Q: Are one-way provisions in condominium bylaws enforceable in Michigan? Specifically for attorney fees and costs?
I am a Realtor representing the seller of a condo with 16 units. The condo rules provide that everybody pays a monthly fee/due and included in that fee is the use of water, sewer, and heat. There are no meters establishing what unit uses what and never has been. My Seller uses the condo 6 weeks out of the year. Long story short, a toilet ran for three weeks and a higher than normal water bill occurred. The association has now filed a lien against my Seller. The Bylaws establish that the association can get compensated costs and fees pertaining to pursuing remedies, however, the co-owner cannot if he is successful in defending himself. The lien, based on the documents, is clearly frivolous, and it's evident that they are leaning on the fact that they can take advantage of the situation and force my Seller to pay a fee that can't be substantiated as solely his. It seems that this would create unfair bargaining power and allow the association to abuse the rules due to the cost of defense.
A: 'Unilateral' provisions are not per-se improper, but you're 'gut' that this is rather unfair isn't wrong. It is an argument against buying a condo or entering into ANY 'contract of adhesion' but it isn't 'illegal'.
For example, your cell phone contract binds YOU to a certain term of years/months, but allows the cell phone company to change the rate they charge at any time. When you enter into a listing agreement, if the seller crosses off your x% commission and writes in 'you're going to do this for free' is it 'fair' for you to refuse to enter into that agreement? Contracts are a 'meeting of the mind' where one person agrees with another on how something is to be done. "Exact parallel construction' of the agreement is not required.
So to your question 'Is that 'fair'? Maybe not, but it isn't also illegal. Looked at another way, is it 'fair' to the other condo owners that your unit used so much more water and they are now required to pay a portion of it? Why is it 'fair' for there to be only one meter on all those units? There is a lot of 'unfairness' to go around here.
More to the point, is the lien really 'clearly' frivolous? Without seeing the documents it is hard to say.
Seems like your best bet is to hire an actual real estate attorney in the county where the condo is located who can then review the actual condo documents and provide some real legal advice about the best way to proceed. Without reading all the documents we're just swinging in the dark.
-- This answer is offered for informational purposes only and does not constitute legal advice or create an attorney/client relationship.
I am licensed to practice in Michigan only. Please seek competent local legal help if you feel you need legal advice
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