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MODIFICATION AGREEMENTS
By Robert M. Meisner
Frequently, the association will be called
upon to determine whether or not a modification to the
common elements, be it general or limited, should be
approved by the board of directors. The condominium bylaws
normally provide the standards under which the board should
operate in approving the modifications. Generally speaking,
the provision provides that the modification must not impair
the soundness, safety or appearance of the condominium. The
board is generally given wide latitude in either approving
or disapproving modifications so long as the person seeking
the modification is not a disabled person, as defined in the
Michigan Civil Rights Act, or does not have someone who
regularly visits the condominium unit who is disabled, in
which case the standards are different.
The important thing for an association to understand in
reviewing modification requests is whether, in the first
instance, the board of directors has the authority to grant
the modification. Indeed, many times the board is asked to
allow modifications which are really an expropriation of
common elements to the exclusion of other co-owners, which
is beyond the authority of the board to grant. Assuming,
however, that the board has checked with counsel to
determine that the modification is within its scope of
responsibility and authority to approve or disapprove, the
modification agreement should be prepared by the
association’s attorney to be used by the association and
co-owner to set forth the terms and conditions of the
modification. One reason for this is to ensure that future
purchasers of the condominium unit will know what the terms
and conditions of the modification approval were since the
agreement should be recorded with the County Register of
Deeds against the unit which is sought to be modified
putting on all purchase or construction notice or agreement.
The modification agreement should also provide adequate
protection to the association by way of indemnity and hold
harmless for any damage suffered by the association to the
common elements or other premises or elements of the
condominium occasioned by the modification. The cost of the
modification agreement, including its preparation, should be
borne by the co-owner, as well as any other financial
requirement which the association requests. In addition, the
plan setting forth the modification should be attached to
the modification agreement so there is no question as to the
detail and specifications which will be used in connection
with the modification.
In short, it is important that the
association document approvals given in connection with
modifications and that a comprehensive agreement be utilized
to ensure that the parties are protected and that the terms
and conditions of the approval are clearly set forth.
Dated: 08/24/2004
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