Jim Acho Speaks at 60th Anniversary Tribute for 1957 Detroit Lions

Acho and Zatkoff Jim Acho took part in a 60th anniversary tribute luncheon for the 1957 Detroit Lions, the last NFL championship team in this town. The show was hosted by the Detroit Free Press and moderator Dave Birkett, who asked Jim to say a few words.  Jim and CMDA have served as legal counsel to retired Detroit Lions for many years.

Pictured in the photo is Roger Zatkoff, first team All-Pro in 1954 and 1955. Zatkoff’s salary in 1957 was $5,300 and the player bonus for winning the NFL championship was $3,800. Zatkoff took the $3,800 and started a very successful industrial seals business that he still operates today. At 86, Zatkoff also still manages to get in at least two rounds a week at Oakland Hills Country Club.

Look for a major interactive feature on the 1957 team this fall in the Detroit Free Press. Jim was proud to take part in this great tribute luncheon and is proud of CMDA’s association with all retired Detroit Lions.

 

Ron Acho was on the Frontline during Detroit Riots of 1967

RonAchoUpdatedRon Acho has had a long career as an attorney at Cummings, McClorey, Davis & Acho, P.L.C.  What many people may not realize is that his legal career was an indirect result of the Detroit riots of 1967.

In 1967 Mr. Acho was a hardworking 21 year old working seven days a week at his family’s market in Detroit.  He had future plans of expanding his family’s market and opening a chain of grocery stores.  Everything changed in an instance on that Sunday afternoon in July when his family’s market was burned to the ground only a few hours after the riots began.

Mr. Acho vividly remembers seeing two men with torches walking toward the market. He recalls it like a scene from a horror movie, except it wasn’t a movie.  It was real life. The men were only two blocks away, and Mr. Acho knew these men were coming for his family’s market.  He and his brother took whatever cigarettes they could carry and the cash from the store and fled the market right before the men began breaking the windows and lighting it on fire.

His family had invested their life savings into this market.  “We had no building ownership.  The little insurance that we had did not even cover the cost of the inventory.  We were left pretty much broke,” he explained.

As you can imagine, the aftermath of the riots was devastating for his family.  Left with virtually nothing, Mr. Acho realized he needed to set aside his dream of opening a chain of grocery stores and follow another career path.  Mr. Acho’s older brother, Andy, helped him secure a job as a clerk at Ford Motor Co.’s Rouge Plant.  He stayed with the automaker for eight years while earning a bachelor of arts in business administration and marketing, and graduating summa cum laude from University of Detroit Mercy.  (The most wonderful blessing occurred as a result of the riots because he had to go back to get his degree and met the love of his life, Rita, and they have been married 48 years.)  He went on to earn his law degree from the Detroit College of Law but was unable to land a job in Ford’s legal department, something that turned out to be a blessing in disguise.

Mr. Acho joined CMDA in 1974, and, within a year, was made an Equity Partner. The Detroit riots of 1967 still impact the way Mr. Acho conducts business. He has been practicing law for 43 years, so it would not be uncommon for him to begin taking on a lighter load.  However, Mr. Acho is still often the first to arrive in the office and works longer hours than many younger attorneys.  He explains that every day he walks through CMDA’s door he has the mindset that nothing is a guarantee and it could all be gone tomorrow.  He values the importance of maintaining a strong and lasting relationship with current clients and fostering efforts to grow the Firm to ensure it continues to prosper for many years to come.

 

Jim Acho Retained by Lapeer County to Represent County in Counter Lawsuit Against Sitting Judge

Jim Acho 2016Jim Acho has been retained by Lapeer County to represent the County, former Lapeer County Prosecutor–now US Attorney–Tim Turkelson, current Lapeer County Administrator John Biscoe, current Lapeer County Treasurer Dana Miller and others in an contentious action involving sitting Lapeer County Judge Byron Konschuh.

Due to the unusual nature of the case, the case is starting to be covered by the media, and Jim appeared on WJR yesterday to discuss the matter and the position of client Lapeer County.  Please click here to listen to the podcast.

