If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

DAOUD MOUSA JANINI and FERYAL JANINI,

Plaintiffs-Appellees,

UNPUBLISHED

February 1, 2022

v No. 355191

Wayne Circuit Court

LONDON TOWNHOUSES CONDOMINIUM 

ASSOCIATION,

LC No. 19-008520-NO

Defendant-Appellant,

and

JAMES PYDA,

Defendant.

Before: CAVANAGH, P.J., and SHAPIRO and GADOLA, JJ.

SHAPIRO, J. (concurring).

I agree with the majority that Francescutti v Fox Chase Condo Ass’n, 312 Mich App 640; 

886 NW2d 891 (2015), requires reversal of the trial court’s decision to deny summary disposition 

to the defendant condominium association. However, because I believe Francescutti was wrongly 

decided and absent its binding authority would affirm the trial court, I would issue a published 

decision requesting that a special panel be convened to reconsider whether condominium 

associations should be immune from premises liability actions brought by condominium unit 

owners. See MCR 7.215(J)(2)-(3).

I. BACKGROUND

Plaintiff Daoud Janini is the owner of a condominium unit in the London Townhouses, a 

condominium project operated by defendant, a non-profit corporation known as the London 
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Townhouses Condominium Association.

1 Plaintiff filed suit alleging that he suffered a serious 

injury when he fell as a result of the Association’s failure to take reasonable measures within a 

reasonable time to address icy conditions on the project’s sidewalks, which are considered to be 

common elements of the project.2 That the Association bears responsibility for taking such 

measures is not in dispute. The Association’s bylaws provide that “[t]he Association shall be 

responsible for construction, repair and maintenance of the Common Elements,” and in its answer 

to interrogatories, the Association admitted that it “was responsible for salting on the sidewalks” 

and for “[s]now and ice removal on the sidewalks.” 

The Association filed a motion for summary disposition, arguing that although it was 

responsible to perform snow and ice removal, plaintiff could not bring a premises liability suit 

against it because as a unit owner he possesses an undifferentiated property interest in the common 

elements along with all other unit owners as “co-owners”3of the project. The Association relied 

on this Court’s decision in Francescutti that co-owners are barred from suing the condominium

association for the condition of the common elements under common law. The trial court, while 

granting some aspects of the Association’s motion, denied it as to plaintiff’s premises liability 

claim. 

I. ANALYSIS

Were I free to do so, I would affirm the denial of summary disposition because contrary to 

the Association’s argument, in premises liability actions, the focus is not on ownership or title as 

such but on who has possession and control of the land. See Finazzo v Fire Equip Co, 323 Mich 

App 620, 627; 918 NW2d 200 (2018) (“Generally, for a party to be subject to premises liability in 

favor of persons coming on the land, the party must possess and control the property at issue but 

not necessarily be its owner.”). This is because the “party in possession is in a position of control, 

and normally best able to prevent any harm to others.” Id. (quotation marks and citation omitted). 

See also Stanley v Town Square Coop, 203 Mich App 143, 147; 512 NW2d 51 (1993) (“[The party 

with] exclusive control over the common areas of the premises, . . . is the only one who can take 

the necessary precautions to ensure that the common areas are safe for those who use them.”). The 

issue was discussed at length in Oriel v Uni-Rak Sales Co, Inc, 454 Mich 564, 568; 562 NW2d 

241 (1997):

 

1 For purposes of clarity, I refer to various entities by the name provided by the Condominium Act, 

MCL 559.101 et seq. Plaintiff’s dwelling will be referred to as his “condominium unit.” MCL 

559.104(3). Lincoln Townhouses will be referred to as the “condominium project” or “project.” 

MCL 559.104(1). Because plaintiff Feryal Janini’s claims are derivative of her husband’s claims, 

the term “plaintiff” as used in this opinion refers only to plaintiff Daoud Janini.

2 Common elements are defined by statute as “the portions of the condominium project other than 

the condominium units.” MCL 559.103. In some cases, they are also referred to as “common 

areas.”

3 MCL 559.106(1) defines “co-owner” as “a person, firm, corporation, partnership, association, 

trust, or other legal entity or any combination of those entities, who owns a condominium unit 

within the condominium project.” 
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Premises liability is conditioned upon the presence of both possession and 

control over the land. This is so because

“[T]he man in possession is in a position of control, and normally best able 

to prevent any harm to others.”

Michigan has consistently applied this principle in imposing liability for 

defective premises.

