In Dearborn West Village Condominium Association v Makki, an unpublished Michigan Court of Appeals opinion, The defendant purchased and rented out five units in the condominium project. The condominium bylaws permitted leasing of units only if the co-owner was transferred out of state by his employer and then only for a period of two years. The association filed suit to enforce the provision of the condominium bylaws and curtail defendant’s leasing activties. Defendant defended on the basis that board members had leased units in violation of the bylaws, that board members told him he could lease despite the provision; thus the association was barred from enforcing the bylaws against him by estoppel, waiver, or unclean hands.
The association filed a motion for summary disposition, asserting that the anti-waiver provision of the bylaws precluded Defendant’s arguments. The trial court agreed and granted Plaintiff summary disposition.
Defendant contended that the actions of board members in leasing units themselves and in approving his leases waived the provisions of the condominium bylaws, or effectively modified the bylaws. The court of appeals disagreed.
To the extent that board members approved leases in violation of the bylaws or leased units themselves in violation of the bylaws, those board members were acting beyond the scope of their authority under the bylaws and could not bind the association by their actions.
The argument that their actions effectively modified the bylaws was equally unavailing. The court noted that the bylaws require the affirmative vote of 2/3rds of the members to amend; the actions of Defendant and a small minority of owners in violating the bylaws did not take the place of a formal vote.
Finally, the court took up the issue of Plaintiff’s request for attorney fees on appeal, ruling that because the Michigan Condominium Act and the condominium bylaws allowed recovery of attorney fees “in any proceeding,” an because an appeal fell within the definition of a “proceeding,” the case would be remanded to the trial court for a determination of the association’s attorney fees on appeal.