BRUCE E COHAN, MD, PC
v.
RIVERSIDE PARK PLACE CONDOMINIUM ASSOCIATION, INC.
Docket Nos. 58321, 58358.
Michigan Court of Appeals.
Decided March 8, 1983.Eames, Wilcox, Mastej & Bryant (by Henry J.M. Helstaedt, III), and Jenner & Block (by Patrick J. Phillips and Sidney I. Schenkier), for plaintiff.
Laird & Chin (by John R. Laird), for defendants.
*746 Before: D.E. HOLBROOK, JR., P.J., and ALLEN and R.L. TAHVONEN,[*] JJ.
D.E. HOLBROOK, JR., P.J.
This dispute arose out of a conflict between the respective rights of a condominium unit owner and the condominium association and its board of directors. The condominium involved is Riverside Park Place, a 60-unit highrise apartment complex in Ann Arbor. Plaintiff, the owner of a unit in that condominium, appeals as of right the trial court's orders upholding defendant board's decision denying plaintiff's request to enclose the balcony of plaintiff's unit, ordering plaintiff to submit to an inspection of the condominium unit, and finding Dr. Cohan in contempt for refusing to submit to the inspection. Plaintiff additionally appeals the trial court's award of attorney fees.
First, plaintiff claims the trial court erred in upholding the board's decision denying plaintiff's request to enclose the balcony. For purposes of this appeal, we assume arguendo that the board had authority to consider plaintiff's request to enclose the balcony. The inquiry then is whether the board properly applied the "rule of reason" in denying the request. Hidden Harbour Estates, Inc v Norman, 309 So 2d 180 (Fla App, 1975). Under the "rule of reason", a condominium association's board must demonstrate that it acted reasonably in denying a unit owner's special request.
While Michigan has little case law on the subject of this dispute, Michigan has enacted a detailed condominium statute which expressly states that:
"A co-owner shall not do anything which shall *747 change the exterior appearance of a condominium unit or of any other portion of the condominium project, except to the extent and subject to the conditions as the condominium documents may specify." MCL 559.147(1); MSA 26.50(147)(1).
Under art VI, § 3, of the bylaws of Riverside Park Place Condominium (hereinafter bylaws), the board is given authority to approve alterations to common elements (Master Deed, art IVb[2] defines balconies as limited common elements), but only if such alterations "do not impair * * * the appearance of the condominium".
In Sterling Village Condominium v Breitenbach, 251 So 2d 685 (Fla, 1971), the plaintiff brought suit to enjoin the defendant from installing glass "jalousies" in place of wire screening on two balconies. There, as here, the balconies were specifically defined in the master deed as "limited common elements". The court found that "the substitution of glass jalousies for wire screen was a material and substantial alteration". Sterling, supra, p 688. In making this determination, the court noted that the substitution "is a change in the elements and specifications of the enclosures" and that "this change affects the function, use and appearance of the building". Sterling, supra, p 687.
We find Sterling to be controlling here. Our case is even more appropriate for a finding of a material alteration than Sterling. There, the balconies were at least surrounded by some material before the unit owner saw fit to add glass enclosures. Here, plaintiff proposed to add glass to open balconies where there is presently no enclosure material at all. The alteration in the present case is therefore an even more significant change of function and element than in Sterling. Certainly, plaintiff's proposed alteration is far more substantial *748 in nature than the other types of alterations referred to in Bylaws, art VI, § 3, which prohibits, without board approval, "the erection of antennas, lights, aerials, awnings, doors, shutters, or other exterior attachments or modifications".
These latter types of alterations, ornamental or accessory in nature, have far less impact on the appearance of the balcony than plaintiff's proposed glass enclosure, a structural change which would encompass the entire balcony.
