This case involved a dispute between a condominium owner (Owner) and her homeowners association (Association) over unapproved changes that had been made to the front entry door to Owners condominium unit. Some of the unapproved changes had been made prior to Owners purchase of the unit in 2013, and others were made by Owner after her purchase of the unit. Association first started demanding that Owner restore the front entry door to the proper condition in 2015, and when Owner refused to make the changes that Association demanded, Association filed suit against Owner to compel the requested changes.
Associations governing documents contained a provision that prohibited all changes to the exterior appearance of a unit without prior written approval of the Association, and that this home had such unapproved changes. There was also an entrance door policy that required door handles to be either polished or bright brass in color. In 2015, Association became aware that the following changes had been made to the front door of Owners unit without Associations consent: (i) a square door lock was installed; (ii) a pewter-colored lever door handle was installed; (iii) new, larger address numbers were installed on the door; and (iv) the paint color was changed to a shade of white that did not match the other front doors in the development.
For a period of several months, Association attempted to get Owner to correct the violations by sending letters and assessing fines for non-compliance. Owner took the position that, since she was not the one in charge of these unapproved changes of painting the door or changing the address numbers or installing the square lock, she believed she was not responsible for these unapproved changes because she bought the home in such a manner.She also contended that she had changed the door handle as part of an alleged emergency repair because she was physically disabled and needed a lever-type door handle.
The trial court granted summary judgment for the requested injunctive relief in favor of Association and also awarded Association attorneys fees and costs. Owner then appealed the trail courts judgment.
On review, the appellate court determined that there was no dispute about the fact that the square door lock, the pewter-colored lever door handle, the address numbers on the door, and the color of the door had been changed by either Owner or a former owner of the unit. The appellate court further determined that the door handle that Owner installed did not comply with the brass color that was required by Associations entrance door policy, and that Association had not given either Owner, or the prior owners of the unit, approval of any modifications or alterations to the door, including but not limited to locks, door numbers, handles, and color. Accordingly, Association was entitled to the requested injunctive relief ordering that Owners entry door be brought into compliance with the applicable standards irrespective of whether Owner, or a prior owner of the unit, was responsible for the unauthorized modifications.
Owner also argued that Association had waived its right to enforce the violations because most of them existed when she purchased the unit in 2013, and Association had not previously taken any action to enforce compliance. The appellate court also rejected said argument based on the non-waive clause contained in Associations governing documents which states that, The failure of the Association to enforce any right, provision, covenant or condition which is granted by the Condominium Documents shall not constitute a waiver of the right of the Association to enforce such right, provision, covenant or condition in the future.
The appellate court affirmed the trial courts judgment granting Association the requested injunctive relief, attorney fees and costs, and also awarded Association additional attorney fees and costs that had been incurred in connection with the appeal.
UNPUBLISHED Michigan Appellate Court decision (July 23, 2019)
See case decision: Fox_Pointe_Ass’n_v._Ryal