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. 6914

August 30, 1996

CONDOMINIUMS:

Votes required to amend condominium bylaws

Under section 90(2) of the Condominium Act, co-owners and mortgagees of a condominium association can amend the condominium bylaws with the approval of 2/3 of the votes of all the co-owners and mortgagees.

Honorable Joe Conroy

State Senator

The Capitol

Lansing, Michigan 48913

You have asked if, under section 90(2) of the Condominium Act, 1978 PA 59, MCL 559.101 et seq; MSA 26.50(101) et seq, co-owners and mortgagees of a condominium association can amend the condominium bylaws with the approval of 2/3 of those voting, or whether the approval of 2/3 of all co-owners and mortgagees is required.

Section 90 of the Condominium Act provides for the amendment of condominium documents. Your request concerns section 90(2) of the Condominium Act, which allows the co-owners and mortgagees of a condominium association to vote to amend the master deed, bylaws and condominium subdivision plan, as follows:

Except as provided in this section, the master deed, bylaws, and condominium subdivision plan may be amended, even if the amendment will materially alter or change the rights of the co-owners or mortgagees, with the consent of not less than 2/3 of the votes of the co-owners and mortgagees. A mortgagee shall have 1 vote for each mortgage held. The 2/3 majority required in this section may not be increased by the terms of the condominium documents, and a provision in any condominium documents that requires the consent of a greater proportion of co-owners or mortgagees for the purposes described in this subsection is void and is superseded by this subsection. [Emphasis added.]

There is no language in section 90(2) of the Condominium Act that refers to votes cast. The use of the word "votes" in section 90(2) is a reference to the vote allocation process in condominium associations. Co-owners of condominium associations usually vote on a proportionate basis, depending upon the size of their condominium unit. 15A Am Jur 2d, Condominiums and Co-Operative Apartments, s 4, p 831. Section 54(7) of the Condominium Act allows each condominium association to decide whether co-owners will vote on a proportionate basis or will each have an equal number of votes, reading as follows:

The bylaws may allocate to each condominium unit a number of votes in the association of co-owners proportionate to the percentage of value appertaining to each condominium unit, or an equal number of votes in the association of co-owners.

Since votes may be allocated to co-owners on a proportionate basis, some co-owners may have more votes than others and the total number of votes may well exceed the total number of co-owners. Thus, a distinction exists between the total number of votes possessed by co-owners and mortgagees and the total number of co-owners and mortgagees. Accordingly, the reference in section 90(2) to 2/3 of the "votes" of the co-owners and mortgagees is an acknowledgement of this fact, and the Legislature intended that 2/3 of the total votes allocated to all co-owners and mortgagees be required to amend condominium bylaws.

The term "votes" in section 90(2) is a reference to total possible votes of all co-owners and mortgagees, rather than votes cast. Section 90(2) contains no language supporting the argument that 2/3 of the votes cast is sufficient to amend the condominium bylaws. Section 90(2) says simply that the bylaws can be amended by approval of 2/3 of the votes of co-owners and mortgagees; this section does not contain the term votes cast or any reference to co-owners and mortgagees actually voting. Courts of this state "eschew the insertion of words in statutes unless necessary to give intelligible meaning or to prevent absurdity." Great Lakes Steel Corp v Michigan Employment Security Comm, 6 Mich App 656, 661; 150 NW2d 547 (1967), aff'd 381 Mich 249; 161 NW2d 14 (1968). As written, section 90(2) is neither absurd nor unintelligible; thus, we need not infer the existence of words that the Legislature did not explicitly include.

Analyses of the various amendments to section 90(2) indicate that the intent is to require 2/3 of the votes of all co-owners and mortgagees, rather than 2/3 of those persons voting, in order to amend the bylaws. As originally enacted, in 1978 PA 59, section 90(2) of the Condominium Act allowed an amendment to condominium bylaws with "the consent of 2/3 of the votes of the co-owners." Section 90(2) was amended by 1982 PA 538, to allow an amendment to the bylaws with "not less than 2/3 of the votes of the co-owners and mortgagees" and to provide that "[t]he majority required in this section may be increased but not reduced, or unanimity may be required, by the terms of the condominium documents ...."

Subsequently, 1988 PA 147 amended section 90(2) to delete some of the language added by 1982 PA 538. Specifically, 1988 PA 147 deleted the language that allowed the condominium documents to require the consent of a greater proportion of co-owners and mortgagees and added the statement that "[t]he 2/3 majority required in this section may not be increased by the terms of the condominium documents ...." The explanation for this amendment, set forth in House Legislative Analyses, HB 5419, April 12, 1988, is as follows:

[Section 90(2)] requires at least a two-thirds majority consent to amend the master deed to materially alter or change the rights of co-owners or mortgagees; however, the act also permits an association to require a higher majority consent to alter documents if an original association document specifically requires a higher majority consent. Currently, there are some older condominium associations whose original master deeds require up to 100 percent majority consent to amend a master deed to materially alter or change the rights and responsibilities of co-owners in the association. Because some of these associations have a relatively large number of co-owners--in some cases, nearly 500--attaining 100 percent compliance to amend a master deed can be next to impossible. Some, therefore, have requested an amendment to the act which would prohibit a condominium master deed from requiring more than a two-thirds majority to amend the document.

The above explanation clearly assumes that the complete unanimity requirements of some master deeds meant 100 percent majority consent of all co-owners and mortgagees, not of only those voting. As noted in the legislative analysis of HB 5419, such unanimity requirements made it nearly impossible to amend condominium documents. The Legislature attempted to ease the burden of a complete unanimity requirement by prohibiting any requirements of more than 2/3 majority consent. In light of the fact some condominium documents had, at one time, required complete unanimity of all co-owners and mortgagees in order to amend the bylaws, it is entirely reasonable to read the 2/3 majority requirement in section 90(2) as meaning 2/3 of the total votes possessed by all co-owners and mortgagees, rather than 2/3 of the votes cast.

It is my opinion, therefore, that under section 90(2) of the Condominium Act, co-owners and mortgagees of a condominium association can amend the condominium bylaws with the approval of 2/3 of the votes of all the co-owners and mortgagees.

Frank J. Kelley

Attorney General