Our application of this principle is in accordance with the Restatement of 

Torts. The Restatement imposes liability for injuries occurring to trespassers, 

licensees, and invitees upon those who are “possessors” of the land. A “possessor” 

is defined as:

“(a) a person who is in occupation of the land with intent to control it or

“(b) a person who has been in occupation of land with intent to control it, if 

no other person has subsequently occupied it with intent to control it, or

“(c) a person who is entitled to immediate occupation of the land, if no other 

person is in possession under Clauses (a) and (b).”

Ownership alone is not dispositive. Possession and control are certainly incidents 

of title ownership, but these possessory rights can be “loaned” to another, thereby 

conferring the duty to make the premises safe while simultaneously absolving 

oneself of responsibility. [Quoting Merritt v Nickelson, 407 Mich 544, 552-553; 

287 NW2d 178 (1980).]

Thus, a land owner who has not retained at least some degree of possession or control of 

the premises owes no duty to the entrants. See e.g., Merritt, 407 Mich at 554; Wheeler v Iron Co 

Rd Comm, 173 Mich App 542, 544-545; 434 NW2d 188 (1988). Accordingly, the Michigan Model 

Civil Jury Instructions do not state that an “owner” has the duty to protect those who come on the 

land, rather it imposes a duty on “the possessor” of the premises. See e.g., M Civ JI 19.03. 

It is not in dispute that the Association is in possession and control of the common 

elements. By contrast, while a condominium unit owner has a nonexclusive and undifferentiated 

right to use those elements, no unit owner possesses a right of possession and control over them.

Condominium unit owners may not modify the common elements, may not maintain them, may 

not deny others the right to access those areas and may not sell their “share” of the common 

elements.

4

 The Association cannot point to any indicia of ownership present other than the right 

of reasonable, nonexclusive use that terminates immediately upon the sale of their unit. I would

conclude that because the Association is the sole party in possession and control of common 

 

4 MCL 559.137(5) provides that “[e]xcept to the extent otherwise expressly provided by this act, 

the undivided interest in the common elements allocated to any condominium unit shall not be 

altered, and any transfer, encumbrance, or other disposition of that interest without the 

condominium unit to which it appertains is void.”
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elements, it may be sued in premises liability for injuries arising out of dangerous conditions, even 

by one who has an ownership interest in the common elements. 

As noted however, we are constrained to reverse and direct the trial court to grant summary 

disposition of the premises liability claim in light of the decision in Francescutti, 312 Mich App 

640. In that case, the plaintiff, a condominium unit owner, slipped and fell on an icy sidewalk in 

a common element of the condominium complex. Id. at 641. The plaintiff filed a premises liability 

action, alleging that he was an invitee with respect to common elements of the complex, while the 

condominium association argued that the plaintiff was a licensee. Id. at 642. Though not argued 

in the briefs, this Court held that, as it pertained to the common elements, a condominium owner 

is neither an invitee or a licensee because the definitions of those terms refer to a person entering 

on to “the land of another,” and a condominium owner is “a co-owner of the common areas of the 

development.” Id. at 643. It concluded that “because plaintiff is neither a licensee nor an invitee, 

there was no duty owed to plaintiff by defendant under premises liability. Rather, any duty owed 

to plaintiff by defendant must arise either from principles of general negligence or breach of 

contract.” Id.

5

For the reasons already discussed, Francescutti’s holding, which turned on who owned the 

common elements, is inapposite to basic premises liability law that it is the possessor of the land 

who is responsible for injuries that occur on the property.6 To the extent that Francescutti can be 

read as holding that a unit owner may not sue for the condition of the common elements because 

that would be akin to suing one’s self, that holding is not well reasoned. In a premises liability 

action, the unit owner is not suing him or herself, but rather is suing the Association, a distinct 

legal entity. Such individual actions against the Association are expressly allowed by the 

 

5

In this case, plaintiff briefly suggests that he has an extant claim for negligent maintenance of the 

sidewalk arising from the condominium bylaws. But the trial court dismissed all claims except for 

premises liability, and plaintiff did not file a cross-appeal.

6 Further, while Francescutti relied heavily on the “land of another” language found in some 

definitions of invitee and licensee, it is noteworthy that the definitions of those terms contained in 

the model civil jury instructions do not contain that language:

*(An invitee is a person who is invited to enter or remain on [land / premises / a place of 

business] for a commercial benefit to the possessor of the [land / premises / place of 

business] or for a purpose directly or indirectly connected with business dealings with the 

possessor. An invitation may be either express or implied.)