Law Enforcement Body-Worn Camera Privacy Act

Jeff ClarkOn July 13, 2017 Michigan Gov. Rick Synder signed into law Public Act 85 of 2017. The Act, which has been labeled as the “Law Enforcement Body-Worn Camera Privacy Act,” pertains to recordings created by law enforcement officers wearing a video recording device during their police activities. Although it is estimated that less than 10% of law enforcement agencies in the State of Michigan have officers equipped with “body cameras,” that percentage is likely to increase over the years as other agencies explore the benefits of such recordings.

The new law provides that any disclosure of an audio or video recording that is recorded by body-worn cameras will be subject to the protections provided to crime victims under the Crime Victim’s Rights Act.  Recordings that are made in a private place by a law enforcement officer with a body-worn camera would be exempt from disclosure under the Freedom of Information Act (FOIA) except under certain circumstances. The Act allows individuals to request a copy of the recording except for a recording that was exempt under FOIA or would disclose the personally identifiable information of a victim, recorded by a law enforcement officer with a body-worn camera in a private place.

The law specifies that a body-worn camera recording that a police officer retained in connection with an on-going criminal or internal investigation, would be exempt from disclosure under FOIA.

The Act also provides exemptions from disclosure if the disclosure would

  • interfere with law enforcement proceedings,
  • deprive anyone of the right to a fair trial,
  • constitute an unwarranted invasion of personal privacy,
  • disclose the identity of a confidential source,
  • disclose police investigative techniques or procedures, or
  • endanger the life or physical safety of law enforcement personnel.

The law requires that a law enforcement agency must retain an evidentiary audio and video recording recorded by a body-worn camera for not less than 30 days from the date the recording is made. Such recordings that are the subject of an ongoing criminal or internal investigation or an ongoing criminal prosecution or civil action, must be maintained until the completion of the investigation or legal proceeding. In addition, any agency must retain the audio and video recordings by body-worn camera for not less than three years after the date the recording is made “if the recording is relevant to a formal complaint against a law enforcement officer or agency.”

The new law stipulates that an agency may charge a fee for copying the recording but the fee must be calculated in compliance with the Freedom of Information Act. Finally, a law enforcement agency that uses body-worn cameras must develop a written policy regarding the use of the cameras and the maintenance and disclosure of the recordings that complies with the requirement of this new law.

Jeff Clark is a partner in our Livonia office and is the head of the Firm’s Municipal Law practice group. He concentrates his practice on municipal law, FOIA/OMA, general liability defense and prevention and personal injury defense litigation. He may be reached at (734) 261-2400 or jclark@cmda-law.com.

Brandan Hallaq Successfully Handles MLB Pension issue For Acho Client

Acho Ray HerbertBrandan Hallaq, an associate in our Livonia office, recently brought a successful result to a pension issue for a retired MLB great and client of Jim Acho.

Ray Herbert was a 17-year MLB vet (1949-1966) and the American League’s starting pitcher in the 1962 All Star game. Even more meaningful to Jim is Mr. Herbert is a 1945 graduate of Detroit Catholic Central High School, where a number of CMDA attorneys, including Jim and Ray Richards are alumni. Said Jim “Brandan put a great man’s mind at ease through his diligence in dealing with the Pension Board and is such a fine young lawyer that I knew I could trust him to take care of a valued client like Ray. Ray is very pleased with Brandan and even told me ‘Jim next case I want that kid as my lawyer  instead of you’…and I don’t blame him one bit.”

Electric Vehicle Charging Stations: Keep your Condominium Association Current!

Kevin Hirzel_8x10@300Electric vehicles are increasing in popularity throughout the United States and create unique challenges for Michigan condominium associations, especially those that were created before electric vehicles were even contemplated. Experts project that by 2040, at least thirty-five percent of all new cars will have a plug. Accordingly, condominium associations will be forced to deal with issues relating to the charging of electric vehicles both now and well into the future. However, the vast majority of states, including Michigan, do not currently regulate the installation of electric vehicle charging stations. Accordingly, this article will provide information for Michigan condominium associations to consider when dealing with a request to install an electric vehicle charging station.

How are Electric Vehicles charged?

A. Level 1 Charging

Level 1 charging equipment provides electricity to the vehicle through a 120 volt alternating current plug. Level 1 charging is the easiest and most basic way to charge an electric vehicle as it allows for the vehicle to be charged by plugging a cord into an ordinary household electrical outlet. Level 1 charging equipment is standard on most electric vehicles. However, Level 1 charging is often inconvenient as it generally takes a much longer time to charge a vehicle. More specifically, Level 1 charging typically only provides 2-5 miles of driving range per hour of charging.

