It is critical for community association boards to distinguish between restrictions contained in the governing documents and the rules or regulations adopted by the board. Amendments to governing documents, such as the master deed, bylaws, or declaration, generally require owner approval and must be recorded to be enforceable. By contrast, rules and regulations are typically adopted through a simple majority vote of the board of directors.
Authority to Adopt Rules
Condominium living involves shared spaces and collective responsibilities, and the Michigan Condominium Act acknowledges that these arrangements require boards to have a degree of flexibility to address changing community needs. To facilitate this, the Act gives elected condominium directors the authority to establish rules and regulations that are binding on all unit owners, tenants, and other occupants. As stated in MCL 559.165: “Each unit co-owner, tenant, or non-co-owner occupant shall comply with the master deed, bylaws, and rules and regulations of the condominium project and this act.”
In contrast, other types of community associations, such as subdivision or non-condominium communities, do not automatically receive this statutory power. Boards in these communities can only create enforceable rules if the governing documents, like the declaration or covenants, specifically provide that authority. Absent such explicit permission, a subdivision board lacks the legal ability to impose rules on its residents.
Reasonableness Requirement
Community associations often rely on rules and regulations to provide structure, clarity, and consistency in day-to-day operations. A condominium association’s board has the implied power to adopt reasonable rules governing the use of common property, subject to statutory and document-based limitations. Michigan courts likewise require associations to act reasonably in administering their communities. Cohan v Riverside Park Place Condo Ass’n, Inc, 123 Mich App 743 (1983).
A board-adopted rule is generally considered reasonable if it is nondiscriminatory, complies with applicable laws and ordinances, and has a rational basis aimed at protecting residents’ health, safety, or welfare, or preserving the community’s financial or aesthetic interests. Additionally, a reasonable rule should achieve its intended purpose using the least restrictive means available.
Rules Cannot Expand Recorded Restrictions
Rules and regulations serve an important but limited role. They are intended to interpret, clarify, and provide practical detail to the broader restrictions and authority already established in the governing documents. What they cannot do is expand, modify, or create new substantive obligations. Boards may not use rules or resolutions to change existing restrictions or impose new ones; any such changes must be made through a formal amendment process as required by the governing documents and applicable law.
For condominiums, amendments to the master deed or bylaws generally require the approval of two-thirds of the co-owners entitled to vote (MCL 559.190(2)), with narrow exceptions for amendments deemed immaterial. Under the Condominium Act, immaterial amendments may be made without co-owner approval only if they do not materially alter the rights of co-owners or mortgagees and only if the condominium documents expressly reserve that limited amendment authority to the developer or the association (MCL 559.190).
For subdivisions, the amendment procedure is governed by the recorded declaration or covenants, which specify the percentage of owner consent required and the conditions under which amendments may be adopted. These limitations ensure that substantive changes to owners’ rights occur only with the level of approval contemplated by the governing documents.
Michigan case law reinforces this principle. In Conlin v. Upton, 313 Mich App 243 (2015), the Court of Appeals drew a clear line between interpreting a restriction and altering it. The dispute in Conlin arose after the developer of a subdivision approved construction of homes the existing owners believed were out of character with the community. Although the original restrictive covenants gave the developer sole authority over architectural approvals, the homeowners persuaded the developer to allow them to elect a board and adopt bylaws for the Association.
The new homeowner board then recorded bylaws establishing an architectural review committee and requiring owners to obtain approval and pay a fee before building. Although a majority of owners approved the bylaws, approval was not unanimous. On appeal, the Michigan Court of Appeals reaffirmed several key principles, including that bylaws operate as contracts and may contain reasonable regulations, but they must remain within the authority granted by the recorded restrictive covenants. The Court also emphasized that restrictive covenants may be amended only in the manner provided by the covenants themselves, and if the covenants include no amendment provision, as in Conlin, any amendment requires unanimous consent. Because creating a new architectural committee and adding approval fees imposed new burdens not authorized by the original covenants, these provisions were amendments rather than mere regulations. And without unanimous owner approval, they were invalid.
In short, boards are empowered to clarify, but not to rewrite. So, while an association may adopt rules to clarify existing terms, such as setting reasonable standards for determining when a “common household pet” becomes a nuisance, it may not redefine, expand, or add new restrictions beyond what the recorded covenants already provide. The Michigan Court of Appeals made clear that the recorded restrictions define the limits of regulatory authority, and any substantive expansion of those limits requires a proper amendment approved in accordance with the governing documents.
Adopting Rules
Once it is established that a proposed rule has a proper basis in the governing documents, the board can proceed with adoption. Associations should carefully review their governing documents to ensure the proper procedure is followed.
For most associations, the board can adopt a rule at a regular or special meeting, or through written consent without a meeting in accordance with either the governing documents or the Michigan Nonprofit Corporation Act (MCL 450.2525). Once adopted, the board should note the method and date of adoption. The rule should also be signed by the board president to signify formal adoption.
After adoption, owners must be notified of the new rule. Often, the governing documents will specify the method of notice, which may include mail, personal delivery, or, for co-owners who have opted in, email under the Michigan Nonprofit Corporation Act (MCL 450.2406a). Depending on the applicable governing documents, the rule may take effect upon adoption, upon delivery to co-owners, or after a specified number of days.
Takeaway
When boards exceed their authority, courts may invalidate the rule, and enforcement actions based on it may fail. This highlights the importance of carefully reviewing governing documents before adopting rules. Boards must ensure that rules implement existing restrictions rather than create new obligations.
Community association boards must balance flexibility with adherence to their governing documents. Rules and regulations are critical tools for maintaining consistency and community standards, but they must remain reasonable in scope and aligned with the recorded documents.
For further guidance, see this article outlining 11 rules a board should consider adopting, authored by MAGLAW attorney James Tocco.
