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GregoryR1 (Michigan)
Posts: 7
Posted:
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. Please help before my board hearing. Thank you.
JamesB37 (California)
Posts: 351
Posted:
A lot of law firms like to publish 'blogs' where they talk about things like this.

Keep in mind, I am not an attorney and I don't even live in Michigan but a quick search turned up this blog from a Michigan law firm and it looks like it may be 6 years... Keep in mind, in California for example, there is a caveat - when the HOA knew or should have known

A quote from the blog in case the link doesn't work
"The action was filed in August 2013, and the court found that applicable six-year statute of limitations on those causes of action had expired in June 2013, just two months earlier"

https://meisner-law.com/michigan-condo-learns-hard-lesson-in-statutes-of-limitations/
MarkM19 (Texas)
Posts: 1,459
Posted:
Grey,
Also, not a lawyer. The angle you may want to try if they are just now starting to enforce this rule is to claim since you have done this for the last 8 years and others have also done it for years, they should implement a Grandfathered clause.

I am a board member and usually side with the HOA and it's rule. The fact that this has been unenforced for so long they may have some issues starting now.

I am assuming a new board has been seated recently and they intend to enforce the rules as written.
TimB4 (Tennessee)
Posts: 21,062
Posted:
You also need to check your governing documents and see if the Association is required to enforce or, like any member, has the option to enforce.

If they have the option, I would side more with the HOA providing they are now enforcing on everyone who is not in compliance.

If they have a requirement, I would side more with you as the Association knew, or should have known, about the trailer being there for that length of time and failed to enforce as required.

Mind you, a lot more details would be needed to solidify which side I would be on.

My suggestion:

1) move the trailer or request a hearing
2) Talk to others who own trailers and see if they got a similar notice (looking for selective enforcement).
3) Be polite at the hearing and ask for compromise

Option:

Pony up some funds and speak with an attorney (after you discover if this is being enforced on everyone or just you).
ElleN (Idaho)
Posts: 4,420
Posted:
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. Please help before my board hearing.
James's citation is n/a. I expect in Michigan there is no statute of limitations for covenant enforcement. Instead your defense would lie in whether the covenant is effectively "abandoned" and can no longer be enforced. If you want more information specific to Michigan on this topic, post back.
CathyA3 (Ohio)
Posts: 6,299
Posted:
One thing to keep in mind with any HOA dispute: once you're looking at getting lawyers involved, you really need to take a hard look at whether or not there may be cheaper and quicker solutions (eg. finding a storage place for your trailer). Legal action is expensive (for you and for the HOA/your neighbors), it can take forever, and there are no guarantees that you'll win - and that's assuming you'll find a lawyer to take the case.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Sounds like you have a new board in your HOA. Also do NOT assume that no one has been notified. You can't know if they have or not just because it is still not moved. Just like you, they may be wanting to hire a lawyer or giving the HOA a big "Screw you it's staying". Which in many cases when you see a violation not being corrected.

Now what you and your neighbors CAN do with a lot less money and lawyers... You all can CHANGE the rule! Yes! If you do not like a rule or think it's outdated/not valid, it can be changed! Your documents are to reflect how you and your neighbors want the "rules" to be. If you get 51% to 100% (whatever required) that want the rule changed, then there you go.

It is much cheaper and better solution to change the rules you and your neighbors don't want than to enforce them because they are written... Your documents have everything in them on how to change the rules. I'd suggest you read that process. A lawyer will be needed but it will be for good not evil... Meaning they will help draft the changes and file them appropriately.

Former HOA President
KerryL1 (California)
Posts: 14,550
Posted:
First, Gregory, are you sure this is in your "Bylaws?" Instead might it be in some other governing document? which one?
GregoryR1 (Michigan)
Posts: 7
Posted:
Yes, our by-laws state that you cannot have a trailer or boat in your driveway or on your property.
GregoryR1 (Michigan)
Posts: 7
Posted:
Thank you for your assistance. I appreciate it.
GregoryR1 (Michigan)
Posts: 7
Posted:
This is not a new board but for some reason, they are enforcing a few select rules, but not all of them. Just the one they feel are important.
GregoryR1 (Michigan)
Posts: 7
Posted:
Yes, our master deed and bylaws state the board had a duty to act on all documents of the association. They must enforce all the by-laws. They have not sone this for 22 years. They just pay the bills and keep up the common areas. No enforcement of any kind. In the news letter thay ask the members to follow certain rules but never send anything after that.
CathyA3 (Ohio)
Posts: 6,299
Posted:
Just one observation:

There have been cases when a court has ruled that a particular rule is no longer enforceable since it's been ignored for a number of years.

The problem with that interpretation is that any HOA/COA is looking at a war of attrition. Boards can vary widely in their ability to do the job. After years of poor enforcement, the number of restrictions that are no longer enforceable will increase. I'd be surprised if lawmakers intended this to be an end-run around the provisions attached to deeds, and I'd be surprised if any lawyers or judges thought that this should be the consequence of their rulings. But it is. Just because it happens piecemeal doesn't mean that it doesn't happen.

Nobody thinks about the long-term consequences of their actions and decisions... (This ends CathyA3's Rant du Jour.)
GregoryR1 (Michigan)
Posts: 7
Posted:
Thank you, I would appreciate any and all information on this subject.
ElleN (Idaho)
Posts: 4,420
Posted:
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.

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