Statute of Limitations MICHIGAN HOA

Started by SusanM19 • 11 replies • 4182 views

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SusanM19 (Michigan)
Posts: 5

Posted:

Does anyone know the Statute of Limitations For HOA Rule Enforcement for MICHIGAN?

Here's the story if you want to know:
I am new to the Board. We have had a rash of homeowners recently put up sheds where our by-laws do not allow sheds. I think we may be pursuing legal aide in these matters. However, there is one homeowner who put up a shed 12 years ago when the subdivision was brand new. No one ever questioned him, no verbal or written warning letters. Nothing. The rest of the Board wants to throw him in with the other homeowners that are in violation and make them all take their sheds down.

I had spoken to this homeowner and he said he actually rec'd permission from the mgt company back then. But it has been over 12 years and he no longer has a copy of the permission letter. He is an old man battling throat cancer (not that his medical condition is relevant).

Honestly, I believe him. The sub was brand new and no one knew what the heck they were doing. As another homeowner, it never bothered me that he had a shed. No one questioned it.

I want to grandfather him in. The other Boards members do not and say I don't have any just cause to do so. I am looking for any morsel to grandfather this homeowner in. Is it fair that 12 years went by and nothing was done and then all of a sudden the Association wants him to tear down his shed?

If a rule has not be enforced, is it rendered unenforceable after a certain amount of time? Help. Please.

SusanW1 (Michigan)
Posts: 5,202

Posted:

There is nothing that I know of that covers subdivision HOA regarding this. Michigan has a condo act, but not much else.

One thing for sure: all members must be treated the same.

It sounds like your HOa board has been lackidasical in enforcing its own rules or bylaws.

IMHO, you'd have a heck of of time enforcing a 12 year violation.

How old are all these other violations.

Maybe the board should look at its rule and see if its in the best interest to the HOA to awaken this sleeping lion.

TimB4 (Tennessee)
Posts: 21,047

Posted:

Check past minutes of meetings. There could be documentation there that approved the shed.

Is the no shed rule part of the CC&Rs or part of the rules/guidelines made by the Association?

If part of the CC&Rs, the Board never had authority to grant a waiver unless the prohibition on sheds was an amendment and the shed was in place prior to the amendment (aka grandfathered).

If it's part of the rules/guidelines, then the board may offer waivers as they see fit but if they waive one, they should waive all meeting the same criteria.

You should also check your governing documents. Typically there is some language that says if something isn't enforced it doesn't prevent it from being enforced in the future. Ours uses the following language:

"Failure by the Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter."

BeckyP3 (Florida)
Posts: 50

Posted:

This page (http://www.houseofmgmt.com/houseofmgmt/item_list.asp?subcat=60&subtitle=Enforcement+of+Covenants+%2D+Part+5) offers: "the Association may 'reinvigorate' the --- restriction for prospective enforcement if they properly notify the owners of their intent to enforce the restriction in the future."

LarryB13 (Arizona)
Posts: 4,099

Posted:

Unless your CC&R's mandate that the Board enforce the rules, then the Board has the discretion to choose your battles. The Board can choose to ignore any violations. If a homeowner feels offended by the presence of a shed in his neighbor's backyard he should have the same remedy that the Board has: obtain a court order to have the shed removed. Let the complainers bear the cost of their beefs. That will cut down on the number of complaints.

If I were a judge and you told me that a shed had been built in violation of the CC&R's 12 years ago, my first question would be where were you 12 years ago? Why after 12 years are you trying to enforce a rule that the Declarant may or may not have waived?

You said that a number of owners have recently built sheds. If so many owners want sheds, why not amend the CC&R's to allow them instead of waging a war of pettiness on your neighbors?

BTW, in my backyard I have a tow truck, a utility trailer, a large wooden storage box, and a metal shed. My next door neighbor has a 1965 Thunderbird and a hog (or at least a large pig) in her yard. Nearly every backyard in my neighborhood has some sort storage building. I can't understand why your Board is having fits over what people have in their backyards. My advice would be to stop looking in my backyard if you don't like what I have there.

JeanneK3 (Maryland)
Posts: 562

Posted:

Not sure about your state but in Maryland the statute of limitations on a contract is 3 years after the board knew or should have known about the violation.
Jeanne

SusanM19 (Michigan)
Posts: 5

Posted:

Thanks everyone. We are meeting with an attorney within the next week and we'll see what happens. Much discord on the Board over this issue.

We have broached the subject before about allowing sheds, and the majority of the homeowners do not want them. We need 70% vote to approve a measure for amendment.

I will let you know what happens with the attorney.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Your board has been lax over the years by not enforcing the legal documents of the HOA. That will be VERY difficult to fix.

Storage sheds in Michigan are pretty common (4 seasons need lots of "stuff")

Perhaps a place and size amendment could be passed.

Let us know what the attorney says.

