In Dearborn West Village Condominium Association v Mohamed Makki, No. 340166 (January 2019), the Michigan Court of Appeals held that a condominium association could enforce its bylaws even though it had failed to do so in the past, where the bylaws contained an anti-waiver provision. An anti-waiver provision is a provision that states that the failure to enforce a right under the contract does not constitute a waiver of that right.
This dispute in this case arose from enforcement of a condominium associations bylaws against defendant. Defendant purchased five condominium units and rented all five of them to third parties, despite the fact that leasing condominium units was prohibited under the condominium’s bylaws. Under the bylaws, leasing units was only allowed if the owner was forced to relocate due to work and could only be leased for the maximum of two years. Plaintiff condominium association filed a compliant seeking to enforce its bylaws and terminate defendant’s rental activity.
The defendant contended that the condominium association had waived its right to enforce the rule prohibiting leasing of condominium units because of the board’s failure to enforce that bylaw in the past. Defendant argued that the actions of the board members either bound plaintiff, such that plaintiff cannot enforce the bylaws at issue, or modified the bylaws in accordance with the principle of parties’ freedom to contract.
The Court of Appeals disagreed and held that the plaintiff was not bound or obligated to accept or approve of the leasing on condominium units in violation of its bylaws even though board members in the past failed to comply with the provision. The anti-waiver clause in the bylaws provided plaintiff with the authority to enforce its bylaws, even if co-owners or prior board of directors failed to do so, and nothing in the record indicates that the co-owners amended the bylaws to allow for defendant’s use of his units as rental properties.
A link to the opinion can be found here: https://law.justia.com/cases/michigan/court-of-appeals-unpublished/2019/340166.html
This article was written by Ryan Hansen, Law Clerk
