Maryland Condo Law Blog
An online resource for condominium and homeowner associations and their members, and for developers, builders, contractors, architects, engineers and others in the building industry.
History Has Lessons for Why President Obama Was Reelected
By Raymond Daniel Burke – Reprinted from The Baltimore Sun Commentary November 19, 2012
Baltimore’s Fifth Regiment Armory is a good place to start for some perspective on the recent presidential election. Within its gray stone walls, the tumultuous 1912 Democratic National Convention played a major scene in the political drama that resulted in an incumbent president not only being defeated, but finishing third in the national election. The dynamics that led to such an extraordinary result are lessons that apply to any analysis of an election involving a sitting president.
We are beset daily with opinions as to why Mitt Romney managed to win only one swing state against an incumbent presiding over an underwhelming economy. Many analysts point to the failure of the Republican Party to come to terms with the nation’s shifting demographics. Others go so far as to bemoan a perceived rejection of traditional free enterprise values in favor of an entitlement mentality. All of these theories, however, could benefit from a dose of history. read more…
Disclosure of Code Violations In Maryland Condo Resale Certificates May Mean Only “Charged Violations”
As condominium boards and property managers should well know, Section 11-135 of the Maryland Condominium Act imposes a duty on councils of unit owners to provide unit purchasers with a resale certificate whenever a unit is being re-sold. One significant disclosure that must be made in a resale certificate is “[a] statement as to whether the council of unit owners has knowledge of any violation of the health or building codes with respect to the unit, the limited common elements assigned to the unit, or any other portion of the condominium.” This, of course, gives rise to the question of what constitutes “knowledge” of a code violation for disclosure purposes. The Maryland Court of Appeals recently addressed this issue, but only in a footnote contained in MRA Property Management, Inc. v. Armstrong, 426 Md. 83, 43 A. 3d 397 (2012). While the issue was not actually before the Court, it, nevertheless, took the unusual step of considering the question, and concluded that the disclosure requirement involves only “charged violations;” that is, only violations as to which a formal violation notice has been issued by the code authority. It can certainly be argued that “knowledge” of a code violation includes knowing that a deviation from a code requirement exists, such as in the form of an engineer’s report, and that such information is highly relevant to a consideration of what maintenance and repair costs may confront the unit purchaser. However, the Court’s voluntary discussion of this issue, while only dicta, certainly indicates the direction and narrow reading of the statute the Court may take if the issue were to be placed squarely before it. read more…
Maryland Court of Special Appeals Precludes Use of Differential Diagnosis To Support A Causal Connection Between Exposure To Mold And Human Illness
Mold exposure in damp buildings has become an increasing subject of litigation over the last decade. Often times, these claims are supported by a medical analysis called differential diagnosis. This method as been used by physicians to attribute various symptoms to inhalation of mold in water-damaged buildings. Rather than demonstrating a specific exposure to a specific mold resulting in a specific reaction, differential diagnosis uses a process that “rules out” or “rules in” possible causes of symptoms a patient is experiencing to determine that their symptoms are related to exposure to mold. Differential diagnosis has been frequently used to show an association between exposure to mold in wet buildings and certain human health effects. In its opinion in the case of Montgomery Mutual Insurance Co. v. Chesson, the Maryland Court of Special Appeals held that this method is not sufficiently accepted in the scientific community so as to be used as a basis for medical testimony in mold cases. The Court of Special Appeals reversed a trial court ruling that found such medical testimony to be reliable and admissible.
The Harborview Condominium Case
I am frequently asked to discuss my representation of the owner of a multi-million dollar penthouse condominium unit on the top floor of a residential high-rise building on Baltimore’s Inner Harbor known as Harborview Condominium. The claim concerned the failure of the Condominium’s Council of Unit Owners to correct defects in the common elements of the roof, exterior façade and HVAC system. These defects were alleged to have permitted water intrusion through the exterior envelope and into the Plaintiff’s unit, resulting in damage to building components, interior finishes and furnishings and other personal property, along with microbial contamination, which rendered the unit uninhabitable.
