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…)
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.
by Raymond Daniel Burke | Jun 6, 2011
Section 11-131 of the Maryland Condominium Act provides significant warranty protections for the purchasers for new condominium units. Section 11-131 (a) codified the ruling in Starfish, and established that new home warranties under Section 10-203 “apply to all sales by developers” of condominiums, and that “a newly constructed private dwelling unit means a newly constructed or newly converted condominium unit and its appurtenant undivided fee simple interest in the common areas.” Specific warranties are applicable to certain specified components of both individual units and the common elements, and they are the obligation of the condominium’s developer.
Section 11-131(c) of the Condominium Act provides “an implied warranty on an individual unit from a developer to a unit owner” that is expressly in addition to the warranties provided by Section 10-203. Indeed, the Court of Appeals has held that the Title 10 warranties and the condominium warranties under Title 11 run concurrently, and aggrieved purchasers may proceed under either or both. This additional implied warranty is limited to specifically identified components, commences with the transfer of title to that particular unit, and extends for a period of one year. The warranty makes the developer “responsible for correcting any defects in materials or workmanship in the construction of walls, ceilings, floors, and heating and air conditioning systems in the unit,” and further warrants that “the heating and air conditioning systems have been installed in accordance with acceptable industry standards.” The stated standards are “[t]hat the heating system is warranted to maintain a 70°F temperature inside” and “[t]hat the air conditioning system is warranted to maintain a 78°F temperature inside” when the outdoor temperature and winds are “at design conditions established by the Energy Conservation Standards Act … or those established by the political subdivision” in which the condominium is located. This establishes what is, essentially, a strict liability standard; i.e., if the existence of a defect is proven, the developer is responsible for damages consisting of the cost of correction.
Section 11-131(d) provides for “an implied warranty on the common elements from developer to the council of unit owners,” that is also expressly in addition to the implied warranties provided in Section 10-203. Like the warranty on the units, this common element warranty is also applicable only to specific components, consisting of “the roof, foundation, external and supporting walls, mechanical, electrical, and plumbing systems, and other structural components.” The reference to “external and supporting walls” encompasses not only the wall framing members, but cladding systems as well. The inclusion of “structural components” broadens the application of the warranty to any common element component that is part of the building’s structure and framing, as well as community amenities that have a structural capacity, such as paving, pools, sport courts, curbs, steps and sidewalks, and drainage areas. (more…)