We agree with the court in Sterling, supra, p 688 that:
"Every man may justly consider his home his castle and himself as the king thereof; nevertheless his sovereign fiat to use his property as he pleases must yield, at least in degree, where ownership is in common or cooperation with others. The benefits of condominium living and ownership demand no less. The individual ought not to be permitted to disrupt the integrity of the common scheme through his desire for change, however laudable that change might be."
After reviewing the record, we conclude the board did not act unreasonably or arbitrarily in denying plaintiff's request. Accordingly, the trial court did not err in upholding their decision.
Plaintiff next contends that the trial court erred in upholding defendants' request to inspect plaintiff's unit. Plaintiff argues that until defendants can establish an actual violation, no inspection or entry is justified. We disagree. The condominium documents do not expressly grant a right to the board to request access for purposes of inspection for suspected violations. However, we hold such a right is "impliedly authorized by various documents and by the inherent realities of a condominium *749 project".[1] The board must, at reasonable times, have the right to request an inspection of the premises so as to ensure compliance with the terms of the condominium agreement, statutes, rules and regulations. This is true where, as in the case herein, the board merely suspects a violation may have occurred but has not yet been able to prove its existence. If defendants had to first prove the existence of a violation within a unit before requesting an inspection of the unit, defendants would be unable to guarantee the safety and structural integrity of the building. This practical consideration supports defendants' interpretion of Bylaws, art XI, § 1(c). In short, plaintiff's interest in privacy must yield to defendants' interest in monitoring unsafe conditions which may be hidden inside various units. In Hidden Harbour Estates, supra, pp 181-182, that court recognized that:
"[I]nherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic subsociety of necessity more restrictive as it pertains to use of condominium property than may exist outside of the condominium organization. The Declaration of Condominium involved herein is replete with examples of the curtailment of individual rights usually associated with private ownership of property."
We agree and hold that the trial court's order requiring plaintiff to submit to an inspection of the unit was proper.
*750 Since the trial court's inspection order was not reversibly erroneous, plaintiff's disobedience of that order was unjustified and the contempt proceedings were appropriate. The contempt shall stand until such time that Dr. Cohan purges himself by permitting the scheduled inspection. We need not address plaintiff's claim that Dr. Katz is biased and should not conduct the inspection. This issue is moot since Katz is no longer available to conduct such inspection and defendants have agreed to designate another person, subject to the review of the trial court.
Finally, plaintiff contends that the trial court erred in awarding attorney fees in favor of defendants. There were two aspects to the action before the trial court. First, plaintiff filed a complaint, alleging that defendants improperly denied plaintiff's request to enclose the balcony. In this regard plaintiff cites Papalexiou v Towers West Condominium, 167 NJ Super 516; 401 A2d 280 (1979), for the proposition that attorney fees may not be awarded to a condominium association where the action is brought by a unit owner rather than the association. We agree. In the present case, as in Papalexiou, the complaint required the association to defend its conduct; the association was not enforcing an action against plaintiff. To the extent that the attorney fees awarded to defendant arose out of the defense to plaintiff's complaint, the fees were improper under Papalexiou.
The remaining portion of the action before the trial court involved defendant's counterclaim requesting an opportunity to inspect plaintiff's unit. As stated earlier, the trial court properly ordered plaintiff to submit to an inspection. Plaintiff's subsequent refusal to submit to that order was by itself a sufficient "default" to justify an award of *751 attorney fees to defendants. See Bylaws, art XI, § (1)(b); MCL 559.206(b); MSA 26.50(206)(b). We hold the trial court properly awarded costs and attorney fees incurred by defendants in prosecuting their counterclaim for inspection. Accordingly, we remand this case to the trial court with instructions to reduce its award of attorney fees to those incurred in the course of prosecuting the counterclaim only.
Affirmed as modified. Remanded for proceedings consistent herewith. No costs, neither party having fully prevailed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] See MCL 559.147(1); MSA 26.50(147); 1979 AC, R 559.509; Bylaws, art VI, § 3; Bylaws, art VI, § 12; Bylaws, art XI, § 1(c).