Condominium bylaw violations; Laches; Anti-waiver provision; Alterations to the exterior; Grass restoration; Nominal damages; Hideaway Valley Condominium Association (HVCA)

In this dispute over alleged condo bylaw violations, the court concluded that the trial court erred in granting defendants’ summary disposition motion “based on a finding that plaintiff’s failure to attend” an annual meeting of the condo association board “constituted unreasonable delay.” Also, the trial court erred in dismissing his claim based on the board’s failure “to enforce the deck-size restriction.” The court noted that in support of their laches argument, “defendants asserted that plaintiff should have been aware of other nonconforming decks but failed to take action against their owners. However, plaintiff testified that he was unaware of any other nonconforming decks within the development prior to initiating his lawsuit.” He further “indicated that defendants did not inform him of their intentions to expand the deck before the commencement of construction. Although the trial court appropriately accepted plaintiff’s testimony as credible when ruling on the” summary disposition motion, it “nonetheless concluded that [he] was not reasonably diligent in exercising his rights due to his absence from the annual meeting held on” 9/25/21. But the record did not show “that plaintiff would have been aware that the defendants’ deck extension would be addressed as an agenda item at the annual meeting. The topic was discussed during a board meeting on [9/10], and this discussion was documented in the meeting minutes, albeit without extensive detail. The emails sent” before the 9/25 “annual meeting did not address the deck or various deck sizes whatsoever.” This record established, “at a minimum, a genuine issue of fact regarding whether plaintiff would have realized the necessity of attending the annual meeting to object to defendants’ proposed deck extension.” The court also found the trial court’s reasoning in dismissing his claim based on lack of board enforcement of deck-size restrictions “was incorrect because the HVCA bylaws contain an anti-waiver provision, which means that the board’s inaction should not invalidate plaintiff’s claim.” While the trial court did not use the term “waiver” in its decision, it “ruled that enforcing the restriction against defendants would be unjust, especially since the HVCA board had allowed four other decks that did not conform to this restriction. This situation directly contradicts the anti-waiver clause included in the bylaws.” Thus, the trial court erred in granting defendants’ motion “based on this reasoning.” Affirmed in part, vacated in part, and remanded.