In Cove Creek Condo. Assn. v Vistal Land & Home Dev Co., a Michigan Court of Appeals opinion designated for publication, the condominium project was established in 1989, consisting of 31 units. Units 15 through 31 were built and sold; however, Unit 1 through 14 were designated as “need not be built” and were never constructed. In 2016, the condominium association filed suit against the present owner of units 1 through 14 asking the court to declare that the units had become general common elements under a version of Section 167 of the Michigan Condominium Act which was passed in 2002 and remained in effect until September 21, 2016, when a new version took effect. In essence, the old version provided that units designated as “need not be built” became general common elements and no longer buildable unless the developer either withdrew the land from the condominium project or amended the condominium documents to provide that the units “must be built.” The 2016 amendment no longer provided that units became units by the passage of time; instead, the association had to hold a vote and give notice to the developer, who then had 60 days to either change the designation to “must be built” or withdraw the land. The association contended that, because the time period under the 2002 version had already passed before the 2016 version became effective, the units had become general common elements and were no longer buildable.
The matter was hotly contested in the trial court, but ultimately the trial court ruled that the 2016 version did not apply retroactively and the units had become general common elements. The developer appealed, but the Michigan Court of Appeals affirmed. While the opinion contains a lengthy discussion of when statutes apply retroactively as well as due process and takings issues, the upshot of the decision is that the 2016 amendment with its additional requirements did not apply to units which had reverted to general common elements before the 2016 amendment took effect.