1.9Condominiums

“In Michigan, condominium ownership is governed by the Condominium Act, MCL 559.101 et seq.” Janini v London Townhouses Condo Ass’n, ___ Mich ___, ___ (2024). “A condominium co-owner is ‘a person, firm, corporation, partnership, association, trust, or other legal entity or any combination of those entities, who owns a condominium unit within the condominium project.’” Id. at ___, quoting MCL 559.106(1). “Pursuant to the Condominium Act, the administration of a condominium project is governed by the condominium bylaws. MCL 559.153. Bylaws are attached to the master deed and, along with the other condominium documents, the bylaws dictate the rights and obligations of a co-owner in the condominium.” Janini, ___ Mich at ___ (quotation marks and citation omitted). “The condominium’s common elements are ‘the portions of the condominium project other than the condominium units.’” Id. at ___, quoting MCL 559.103(7). “If provided by a master deed, condominium co-owners may hold an undivided interest in the common elements, MCL 559.137, and except as otherwise provided by the Act, a condominium co-owner may not alter the common elements.” Janini, ___ Mich at ___, citing MCL 559.137(5) and MCL 559.147(1).

“[A] condominium association is a separate legal entity that is capable of being sued.” Janini, ___ Mich at ___. “MCL 559.207 governs causes of action between a condominium co-owner and a condominium association as they relate to violations of a condominium project’s governing documents.” Janini, ___ Mich at ___, citing MCL 559.207 (“A co-owner may maintain an action against the association of co-owners and its officers and directors to compel these persons to enforce the terms and provisions of the condominium documents.”). See also MCL 559.215(1) (“A person . . . adversely affected by a violation of or failure to comply with this act, rules promulgated under this act, or any provision of an agreement or a master deed may bring an action for relief in a court of competent jurisdiction.”).

“While the statutory scheme is silent as to whether a common-law duty is afforded to a condominium co-owner from a condominium association, nothing in the Condominium Act clearly prohibits the application of the common law to these circumstances.” Janini, ___ Mich at ___. “The fact that the Legislature sought to codify a remedy for the violation of a condominium project’s governing documents does not lead us to believe that the Legislature necessarily intended to displace common-law causes of action between a condominium co-owner and a condominium association.” Id. at ___ (stating that “the codification of a distinct remedy under MCL 559.207, which provides guidance as to when an injunction to compel enforcement of the condominium documents is appropriate, does not expressly or impliedly eliminate remedies available under the common law”).

“What the Legislature said in the Condominium Act is that condominium co-owners can pursue an action that compels a condominium association to enforce the provisions of the governing documents.” Janini, ___ Mich at ___. “The Legislature has not said that the codification of this distinct cause of action is intended to displace common-law causes of action, such that a condominium association is effectively immune from tort liability.” Id. at ___ (stating that “whether a condominium co-owner may maintain a premises-liability suit against a condominium association depends on whether a special relationship exists between the co-owner and the condominium association as the owner, occupier, or possessor of the land, such that the law will impose a duty of care on the condominium association”).

A.Co-Owner’s Premises-Liability Action Against Condominium Association

“The proper inquiry when considering the duty owed in a premises-liability action is who has possession and control over the land where a person was injured, not merely who owns the land.” Janini, ___ Mich at ___. “Historically, Michigan has recognized that the duty a possessor of land owes to a person who enters the land depends on whether the visitor is classified as an invitee, a licensee, or a trespasser.” Id. at ___. “A licensee is a person who is privileged to enter the land of another by virtue of the possessor’s consent.” Id. at ___ (quotation marks and citation omitted). “A trespasser is a person who enters upon another’s land, without the landowner’s consent.” Id. at ___ (quotation marks and citation omitted).

“An invitee is a person who enters upon the land of another upon an invitation which carries with it an implied representation, assurance, or understanding that reasonable care has been used to prepare the premises, and make it safe for the invitee’s reception.” Id. at ___ (cleaned up). “Invitee status is commonly afforded to persons entering upon the property of another for business purposes.” Id. at ___ (cleaned up). “[W]hen the master deed and bylaws governing a condominium complex provide that the condominium association is responsible for maintaining the common areas and the condominium’s co-owners lack possession and control over those common areas, a condominium co-owner using the condominium complex’s common areas and elements is an invitee.” Id. at ___. “In such circumstances, a condominium association owes a condominium co-owner a common-law duty to exercise reasonable care to protect them from dangerous conditions in the common areas.” Id. at ___.

“An invitee is entitled to the highest level of protection under premises liability law.” Id. at ___ (cleaned up). “Land possessors owe a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land.” Id. at ___. “A landowner owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved.” Id. at ___ (quotation marks and citation omitted). “The law imposes no additional duty of inspection or affirmative care to make the premises safe for the licensee’s visit.” Id. at ___ (quotation marks and citation omitted). “The landowner owes no duty to the trespasser except to refrain from injuring him by wilful and wanton misconduct.” Id. at ___ (quotation marks and citation omitted). Notably, “these special relationships are predicated on an imbalance of control, where one person entrusts himself to the control and protection of another, with a consequent loss of control to protect himself.” Id. at ___ (cleaned up) (stating that “the party in possession is in a position of control, and normally best able to prevent any harm to others”) (quotation marks and citation omitted).