Permitting Level 1 charging is the easiest way for a condominium association to accommodate an individual co-owner’s request to charge an electric vehicle. In most instances, co-owners can simply plug their electric vehicles into their garages, as Level 1 charging typically only requires a 15 or 20-amp, single-pole breaker. As long as the unit is individually metered, and modifications do not need to be made to the common element electrical system, a condominium association will likely have minimal involvement with respect to Level 1 charging in a unit with an attached garage.

However, in situations where a co-owner plans to employ Level 1 charging in a general common element parking space, a condominium association will likely need to amend its governing documents or create rules and regulations concerning Level 1 charging of electric vehicles as will be discussed in more detail below.

B. Level 2 Charging

Level 2 charging equipment provides electricity to an electric vehicle through a 240 volt or 208 volt electrical service and is typically hardwired to the existing electrical systems. Level 2 charging can easily be installed in a garage or on a common element parking area, but it will typically require a co-owner to enter into a modification agreement to install. A Level 2 charging system requires the installation of charging equipment and a dedicated 20 to 80 amp circuit, even though it uses the same connector to attach to an electrical vehicle as a Level 1 charging system. A Level 2 charging system charges much faster than a Level 1 charging system and typically provides 10-20 miles of driving range per hour of charging.

In most instances, condominium associations can accommodate a co-owner request to install a Level 2 charging station in the co-owner’s unit. However, this typically requires the co-owner to submit detailed plans to the association for approval and having an engineer or electrician review the plans to ensure that the condominium association’s system can handle the Level 2 charging system. Many municipal codes encourage garages to be constructed with a 240 volt outlet on a dedicated circuit to accommodate Level 2 Charging. See Auburn Hills, Michigan, Zoning Ordinance, Section 1834.

C. Level 3 Charging/DC Charging

Level 3 charging equipment, commonly known as a DC Charging System, charges an electric vehicle through a 480 volt direct current (DC) plug. Unlike a Level 1 or Level 2 charging system, Level 3 charging systems are typically designed for outdoor use as they are commonly found in public fueling stations. A level 3 charging station is the fastest way to charge an electric vehicle and it can provide 180-240 miles of driving range per hour of charging.

Adding a Level 3 charging station is typically difficult and undesirable for a condominium association to accommodate. First, a Level 3 charging system may be undesirable because not all electric vehicles offer a Level 3 charging port. Second, owning and maintaining a Level 3 charging system is expensive and can sometimes cost upwards of $50,000 or more. Third, the existing electrical system has to be designed to handle a significantly higher electric load capacity. Accordingly, most Level 3 charging stations are located along interstate highways or in designated public charging areas. However, a Level 3 charging system could be effective if installed on a common parking lot to accommodate the charging of multiple electric vehicles in the same condominium association.

What should condominium associations consider when dealing with a request to install an electric vehicle charging station?

The Michigan Condominium Act, specifically, MCL 559.147(1) provides as follows:

(1) Subject to the prohibitions and restrictions in the condominium documents, a co-owner may make improvements or alterations within a condominium unit that do not impair the structural integrity of a structure or otherwise lessen the support of a portion of the condominium project. Except as provided in section 47a, a co-owner shall not do anything which would 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.

Accordingly, unless a co-owner is engaging in Level 1 Charging within their own unit, via an existing outlet, it is likely that a co-owner will need to obtain permission from the condominium association to alter the common elements and/or their unit to install a charging system. In determining whether to grant permission, condominium associations should consider the following:

How will the vehicle be charged?

