Maryland Condominium Rule May Not Suspend Use of Common Elements by Delinquent Owner

A Maryland condominium’s policy of towing vehicles of unit owners who are delinquent in payment of condominium assessments was recently struck down by the Maryland Court of Special Appeals–an intermediate appeals court.

In an effort to get owners to pay the condominium assessments, the Board of Directors of an Anne Arundel County condominium passed a rule which prohibited parking in the condominium common element parking lot if an owner was in arrears in payment of condominium assessments and other charges for more than 45 days.  The rule was enforced by towing vehicles from the condominium property.  The condominium Board also enacted a rule to prohibit use of the community pool by owners who had not paid their assessments.

When the owner filed suit challenging the suspension of the right to use the parking lot and pool, the appeals court concluded that the Board was not authorized to take such action unless the condominium declaration or bylaws were amended to allow suspension of use of the common elements a tool for the collection of delinquent assessments.

The court relied on a prior decision of the Maryland Court of Appeals–the highest state appeals court–and a provision in the Maryland Condominium Act which recognize that the right to use the common elements is a property right which can only be limited by the condominium declaration.  Although the Court of Special Appeals ruled that the use of the of common elements could not be restricted by Board rule, it concluded the declaration or bylaws could be amended to allow suspension of the common element parking lot and pool for non-payment of condo assessments.

The court decision in Elevaton Towne Condominium Regime II v. Rose is an “unreported” decision which is not a binding precedent applicable to any other condominium.  However, it is instructive on how Maryland courts view limitations on the authority of condominium boards to restrict the use of common elements by owners who are delinquent in paying assessments.

Posted by Thomas Schild Law Group, LLC, attorneys for condominiums, homeowner associations, and housing cooperatives in Maryland counties of Montgomery County, Prince George’s County, Howard County, and Frederick County; and Washington D.C.

 

 

Pit Bull Legislation Stalls

by Tom Schild

After considering several bills regarding liability for injuries caused by dogs, the Maryland General Assembly has adjourned until January 2012 without enacting any dog bite legislation.

During the recent Special Session, the Senate and House passed different versions of legislation which would impose dog bite liability on landlords and others who have the right to control the presence of dogs on their property only where there is knowledge of a particular dog’s presence and vicious propensity.  This would have restored the negligence standard of liability modified by a recent appeals cout decision with respect to injuries caused by pit bulls and mixed breed pit bulls.

For dog owners, the proposed dog bite legislation would have extended the strict liability standard to injuries caused by all breeds of dogs, with a few exceptions for specific circumstances.

After passing casino legislation, the General Assembly adjourned on August 15 without taking final action on the dog bite bills.

Appeals Court Ruling–Strict Liability for Pit Bulls

The proposed dog bite legislation was in response to the April 26 ruling of the Maryland Court of Appeals–the highest state appellate court–that both the owner of a pit bull dog (or pit bull mixed breed) and a landlord or other person with the right to control the presence of such dogs would be strictly liable for all injuries caused by such dogs whether or not there was any knowledge that a particular dog had a history of being vicious. Concluding that pit bulls are inherently dangerous animals, the court decision in Tracey v. Solesky changed the long-established common law (i.e. court-made law) liability standard for pit bull owners and property owners.

The  appeals court stated that the new strict liability standard applies to any new claims arising after the date of its decision.  Faced with greater potential liability for pit bull bites, some landlords reportedly began terminating leases of tenants who had pit bulls and some pit bull owners surrendered their dogs to animal shelters.  Condominium, homeowner association and coop boards began consideration of a ban on pit bulls and pit bull mixed breeds.

On May 25, the Court of Appeals was asked to reconsider its decision.  This created  uncertainty whether the ruling would remain effective as of April 26 if it was not modified on reconsideration.  In response to a legislator’s inquiry as to the status of the court ruling, a Maryland Assistant Attorney General issued an opinion letter on July 10 advising that, in her opinion, the new liability standard announced by the Court of Appeals was not yet in effect because the court ruling was not a final decision, so long as the request for reconsideration was pending.  But, that letter also indicated it was uncertain if the court would agree with her opinion and urged private parties to consult their own legal counsel for advice.

The court decision has been widely criticized for its conclusion that pit bulls are inherently dangerous, for applying a different standard of liability to one breed of dog, and for making landlords and others with the right to control the presence of pit bulls on their property strictly liable for injuries caused by such dogs.

Legislation Proposed to Overturn Court Ruling

In response to criticism of the appeals court ruling by animal rights advocates, landlords, the Community Associations Institute, and insurance companies, the Maryland General Assembly acted quickly during its August special session to consider legislation to overturn the court ruling while the request for court reconsideration was still pending.

