Real Property Notes Blog
Amendment of Condo Docs without Consent of Successor Developer Held Void
In Infinity-Brownstown LLC v Dove’s Pointe Homeowners Association, an unpublished Michigan Court of Appeals opinion, the developer established a condominium project and sold a few units, then defaulted on its mortgage. The property was sold at sheriff’s sale and ultimately purchased by Plaintiff. The condominium association subsequently amended the condominium bylaws to prohibit leasing more than 10% of the units; the original bylaws provided there was no restriction on the number of units the developer could rent. Plaintiff sued to overturn the amendment and for damages. The trial court held that the amendment was void, but also held that the Plaintiff’s damages were too speculative or remote to be recovered. Plaintiff appealed, and the association cross-appealed.
The Michigan Court of Appeals, after examining the chain of title and the provisions of the Master Deed, held that the Plaintiff was a successor and assign of the original developer, relying upon the FNMA v Lagoons Forest C.A. opinion discussed in this post. Because the Plaintiff was a successor and did not consent to the amendment as required by the documents, the amendment was void.
The court also held that the Plaintiff’s damages were not speculative simply because it had not yet built or leased the units, relying on other cases holding that it was not necessary to build out a leashold or to construct a building in order to determine lost profits.
Co-Op member Held a Lessee Who Can Make Premises Liability Claim; However, Claim Denied Because Open and Obvious
In Jeffrey-Moise v Williamsburg Town Houses Cooperative, Inc., a published Michigan Court of Appeals opinion, the Plaintiff was a member of a cooperative and slipped and fell on a community-maintained sidewalk, severely injuring her ankle. She sued the cooperative, which filed a summary disposition motion. When the trial court denied the motion, the cooperative filed an application for leave to appeal, which was granted.
The cooperative argued, relying on Francescutti v Fox Chase Condominium Assn (discussed in this post) that as a member of the cooperative, the Plaintiff was not entering on "the land of another" and thus could not maintain a premises liability claim. The court noted that, unlike a condominium where the co-owners have an undivided interest in the general and limited common elements, ownership of a share in a cooperative gives the owner the right to enter into an occupancy agreement with the cooperative to occupy a housing unit in the cooperative. The occupancy agreement prohibited the owner from modifying the common areas and provided that the cooperative association retained control over the mintenance of the common areas. Thus, the Plaintiff could assert a premises liability claim.
However, the court held that the trial court erred in not granting the cooperative summary disposition under the “open and obvious” doctrine because there were sufficient indicia of a potentially hazardous condition to put the plaintiff on notice of the possibility of black ice.
The court also held that MCL 554.139 was not violated in this instance because, while there was snow and ice on the walkway, the walkway itself was fit for the use intended.