(My board has not enforced a bylaw prohibiting use of HOA property, yet we have people building docks along the HOA owned property on the canals for YEARS!! What a mess!)

BarbaraP3 (Maryland)
Posts: 90

Posted:

There is a legal term called "Doctring of Laches" that I believe this issue would fall under....see below:

LACHES, DOCTRINE OF
Based on the maxim that equity aids the vigilant and not those who procrastinate regarding their rights; Neglect to assert a right or claim that, together with lapse of time and other circumstances, prejudices an adverse party. Neglecting to do what should or could, have been done to assert a claim or right for an unreasonable and unjustified time causing disadvantage to another.
Laches is similar to 'statute of limitations' except is equitable rather than statutory and is a common affirmative defense raised in civil actions.
Laches is derived from the French 'lecher' and is nearly synonymous with negligence.
In general, when a party has been guilty of laches in enforcing his right by great delay and lapse of time, this circumstance will at common law prejudice and sometimes operate in bar of a remedy which is discretionary for the court to afford. In courts of equity delay will also generally be prejudicial.

BrianB (California)
Posts: 2,820

Posted:

Quote:

Posted By BarbaraP3 on 01/25/2012 2:10 PM
There is a legal term called "Doctring of Laches" that I believe this issue would fall under....see below:

LACHES, DOCTRINE OF
Based on the maxim that equity aids the vigilant and not those who procrastinate regarding their rights; Neglect to assert a right or claim that, together with lapse of time and other circumstances, prejudices an adverse party. Neglecting to do what should or could, have been done to assert a claim or right for an unreasonable and unjustified time causing disadvantage to another.
Laches is similar to 'statute of limitations' except is equitable rather than statutory and is a common affirmative defense raised in civil actions.
Laches is derived from the French 'lecher' and is nearly synonymous with negligence.
In general, when a party has been guilty of laches in enforcing his right by great delay and lapse of time, this circumstance will at common law prejudice and sometimes operate in bar of a remedy which is discretionary for the court to afford. In courts of equity delay will also generally be prejudicial.

In layman's terms:
If a person (or group) has turned a blind eye to something, the longer they have turned the blind eye, the more likely it is the court is going to say "sorry, you should have done something before", and throw their complaint out.

Not pay attention for a week? The court is NOT going to throw your case out. Not pay attention for a year? Probably not throw it out. 5 years? Maybe, maybe not, it depends, could be... 10 years? The court is likely to say "Sorry, but you should have said something 10 years ago. It's gone, too late, see ya!" as they dismiss the complaint.

But, and a key BUT here: Doctrine of Laches applies to COURT cases. It's a legal concept, but there is no requirement that an HOA apply it to itself. So, yes, your board CAN go after the original shed. Perfectly legal (probably). But, were I the owner, I would take you to court and have the court toss out your complaint on this basis.

SusanM19 (Michigan)
Posts: 5

Posted:

Well, we had our meeting with the attorney. There is NO statute of limitations for rule violation enforcement in Michigan. In fact, the attorney thought I was being silly for asking such a question.

That the homeowner has had the shed for 12 years and the Association had done nothing about it, made no difference. The by-laws were in place when he built the shed and it was his responsibility to be in conformance with the by-laws which stipulate no sheds.

It is majority rule and I am out-voted. His shed has to come down or else the Association will have it removed.

The attorney also told us that if we didn't enforce the by-laws, other homeowners could file suit against the Association for not enforcing the rules.

Damned if you do, damned if you don't.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

In one standalone homes HOA I was member of the CC&R's led one to believe that external structures like sheds, detached garages, etc. could be built if the ARC (Architectural Review Committee) approved such.

The ARC had never approved a single detached structure (they did approve various home additions) and it soon became general knowledge they never would approve a detached structure. It had been the subject of many heated discussions between homeowners and the ARC.

The BOD received a letter from one homeowners attorney basically saying the fact that they had never approved a standalone structure was defacto saying such were prohibiting such by always disapproving such. The BOD attorney agreed that the letter/principle had merit and it all depended on how much further the homeowner decided to persue it.

The BOD was split. One faction admitted they had always said let us never approve any out building and the letter should be ignored until a legal action was filed. The other faction saying we are opening ourselves up to a law suit.

The homeowner that originally threatened legal action got other homeowners to join him and their attorney wrote a "more threatening" letter.

The issue became the center of a BOD Officer Election and the talk among homeowners. A group mounted an election campaign to replace several BOD Members. The underlying issue was many felt the BOD was run by a few folks that had been back door controlling things the way they wanted them and their use of the ARC was the straw that broke the Camels back. Others were upset they were ignoring the advice of our own lawyer.

Well several new BOD members were elected and they staffed the ARC with new volunteers. The ARC set some tight, tough, hard, costly, restrictive guidelines about out buildings but some submitted plans and some were approved.

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