by Raymond Daniel Burke | Aug 2, 2012
Despite similar bills unanimously passing both houses, the 2012 Maryland General Assembly was unable to finalize an amendment to the Condominium Act that would have precluded developers from restricting rights of action by councils of unit owners and individual unit owners to enforce warranties and other claims. Both House Bill 740 and Senate Bill 725 would have added a new section to the Condominium Act that would have dramatically stripped away the ability of developers to limit the time in which councils and unit owners can bring suit, as well as impose other hurdles to commencing litigation. Both bills would have prohibited provisions in a condominium declaration, bylaws or contract of sale that (1) purport to shorten the statute of limitations applicable to to any warranty claim or other statutory or common law claim; (2) purport to waive the applicable “discovery rule” or other accrual date for claim; (3) operates to prevent the filing of suit, initiating arbitration, or otherwise asserting a claim with the applicable statute of limitations; and (4) requires a claim to be asserted in a period of time shorter than the applicable statute of limitations. Significantly, the new law would also have prohibited provisions requiring that a vote of the owners, approval of the developer or other non-unit owner, (most likely meaning mortgage holders), as a precondition to pursuing a claim; unless such restrictive i is adopted by the council of unit owners after election of the first independent board of directors.
The only difference between the two versions was that the House bill provided an exception for condominiums sold by the developer “as is” and without warranties. This is peculiar since the Condominium Act warranties under Section 11-131 cannot be excluded or modified. Both versions provided an exception for non-residential condominiums. We will see if the legislation is renewed at the next session.
by Raymond Daniel Burke | Aug 1, 2012
The 2012 session of the Maryland General Assembly resulted in an amendment to the Condominium Act regarding the circumstances under which a council of unit owners may enter a condominium unit. Section 11-125 of the Act previously provided that a council of unit owners, or its authorized designee, has “an irrevocable right and an easement” to enter units for the purpose of making repairs, where the work is “reasonably necessary for public safety or to prevent damage to other portions of the condominium.” The 2012 amendment, House Bill 126 (Chapter 101) expands this authority to also permit entry to “investigate damage” in addition to actually undertaking repairs. A proposal to remove the requirement that entry be limited to circumstances in which it is necessary for public safety or to prevent other damage was deleted from the final bill. It is still required that the council make “a reasonable effort to give notice” to the unit owner that the unit will be entered for purpose of investigation or repair; except that notice is not required “in cases involving manifest danger to public safety or property.” The amendment takes effect on October 1, 2012.
by Raymond Daniel Burke | Jul 31, 2012
During the 2012 Session, the Maryland General Assembly enacted a new provision that requires the council of unit owners of all condominiums with ten or more units to, by October 1, 2014, provide recycling for the residents, including collection and removal, in accordance with the recycling plan adopted by the county in which the condominium is located. House Bill 1 (Chapter 192) amends Section 9-1711 of the Environment Article to require recyling at condominiums and apartment buildings with ten or more units. It further authorizes the counties to require that such faciliites report to the county on their recyling activities in such manner as the county may determine. The new law does not effect the authority of a county, municipality or other local government to enact and enforce more stringent recycling requirements. It also authorizes a county, municipality or other local government to conduct inspections to enforce these recycling provisions. Violations are subject to a civil penalty not exceeding $50 for each day in which a violation exists.
by Raymond Daniel Burke | Jul 23, 2012
A Maryland legal ruling recently made national news when the Court of Appeals held that the owners of pit bull breeds, as well as landlords who permit tenants to own pitbulls, are strictly liable for damages arising from an attack by these dogs. The decision in Tracy v. Solesky changed the common law, which requires that a plaintiff must prove that the dog was known to be dangerous. Now the Court has determined that it will hear arguments to reconsider the decision. Interested groups on both sides of the contovery have filed amicus curie briefs with the Court, and seek to be heard on the issue.
The victim in the underlaying case was Dominic Solesky, a 10-year-old boy who in 2007 was mauled by a pit bull. Solesky was seriously injured in the attack, requiring five hours of surgery, including repair of his severed femoral artery. He spent seventeen days in the pediatric intensive care unit, had additional surgeries, and spent a year in rehabilitation. In 2008, his parents filed a complaint seeking money damages against the dog’s owners and their landlord, alleging negligence and strict liability. The dog’s owners subsequently declared bankruptcy. At trial, the court ruled that there was insufficient evidence that the landlord knew of the vicious nature of the dog. In 2011, the Court of Special Appeals reversed the lower court’s decision. The landlord’s insurer appealed to Maryland’s highest court.
In modifying Maryland common law of liability relating to attacks by pit bulls and pit bull-mixes, the Court of Appeals concluded that “because of its aggressive and vicious nature…pit bulls and cross-bred pit bulls are inherently dangerous” and went on to “impose greater duties by reducing the standards necessary to hold owners and others liable for the attacks of their pit bulls.”
Stay tuned for developments as the issue is reconsidered.
by Raymond Daniel Burke | Jun 5, 2012
On Wednesday, June 27, 2012, I will be presenting a webinar from noon until 1:30 pm entitled “Condominium and New Home Warranties and Rights of Action.” The webinar will focus on claims and causes of action that arise in connection with construction defect issues.
For most individuals, the purchase of a new house or condominium unit is the largest investment that they will have ever made. Moreover, that investment is also a home and place of refuge and relaxation that they share with family and friends. Few things, therefore, have the potential to be more disturbing than the discovery of construction defect issues that diminish both the enjoyment of the home and its value. For that reason, new home purchasers inMarylandare afforded various protections in the form of statutory warranties. They also may receive specific warranties from the seller as part of their purchase agreement. Additionally, homebuyers may have other statutory and common law rights of action that arise as a result of construction deficiencies. However, none of these possible remedies provides a certain or easy path to relief. All such claims are governed by strict statutes of limitations that require considerable diligence or order to preserve the intended benefits. Pursuing claims is also an expensive and often protracted process that, in addition to the retention of capable legal counsel, also requires the involvement of building consultants who can identify defects, recommend repairs, and offer opinion evidence to support the claim.
This program is intended to shed some light on the issues that confront associations and homeowners when attempting to pursue construction defect remedies, as well as the liability and exposure that effects developers and builders. It will offer important information for condominium and homewoner associations, unit owners, property managers, developers, builders and contractors. The is no cost to attend the program. Here is the link from which you can sign up:
http://www.ober.com/news_events/1836-condominium-new-home-warranties-rights-action