“[T]he practical reality of the relationship between a condominium co-owner and a condominium association . . . is often like that of a landlord and a tenant.” Id. at ___ (“recogniz[ing] that a ‘special relationship’ exists between a landlord and its tenant”). “[C]ondominium co-owners often do not independently exercise exclusive ownership over the common elements.” Id. at ___. “Rather, condominium co-owners cede control over those common elements to the condominium association, and it becomes the responsibility of the condominium association to maintain those common elements.” Id. at ___. Accordingly, “while condominium co-owners have an undivided interest in the common elements, that interest does not necessarily amount to control over the common elements.” Id. at ___ (citations omitted). “[T]he practical reality [was] that while plaintiff [in Janini] was a co-owner of the common elements, he did not enjoy exclusive control over them, which one typically associates with land possession.” Id. at ___.

Next, the Janini Court “consider[ed] whether the special relationship between plaintiff and defendant is one of an invitee and a land possessor.” Id. at ___. Courts “consider whether an individual enters the land by invitation” in order to determine “invitee status.” Id. at ___. “Invitee status is commonly afforded to persons entering upon the property of another for business purposes.” Id. at ___ (cautioning that “the phrase ‘the land of another’ does not necessarily equate to ‘the land of another owner’”). Instead, “to sustain a premises-liability case, the land on which a person is injured is land over which another person or entity has possession and control.” Id. at ___ (reiterating “that the proper inquiry when considering the duty owed in a premises-liability context is who holds possession and control over the land where a person was injured and not merely who owned the land”).

In Janini, the condominium co-owners were in a business relationship with the condominium association because (1) they “paid money to the condominium association to maintain the common elements for their own use and enjoyment,” (2) their “ability to purchase a condominium unit, along with their rights to use the common elements, [were] subject to the condition that [they] pay these dues to the condominium association and cede their individual authority over the common elements to the association,” and (3) they “were assured that the premises would be made safe for [their] use.” Id. at ___. Considering these circumstances, “the Court of Appeals erroneously determined that a condominium co-owner is neither a licensee nor an invitee and thus is precluded from bringing a premises-liability claim against a condominium association simply because the condominium co-owner holds an interest in those common elements.” Id. at ___. The Janini Court held that the condominium co-owner “was an invitee when he entered the condominium’s common area and that defendant owed him a duty to exercise reasonable care to protect him from dangerous conditions on the land.” Id. at ___ (holding that the co-owner could maintain a premises-liability action against the condominium association under this framework).

B.Conversion Condominium Projects

The Condominium Act has as its focus the protection of potential unit purchasers, developers and co-owners.¹ Local ordinances may exist that provide additional protection to tenants in a conversion project.

The developer of a conversion condominium project is required to give notice to all existing tenants of any unit in the project that is proposed to be converted to a condominium. MCL 559.204(2). The notice must be physically delivered or sent by first-class mail to each unit and addressed to the unit’s tenant.  MCL 559.204(2)(d). In addition, no tenancy, whether month-to-month or otherwise, can be terminated by the lessor without cause within 120 days of such notice.² Id. However, a tenant who receives notice of a proposed conversion “may terminate his or her tenancy, at any time, if notice of termination of tenancy is given to the developer not less than 60 days before the date of termination.” MCL 559.204(3).

At the same time notice is given under MCL 559.204, the developer must also “notify each existing [qualified] tenant^[3] . . . of the right to elect an extended lease arrangement and the terms and conditions of an extended lease arrangement.” MCL 559.204b(3). A qualified senior citizen or a qualified person with a disability must communicate his or her election of an extended lease arrangement to the developer within 60 days of the receipt of notice.  Id.

An extended lease arrangement must be in writing and must comply with MCL 559.204b(4)(a)-(d).

Except as provided in MCL 559.204d,⁴ a qualified senior citizen is eligible for a year-to-year renewal of the extended lease arrangement. MCL 559.204b(5). The period of renewal is based upon the age of the resident; advancing age increases the number of year-to-year renewals allowed.  See id:

•A person who is between the ages of 65 and 69 is eligible for year-to-year renewals for four years, subject to a two-year limitation where sufficient loan funds for the developer are not available from the state housing development authority. MCL 559.204b(5)(a).

•A person who is between the ages of 70 and 74 may renew year to year for six years.  MCL 559.204b(5)(b).

•A person who is between the ages of 75 and 79 may renew year to year for seven years. MCL 559.204b(5)(c).

•A person who is 80 years of age or older may renew year to year for 10 years. MCL 559.204b(5)(d).

“Except as provided in [MCL 559.204d⁵], a person who is a qualified person with disabilities on the date of receipt of the notice required under [MCL 559.204(2)] may renew a lease subject to an extended lease arrangement year to year for 4 years; or, if the qualified person with disabilities is also a qualified senior citizen, for the number of years provided in [MCL 559.204b(5)], whichever is greater.” MCL 559.204b(6).

The Condominium Act prohibits the assignment, devise, sublease, or transfer of extended lease arrangements, MCL 559.204b(8), and provides for automatic termination upon the death of a qualified senior citizen or qualified person with disabilities, MCL 559.204b(9). In addition,

“a surviving spouse of a qualified senior citizen who is 65 years of age or older at the time the qualified senior citizen dies shall have the right to execute a lease under an extended lease arrangement subject to the right of renewal, and other conditions, that applied to the deceased. A surviving spouse who does not qualify for an extended lease shall have 6 months in which to vacate the premises, during which time the conditions of the deceased spouse’s extended lease shall apply, except for the right of renewal.” MCL 559.204b(9).

With respect to condominium conversions, Congress adopted the Condominium and Cooperative Conversion Protection and Abuse Relief Act of 1980, 15 USC 3601 et seq., which requires state and local governments to provide existing tenants with adequate notice so that they have the first opportunity to purchase units in rental projects that are being converted. 15 USC 3605.