Condo lawyers discuss handling potential litigation, compromise
Linda Lerner points toward her driveway, which she said is laden with streaks, bumpy surfaces and other features that would make it hard to walk in high heels because of potential injuries.
Posted June 7, 2017
METRO DETROIT — You can either stay or go. Sue, compromise, or get political by campaigning to join a condominium association board.
These are the pared-down options for a condominium co-owner unhappy with how things are operated, Kevin Hirzel, a Michigan condominium attorney with Livonia-based Cummings, McClorey, Davis & Acho PLC, said recently.
He added that co-owners can resolve their issues by joining the board to enforce rules that they feel are being broken or ignored.
Problems between co-owners and boards are not new, but how you sort through disagreements — whether it be between you and your neighbor or you and the condo board over association fees — could determine how much money you are willing to spend, or not.
Hirzel said that he spends most of his day trying to resolve conflicts between associations and individual owners.
“I have some associations that I represent. They’ll call me once every two or three years, and it’s just for a simple opinion letter,” Hirzel said. “I have other associations, when you get 500 or 600 people … that increases the odds of people not getting along compared to my smallest association, (which) has four in that one. They never have any problems.”
He added that the common conflicts he deals with are failure to pay assessments or failure to abide by some sort of aesthetic restriction, or something that would cause a nuisance to other neighbors.
West Bloomfield resident Linda Lerner lives in a condominium — The Lagoons of West Bloomfield, near Pontiac Trail — and has a bone to pick with her condominium board, and she discussed those issues at her home May 30.
Lerner, who has lived in her home since 1991, said that her driveway — which was repaired less than two years ago — is crumbling, her trees are overgrown, she has no grass or drain pipes, and a host of other issues. While she has attempted to take the legal route with her condo board, the retired Detroit schoolteacher of nearly 30 years realized that she cannot afford a lawyer.
Lerner also can’t afford to move, especially with her family living in California. Plus, she doesn’t want to move.
“I’ve lived here for so long,” she said, adding that “there is nowhere to go” and her ultimate goal is to have a new driveway.
So she chose Hirzel’s method of getting political and attempting to change things by reaching out to local and statewide officials to see if they could help her with her plight. To little or no avail, they were unable to; that is when she learned of state Rep. Peter Lucido, R-Shelby Township, and his initiative.
Lucido is a sponsor to House Bill 4015, which would encourage mediation between condominium co-owners and their associations, among other aspects, before litigation comes into play.
Lucido, who has a long history representing condominiums and condominium owners, said that it’s not fair to have a condominium owner paying for a lawyer to represent himself and, essentially, the association.
“The condo owner is taking money out of his right pocket to pay his lawyer to fight a condo association, which he is taking money out of his left pocket to put into the association as association fees to pay the lawyer who is fighting him,” he said.
Lucido added that mediation is the way to go so that people are not spending money and wasting time.
“What they wrote (on the bill) is exactly what needs to happen,” Lerner said, adding that the worst part of the situation she is in is the assessments. “We’re paying $396 per month for nothing. We don’t have a clubhouse, don’t have a pool, don’t have a gatehouse. We have zero, so where is all this money going to?”
Condominium neighbor and friend Phyllis Kaplan said during an interview at Lerner’s home that she is also unhappy with her driveway. Kaplan added that a lot of people in the condominium, who have also had their driveways repaired, don’t want to upset the apple cart.
“We have seniors here; they’re older. They want to live their life,” Kaplan said, adding that some are complacent about things and go along with the current administration.
Jerry Walters, condominium board president for The Lagoons of West Bloomfield, said that when residents have grievances, they can go before the board when meetings come up.
“We will listen to their concerns,” Walters said, adding that Lerner came to a meeting one time last year. “They’re always welcome to come before the board.”
Robert Meisner — principal attorney for the Bingham Farms-based Meisner Law Group, who provides legal representation for condominiums, homeowner associations, individual co-owners and developers — said in a prepared statement that the best recommended course of action for any particular conflict is to address it with the assistance of an experienced condominium attorney.
“However, there are several avenues which are generally available to individual co-owners to try and get their concerns addressed prior to pursuing legal representation,” he said in the statement.
Meisner recommends that residents first consult their condominium’s governing documents (a master deed, bylaws, rules) when corresponding with management and/or the association board of directors.
“For example, if you believe the association needs to fix something, provide a reference to the section of the documents that you believe indicates it is the association’s responsibility to repair or replace,” Meisner wrote.
He added that what they might consider next depends on whether there is a conflict directly between them and the association, or if there are more general governance issues that affect the entire community. He said that if someone is the only one who doesn’t get repair requests addressed and their correspondence goes unanswered, then there may be some element of discrimination in play.
“You really should contact an attorney to get the board’s attention,” Meisner wrote. “On the other hand, if you speak to your neighbors and they tell you about similar experiences, that may be evidence of a managing agent or board of directors that is not taking their duties seriously. Depending on what you find, you may wish to consider exploring the possibility of running for the board yourself, along with others who agree that it’s time for a change.”
He added that condominium residents have a right, under Section 57 of the Michigan Condominium Act, to see the financial information pertaining to the administration.
“The books, records, contracts and financial statements concerning the administration and operation of the condominium project shall be available for examination by any of the co-owners … at convenient times,” he said.
Meisner also encourages residents to see the Michigan Nonprofit Corporation Act, Sections 485-487, for additional corporate inspection rights.
“Put your request in writing, and if you get no response, contact an attorney,” he said, adding that some associations will allow co-owners a few minutes to speak at open board meetings, though it is generally not a good idea to air personal grievances this way, “as it may only anger the board members and cause them to be even less cooperative.”
For more information on House Bill 4015, go to www.legislature.mi.gov.
About the author
Staff Writer Sherri Kolade covers Farmington, Farmington Hills, Farmington Public Schools, and Oakland Community College for the Press. Sherri Kolade has worked for C & G Newspapers since 2013 and graduated from Central Michigan University.
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