Similar to other common element modifications, Michigan condominium associations should require an owner to submit proposed plans relating to the modification. Determining whether the proposed charging station is going to be a Level 1, Level 2 or Level 3 charging station is important. Level 1 charging already exists and is readily accessible for many co-owners. Issues relating to Level 1 charging stations that are located outside of a unit will typically relate to defining the responsibilities related to the use of the station, as installation is typically quite easy. Level 2 charging station requests will likely be most common due to the stark difference in charging times between Level 1 and Level 2 charging stations. In some instances, new multi-family homes may already include wiring that would support a Level 2 charging station. By way of example, the Auburn Hills, MI ordinance that is discussed above encourages, although it does not currently require, that all new one-family and multiple family homes with garages be constructed to provide a 220-240 volt / 40 amp outlet on a dedicated circuit to accommodate potential future hardwire installation of a Level 2 electric vehicle charging station as “retrofitting a home for electric vehicle charging is considerably more expensive than the cost of including the capacity at the time of construction.” See Auburn Hills, Michigan, Zoning Ordinance, Section 1834. Level 3 charging station requests will likely be the least common, as they are the most expensive and most difficult to install. Accordingly, after the association determines the proposed charging method, and a proposed set of plans is submitted for review, the next step is to engage an expert. However, prior to engaging an expert, the association should also evaluate the aesthetic impact on the condominium. Level 1 and Level 2 charging stations will likely have minimal aesthetic impact if they are merely attached to an existing wall. However, if erection of new structures or significant modifications to existing structures would be required, a condominium association should also determine the best location to place the electric vehicle charging station.

Has the condominium association hired sufficient experts to determine whether installation of an electric vehicle charging station will work with existing infrastructure?

Similar to other decisions made by the board of directors, in determining whether to permit or deny a request to install an electric vehicle charging station, the board of directors should consults experts. By way of example, in Michigan, the Michigan Nonprofit Corporation Act, specifically MCL 450.2541(1), requires a director to act in good faith and with the care of an ordinarily prudent person in a like position under the circumstances. In discharging their fiduciary duties, directors are entitled to rely on information, opinions, reports or statements prepared by a professional if it is within their expert competence. See e.g. MCL 450.2541(2). However, a director is not entitled to rely on such information if they have knowledge concerning the matter that makes reliance unwarranted. See e.g. MCL 450.2541(3).

In the context of a request to install an electric vehicle charging station, a board that is discharging its duty of good faith will consult with an attorney to determine the applicable requirements, whether they be statutory, a municipal ordinance, or imposed by the governing documents. Insurance agents should be consulted to determine what is covered under the association’s existing policy and what will be covered under a co-owner’s insurance policy. Additionally, most board members will not be electrical experts, therefore a licensed electrician, electrical engineer and/or the utility company should be consulted to review any plans. This is important to determine whether the condominium association’s existing infrastructure can accommodate the request without endangering the safety of the co-owners and whether the other co-owners will be required to pay increased costs.

How will responsibilities for the charging station be allocated?

After the board has obtained expert advice relating to the installation of an electric vehicle charging station, the board of directors should enter into a written modification agreement with the co-owner who will be using the charging station. The modification agreement should define the parameters relating to the installation and use of the charging station. Common issues that need to be addressed in a modification agreement are as follows:

  1. Who will pay for the costs of electricity?

One of the most common problems encountered in these types of situations is how to calculate whether the co-owner is paying for their fair share of electricity. If possible, condominium associations should require the installation of a separate meter for the electric vehicle charging station if at all possible. If a single co-owner will be using the charging station, that co-owner can simply pay the cost of electricity. If multiple co-owners are using the charging station, the bill should be equitably split between those co-owners, unless the charging station is a general common element that can be used by all co-owners.

Adding a separate meter not only avoids disputes as to responsibility for cost, but may also reduce the co-owner’s electricity costs. For example, DTE Energy has a special PEV Rate for Level 2 Charging. After DTE installs a special PEV Meter, pricing plans are available that allow for flat fees or significantly reduced charges for off-peak use. Accordingly, having a separate meter installed for an electric vehicle may resolve issues related to cost allocation and may reduce the overall price of electricity.

2. Who is responsible for the maintenance and repair of the charging station?

In the vast majority of condominium association governing documents, the responsibility for maintaining and repairing the general common elements belongs to the association. Conversely, the responsibility for maintaining limited common elements and individual units typically belongs to the co-owner. However, if an electric vehicle charging station is not identified as a limited common element, a typical catch all provision in governing documents may indicate that it is a general common element. Accordingly, assuming that the governing documents allow for modification to the general common elements, an association should ensure that it is not taking on additional maintenance and repair responsibilities unless the charging station is available for use by all of the co-owners.