*(A licensee is a person who is invited to enter or remain on [land / premises / a place of 

business] for any purpose other than a business or commercial one with the express or 

implied permission of the owner or person in control of the [land / premises / place of 

business]. A social guest is a licensee, not an invitee.) [M Civ JI 1.901.]
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Condominium Act, MCL 559.101 et seq.

7

 And precluding unit owners from suing the Association 

is not consistent with basic law governing the analogous areas of partnerships and shareholders.8

Notably, another panel of this Court recently held that cooperative housing entities are

liable to those living within the project for a failure to reasonably maintain the common elements. 

See Jeffrey-Moise v Williamsburg Towne Houses Coop, Inc, ___ Mich App ___; ___ NW2d ____ 

(2021) (Docket No. 351813). In reaching that decision, the Court recognized that it was the 

defendant housing cooperative, rather than the plaintiff member, who had possession and control 

over the common areas:

Plaintiff’s membership in the cooperative did not give her independent 

authority over the common areas of the cooperative typically enjoyed by an owner. 

In fact, the Occupancy Agreement precluded plaintiff, as a member, from making 

alterations to the common areas of the premises, including the sidewalks. By 

contrast, defendant retained control over the maintenance of the common areas of 

the cooperative, including authority over the removal of snow and ice in those areas. 

Defendant thus retained sufficient control and dominion over the common areas 

that it may be said that defendant was in possession of the common areas of the 

cooperative in contrast to plaintiff’s membership right to use those areas. Because 

defendant was in possession of the cooperative’s common areas, we conclude that 

plaintiff was on land that was in the possession of another when she fell. [Id. at 

___; slip op at 7 (emphasis added).]

In distinguishing Francescutti, the Jeffrey-Moise Court noted the differences in the 

corporate structures of condominiums and cooperatives, explaining that condominium owners take 

title to an individual unit while a member in a cooperative owns stock in the cooperative 

corporation and receives a lease to a unit. Id. The Court concluded that 

[u]nlike the plaintiff in Francescutti, there is little support for the conclusion 

that plaintiff owned the land on which she fell. Plaintiff’s purchase of a 

membership in the cooperative entitled her to occupy her townhome and entitled 

 

7 See MCL 559.207 (“A co-owner may maintain an action against the association of co-owners 

and its officers and directors to compel these persons to enforce the terms and provisions of the 

condominium documents.”); Newport West Condo Ass’n v Veniar, 134 Mich App 1, 13; 350 

NW2d 818 (1984) (“Defendants are not without a remedy for violations by the association of the 

master deed, bylaws, or the Condominium Act. This remedy consists of legal action against the 

association . . . .”). In addition, MCL 559.215(1) provides that: “A person . . . adversely affected 

by a violation of failure to comply with this Act, or any provision of an agreement or master deed 

may bring an action for relief in a court of competent jurisdiction.”).

8 See Yenglin v Mazur, 121 Mich App 218, 224; 328 NW2d 624 (1982) (“[S]ince a partnership is 

a separate legal entity for purposes of litigation, capable of suing and being sued, [a partner] may 

sue on a general obligation of his partnership without the necessity of first bringing an action for 

an accounting.”); George N Fletcher & Sons v Alpena Circuit Judge, 136 Mich 511, 513; 99 NW 

748 (1904) (“[A] stockholder may [sue the corporation to] enjoin the making of a usurious 

contract” or a ultra vires act).
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her to use the common areas of the cooperative, as long as she paid the required 

monthly fees and complied with the rules of the cooperative. Plaintiff was thus in 

a business relationship with the cooperative in which she purchased certain rights 

of occupancy from the cooperative by buying a membership in the cooperative. 

[Id.]

But while the ownership structures of condominium associations and housing cooperatives 

are different, it is difficult to see why this should lead to a different outcome in a premises liability 

suit. To the contrary, MCL 559.241(1) makes clear that the ownership structure of a condominium 

is not grounds to avoid the legal duties solely on the basis of its form of ownership:

A condominium project shall comply with applicable local law, ordinances, 

and regulations. Except as provided in subsection (2), a proposed or existing 

condominium project shall not be prohibited nor treated differently by any law, 

regulation, or ordinance of any local unit of government, which would apply to that 

project or development under a different form of ownership. [MCL 559.241(1) 

(emphasis added).]

