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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.

All Condos and HOAs Are Now Required To Undertake Regular Reserve Studies

As previously reported, during the 2022 legislative session, the Maryland General Assembly passed new legislation requiring all condominiums, homeowner associations, and housing cooperatives to undertake regular reserve studies of common area components.  The Governor did not sign the bill, but it became law under Art. II, Sec. 17(c) of the Maryland Constitution, which provides that a bill send to the Governor becomes law if the Governor does not veto the bill with 30 days of its presentment.   Under the new law, which takes effect on October 1, 2022, a community that has had a reserve study conducted on or after October 1, 2018 must have that reserve study updated within five years from the date to that study, and every five years thereafter.  A community that has not had a reserve study on or after October 1, 2018, must undertake one no later than October 1, 2023, and that study must also be updated every five years thereafter.

Maryland General Assembly Passes Bill Requiring Reserve Studies

The Maryland General Assembly has passed new legislation requiring all condominiums, homeowner associations, and housing cooperatives to undertake regular reserve studies of common area components.  Under House Bill 107, the reserve study requirement, which was previously applicable to only Prince George’s and Montgomery Counties, is applicable statewide.  A community that has had a reserve study conducted on or after October 1, 2018 must have that reserve study updated within five years from the date to that study, and every five years thereafter.  A community that has not had a reserve study on or after October 1, 2018, must undertake one no later than October 1, 2023, and that study must also be updated every five years thereafter.  The bill has been sent to the Governor for signature into law.

Proposed Legislation Would Permit Changes In Percentage Interests Without Consent of All Unit Owners and Mortgagees

House Bill 358, now pending in the Maryland General Assembly, would allow alterations in the percentage interests assigned to each unit in the common elements by a vote of less than 100% of the unit owners.  Under current law, amendments to a condominium declaration generally require the approval of 80% of the unit owners.  However, there are four specific changes that cannot be made without the consent of all unit owners and mortgagees:  (1)  the boundaries of any unit: (2) the undivided percentage interest in the common elements of any unit; (3) the liability for common expenses or rights to common profits of any unit; or (4) the number of votes in the council of unit owners of any unit.  The proposed bill would remove the undivided percentage interest of any unit in the common element from this restriction.  Instead, a change in percentage interests could be undertaken by a vote of 60% of the unit owners, and without any mortgagee consents.

Currently, the only amendment permitted with only 60% approval is one that adds or repeals .provisions for the suspension of the use of parking or recreational facility common elements by a unit owner that is more than 60 days in arrears in assessment payments.

Proposed Legislation Would Authorize the Creation of a Fund For Infrastructure Repairs

House Bill 1061, now pending the the General Assembly, would authorize counties and municipalities in Maryland to create a fund to assist in the repair of infrastructure in condominiums and homeowner associations.  It is intended to provide for repair and rehabilitation of property that is part a condominium or homeowners association, but of is a nature that would be “traditionally maintained by the county or municipality for the benefit of the general public, including roads and stormwater management facilities.”  It would not apply to “recreational facilities used for the exclusive use or benefit of the members of a condominium association or homeowners association or their guests.”  In addition to taxes and other appropriations,  a portion of the property taxes paid by the condominium unit owners or homeowner association members would be allocated to the fund.

House Bill Would Make Changes In Condominium Governance, Particularly During The Period of Developer Control

House Bill 140, now pending in the Maryland General Assembly, would make several amendments to the Maryland Condominium Act relating to governance during the period of developer control and, in all condominiums, would expand unit owner participation in meetings of the board of directors.  In proposed new provisions to Section 11-109(c)(8) of the Maryland Condominium Act, the Bill would require a developer in control of a condominium to appoint a unit owner to the board of directors.  Where a developer controlled condominium has a board of directors and 25% of the units have been sold, the developer would be required to appoint at least one unit owner, not affiliated with the developer, to the board.  Where there is no board of directors, once 25% of the units are sold, the developer would be required to establish a board of directors, including at least one unit owner, not affiliated with the developer.

The Bill would also require and additional open agenda board meeting per year that provides an opportunity for unit owner comment.  Section 11-109(c) presently requires that condominium boards hold at least one such meeting each year.  House Bill 140 would amend this provision to require a board of directors to hold two such open agenda meetings per year.   This requirement would also apply to board meetings during the period when the developer is still in control of the condominium.

Additionally, the Bill would add a new provision to Section 11-116 requiring that, during the period of developer control, the condominium’s books and records be maintained “separate and apart from the developer or of any other person.”

The Bill proposes to add similar provisions to the Maryland Homeowner Association Act.  Please watch this blog for further developments on this legislative proposal.