3. Who is responsible for insurance?

A condominium association is responsible for providing insurance on the common elements. In situations where an electric vehicle charging station is a general common element, that is available for use by all co-owners, it makes sense that the association should incur responsibility for insuring the risks associated with the charging station. However, if the charging station is only going to be utilized by a single co-owner, or a few co-owners, those co-owners should be required to pay the costs of insurance. With respect to installing the charging station, the Association should require the co-owner to hire a contractor that has a general commercial liability policy and appropriate worker’s compensation coverage. With respect to insuring the electric vehicle charging station after it is installed, a co-owner should be required to add coverage under their homeowner’s insurance policy and add the condominium association as a named insured on that policy.

4. Who is liable for damage caused by a charging station?

While condominium associations may have an interest in going “green” and keeping co-owners happy by accommodating reasonable requests to install electric vehicle charging stations, the condominium association should not be forced to bear the burden of the potential additional liability associated with an individual co-owner’s use of an electric vehicle charging station. A San Francisco based electric vehicle charging station manufacturer was recently named in a class action lawsuit involving claims that the manufacturer’s charging stations were overheating and melting during use. Given that electric vehicle charging stations can potentially cause damage to persons or property, condominium associations should ensure that the co-owner is required to defend, indemnify and hold harmless the condominium association from any potential liability.

CONCLUSION

Electric vehicle use is on the rise throughout the United States and most condominium associations will be forced to deal with issues related to electric vehicle charging stations in the near future, if they have not done so already. In states such as Michigan that do not have statutes regulating electric vehicle charging stations in condominium associations, failure to appropriately handle requests related to electric vehicle charging stations may lead to lawsuits and/or decrease property values as a result of bad publicity.

In conclusion, the following tips will be useful for condominium associations when dealing with requests to install charging stations:

1. Know the law. Determine if any local ordinances apply.

2. Be proactive instead of reactive. All condominium associations are likely to deal with this issue at some point and governing documents and rules and regulations should be evaluated prior to receiving a modification request to ensure that appropriate procedures are in place.

3. Consult with experts. Electric vehicles and electric vehicle charging stations are a relatively new technology. Most board members will not be experts in this area, and guidance from experts is necessary to ensure the safety.

Kevin Hirzel is a Partner at Cummings, McClorey, Davis & Acho, P.L.C. and leads the Community Association Practice Group. Mr. Hirzel can be contacted at (734) 261-2400 or khirzel@cmda-law.com. Please view The Michigan Community Association Law Blog at http://micondolaw.com for additional resources on Michigan Community Association Law.

CMDA Client’s TV Show Picked Up

Burgess Acho LaMarrJim Acho has been LaMarr Woodley’s attorney since he turned professional with the Pittsburgh Steelers. Today LaMarr is retired after an All Pro career and has turned his attention to Hollywood and acting and producing. LaMarr filmed six episodes of a TV show he hosts called “Tackle My Ride,” which aired this year on NFL Network and Spike TV. The networks have ordered the show for two seasons and LaMarr will start filming very soon, in addition to hosting his weekly radio talk show on 910 AM in Detroit.

In the photo, LaMarr is on the right and fellow CMDA client (and groom) Prescott Burgess is on the left. Jim attended Prescott’s wedding on Saturday, June 24, 2017 in Chicago, where LaMarr served as Prescott’s best man.  Jim says, “I’ve known both of these men since they were 18 years old and to see the type of men they are today – great husbands and fathers and compassionate, civic minded people, it’s truly heartening. I’m proud of our association with Wood and Prescott on a business level, but far more proud on a personal level.”

Security Cameras in Michigan Condominium Projects

Joe Wloszek_8x10@300Whether inside a grocery store, at a gas station or even in your neighborhood, security cameras are everywhere in modern society.  As technology evolves and cheaper and better cameras come onto the market each year, Michigan condominiums are experiencing an increase in surveillance and/or security camera usage.  Security cameras raise significant legal questions that impact decisions made by the Board of Directors and co-owners.  When considering the pros/cons of security cameras, some common questions arise:

  1. Does the Board of Directors have authority to install security cameras?  If so, where?
  2. Do the governing documents allow co-owners to install security cameras through a modification/alteration agreement?  If so, where?
  3. Who is in charge of the security cameras and who has access to the feeds?
  4. Do the security cameras look into other co-owners’ units?
  5. Do the security cameras overlook the community pool?
  6. Do the security cameras watch children at a playground or school bus stop?
  7. Are the security cameras real or “dummy” cameras only there to deter potential criminals?
  8. Do the security cameras have sound capability?
  9. Are the security cameras fixed in place or do the cameras have 360 degree viewing at any given time?
  10. Are the security cameras motion activated?
  11. Who pays for the maintenance, repair and replacement of the security cameras?
  12. Who maintains insurance for the security cameras?
  13. Do the security cameras monitor and record or just monitor?
  14. What happens if a Board of Directors approves a security camera and the co-owner uses it inappropriately?

