Montgomery County Maryland Condominium and homeowners association lawyers and real estate law attorneys regarding antennas, association assessments, architectural covenants, HOA, snow removal issues from District of Columbia Washington and Maryland attorney Tom Schild D.C. housing lawyers

NEW MARYLAND LAWS IMPACT COMMUNITY ASSOCIATIONS

Owner Access to Books and Records

One new Maryland law (Senate Bill 567) establishes uniform standards for condominiums, homeowners associations, and housing cooperatives for making association books and records available for inspection and copying by owners. Previously, the availability of such records varied depending on the type of community association.

The new law requires disclosure of all books and records except to the extent they concern personnel records; an individual's medical records; an individual's financial records; records relating to business transactions that are currently in negotiation; the written advice of legal counsel; or minutes of a closed meeting of the board of directors or other governing body.

This new books and records disclosure law follows the existing law for homeowners associations with the additional exception for minutes of closed meetings.

Electronic Notice and Voting

The 2004 Maryland General Assembly also passed a new law (Senate Bill 568) which permits condominiums, homeowners associations, and housing cooperatives to provide meeting notices and eliver information to owners by electronic transmission where certain conditions are met. Such transmissions must be capable of creating a record which may be retained, retrieved, reviewed and reproduced in paper format by the recipient.

Display of United States Flag

Another new law (House Bill 1017) will preempt association prohibitions on display of the United States flag. An association may not prohibit or unduly restrict the display of one portable, removable United States flag. However, an association may still adopt reasonable rules regarding the placement and manner of display of flags and flagpoles.

These laws ill become effective October 1, 2004.

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MARYLAND COURT OF APPEALS RULES CONDO OWNER DID NOT ACQUIRE EXCLUSIVE USE OF PARKING SPACE

In Jurgensen v. The New Phoenix Atlantic Condominium, the Maryland Court of Appeals ruled that a condominium unit owner did not acquire exclusive use of a general common element parking space.

In 1075 the New Phoenix Atlantic Condominium was established with 36 residential units. The original recorded plats for the Ocean City, Maryland Condominium showed 31 parking spaces, each designated as a limited common element for the exclusive use of a specific unit.

Unit 505 was one of five units without a designated parking space. Prior to the first transfer of Unit 505, the developer created two new spaces, identified as #32 and #33. Although a sign was posted on space #32 designating it as parking for Unit 505, the condominium declaration was never amended to reflect such designation.

From 1976 to 1984, parking space #32 was used by the owner of Unit 505. In 1984, Unit 505 was purchased by Harold Jurgensen, who used parking space #32 until 1999, when the condominium reconfigured a portion of the parking area, thereby reducing the size of space #32. Jurgensen filed suit against the condominium, contending that he had exclusive rights to parking space #32.

No Exclusive Right to Parking Space

After the trial court and the Court of Special Appeals ruled in favor of the condominium, the Court of Appeals determined that Jurgensen had no exclusive right to the parking space. The Court relied on the Maryland Condominium Act and the condominium declaration in concluding that redesignation of general common elements as limited common elements required amendment to the declaration with the written consent of every unit owner and lender. Since unanimous written consent to a declaration amendment was never given, exclusive use of the parking space was never assigned to the owner of Unit 505 as a limited common element.

The Court rejected the owner's claim that he had acquired rights to space #32 by prescriptive easement -- where one makes an adverse, exclusive and uninterrupted use of another's real property for twenty years. The climiyrf The responsibility for bringing the storm water facilities to good working condition and confirming the location and ownership of the facilities rests with the association. Although the association must bear the cost of inspection, repair and transfer,The Court concluded that use of the space was not adverse because the condominium gave permission to use the space.

The Court also rejected Jurgensen's claim that the condominium was barred from asserting that parking space #32 was a general common element because he and the prior owner of Unit 505 relied on the representations and actions of the developer and the condominium board of directors that allowed exclusive use of the space.

Since the condominium declaration and plats were readily available to Jurgensen, the appeals court noted that Jurgensen could have discovered that space #32 was never designated as a limited common element.

Parking Space Can be Eliminated

The Court concluded that none of the condominium's actions could reasonably be relied on to believe that parking space #32 would remain permanently unchanged in its dimensions or that it would always be for exclusive use by the owner of Unit 505. Therefore, the condominium board of directors had the authority to reconfigure the condominium general common element parking area and eliminate parking space #32.

