It is the responsibility of the Board to enforce the Master Deed and Bylaws. MCL 559.190 allows for the Condominium Bylaws to be amended based upon a vote of 2/3 of the Co-Owners. In certain circumstances identified in MCL 559.190a, mortgagee approval is also required to amend the condominium documents. Many Associations run into problems because they fail to be proactive in amending their condominium documents. Here are the top 5 signs that your condominium documents need to be amended:
1. The condominium documents are outdated.
Significant revisions were made to the Michigan Condominium Act in 2001 and in 2002. If you live in a seasoned condominium and your condominium documents have never been amended, or if they have not been amended after 2002, it is likely that your Master Deed and Bylaws need to be updated. Moreover, if your Condominium Documents pre-date 1988, there is a chance that they do not comply with the Fair Housing Act, as this is when the Fair Housing Act was amended to forbid discrimination based upon familial status and disability, which are the two most common discrimination claims brought under the Fair Housing Act.
2. The developer has recently turned over control of the Association.
The Master Deed and Bylaws that established your Condominium were drafted by the developer’s attorney. The developer’s attorney likely drafted the condominium documents with the intention of shielding the developer from liability and providing the developer with as much power as possible to control the Association. Often, the Master Deed and Bylaws need to be amended after turnover to address administrative issues that do not concern the developer.
3. The Master Deed and Bylaws contain provisions that are not clear and/or conflict.
Often, a Master Deed and Bylaws contain provisions that are not clear or conflict with each other. By way of example, the Master Deed may indicate that a Condominium is compromised of 100 units and assign a percentage of value to 100 units. However, the Subdivision Plan attached to the Master Deed only depicts 90 units. Accordingly, if the Master Deed, Condominium Bylaws and/or Subdivision Plan conflict with each other, your Condominium Documents should be immediately amended.
4. Your Master Deed and Bylaws are missing enforcement mechanisms.
MCL 559.206 allows for an Association to recover attorney’s fees and costs from a co-owner that has violated the condominium documents to the extent that the condominium documents expressly provide for this remedy. Given that it is not fair for all the co-owners that have complied with the condominium documents to pay the legal fees associated with bringing a co-owner in default in compliance with the condominium documents, the Association should ensure that its condominium documents allow for the recovery of attorney’s fees and costs. Moreover, the condominium documents should allow for other enforcement mechanisms, such as injunctive relief, the recovery of monetary damages for a violation and/or the ability to assess any damages or legal fees to an offending co-owner’s unit.
5. Your Association does not have FHA Certification.
If your Association does not have FHA Certification, it may be due to the fact that there are too many rentals. In order to obtain FHA Certification, an Association cannot have more than 50% of the units rented. Most Associations do not want anywhere close to 50% of the units being rented anyway. Accordingly, the Condominium Bylaws should be amended to impose a rental cap. Moreover, if the reason that FHA Certification cannot be obtained is due to the delinquency rate, the Association should adopt a collection policy as part of its rules to ensure that delinquencies do not persist for long periods.
