by Raymond Daniel Burke | Mar 25, 2012
I was recently asked to again discuss the impled warranties under Maryland law. Pursuant to Md. Code Ann., Real Prop. Tit. 10, certain implied warranties are applicable to the sale of every newly constructed home in Maryland. These warranties are applicable to all “improvements,” which are defined as “every newly constructed private dwelling unit, and fixture and structure which is made part of a newly constructed private dwelling unit at the time of its construction.” They are enforceable against a “vendor,” defined as “any person engaged in the business of erecting or otherwise creating an improvement on realty, or to whom a completed improvement has been granted for resale in the course of his business.” These broadly worded implied warranties provide that the improvement is: (1) Free from faulty materials; (2) constructed according to sound engineering standards; (3) constructed in a workmanlike manner; and (4) fit for habitation. However, it is expressly provided that these warranties “do not apply to any condition that an inspection of the premises would reveal to a reasonably diligent purchaser at the time the contract is signed. Nevertheless, there is a fifth implied warranty that is not subject to the inspection exception. This is the implied warranty of fitness for a particular purpose. “If the purchaser, expressly or by implication, makes known to the vendor the particular purpose for which the improvement is required, and it appears that the purchaser relies on the vendor’s skill and judgment, there is an implied warranty that the improvement is reasonably fit for the purpose.” (more…)
by Raymond Daniel Burke | Mar 6, 2012
I previously wrote about the recent decision of the Maryland Court of Appeals in the case of InMRA Property Management, Inc., et al. v. Armstrong, No. 93, Sept. Term 2007, filed on October 25, 2011. A majority of the Court of held that the Maryland Consumer Protection Act applies to purchases of condominium units with respect to the information required to be provided by a council of unit owners in the resale certificate. The Court ruled that, where a council of unit owners and its property management company violate the resale certificate disclosure obligations imposed by Md. Real. Prop. Code Ann. Sec. 11-135, “they engage in unfair and deceptive trade practices ‘in the sale of consumer realty.'” Such a violation occurs where the resale certificate states that there are no known violations of the building code if there is information establishing knowledge of building defects. The Court specifically held that such a violation of the Consumer Protection Act can occur even though the defendants were not parties to the sale of the unit, were not “merchants,” and where there had been no code violation citations issued by the county.
Now, however, in response to motions for reconsideration filed on behalf of both sides in the appeal, the Court has agreed to withdraw and reconsider its opinion. (more…)
by Raymond Daniel Burke | Feb 9, 2012
Ober|Kaler is pleased to announce the release of the Maryland Construction Law Deskbook, edited by Joseph C. Kovars and Michael A. Schollaert of the firm’s Construction Group.
Published by the Maryland State Bar Association, the book is designed to serve as a reference tool for those immersed in construction law, as well as for those faced with an occasional construction issue. The book covers key areas of the law, including contracts, performance disputes, damages, delays, dispute resolution, green construction, project delivery systems and other topics.
In addition to serving as editors, Mr. Kovars and Mr. Schollaert also authored chapters for the book. Mr. Kovars contributed “Delays and Time Extensions,” and Mr. Schollaert collaborated with Ober|Kaler principal Paul S. Sugar on “Mechanic’s Liens and Statutory Remedies.” Another firm principal, Raymond Daniel Burke, contributed the chapter “Condominium and New Home Warranties and Rights of Action.”
Mr. Burke is the author of the Maryland Condo Law Blog. He is also the author of numerous articles on condominiums, homeowner associations, contruction law, and litigation, as well as a frequent opinion/commentary writer for The Baltimore Sun. He has been listed in Maryland Super Lawyers in the construction litigation catagory since the inception of this peer-review program in 2007.
Mr. Kovars is co-chair of Ober|Kaler’s Construction Group and is an experienced civil litigator who focuses on construction and public contracts law. He represents contractors, subcontractors, sureties and owners in contract formation and construction disputes involving many types of projects. Mr. Kovars is the author of numerous articles and papers on construction law topics. He has been listed in The Best Lawyers in America in the construction category since 2003 and in Maryland Super Lawyers in the construction litigation category since 2007.
Mr. Schollaert is an associate in the firm’s Construction Group. He represents general contractors, owners, subcontractors and suppliers on private and public construction projects and also provides general litigation, complex commercial litigation, mediation and arbitration representation. Mr. Schollaert has been named a “Rising Star” in construction law by Maryland Super Lawyers every year since 2009.
The Maryland Construction Law Deskbook is available at the Maryland State Bar Association’s website.
by Raymond Daniel Burke | Nov 3, 2011
In its recent decsion in MRA Property Management, Inc., et al. v. Armstrong, No. 93, Sept. Term 2007, filed on October 25, 2011, a majority of the Maryland Court of Appeals held that the Maryland Consumer Protection Act applies to purchases of condominium units with respect to the information required to be provided by a council of unit owners in the resale certificate. The Court ruled that, where a council of unit owners and its property management company violate the resale certificate disclosure obligations imposed by Md. Real. Prop. Code Ann. Sec. 11-135, “they engage in unfair and deceptive trade practices ‘in the sale of consumer realty.'” Such a violation occurs where the resale certificate states that there are no known violations of the building code if there is information establishing knowledge of building defects. The Court specifically held that such a violation of the Consumer Protection Act can occur even though the defendants were not parties to the sale of the unit, were not “merchants,” and where there had been no code violation citations issued by the county. (more…)
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…)
