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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)



Opinion No. 5810

October 21, 1980


Initiative to enact ordinance placing moratorium on conversion of rental units to condominiums


Moratorium on conversion of rental units to condominiums


Ordinance proposed by city electors prohibiting conversion of rental units contrary to state law

Michigan's Condominium Act is a comprehensive statutory regulation covering the creation, sale, use and maintenance of condominium units and projects within Michigan. By its terms, a city having a population of less than one million persons is specifically 'preempted . . . from enacting a regulation, ordinance or other provision which imposes a moratorium on [the] conversion of condominiums . . .' either by initiative petition or action of the governing body of the city.

Honorable W. V. Brotherton

State Representative

The Capitol

Lansing, Michigan 48909

You have requested my opinion as to the constitutionality of a proposed ordinance which, as the result of an initiative petition, has been placed on the ballot for the November 4, 1980, general election in the City of Southfield. The basic thrust of the proposed ordinance is the imposition of a two year moratorium on the conversion to condominiums of rental property within the City of Southfield.

Const 1963, art 7, Sec. 22 provides, in pertinent part, that:

'Each . . . city . . . shall have power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law.' (Emphasis supplied.)

In People v Llewellyn, 401 Mich 314, 322; 257 NW2d 902, 904 (1977), cert den, 435 US 1008; 98 S Ct 1879; 56 L Ed 2d 390, relying on Const 1963, art 7, Sec. 22, supra, the court stated that:

'A municipality is precluded from enacting an ordinance if 1) the ordinance is in direct conflict which the state statutory scheme, or 2) if the state statutory scheme pre-empts the ordinance by occupying the field of regulation which the municipality seeks to enter, to the exclusion of the ordinance, even where there is no direct conflict between the two schemes of regulation.'

The Condominium Act, 1978 PA 59; MCLA 559.101 et seq; MSA 26.50(101) et seq, provides a comprehensive scheme of regulation over the creation, sale, use, and maintenance of condominium units and projects within the State of Michigan. That Act was recently amended by 1980 PA 283 which was signed by the Governor and took immediate effect on October 10, 1980. The amendatory act addresses some of the problems that the proposed ordinance is designed to remedy, providing extended leases to senior citizens and handicapped persons who are tenants in buildings which are converted to condominiums. In addition, 1980 PA 283 amends the Condominium Act, supra, Sec. 141, by adding the following new subsection:

'(2) Except as to a city having a population of more than 1 million persons, a local unit of government is preempted by the provisions of this act from enacting a law, regulation, ordinance, or other provision, which imposes a moratorium on conversion condominiums, or which provides rights for tenants of conversion condominiums or apartment buildings proposed as conversion condominiums, other than those provided in this act.' (Emphasis supplied.)

The plain intent of this amendatory provision is to prevent a municipality with a population such as that of the City of Southfield from enacting a moratorium on the conversion of rental properties to condominiums. '[W]here the state law expressly provides that the state's authority to regulate in a specified area of the law is to be exclusive, there is no doubt that municipal regulation is pre-empted.' People v Llewellyn, supra, 401 Mich at 323; 257 NW2d at 905. See also, Noey v Saginaw, 271 Mich 595; 261 NW 88 (1935).

This is not to say that the City of Southfield is entirely pre-empted from adopting ordinances which may affect condominiums. The City remains free '. . . to pass all laws and ordinances relating to its municipal concerns subject to the constitution and general laws of this state.' 1909 PA 279, Sec. 4-j-(3), as amended; MCLA 117.4-j; MSA 5.2083. Such municipal concerns would include the exercise by the City of its general police power to provide for the health, order, convenience, and comfort of the people. Michigan Canners & Freezers Association, Inc v Agricultural Marketing & Bargaining Board, 397 Mich 337; 245 NW2d 1 (1976). The Condominium Act, supra, Sec. 71(2) recognizes this power and provides that '[c]ondominium projects shall comply with applicable local law, ordinances and regulations. . . .' This subsection was unaffected by the recent amendatory act and clearly contemplates that some local regulations affecting condominiums will be permitted pursuant to the general police power of the City. Thus, for example, the City would not be precluded from enforcing its building code as against a condominium project. See OAG, 1977-1978, No 5280, p 393 (March 23, 1978). The City may not, however, exercise its police power to pass an ordinance which conflicts with state law. City of Grand Haven v Grocer's Cooperative Dairy Co, 330 Mich 694; 48 NW2d 362 (1951).

It is my opinion, therefore, that the electors of the City of Southfield may not, by initiative petition, enact an ordinance imposing a two-year moratorium on the conversion of rental units to condominiums because such an ordinance would be in direct conflict with the Condominium Act, Sec. 141(2), as amended by 1980 PA 283, supra.

Frank J. Kelley

Attorney General

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