Even attorneys not practicing community association law may be interested in the latest issues affecting condominiums and subdivisions where they serve on their association’s board of directors or own property. Variety is the spice of life, and representing, administering, and living in community associations exposes those stakeholders to a myriad of legal concepts. In this article, we hope to shed light on some trending topics.
HOMEOWNERS’ ENERGY POLICY ACT
The State of Michigan adopted Public Act 68 of 2024, known as the “Homeowners’ Energy Policy Act” (the “Act”)1 on April 2, 2025. This Act impairs the ability of “community associations” to restrict energy-saving improvements and solar energy systems. Although the Act has a greater impact on site condominiums and subdivision associations, all community associations in Michigan are affected and must act in response to this new law.
The Act does not apply to “shared roofs” or “common areas.”2 It defines a “shared roof” as a roof that serves more than one residence or unit, including contiguous roofs serving adjacent units.3 For developments with shared roofs, associations can deny applications for “solar energy system” installations or “energy-saving improvements or modifications” on these roofs. The Act defines “solar energy system” as a complete assembly, structure, or design of a solar collector or solar storage mechanism that uses solar energy for generating electricity or heating or cooling materials4 — in other words, a typical roof-mounted solar panel energy system. The Act specifies that “energy-saving improvements or modifications” include, but are not limited to, clotheslines, air source heat pumps, ground source heat pumps, insulation, rain barrels, reflective roofing, energy-efficient appliances, solar water heaters, electric vehicle supply equipment, energy-efficient windows, and energy-efficient insulation materials.5
Similarly, the Act does not apply to “common areas,” which it defines as “a portion of a building, land, or amenities owned or managed by the homeowners’ association that is generally accessible to all members of the association.”6 This includes open space areas, hallways, stairways, elevators, lobbies, laundry and recreational rooms, garages, public green space and parks, community buildings, or fitness rooms. In condominiums, boards may generally prohibit the installation of solar energy systems or energy-saving improvements or modifications on general common elements, including open space areas.
The Act first addresses energy-saving improvements or modifications7 and invalidates any provisions in an association’s governing documents prohibiting or requiring association approval for the replacement, maintenance, installation, or operation of “energy-saving improvements or modifications,” except in “common areas” or on “shared roofs.”8 It also nullifies provisions compelling or requiring association approval for auxiliary changes needed for these improvements,9 although auxiliary changes are not defined. Simply put, community associations cannot require approval for installation of these “energy-saving improvements or modifications” (except within common areas or on shared roofs), and the Act supersedes any inconsistent restrictions in governing documents currently requiring approval.
The Act separately addresses solar panels and guarantees that owners may install a wide variety of solar energy systems by invalidating restrictions prohibiting, or having the effect of prohibiting, energy-saving improvements or modifications, as well as solar energy systems. Associations may not inquire into a member’s energy usage, impose conditions that impair the operation of solar energy systems, or charge excessive application fees.
All associations in Michigan must adopt a written solar energy policy statement within one year of the Act’s effective date, or April 2, 2026.10 This policy is crucial because it sets the framework for how solar energy systems are to be integrated within the community, ensuring a streamlined process in their adoption and maintenance. The Act does not exempt associations from adopting a policy, even if their community has primarily (or solely) shared roofs and common areas.
The solar energy policy statement must reflect the standards established under the Act, contain certain disclosures, and must not conflict with local, state, or federal laws. Specifically, the policy must include the following:
- The association must facilitate the installation of solar energy systems on roof faces without specifying the type of technology used, such as solar shingles versus traditional solar panels.
- Any standards enforced must not reduce electricity production by more than 10% or increase installation costs by more than $1,000.
- The approval of an adjacent home or unit owner is not required for a member to install a solar energy system.
- The association shall not inquire into a member’s energy usage, impose conditions that impair the operation of the solar energy system, or negatively impact any industry standard warranties.
- The policy should also clearly outline that no post-installation reporting is required and that any application fees for installing a solar energy system should not exceed those for other property changes.11
- The association will not deny a member’s application to install a solar energy system based on the entity owning the system or the financing method chosen by the member.12
The association may deny the application under specific conditions, including: (1) if the installation is proposed for a shared roof; (2) if the system extends more than 6 inches above the roof; (3) if the system does not conform to the roof slope or has a top edge not parallel to the roof line; (4) if the frame, support bracket, or visible conduit or wiring is not in a silver, bronze, or black tone commonly available in the marketplace; or (5) if the system is proposed for installation in a fenced yard or patio and will be taller than the fence line.13 An application can also be denied if a court has found that the installation violates a law or if the installed system does not substantially conform to the approved application.14 The Act further permits associations to impose reasonable conditions for the maintenance, repair, replacement, or removal of damaged or inoperable solar energy systems, but these conditions must not be more burdensome than those applied to non-solar projects.