Florida Condo Collapse Is a Lesson For Everyone

The tragic collapse of the Champlain Towers Condominium in Surfside Florida, and the horrific consequences to residents and their families, will, no doubt, continue to be the subject of multiple news reports and long-term investigations.  And it will be some time before we learn the true cause of the disaster, and how it might have been prevented.  But the fundamental issue — deteriorated building conditions — is something about which all condominium unit owners and property managers need to be especially conscientious.  Previously, I have written about the high importance of regular building evaluations by competent consultants.  As a practical matter, these studies are necessary in order for an association to have information needed to develop accurate budgets for maintenance and reserves.  Of equal importance to conducting a building survey, however, is properly allocating funds to address any conditions that the report identifies.  The fact that the Maryland Condominium Act requires that condominiums adopt annual budgets that specifically include reserves and capital items indicates that the association must have a detailed understanding of its buildings if the specified budget items are to present a meaningful picture of building maintenance issues.  The fact that the Condominium Act, and most condominium governing documents, makes the council of unit owners responsible for maintenance, repair and replacement of the common elements creates potential liability where due diligence as to building conditions is not properly undertaken.  Most often, the consequences of failing to adhere to good maintenance practices are financial — resulting in expensive repair projects and burdensome special assessments.  But as Champlain Towers demonstrates, some building conditions can lead to far more dreadful results.

Proposed Bill Relating To the Period of Developer Control Passes the House But Does Not Reach the Floor In the Senate

A bill that proposed significant changes to the Maryland Condominium Act, as well as the Maryland Homeowner Association Act, concerning the period during which the developer is in control of the council of unit owners or the homeowner association, was passed in the House of Delegates by a vote of 101 – 31.  However, it was never brought to a vote in the Senate.   As it relates to condominiums, the bill would require that the developer hold at least two meeting per year, rather than the current one annual meeting, and that the unit owners have an opportunity to comment on condominium matters during those meetings.   Additionally the bill would require that, if the condominium has a board of directors, within 30 days after 25% of the units have been titled to unit owners, the developer must appoint a board member who is a unit owner and not otherwise affiliated with the developer; and that, if there is no board at that time, a board must then be established  The bill would further require the developer to disclose any governmental bonds affecting the project, and provide notice in advance of requesting release of any such bonds.  Also, it would be required that the maintenance of the condominium’s books and records begin on the date that the council of unit owners is established, and that the condominium’s books and records be kept separate and apart from those of the developer.  The House approved similar changes to the Maryland Homeowner Association Act.  In the Senate, the bill was referred to the Judicial Proceedings Committee, which is as far as it went during the 2021 legislative session.

House Bill 352 Proposes New Requirements During the Period that the Condominium Is Under the Control of the Developer

A bill proposed in the Maryland House of Delegates would make significant changes to the Maryland Condominium Act that relate to the period during which the developer is in control of the council of unit owners.  House Bill 352 would require that the developer hold at least two meeting per year, rather than the current one annual meeting, and that the unit owners have an opportunity to comment on condominium matters during those meetings.   Additionally the bill would require that, if the condominium has a board of directors, within 30 days after 25% of the units have been titled to unit owners, the developer must appoint a board member who is a unit owner and not otherwise affiliated with the developer; and that, if there is no board at that time, a board must then be established  The bill would further require the developer to disclose any governmental bonds affecting the project, and provide notice in advance of requesting release of any such bonds.  Also, it would be required that the maintenance of the condominium’s books and records begin on the date that the council of unit owners is established, and that the condominium’s books and records be kept separate and apart from those of the developer.  The bill proposes similar changes to the Maryland Homeowner Association Act.

Required Disclosure of Defects In Home Sales Applies Only To Single Family Residential Property Improved By Less Than Five Units

Compliance with Section 10-702 of the Maryland Real Property Code has been a source of some considerable discussion.  It requires that a home seller provide the buyer with a either a “disclosure statement,” by which information is provided relating to the seller’s knowledge of defects, or a “disclaimer statement,” which applies to “as is” sales, but still requires disclosure of “latent defects.”  It should be noted, however, that neither statement is required in connection with the sale of a unit in a property containing five or more units, because the statute expressly applies “only to single family residential property improved by four or fewer units.”  In the sale of a condominium unit, disclosure requirements are governed by Section 11-135 of the Maryland Condominium Act, which requires certain disclosures by both the council of unit owners and the selling unit owner.

Raymond Burke Among Baker Donelson Attorneys Named “Best Lawyers in America”

 

Each year, The Best Lawyers in America designates a select group of individuals as “Lawyers of the Year” in high-profile specialties in large legal communities. Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant. Lawyers being honored as “Lawyer of the Year” are selected based on particularly impressive voting averages received during the exhaustive peer-review assessments that Best Lawyers® conducts with thousands of leading lawyers each year.

To view the full list of selected attorneys selected and the practice areas in which they are recognized, click here.

 

ABOUT

The Maryland Condo Law Blog is written by Raymond D. Burke, a shareholder in Baker Donelson's Construction Group. One of the region's top construction and real estate development lawyers, Ray has more than 25 years of experience in matters relating to condominium and other multi-use development matters.

Baker Donelson's Construction Group offers comprehensive legal services to condominium, homeowner and community associations throughout the mid-Atlantic. We provide legal advice and dispute resolution services to boards of directors of condominium and community associations regarding the management of their communities. We also help resolve disputes arising from defective construction of condominiums and other multi-family residential communities.

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