The answers to these questions impact whether security cameras may be appropriate in any given area of the condominium project or, alternatively, reflect a violation of the governing documents.

Common Locations for Security Cameras

While security cameras may be located at various locations in a condominium project, some locations are more common than others.  First, security cameras may overlook common entrances or, if applicable, the guard shack and/or security gate.  This allows the association to monitor all incoming and outgoing vehicles on any given day.  As an example, after a rash of car break-ins and tires being stolen, one association was able to assist law enforcement in narrowing the number of potential suspects by reviewing what vehicles entered and exited a community during a specific time period.  Second, some associations place security cameras overlooking community dumpsters.  The cost of emptying community dumpsters is paid for by the co-owners as part of their monthly assessment and the security cameras reduced the likelihood of any illegal dumping of trash from nonco-owners.   Third, security cameras may monitor recreational facilities or the entrance to the community pool.  As an example, if a co-owner is using a security card to allow 50 friends to throw a party at the pool, the Association may wish to monitor and prevent such festivities in the future.  Fourth, some co-owners seek to use security cameras for safety reasons on the outside or even on the inside of their units.  For example, the victim of a sexual assault or a burglary may want additional security in the form of security cameras.

Legal Issues Surrounding Security Cameras

Security cameras are often utilized to reduce theft, deter vandalism, discover Bylaw violations, and monitor visitors and trespassers.  Below are some examples of legal issues that may arise due to security cameras in a condominium.

  1. Window Peeper or “Peeping Tom”

The Michigan Penal Code, specifically MCL 750.167(1)(c), considers a “window peeper” as a disorderly person.  Simply, one co-owner should not be able to video monitor the inside of another co-owner’s unit.  This is particularly serious when the unit being monitored has small children.  The Association should be weary of granting permission to a co-owner to have a security camera without knowing what such a security camera monitors.

  1. Invasion of Privacy

Michigan has long recognized the common-law tort of invasion of privacy. Lewis v LeGrow, 258 Mich App 175, 193; 670 NW2d 675 (2003); see also DeMay v. Roberts, 46 Mich. 160; 9 NW 146 (1881).  The invasion of privacy tort has evolved into four distinct tort theories: (1) the intrusion upon another’s seclusion or solitude, or into another’s private affairs; (2) a public disclosure of private facts about the individual; (3) publicity that places someone in a false light in the public eye; and (4) the appropriation of another’s likeness for the defendant’s advantage.” Lewis, 258 Mich App at 193.

Under the first theory, there are three necessary elements to establish a case of intrusion upon seclusion: (1) the existence of a secret and private subject matter; (2) a right possessed by the plaintiff to keep that subject matter private; and (3) the obtaining of information about that subject matter through some method objectionable to a reasonable person. Doe v. Mills, 212 Mich App 73, 88; 536 NW2d 824 (1995).

As discussed above, an association may install security cameras in numerous areas, however the association may not set up security cameras in any area where a co-owner has a reasonable expectation of privacy.  For example, community locker rooms and community bathrooms may be off limits to security cameras depending on the location of the security cameras and the expectation of privacy of those individuals being monitored.  Essentially, a security camera monitoring the entrance to a community locker room will likely be treated differently than a security camera inside the women’s locker room changing area.

  1. Nuisance 

Nuisance is an interference with a landowner’s use and enjoyment of their land. Adams v Cleveland-Cliffs Iron Co, 237 Mich App 51, 59; 602 NW2d 215 (1999).  A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.  Adkins v Thomas Solvent Co, 440 Mich 293, 302; 487 NW2d 715 (1992).  Nuisances may be either per se or per accidens, that is, at law or in fact. McDowell v Detroit, 264 Mich App 337, 348-349; 690 NW2d 513 (2004). A nuisance in fact is a nuisance ‘by reason of circumstances and surroundings.’ Id. at 349. To establish the existence of a nuisance in fact, a plaintiff must show ‘significant harm resulting from the defendant’s unreasonable interference with the use or enjoyment of the property.’ Id.; see, also, Adkins, supra at 304.