Community associations must respond to the application within specific timeframes. If the association has adopted a solar energy policy, the response must be given within 30 days of receiving the application. If the application is submitted before the association adopts the required solar energy policy, the response must be given within 120
days of receiving the application. If the association fails to respond within these timeframes, the member is permitted to proceed with the installation of the solar energy system without further approval, and the association cannot impose fines or otherwise penalize the member.15
Community associations must ensure all members are aware of the new policy by making a copy of the policy available within 30 days of adoption, as well as posting the policy on the association’s website (if applicable), and providing it upon request.16
If an association violates the Act, a member may bring a civil action against the association for damages. If the member prevails, the court may award reasonable attorney fees and costs incurred by the member in bringing the action.17
As a result of this Act, community associations no longer have exclusive architectural control over energy-saving improvements and solar energy systems outside common areas and shared roofs. The Act marks a notable change in encouraging energy efficiency and sustainability within homeowners’ associations, regardless of restrictions in association governing documents or a board’s oversight related to community aesthetics.
PREMISES LIABILITY ACTIONS IN CONDOMINIUMS
Dating back to 2015, condominium co-owners could not bring premises liability claims against their association for injuries occurring on common elements of a condominium project.18 A “co-owner” is an owner of a condominium unit,19 while “common elements” are the portions of the condominium other than the condominium units.20 Since a co-owner of a condominium unit was essentially a joint owner of the common elements, an injured co-owner did not enter upon the land of another and was not a licensee or invitee.21 It followed that condominium associations did not owe the injured co-owner a duty under a premises-liability theory.22
The Michigan Supreme Court reversed that precedent in July 2024.23 The Court reasoned that if a condominium’s master deed and bylaws assign responsibility for maintaining common elements to the association, then the co-owners lack “possession and control” over those areas.24 Since co-owners are paying assessments to their association, in part, to maintain the common elements, co-owners using those areas are invitees.25 As invitees, co-owners are entitled to the “highest level of protection” under Michigan’s premises liability law and are owed a common law duty by their association to be protected from dangerous conditions in those areas.26
The reclassification of a co-owner to an invitee subject to premises liability principles with their condominium association is relevant under the Michigan Supreme Court’s 2023 clarification on open and obvious conditions.27 Injured co-owners must only navigate whether their comparative fault in the presence of open and obvious conditions will impair recovery as opposed to open and obvious conditions abrogating the duty of the condominium association.28
These decisions should encourage condominium association boards to review their insurance policies with their advisors and reaffirm that reasonable care is utilized to rectify dangerous conditions on the common elements. However, condominium associations may also consider whether amending the master deed and bylaws to place a greater responsibility on maintenance, repair, and replacement of the common elements on individual co-owners is advisable.29 In many communities with attached units, the association is responsible for porches, walkways, and driveways servicing a unit. With this expanded exposure, should associations consider shifting maintenance obligations (including snow and ice removal) for such improvements from the association to the individual co-owner via an amendment? By doing so, the association is no longer maintaining and exercising “control” over these common elements, although convincing 2/3rds of the co-owners to vote for that amendment could be a challenge.
PRESERVING RESTRICTIVE COVENANTS UNDER THE MARKETABLE RECORD TITLE ACT
When the Michigan legislature overhauled the Marketable Record Title Act (MRTA) in 2018, MCL 565.101 et seq., it established a sunset date for preserving certain restrictions more than forty (40) years of age.30 The original sunset date was set to expire March 29, 2021.31 In 2020, that sunset date was extended until March 29, 2024.32 On September 29, 2025, the long-anticipated deadline arrived for addressing the potential expiration of subdivision restrictions more than forty years old under the MRTA.33 On the same day, the governor signed into law a bill amending the MRTA, effectively resolving years of uncertainty surrounding the continued validity of older subdivision restrictions.34
The 2025 amendment to the MRTA modifies the title and amends sections 1, 1a, 2, 3, 4, 5, 6, and 8 (MCL 565.101, 565.101a, 565.102, 565.103, 565.104, 565.105, 565.106, and 565.108). It also adds a new section, 5a (MCL 565.105a). Importantly for community associations, the amendment ensures that subdivision and condominium restrictions recorded on or after January 1, 1950, will not expire under the Act.35 This change brings long-term stability to Michigan’s common-interest communities and, in particular, older subdivisions whose restrictions were at risk of expiration.
The revised statute expressly exempts both subdivisions and condominiums from the MRTA’s extinguishment provisions. Specifically, the new subsections provide that the MRTA does not apply to:
- MCL 565.105a(g): Any interest created by a declaration or other recorded instrument or agreement executed and recorded on or after January 1, 1950, that subjects land to restrictions, obligations, or benefits applying to each lot or parcel.
- MCL 565.105a(h): Any interest created by a recorded master deed for a condominium or any recorded amendments to it.
After years of uncertainty and successive legislative extensions, Michigan has now provided a permanent resolution to the MRTA issue. This statutory clarification brings welcome certainty to community associations, property owners, and real estate professionals alike. Subdivision restrictions recorded in or after 1950 are now explicitly protected from expiration under MRTA, removing the need for associations to record “notices of claim” merely to preserve their governing documents.
Condominiums are now expressly protected as well, although their exemption under earlier versions of the statute was generally accepted due to the Michigan Condominium Act’s governance framework. The 2025 amendment closes the statutory gap and harmonizes treatment across all forms of common-interest ownership.