Requests by co-owners to alter or modify their units—or adjacent common elements—are among the most frequent and challenging issues faced by condominium associations. For board members and property managers, responding to these requests requires careful consideration, consistency, and a solid understanding of legal obligations.
Mishandling these requests can lead to costly and time-consuming disputes.
Legal Framework: Michigan Condominium Act and Association Bylaws
Most condominium bylaws require co-owners to obtain prior written approval from the board for any exterior alterations to their unit or nearby common elements. Even though terms like alteration or modification are often undefined, a good rule of thumb is this: if the proposed work changes the appearance or structure of the unit or common element, it should require board approval.
Michigan law supports this view. Under MCL 559.147, co-owners are generally prohibited from changing the exterior appearance of their unit or any part of the condominium project, unless permitted by the condominium documents. Exceptions exist for co-owners of adjoining units wishing to remove partitions or create doorways between them, and under MCL 559.147a, for modifications made to accommodate persons with disabilities.
Board members and property managers should familiarize themselves with these statutes and with the specific provisions of their community’s governing documents related to modifications—often found in Article VI of the Bylaws.
Creating a Consistent Review Process
Even with statutory and bylaw support for association approval, enforcing modification restrictions requires that the board act consistently and reasonably. This means establishing clear guidelines for approving or denying requests. These guidelines might include factors like:
- Color, material, and design
- Size, height, and placement
- Impact on structural integrity, safety, and aesthetic harmony
Applying these standards uniformly helps avoid allegations of selective enforcement or discrimination.
The importance of reasonableness was affirmed in the Michigan Court of Appeals case Cohan v. Riverside Park Place Condominium Association, 333 NW2d 574 (1983). The court upheld a board’s denial of a balcony enclosure request and established the so-called “Rule of Reason,” which means restrictions or denials imposed by condominium associations must be grounded in legitimate and reasonable objectives, such as maintaining uniformity, structural integrity, and the overall aesthetics of the condominium property. The court noted that condominium unit owners must sometimes relinquish certain freedoms to preserve the collective aesthetic and structural integrity of the community. Because reasonableness depends on specific circumstances, we recommend clients evaluate requests using the factors found below and document their analysis in meeting minutes.
Criteria for Evaluating Modification Requests
When reviewing a co-owner’s request for modifications, the board should evaluate the proposal using the following criteria:
- Regulatory Compliance: Approval should be contingent upon obtaining all necessary permits or variances.
- Safety Considerations: Assess whether the modification presents potential risks to residents, visitors, or common areas. Particular attention should be given to features such as elevated decks, stairways, railings, pools, hot tubs, or other structures with inherent safety risks.
- Structural Integrity: Evaluate if the requested modification might adversely affect the structural integrity of the building. Examples include the removal of load-bearing walls, installation of rooftop skylights, or modifications impacting foundational elements.
- Maintenance Requirements: Consider whether the alteration could complicate or obstruct future maintenance activities or increase ongoing maintenance expenses. Examples include landscaping changes that affect drainage or roof alterations that impede regular inspections.
- Impact on Neighbors: Determine if the alteration might negatively affect neighbors or create a nuisance. Factors include intrusive structures such as decks or balconies, unusual paint colors, increased noise levels (e.g., from hot tubs or mechanical equipment), or loss of privacy.
- Compliance with Governing Documents: Ensure the proposed modification meets established guidelines regarding dimensions, materials, finishes, and other specifications outlined in the condominium’s governing documents. Consistency in applying these standards is critical.
- Aesthetic Consistency: Assess whether the proposed modification preserves the community’s visual harmony and architectural consistency. While this evaluation can be somewhat subjective, greater flexibility may be warranted for alterations that are not visible from common areas, streets, or neighboring properties.
Federal or State Law Considerations: When Associations May Not Deny a Modification Request
There are a few major exceptions where an association may be restricted from enforcing its typical approval process:
- Satellite Dish Installations (FCC Protections)
Federal Communications Commission (FCC) rules preempt a condominium’s governing documents and state and local regulations for over-the-air reception devices, such as satellite dishes under 1 meter in diameter, installed within a unit or its limited common elements. Associations generally cannot require approval, charge application fees, or impose conditions for these installations—unless the dish exceeds the size limit or is attached to general common elements.
- Modifications for Persons with Disabilities
Under MCL 559.147a, co-owners have the statutory right to modify their units or common elements to enhance accessibility or alleviate hazardous conditions for individuals with disabilities. Condominium association boards must respond to these modification requests by either approving or denying them within 60 days of receiving detailed plans and specifications. Additionally, these modification requests may invoke protections under the Fair Housing Act (FHA). Associations receiving FHA-related requests must provide timely responses and are strongly encouraged to seek legal guidance to ensure compliance with applicable federal laws.
- Energy-Saving Improvements or Modifications and Solar Energy Systems
Michigan recently adopted the new Homeowners’ Energy Policy Act, which may alter the process for energy-saving improvements or modifications, and solar energy systems. Follow this link for additional information.
Best Practices for Handling Requests
- Prompt Review: Co-owners are entitled to timely decisions. Record board deliberations and clearly document the reasons for approvals or rejections in meeting minutes.
- Written Responses: Always provide a formal written response. Avoid verbal approvals or informal notes that could be misinterpreted.
- Modification Agreements: For approved alterations, especially those affecting maintenance or liability, require an agreement to be recorded with the county to bind current and future owners.
- Insurance Coverage: Co-owners should be reminded of their responsibility to insure improvements. Recorded agreements can increase compliance.
- Education and Communication: Many disputes arise from a co-owner’s lack of awareness regarding these approval procedures. Periodically remind co-owners of the requirement to obtain written approval before making alterations.
- Clear Process and Procedures: Clear procedures and communication help prevent conflict before it begins.
By establishing clear standards, maintaining consistency, and respecting the rights of co-owners – including those protected by federal or state law – condominium boards can effectively manage alteration requests while minimizing disputes. Thoughtful planning and proactive communication are essential tools for maintaining harmony and upholding the integrity of the community.
Reprinted with permission from MAGWV – Condominium & HOA Lawyers, Michigan