by Raymond Daniel Burke | Aug 30, 2011
I obtained a noteworthy ruling this morning in the Circuit Court for Montgomery County while representing a condominium unit owner in a construction defect suit. The sales agreement provided for arbitration of claims, and contained a provision that precludes the arbitration panel from awarding attorney’s fees. Under Md. Cts. & Jud. Proc Code Ann. Sec. 3-221, an arbitration award cannot include attorney’s fees unless provided for in the arbitration agreement.
The complaint filed on behalf of the unit owner included a cause of action under the Maryland Consumer Protection Act, which provides for the award of attorney’s fees. The Court accepted our argument that, because the damages that can be awarded under the Consumer Protection Act could not be awarded in arbitration, the Consumer Protection Act claim was not subject to the arbitration agreement, and can proceed in Court before a jury.
by Raymond Daniel Burke | Aug 18, 2011
Anyone who follows this blog knows that I have often warned condominium councils about the consequences of failing to take timely legal action to protect the unit owners when there is evidence of construction defects in the common elements. The most significant consequence, of course, is that, if a contribution to repair costs is not obtained from the developer and/or its insurer, the unit owners will have to bear the full cost of repair. Now, in an appeal in which I represented a group of individual unit owners at the Avalon Court Six Condominium in Pikesville, the Court of Special Appeals has held that individual unit owners have a right of action for negligence against the council of unit owners, acting through the board of directors, in failing to address defects in the common elements by bringing a timely claim against the developer. (more…)
by Raymond Daniel Burke | Jul 14, 2011
I am pleased to report that my services as a mediator and arbitrator may now be arranged through Virtual Courthouse. You can visit the site at www.virualcourthouse.com. I have many years of experience in alternative dispute resolution proceedings in matters relating to condominiums, homeowner associations, multi-family housing projects, and individual homes. These have included cases involving contruction defects, building repairs, budgets, assessments, and association administrative issues. Employing the services of a capable neutral party is a cost effective means of settling issues outside of litigation.
by Raymond Daniel Burke | Jul 12, 2011
The Maryland General Assembly enacted new legislation aimed at helping to resolve disputes concerning the election of officers and board members of a homeowners association. Senate Bill 532 amends Section 11B-115 of the Maryland Homeowners Association Act to give the Consumer Protection Division of the Attorney General’s Office authority to resolve election disputs. A lot owner who believes that the governing body of an HOA has failed to comply with the election procedures under the association’s governing documents can submit their dispute to the Division for resolution if any one of five specific matters are at issue: (1) Notice about the date, time, and place for the election; (2) the manner in which a call for nominations for the board was made; (3) the format of the election ballot; (4) the format, provision, and use of proxies during the election process; or (5) the manner in which a quorum is determined for election purposes. The new law take effect on October 1, 2011.
by Raymond Daniel Burke | Jun 29, 2011
Unlike the Title 10 warranties that are applicable to the sales of all new homes in Maryland, including condominiums, the Title 11 condominium warranties “may not be excluded or modified” by any action or written document. In other words, the purchaser cannot be required to agree to eliminate these statutory warranties, or change the terms of the warranties as required by the statute. Any such agreement, written or otherwise, is invalid. This recognizes that a condominium purchaser is buying an interest in the common elements of a building, or perhaps a number of buildings, and is not have the same ability as a purchaser of an individual home to inspect the entire premises. It includes both the warranty on components of the common elements that is given by the developer to the council of unit owners, and the warranty on components of the individual units that is given by the developer to each individual unit owner purchaser. Therefore, the condominium warranties apply regardless of any agreement to exclude them or modify the content. However, the Title 11 condominium warranties are expressly limited so as not to apply “to any defects caused through the abuse or failure to perform maintenance by a unit owner or the council of unit owners,” and are also inapplicable to non-residential condominium regimes.
