Quote:
Posted By GregoryR1 on 01/19/2023 9:29 AM
Can anybody tell me if the is a statute of limitation In Michigan for enforcing a by-law? Our HOA has a by-law that states you cannot keep a trailer or boat in your driveway. Our HOA Is 22 years old. Now they sent me a letter that I have to remove my trailer. They have never asked anybody to move their boat or trailer in 22 years. My trailer has been in my driveway for 8 years.
I suggest presenting a copy of the following to the board and reading it aloud at the hearing:
Dear Board of Directors,
The HOA has charged me with violating the bylaw prohibiting trailers and boats in driveways. My understanding is that this bylaw has never been enforced. Do you have any proof showing otherwise?
If the bylaw has never been enforced, then I understand that this may legally represent "acquiescence" to the violation. The "acquiescence" legally amounts to a de facto amendment to the by-laws and "waiver" or "abandonment" of the bylaw.
I understand the fact that there are so many owners here who have had boats and trailers in driveways, and the fact that this has changed the character of the neighborhood is also legally important. I am not an attorney. But I respectfully ask that you give some thought to case law appearing here, with attention to the discussion of "acquiescence" and "waiver":
https://casetext.com/case/chreston-v-lake-huron-manor-assn (Michigan Court of Appeals, 2022)
https://casetext.com/case/cherry-home-assn-v-baker (2019-ish)
https://casetext.com/case/bloomfield-estates-v-birmingham (Michigan Supreme Court, 2007)
If this matter goes to court, and I hope we agree how expensive and undesirable litigation is, I think the principles discussed in these Michigan court decisions might help form the basis of my defense.
Thank you for all the hard work you do.
Sincerely,
Gregory R.
[Address
email addie
phone number]
Gregory, be aware that Michigan courts likely will not care all that much about the fact that many other (all?) bylaws were never enforced. I think they will mostly home in on this one restriction; its importance to the "character" of the neighborhood; how many violations there are throughout the HOA; and how there's no proof that the bylaw has ever been enforced (if you are certain about the latter and the board cannot prove otherwise).
Be aware that where Michigan calls a "land use restriction" a "bylaw," other states call such restrictions "covenants." It's a peculiarity of Michigan HOA language.
From the Cherry Home decision, I found this most helpful in explaining where Michigan courts are on this topic:
Whether a restriction has been waived is a question to be determined on the facts of each case presented. O'Connor, 459 Mich. at 344. Frequent, unobjected-to violations of a restriction are suggestive of abandonment of a restriction. Taylor Ave Improvement Ass'n v Detroit Trust Co, 283 Mich. 304, 311; 278 N.W. 75 (1938). However, the sheer number of violations does not necessarily establish waiver of the restriction. See Carey v Lauhoff, 301 Mich. 168, 174; 3 N.W.2d 67 (1942). "The character, as well as the number, of claimed violations must be considered in determining whether the complaining property owners have waived or forfeited the benefit of the restriction." Id. "There is no waiver where the character of the neighborhood intended and fixed by the restrictions remains unchanged." Rofe v Robinson (After Second Remand), 126 Mich.App. 151, 155; 336 N.W.2d 778 (1983). In other words, waiver might occur if unaddressed violations effectively destroy the purpose of the restriction. See O'Connor, 459 Mich. at 346.
...
In Carey, 301 Mich. at 168, the defendant operated a general rooming and boarding house in violation of a single-dwelling use restriction. The defendant argued that the restriction had been waived because there were or had been 23 other rooming houses in the 189-lot subdivision. Id. at 173-174. But our Supreme Court noted that the violations alleged by the defendant consisted of only two or three instances of residents on the defendant's street renting a room or two. Id. at 175. The Court agreed with the trial court that the violations were not conspicuous or readily ascertainable, had not changed the residential character of the neighborhood, and were not of the scope and character of the defendant's violation. Id. at 174-175. Additionally, "in the past plaintiffs or others have been somewhat active in instituting suits and in giving notices to persons who sought to violate the restrictions." Id. at 174. The Court concluded that by allowing the previous violations, the plaintiff did not waive enforcement of the restriction against the defendant. Id. at 175.
Defendants in this case contend that for over 50 years, plaintiff failed to enforce the residential use restriction and that short-term rental activity has been so prevalent that the restriction "provided little or no benefit to the other properties for the entire duration of the community (or at least until the last few years)." They contend that the evidence presented at trial "clearly indicated that the character of Cherry Home was never intended to be, nor has it ever been, of a nature that would prohibit [short-term rental]." Defendants maintain that it was difficult for the trial court to find a change in character in Cherry Home because the character of Cherry Home "has always been one that recognized and encouraged [short-term rental]." They point to testimony that former association board members engaged in short-term rental of their properties. (Footnote: Defendants have not cited any authority that the ultra vires actions of a board member bind the association.) A review of the testimony adduced at trial does not support the factual premise of defendants' argument.