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MARYLAND APPEALS COURT RULES FENCES WHICH INTERFERE WITH RIGHT-OF-WAY EASEMENT MUST BE REMOVED

In 1977, the Millers purchased land adjacent to property owned by the Kirkpatricks in Dorchester County, Maryland. Included in the deed was an express grant of a right-of-way easement for an access road twenty f eet in width, for the benefit of Miller for ingress and egress of persons and vehicles over Kirkpatrick's property. In 2000, Kirkpatrick erected two parallel barbed-wire fences twelve feet apart along each side of the road within the right-of-way easement. The fences prevented Miller from using 40 percent of the road and Miller filed suit to have the fences removed.

In Miller v. Kirkpatrick, the trial court concluded that, although an express right-of-way easement twenty feet in width had been created by deed for the benefit of Miller, Kirkpatrick had a right to build the fences on his land as long as it did not unreasonably interfere with Miller's use of the right-of-way. Since Miller could still use the road, the trial court found there was no interference and denied Miller's request to have the fences removed. The Court of Special Appeals affirmed the trial court decision and Miller appealed to the Court of Appeals.

The Court of Appeals disagreed with the lower courts' reasoning, explaining that it was improper to have looked at whether the Kirkpatrick's modification unreasonably interfered with Miller's use of the road. Instead, the Court ruled that Kirkpatrick as a grantor of an express easement, may not unilaterally modify or reduce the easement in any manner that is inconsistent with the intention of the parties based upon the language of the deed. The Court further concluded that any permanent interference within a right of way that obstructs an express easement for ingress and egress is unlawful and the fences must be removed.

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FCC AFFIRMS BAN ON ASSOCIATION PRE-APPROVAL REQUIREMENT FOR ANTENNA INSTALLATION

The Federal Communications Commission ("FCC") has upheld a prior FCC Cable Services Bureau decision prohibiting a homeowners association pre-approval requirements for the installation of satellite dishes and other protected antennas on a homeowner's property or exclusive use area. In The Matter of Victor Frankfurt, the FCC ruled that such restrictions unreasonably delay installation of antennas and that a pre-approval requirement can only be applied to further legitimate safety or historic preservation goals.

In addition, the FCC reaffirmed that an association which requires general compliance with the National Electric Code is unenforceable since it is too vague for antenna users to know what is required. Similarly, association restrictions that a homeowner comply with "all ordinances, laws, regulations and industry standards" is unenforceable.

However, the FCC left open the possibility that an association could adopt an installation requirement by specifying compliance with a particular provision and the specific penalties for non-compliance. Any such installation requirements must specify how the requirement is necessary to achieve the association's articulated safety objective and must be no more burdensome than necessary to achieve that objective.

While prior FCC staff rulings have invalidated "unreasonable" restrictions on antenna installations, the Frankfurt decision is the first time the full FCC has addressed the applicability of the FCC antenna rule.

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MARYLAND APPEALS COURT RULES ASSOCIATION IS NOT LIABLE FOR INJURIES ON ICY PATH

The Maryland Court of Appeals has ruled that a homeowners association is not liable for injuries due to a slip and fall on an icy path where the association had no actual or constructive notice of the specific dangerous condition. Constructive notice exists when a dangerous condition could have been discovered by exercise of ordinary care.

Margaret Spoon was injured while walking on a paved pathway in a wooded stream valley behind her condominium when she slipped and fell on ice. Spoon filed suite against the condominium association, its management company and Columbia Association, Inc., which owned the property where the injury occurred, for negligently allowing ice to accumulate and remain on the pathway. Since water from the nearby condominium parking lot was intended to flow down a drainage ditch and over the pathway into a stream, she contended that there was reason to know that water might accumulate and freeze on the pathway.

In Deering Woods Condominium Association, et. al. v. Spoon, the Maryland Court of Appeals concluded that there was no evidence that Columbia Association knew or should have known of ice on the pathway sufficiently prior to the accident to create a duty to remove the ice or have the surface treated by sanding or salting. For approximately 20 winters, there were no complaints of ice or accidents at the location of the injury.

Columbia Association had removed the most recent snowfalls on the pathway the day before the accident. The Court observed that only a continuous inspection of the area would have discovered the icy condition on the pathway and concluded that there was no duty to make continuous inspections.

The Court similarly concluded that the neighboring condominium association and its management agent were not liable for the injury resulting from the ice since they had no actual or constructive notice that water flowing from the drainage ditch and across the path might cause the dangerous condition.

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