Most condominium bylaws prohibit any activity that is a nuisance to other co-owners or detrimentally impacts the aesthetics of the condominium project.  In its discretion, a Board of Directors may decide to allow a co-owner to install 1-2 security cameras at a unit for security reasons, but not allow 8-10 security cameras under various nuisance theories.  If a co-owner looks into other co-owners’ units or if a co-owner uses security cameras to monitor children, the Board of Directors may wish to restrict the number and location of the security cameras.

  1. Wiretapping

The Michigan Penal Code, specifically MCL 750.539c, states:

Any person who is present or who is not present during a private conversation and who wilfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto, or who knowingly aids, employs or procures another person to do the same in violation of this section, is guilty of a felony punishable by imprisonment in a state prison for not more than 2 years or by a fine of not more than $2,000.00, or both.

The Michigan Penal Code, specifically MCL 750.539d, states in relevant part:

(1) Except as otherwise provided in this section, a person shall not do either of the following:

(a) Install, place, or use in any private place, without the consent of the person or persons entitled to privacy in that place, any device for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place.

(b) Distribute, disseminate, or transmit for access by any other person a recording, photograph, or visual image the person knows or has reason to know was obtained in violation of this section.

Any security cameras that record sound must be closely scrutinized to determine whether the security cameras run afoul of the Michigan wiretapping statute.

  1. Fake or “Dummy” Security Cameras

Some associations have installed fake or “dummy” security cameras to deter would be criminals.  Co-owners may have a false sense of security that a particular area is being monitored.  From a legal perspective, there is a growing body of law commonly called “negligent security lawsuits.”  Negligent security is an offshoot of premises liability whereby the victim attempts to hold the owner of the property liable for the actions of a third party.  As an example, a man is burglarized below what he believes to be an active security camera, when in actuality, the camera was a “dummy” camera.  Ultimately, having inoperable security cameras may expose the association to liability should a burglary, rape, assault or similar circumstances occur.

Conclusion

When considering the ramifications of allowing security cameras, the Board of Directors should use its business judgment.  Often times, the Board of Directors will wish to implement reasonable Rules and Regulations regarding the usage of security cameras and/or enter into an alteration/modification agreement with a co-owner to limit the association’s potential exposure should any problems arise.

Joe Wloszek is an attorney in our Livonia office where he focuses his practice on condominium law, commercial litigation, commercial real estate, large contractual disputes, and title litigation.  He may be reached at (734) 261-2400 or jwloszek@cmda-law.com.

 

Acho Speaks at NFL Alumni Annual Event

IMG_0209Jim Acho appeared at the NFL Alumni Annual dinner at Tam O’Shanter Country Club on June 12, 2017. Jim spoke to retired players and gave an update on the new Baseline Assessment Plan implemented pursuant to the NFL Concussion Class Action Settlement, of which Jim and CMDA are one of the law firms involved.

Photo: Jim Acho with Lions legends and CMDA clients Mike Lucci and Eric Hipple. Lucci was the middle linebacker on the Cleveland Browns last championship team of 1963 and is a member of several Halls of Fame. Hipple, a former quarterback, now runs the Eisenhower Center for military vets suffering with PTSD.

Cross Participates in Pro Bono Expungement Clinic

Matt CrossMatt Cross, an attorney in our Traverse City office, recently participated in a pro bono expungement clinic to clear old criminal convictions.  The clinic is designed to remove barriers to employment and housing for people with old felony and misdemeanor convictions.

Mr. Cross met with participants at no charge to discuss their situation and assisted them with completing legal forms.  Michigan law allows individuals to set aside some, but not all, types of convictions when more than five years have passed since the sentence has been served and probation completed.

The clinic was a partnership between Legal Services of Northern Michigan, Conflict Resolution Services, the Grand Traverse-Leelanau-Antrim Bar Association, and Women Lawyers Association.

Matt Cross is an attorney in our Traverse City office where he focuses his practice on business law, insurance defense, law enforcement defense and litigation, and municipal law. He may be reached at (231) 922-1888 or mcross@cmda-law.com.