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.
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.
Amendment To Maryland Condominium Act Expands Council’s Right To Enter Units
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.
New Maryland Law Requires Recycling At Condominiums
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.
Maryland Court of Appeals Reconsidering Pit Bull Ruling
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.
I Will Be Presenting a Free Webinar On June 27: “Condominium and New Home Warranties and Rights of Action”
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
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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.