Daily Development for Thursday, December 6

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

ASSOCIATIONS; ARCHITECTURAL CONTROL; CONDOMINIUMS: Michigan statute providing that there can be no "change in appearance" of exterior of condominium unless authorized by declaration applies to free standing hot tub on unit owner's deck.

Hunters Pointe Condominium Ass'n v. Csicsila,

http://www.michbar.org/opinions/home.html?/opinions/appeals/2001/113001/13099.pdf (Mich App. 11/30/21)

Michigan condominium law provides broad discretion to associations to regulate alterations in the appearance of the condominium. It states owners may do nothing to alter the exterior appearance of their unit or of any other part of the condominium except pursuant to provisions et forth in the declaration. In this particular case, the declaration provided that

"No Co-Owner shall make alterations in the exterior appearance of . . . his Unit or make any changes in the Common Elements, Limited or General, without the express written approval of the Board of Directors."

Defendant placed a portable free standing hot tub on her outside deck. It was filled with a garden hose, plugged into an electrical outlet on the deck. The Association objected, and sought an injunction. The trial court found that the intent of the Michigan statute was to address alterations to the "real estate," including fixtures, and that the hot tub did not constitute a fixture, was not real estate, and therefore was not subject to Association review.

On appeal: Held: Reversed.

The Michigan Court of Appeals concluded that the statutory intent was indeed to prohibit any activity that would alter the appearance of the exterior of the condominium, including the Limited Common Elements, whether or not such alteration was a change in the real estate itself. If we were to follow this reasoning all the way home, the rest of the opinion should be a "lay down hand." Since the statute unequivocally prohibited such changes unless the declaration provided for them, all that remained was to determine whether the declaration here specifically permitted "non-real estate changes." Obviously, it did not, at least without the consent of the Board.

The court of appeals didn't go that easy route, however. It instead evaluated whether the hot tub was in fact prohibited by the declaration.

It concluded that the tub was a change, emphasizing that it was permanently situated twelve months a year on the deck and could not be moved inside. It also noted that the electrical connection, a 220 volt connection, also was installed through the wall of the unit - a Common Element, and inferred that this alone would have justified a conclusion that the installation violated the declaration.

Comment: In the editor's view, the Court overread the statute, and thus embarked on a very perilous interpretive journey. Read literally, the statute now prohibits the leaving of tricycles on the porch, patio furniture, barbecues or anything also that affects the appearance of the condominium *unless the Declaration expressly provides otherwise.* One assumes that the presence of people on the deck does not violate the statute, but of course this also requires further interpretation. When the people leave, however, they had better take with them anything that would mar the "visual purity" of the condominium appearance. Surely this was not the legislative intent.

Defenders of the opinion would respond that the court concluded that this hot tub was not like a tricycle because (a) it was plugged into a wall outlet that had to be installed; and (b) it was there twelve months a year. But the court's analysis suggests that the presence of the outlet, though relevant, was not dispositive. The court would have reacted against the hot tub even if it was powered by a wire running to an inside plug. As to the twelve months a year condition, the editor proposes that condominium owners, even in Michigan, keep lots of things on their decks twelve months a year. Surely the legislature did not intend to regulate every object that was left outside.

Comment 2: The court should have ignored the statute as not relevant to this situation and relied instead upon an interpretation of the Declaration itself. Although the editor still would have found that, as drafted, the Declaration didn't prohibit portable hot tubs, the community could always amend the Declaration to state such a prohibition. Further, the may be other express or implied powers in the Board to regulate use that would have supported such a prohibition by the Board even without a Declaration amendment. Why go all the way back to a "hardball" application of a relatively-difficult-to-amend statute?

Comment 3: We still have the general notion as to whether it is socially appropriate for Associations to regulate what people keep on their decks.

Some would argue that it is not. The editor concludes that such people shouldn't move into condominiums, where one necessarily gives up certain individual freedoms because the broader interests of the community are more pronounced in the close living conditions that a condominium often creates.

The editor is aware that in some unfortunate areas condominiums are a financial necessity for many who can't afford homes. Nevertheless, the other occupants of the condominium, who also may be subject to the same financial pressures, deserve to have their contractual and social expectations protected. So hide that tricycle!!!

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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