Experienced and seasoned attorneys in some areas of the law may eventually feel they’ve “seen it all,” and there remains little to surprise them. I can attest this isn’t the case in the area of community association law, where I’ve spent many decades representing Michigan condominiums and subdivisions, as well as developers and individual community association residents.
Condominiums alone can encompass commercial, industrial, mixed-use commercial and residential, campgrounds, parking lots, sports stadiums, airport and racetrack condos, and much more that may arise from the ingenuity of the developer and creative legal counsel.
Advances in technology and changes in our collective social values have provided a multitude of challenges, especially for residential community associations.
For example, who could have predicted that one day we would have to deal with autonomous vehicles and drones in our communities? Some associations have reacted by banning drones entirely due to safety and privacy concerns, while others have harnessed the technology to inspect for compliance with the association’s architectural governing document restrictions.
Drone photos have already been used to advertise homes for sale. And once retailers are cleared for takeoff and drone/autonomous delivery to individual residences begins, community associations will be forced to deal with this issue one way or another.
Additionally, electric vehicles continue to rise in popularity, and some residents of condominiums will buy first and ask questions later as it concerns the installation of charging stations in the common elements. This could lead to a big facepalm moment and a crash course in the differences between a co-owner’s rights within the boundaries of the unit as opposed to the common elements managed by the condo association.
Usually, these situations can be resolved with a modification agreement recorded against the unit. Under such an agreement, the co-owner assumes all liability, responsibility, and costs in connection with the charging station.
With respect to changing social values, the advent of Michigan’s medical and recreational cannabis laws has given rise to many questions from condominium clients, especially with regard to smoking. The conflict between state and federal laws on the subject is certainly not helpful, and professional legal guidance is required to understand how they both should be observed.
Fortunately, the Fair Housing Act has led to positive change and greater opportunities for more people.
Facing the increasing popularity of cannabis, many associations have decided to vote on an amendment to their bylaws prohibiting smoking of any kind, in order to guard against smoking nuisances and make their community more appealing to nonsmokers.
Our changing social values, as reflected in the federal Fair Housing Act, have also had a significant impact on community associations, which are considered “housing providers” under the act. This means they have many of the same responsibilities to ensure equal access and nondiscrimination in their rules for co-owners as a landlord has with respect to tenants.
Since 1968, when the act was first signed into law, it has been the basis of a great deal of litigation, including suits against community associations and their directors and officers. Some of those conflicts involve emotional support animals.
Even though many people have a valid need for an emotional support animal, there are others who enlist the assistance of their doctor or a website that’s willing to play along and provide a fake diagnosis so they can get around the pet restrictions in an association’s governing documents.
Other Fair Housing Act conflicts involve discrimination, many on a familial basis. Even our collective understanding of the definition of family has changed dramatically over the years. Fortunately, the Fair Housing Act has led to positive change and greater opportunities for more people.
Well-run community associations are governed by boards of directors that understand they’re running a business and have fiduciary duties under the Michigan Nonprofit Corporation Act. And businesses (must realize that they) need to adapt and evolve along with the larger world.
As volunteer directors and officers serve without compensation, while at the same time taking on certain risks, they should enlist the very best talent in every discipline to help steer them and their associations in the right direction.
Robert M. Meisner is principal attorney of The Meisner Law Group in Bingham Farms.