The case was tried over five days before a three-judge arbitration panel in September 2011. In November 2011, the arbitration panel awarded the Plaintiff cash damages in the amount of $1,252,487, representing the cost to repair damage to the unit and to remediate the environmental contamination, along with alternative living expenses and other related costs. The panel also issued a specific performance award directing the Condominium to undertake an identified scope of work to repair to the roof, exterior façade and HVAC system. The value of the repair is approximately $5,000.000. The panel ordered that the HVAC repairs be completed within 60 days, and that the remaining building repairs be completed by December 2013. read more…
Maryland Court of Appeals Revises Pit Bull Ruling — Strict Liability Remains For Owners Of Pure Breds and Their Landlords But Not Cross Breds
After granting a motion to reconsider its ruling imposing strict liability on the owners of pit bulls and their landlords, the Maryland Court of Appeals has revised its decision by keeping the ruling in place as to pure bred pit bulls, but deleting its application to cross breds. The Court originally held that the owners of pit bull breeds, as well as landlords who permit tenants to own pit bulls, 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 knowledge on the part of the owner or landlord that the dog was dangerous. Subsequently, the Court determined that it would hear arguments to reconsider the decision. Interested groups on both sides of the contovery filed amicus curie briefs with the Court, and the matter was a subject of the recent special session of the Maryland General Assembly, which considered but did not pass legislation on the issue. The revised ruling means that the common law, requiring proof of knowledge that the dog is dangerous, continues to apply in Maryland to all breeds, including those deemed to be cross-bred pit bulls, but that strict liability applies to pure bred pit bulls. Look for this issue to again be taken up when the Maryland General Assembly meets in its regular session commencing in January 2013.
Proposed Insurance Requirement for Property Management Companies Fails in the Maryland Legislature
Another bill effecting condominiums and homeowners association that failed to pass during the 2012 session of the Maryland General Assembly related to insurance coverage for property management companies. House Bill 741 would have required management companies, employed by condominiums, homeowners associations or housing cooperatives, to purchase fidelity insurance that would indemnify the assoication from an act or omission arising from fraud, dishonesty or criminal acts by an agent of employee of the mangagement company. The proposed law received an umfavorable report from the Environmental Matters Committee, and never came to a vote.
Proposed Maryland Legislation Would Have Created State Board To Regulate Property Management Companies
House Bill 433 and Senate Bill 372 from the 2012 session of the Maryland General Assembly proposed the creation of a State Board of Common Interest Community Managers to regulate the provision of property management services to common interest communities, including condominiums, homeowner associations and housing cooperatives. The legislation would have required the licensing of community association property managers through the new State Board. It also would have required condominiums with more than 10 units, associations with more than 50 lots, and any community that is professionally managed, to register with the Board. The bill was considered by the Environmental Matter Committee, but never came to a vote.
Maryland Special Session Considers But Does Not Act On Pit Bull Legislation
The recent special session of the Maryland General Assembly, called primarily to enact legislation expanding gambling, also considered but did not finalize legislation that would have addressed the decision of the Court of Appeals imposing strict liability on the owners of pit bulls and their landlords. This means that the current process of reconsideration of the ruling by the Court of Appeals will proceed. The Court held that the owners of pit bull breeds, as well as landlords who permit tenants to own pit bulls, 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. Subsequently, the Court 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.
New Maryland Law Requires Posting of Utility Bill Default Notices and Authorizes Entry To Condominium’s Common Area
Effective October 1, 2012, entities that bill Condominiums Councils for water or sewer charges are required to post notices if utility bills are in arrears for more than 60 days, and are authorized to enter the common area of the condominium to post a notice of the default. Under House Bill 884 (Chapter 684) from the 2012 session of the General Assembly, public utilities, sanitary commissions, political subdivisions, and the public service commission, when directly bill the governing bodies of condominiums for utility charges, are required to post notices on the condominium property that a utility bill is in arrears. Previously existing law requires that such utility providers provide notice to property owners that service will be discontinued due to unpaid bills. The new law amends various sections of the Annotated Code of Maryland as to condominiums to require that such notices be posted at the condominium, and authorizes entry into the common area for the purpose of posting the required notice. Effected code provisions include Sections 9-662, 9-724 and 9-726.1 of the Environmental Code, and Sections 7-307.2 and 25-504 of the Public Utilities Code.
Maryland General Assembly Fails To Finalize Legislation Prohibiting Limits on Condominium Owners’ Rights Of Action
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.
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The Maryland Condo Law Blog is written by Raymond Daniel Burke. One of the region's top construction and real estate development lawyers, Ray has more than 35 years of experience in matters relating to condominium and other multi-use development matters.