The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5411

December 19, 1978

CONDOMINIUM ACT:

Continuing validity of documents approved and recorded under the predecessor Horizontal Real Property Act

Multiphase condominium projects approved under the Horizontal Real Property Act which was repealed and was succeeded by the Condominium Act may be expanded within the limits already approved pursuant to the Horizontal Real Property Act.

Documents approved and recorded under the Horizontal Real Property Act which was repealed and was succeeded by the Condominium Act are still applicable to co-owners of condominiums subject to the requirements of section 21(5) and 68 of the Condominium Act.

Mr. Keith Molin

Director

Michigan Department of Commerce

4th Floor

Law Building

Lansing, Michigan 48909

You have requested my opinion regarding the continuing validity of documents approved and recorded under the Horizontal Real Property Act, 1963 PA 229, as amended; MCLA 559.1 et seq; MSA 26.50(1) et seq.

The problem arises because the Condominium Act, 1978 PA 59; MCLA 559.101 et seq; MSA 26.50(101) et seq, repeals the Horizontal Real Property Act, 1963 PA 229, supra, and establishes registration requirements which are more comprehensive than those contained in the predecessor legislation. Thus, developers who have established condominium projects, obtained approval of master deeds and received permits to sell one or more phases of a multi-phase project, are concerned that mandatory compliance with the Condominium Act, 1978 PA 59, will require substantial revision of the existing and previously approved condominium project to be compatible and consistent with later phases of the project. Additionally, co-owners of condominium apartments approved under the Horizontal Real Property Act, 1963 PA 229, supra, are concerned with the additional requirements placed on co-owners by the Condominium Act, 1978 PA 59, supra.

Your questions may be stated:

1. With regard to multi-phase condominium projects approved under the previous Horizontal Real Property Act, 1963 PA 229, may they continue to expand within the limits already approved pursuant to the provisions of 1963 PA 229 or must they now comply with the Condominium Act, 1978 PA 59?

2. Are the documents approved and recorded under the Horizontal Real Property Act, 1963 PA 229, supra, still applicable to co-owners of such condominium apartments?

The Condominium Act, 1978 PA 59, Sec. 21(3) provides:

'A condominium project or condominium unit which was approved under Act No. 229 of the Public Acts of 1963, as repealed, may be offered for sale without further compliance with the enabling sections of this act except as provided in subsections (4) of (5).' MCLA 559.121(3); MSA 26.50(121)(3)

Subsections (4) and (5) referred to above establish requirements to be met by developers of condominium projects approved under 1963 PA 229, supra, and associations of co-owners of condominium projects approved under 1963 PA 229, supra.

The statutory language of 1978 PA 59, Sec. 21(3) clearly provides that condominium projects approved under the Horizontal Real Property Act may continue to expand within the limits already approved pursuant to the provisions of 1963 PA 229. The phrase 'approved under Act No. 229 of the Public Acts of 1963, as repealed', as used in 1978 PA 59, Sec. 21(3), supra, refers to the approval of a master deed as specified in 1963 PA 229, supra, Sec. 7.

Your second question concerns the validity of documents approved and recorded under the Horizontal Real Property Act as to co-owners of condominium apartments. Such documentation consists of the master deed and condominium by-laws. The Condominium Act, 1978 PA 59, Sec. 1970, supra, provides:

'This act does not impair or affect any act done, offense committed or right accruing, accrued or acquired, or a liability, penalty, forfeiture or punishment incurred before this act takes effect, but the same may be enjoyed, asserted and enforced, as fully and to the same extent as if this act had not been passed. . . .' MCLA 559.270; MSA 26.50(270)

Therefore, the documents approved under the predecessor legislation may be relied upon by co-owners subject to the requirements of 1978 PA 59, Secs. 21(5) and 68, supra.

Frank J. Kelley

Attorney General