Further, for both condominiums and cooperatives, it is the managing legal entity that is 

responsible for maintaining the common areas,

9

and in both cases, those who live in the complex 

have an ownership interest in the common areas: condominium owners as co-owners and 

cooperative members as stockholders. Just as cooperative members pay monthly fees to the 

cooperative to fund maintenance of the common elements, Jeffrey-Moise, ___ Mich App at ___; 

slip op at 2, in this case plaintiff paid monthly dues to the Association to fund maintenance of the 

common elements of the project. And like cooperative members, condominium unit owners are 

in no sense possessors as it relates to the common areas. See Oriel, 454 Mich at 568. While the 

condominium association may exercise control over the common areas, no individual unit owner 

may do so. For example, individual unit owners are not permitted to make their own alterations 

to the common areas. Nor can a unit owner occupy the common areas or exclude other owners.10

Thus, for purposes of a premises liability action—where the proper defendant is the entity 

with possession and control of the land—there is not a material distinction between condominium 

associations and housing cooperatives as it pertains to common elements. Both associations and 

cooperatives maintain the common elements and have the sole authority to control them and are 

therefore the “possessors,” as opposed to the individual owners and members who merely use 

 

9 And unlike Francescutti, in which the plaintiff did not cite to any provisions in the condominium 

documents establishing a duty to maintain on the part of the Association, see Francescutti, 312 

Mich App at 644, the bylaws here provide that “[t]he Association shall be responsible for 

construction, repair and maintenance of the Common Elements.”

10 Indeed, the Association wants to have its cake and eat it too. It claims that because plaintiff is 

a “co-owner” he may not bring suit regarding common areas. But it also claims that if a unit owner

were to damage any common areas, the Association may sue the unit owner even though he is a 

co-owner. 
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those areas. I can perceive no principled reason why housing cooperatives should be subject to 

liability in these types of suits but condominium associations should not, particularly in light of 

MCL 559.241(1). Nor is it at all clear why a stockholder (i.e., a partial owner) may sue the entity 

in which he holds stock, but a condominium owner who shares ownership of the common elements

with all the other unit owners may not sue the entity entrusted with the project’s management.

Further, while the Francescutti Court was unable to find any Michigan authority that an 

owner of a condominium unit is an invitee or licensee with respect to common areas, Francescutti, 

312 Mich App at 642-643, there is also no prior Michigan case addressing the issue that concluded 

that unit owners may not sue for injuries due to failure to maintain the common areas. Given that 

Michigan had no published caselaw on the issue, it is noteworthy that, at least according to the 

American Law Reports, Michigan now stands alone in barring premises liability actions by 

individual unit owners against condominium associations for injury caused by the condition of 

common areas. See Liability of condominium association or corporation for injury allegedly 

caused by condition of premises, 45 ALR 3d 1171.11

For these reasons, I would conclude that Francescutti was wrongly decided and request

that this Court convene a special panel to reconsider the issue.

/s/ Douglas B. Shapiro

 

11 See e.g., Davenport v Cotton Hope Plantation Horizontal Prop Regime, 333 SC 71, 88; 508 

SE2d 565 (1998) (“[A] member of a condominium association . . . may bring a tort action against 

the association for failing to properly maintain the common elements”); Lechler v 303 Sunset 

Avenue Condo Ass’n, Inc, 452 NJ Super 574, 586; 178 A3d 711 (App Div, 2017) (condominium 

association had a duty to unit owner, who was injured when he stumbled down center of 

condominium’s exterior stairs, to maintain stairs); Soederberg v Concord Greene Condo Ass’n, 76 

Mass App Ct 333; 921 NE2d 1020 (2010) (condominium resident, who was injured in slip-andfall accident on sidewalk on the premises of condominium complex, could bring negligence action 

against the condominium association); Henderson v Lofts at Lake Arlington Towne Condo Ass’n, 

2018 IL App (1st) 162744; 105 NE3d 1, 14 (2018) (unit owners’ association owed a duty to 

condominium resident who slipped and fell on his front step on a rainy evening, allegedly due to 

faulty epoxy work); Sadlowski v Beacon Mtg Servs, Inc, 348 Ga App 585, 594; 824 SE2d 42 

(2019) (condominium association has a duty to maintain the common elements unless that duty is 

circumscribed by the condominium documents); Lloyd v Pier West Prop Owners Ass’n, 2015 Ark 

App 487; 470 SW3d 293, 299 (2015) (a condominium association may be held to the landlord 

standard of care as to common areas under its control); Sevigny v Dibble Hollow Condo Ass’n, Inc, 

76 Conn App 306, 320; 819 A2d 844 (2003) (an individual condominium unit owner who is a 

member of the condominium association may maintain a negligence action against the association 

for negligent maintenance of its common areas); Walters v Beach Club Villas Condo, Inc, 301 So 

3d 343, 348 (Fla App, 2020) (condominium association bound by its establishing documents that 

impose a duty on it to maintain common areas).