On behalf of the Community Associations Institute, I attended the House Judiciary Committee hearing to explain the special problems of condos, HOAs and coops in banning, identifying and removing pit bulls and mixed pit bull breeds.  Unlike landlords which can readily ban pit bulls and evict tenants who violate pet restrictions, it is far more difficult, time-consuming and costly for a community association to ban certain breeds of dogs and have prohibited dogs removed from the community.  The final House version of the legislation included an amendment to make clear that condominiums, homeowner associations, and housing cooperatives are not subject to the strict liability standard.

With the support of animal rights groups, the Senate and House passed bills to generally extend the strict liability standard to owners and keepers of all dogs, with a few exceptions for veterinarians, police and military personnel, and other specified circumstances.

With the support of organizations representing landlords, community associations, insurance companies and animal rights advocates, both the Senate and House-passed versions overturn the strict liability standard for property owners and restores the common law liability standard for property owners which was in effect prior to the court ruling in Tracey v. Solesky Under the negligence standard, a landlord, condominium, homeowners association, housing cooperative or other person with control over the presence of a dog can still be liable for injuries caused by a dog where there is knowledge of the dog on the property and knowledge of its vicious propensities.

No Dog Bite Legislation Enacted

Although similar (but different) versions of dog bite legislation was introduced, considered,  and passed by the Maryland Senate and House in less than a week during the special legislative session, the differences were not resolved and no new law was approved by the General Assembly.  The entire topic of dog bite liability is expected to be revisited again during the regular January 2013 legislative session….when the legislative dogfight will continue.

 

Beware of Pit Bull—Maryland Landlords, Condos and HOAs Face New Liability

by Tom Schild

The Maryland Court of Appeals — the highest state court — has changed the long-standing legal standard for landlord liability to victims of attacks by pit bulls and cross-bred pit bulls which occur on leased property. 

In a landmark ruling in Tracey v. Solesky, the appeals court changed the “common law” of prior court decisions that a landlord is liable for the actions of a pit bull kept by a tenant only if the landlord had knowledge of “past vicious behavior” of that particular dog.

The new legal standard adopted by the 4-3 court decision on April 26 is that the dog owner and others who have “the right to control the pit bull’s presence” and knows, or has reason to know, that the dog is a pit bull or cross-bred pit bull mix will be liable for injuries caused by the dog.

Concluding that pit bulls or cross-bred pit bulls are “inherently dangerous”, the appeals court specifically ruled that the new strict liability standard applied to a “landlord who has the right and/or opportunity to prohibit such dogs on leased premises.”  This could expose landlords and their management companies to liability for attacks by such dogs merely by allowing these breeds to be kept on the leased property.

For other dog breeds, the “common law” is unchanged and it will still be necessary to show knowledge of the prior vicious behavior of a particular dog in order to establish liability for a dog attack.

In a vigorous dissenting opinion, 3 of 7 appeals court judges opposed the new strict liability standard, noting that it applies to any dog “with a trace of pit bull ancestry” without any guidance how that is to be determined.

Although the court ruling involved a rental property, it applies broadly to others who have the “right to control” the presence of pit bulls — which includes condominiums and homeowner associations.  To avoid liability for attacks by pit bulls and pit bull mixed breed dogs, landlords, condos and HOAs now may decide to prohibit such breeds.

 

 

 

 

 

 

Maryland General Assembly Considers Condo and HOA Bills

by Tom Schild

Same-sex marriage, budget deficits and tax hikes top the high-profile issues for the 2012 Maryland legislative session now underway in Annapolis.  For condominiums and homeowner associations, the focus will be on rules adoption and enforcement procedures, developer to homeowner transition, and manager licensing.

Legislation has been introduced to require all Maryland condominiums and homeowner associations to follow a specific rules enforcement procedure before imposing fines, suspending voting rights or infringing on owner rights for violation of association rules (HB 76/SB 184).

Also proposed is a bill to extend to homeowner associations the rules adoption procedure which already applies to condominiums.  This legislation would require notice to all homeowners and allow an opportunity to comment on a proposed rule before it can be adopted by the board of directors (HB 155).

Other proposed legislation would aid homeowners in the transition from developer to homeowner control of condos and HOAs by requiring the developer to appoint an independent owner to the board of directors when homes representing 25 percent of the votes in the community have been conveyed.  It would also require a developer to maintain independent books, records and accounts from the time the association is established.   Additionally, a developer would be required to notify members of a homeowner-controlled board of any government bonds related to the association and provide additional notice prior to requesting release from such bonds (HB 79/SB 202).

Future posts on the Maryland Condominium & HOA Law Blog will provide updates on these bills and other proposed legislation during the 2012 Maryland legislative session which runs until mid-April.