Q: A co-owner in my condominium development erected a flagpole on a common element without permission of the board. There is an American flag flying on it along with a college flag.
I feel this is plain wrong, looks ridiculous and should be taken down. Our board does not want to intervene with this issue — the president stated she is “tired” and does not want to confront this difficult co-owner. I feel this will eventually create many problems.
What can and should be done?
A: Your instincts are correct. The Michigan Condominium Act provides that “A developer or association of co-owners shall not prohibit a co-owner from displaying a single United States flag of a size not greater than 3 feet by 5 feet anywhere on the exterior of the co-owner’s condominium unit.” That does not mean that co-owners get to modify the common elements. The association must not allow unauthorized modification of the common elements, and the other flag may constitute a violation of the governing documents. If the association allows this, it may very well snowball into greater problems down the road because others will want to do the same or a similar thing. The association will be in a weak position if it tries to enforce something against one person when it was allowed for another It may face claims of disparate treatment.
If the president is “tired” of enforcement, it is time to elect someone to replace her on the board and, assuming the other board members are complacent, time to replace them as well. If you are not yet a director, I recommend that you run for the board along with some like-minded people in the next election if it is coming up soon. If you recently had an election, you may not want to wait another year. In that case, you will likely want to begin a petition drive to call a special meeting of members to vote on recall of the board. Consult with an experienced community association attorney to determine how to go about this in conformance with state statute and your governing documents.
If you simply do not have the time or are otherwise unable to serve on the board of directors, you still have legal recourse.
In my prior column, I referred briefly to the co-owners’ right to file a “derivative action” lawsuit when the board shirks its duties. When co-owners bring a derivative action, they are seeking to force the board’s hand by court order to do something that it is refusing to do, such as enforcement of the governing documents. Statute provides a 90-day period from the date a written demand was made on the board before a derivative action may be filed. Your attorney can assist you with making such a demand.
When responding to your derivative action, I believe the association will have a difficult time showing that your demand for enforcement is not in the best interests of the association, and you may be able to recoup your attorney’s fees and costs. First consulting your attorney.