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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. 5796

October 10, 1980

CONDOMINIUMS:

Ownership of units

COUNTIES:

Road commission--abandonment of a county road

HIGHWAYS AND ROADS:

Abandonment of county road

Notice to abutting owners

The individual co-owners of units in a condominium project abutting a county road proposed to be abandoned and discontinued must either sign the petition for abandonment or receive notice of hearing on the petition for discontinuance of the county road.

Honorable James A. Barcia

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion in the following matter:

'In dealing with the abandonment and discontinuance of county roads, M.C.L.A. Section 224.18 requires certain consents and notices of 'Owners of record and occupants of land abutting' such roads.

'My question is 'Who or what constitutes such 'owners of record and occupants' if the abutting land is in a condominium? Is it the individual co-owners or the Board of Directors of the Condominium Association?"

1909 PA 283, ch IV, Sec. 18; MCLA 224.18; MSA 9.118, empowers boards of county road commissioners to abandon and discontinue any county road or part thereof by resolution in accordance with the following procedures pertinent to your question:

'. . . Provided, That the said board of county road commissioners shall not absolutely abandon and discontinue any highway, or part of highway, upon or along which there shall be any building of any character, except as hereinafter provided, upon the written petition of 7 or more freeholders of the township in which said road is sought to be absolutely abandoned and discontinued. Said petition for absolutely abandoning and discontinuing said highway shall describe said road in general terms or by any name by which it is known, and if the absolute abandonment and discontinuance of only a portion of any road is asked for, such portion shall be specified. Such petition shall be accompanied by a true and correct list of the names and mailing addresses of the occupants of each parcel of land abutting the highway, or portion thereof, sought to be absolutely abandoned and discontinued, which list shall be certified to under oath by 1 of the persons making or presenting such petition.

'Whenever such petition for absolute abandonment and discontinuance of said road or portion thereof, shall contain the signatures of all of the owners of record and occupants of land abutting thereon, as ascertained from the records in the office of the register of deeds and the certified list above provided for, the board of county road commissioners shall, within 20 days after receiving the same, determine the advisability of such abandonment and discontinuance and either grant or deny said petition without further proceedings thereon. In all other cases said board shall, within 20 days after receiving such petition, issue a written notice stating the object of such petition and appointing a time and place of hearing, which notice shall be served on the owners of record and occupants of lands through or adjoining which it is proposed to absolutely abandon and discontinue such road, by mailing a copy thereof by first class mail to the residence of each owner of record or occupant at his last known address, at least 10 days before the time of hearing, and if the owner shall not reside upon such lands and/or the owner of record or occupant thereof cannot be found within the county in which said lands are situated, the notice to the owner of record or occupant of such lands shall be served by posting up the same in 3 public places in the township in which said road is situated, and by publishing the same in a newspaper circulated within the county, 10 days before the time of hearing. . . .'

Thus, the owners of record, as ascertained from the records in the office of the register of deeds, must either sign the petition for abandonment, or, in the case where the signatures of all of the owners of record and occupants of the land are not contained in the petition, notice of hearing on the petition shall be made by mailing a copy thereof by first class mail to the residence of each owner or occupant at his last known address at least ten days before the time of hearing.

The Condominium Act, 1978 PA 59; MCLA 559.101 et seq; MSA 26.50(101) et seq, governs the establishment, regulation and administration of condominiums.

1978 PA 59, supra, Sec. 61, provides as follows:

'Upon the establishment of a condominium project each condominium unit, together with and inseparable from its appurtenant share of the common elements, shall be a sole property subject to ownership, mortgaging, taxation, possession, sale, and all types of jurisdical acts, inter vivos or causa mortis independent of the other condominium units.'

In 1978 PA 59, supra, Sec. 63, the Legislature has provided:

'Each co-owner has an exclusive right to his condominium unit and has such rights to share with other co-owners the common elements of the condominium project as are designated by the master deed.'

OAG, 1975-1976, No 4933, p 303 (February 19, 1976), concluded that co-owners had individual interests in a private street in a condominium, and, thus, it was necessary to obtain the consent of all co-owners and other persons interested in the condominium in order to dedicate the private street to public use. The private street sought to be dedicated constituted one of the common elements of the condominium project. Here, the co-owners have individual interest in the common elements abutting the county road sought to be abandoned or discontinued.

It is my opinion, therefore, that all of the individual co-owners of the units in the condominium project abutting a county road proposed to be abandoned and discontinued must either sign the petition for abandonment or receive notice of hearing on the petition for discontinuance of the county road.

Frank J. Kelley

Attorney General


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