a plethora of remedies in the Declaration of Covenants and Restrictions, the Condominium Documents and/or the Michigan Condominium Act (as applicable) to ensure enforcement. If the Board does not take an active role in doing so, the association will then be left with the possibility that its Deed Restrictions are not enforceable at a later time. There are various defenses that a co-owner can assert against the association if the association has not been consistent, diligent, uniform, and aggressive in enforcing the Deed Restrictions.
Claims by co-owners that the Board is treating them unfairly by discriminating against them is a frequent defense asserted by co-owners. Also, another frequent claim is that the association has been sitting on its hands, so to speak, before enforcing the documents and should be legally precluded, therefore, from enforcing the documents at the time the Board finally gets around to doing so. The more the Board procrastinates, the more likely the association will be faced with a dilemma in terms of enforcing the Condominium Documents. The Association should take immediate action to stop an abuse by a co-owner, particularly where injunctive relief is appropriate, for example, before an unapproved addition to the common elements is constructed. Or, if there is a claim of racial or other type of discrimination, the Board should get legal advice and get involved as soon as possible.
The Board should frequently consult with its legal counsel as to the nature of its Bylaw enforcement procedures and should have a written Bylaw enforcement procedure in effect so that its managing agent and the Board of Directors, both now and in the future, will know how to properly enforce the Condominium Documents. If this is done, our experience in successfully representing hundreds of associations over the years in bylaw enforcement matters has shown that the Bylaw Enforcement Policy can be effective, manageable and in the best interest of all members of the association.
