Proposed legislation now pending in the Maryland General Assembly would prevent condominium developers from limiting the ability of the council of unit owners and individual unit owners to bring construction defect claims for issues affecting the condominium.  Senate Bill 670 and House Bill 676 would prevent developers from including certain provisions in condominium governing documents or contracts of sale that act as an impediment to claims.  Specifically, the proposed legislation relates to claims alleging the failure of the developer to comply with (1) applicable building codes; (2) plans and specifications for the project approved by the local governing authority; (3) manufacturer’s installation instructions for building products used the condominium; and (4) warranty provisions under Sections 10-203 and 11-131 of the Real Property Article.

As to such claims, the developer may not include provisions that:

(a) Shorten the statute of limitations for filing claims;

(b) Waives application of the “discovery rule” for purposes of determining when a claim accrued;

(c) Requires the council or a unit owner in an arbitration proceeding to assert a claim within a period shorter than the applicable statute of limitations; and

(d) operates to prevent a council or unit owner from filing a law suit, initiating arbitration proceedings, or otherwise asserting a claim within the applicable statute of limitations. (more…)

Pitchers and catchers report to Ed Smith Stadium in Sarasota, Florida today as the Baltimore Orioles begin spring training for the 2017 season; so it is time for me to step back from condo law for a moment and provide my annual commentary on the state of the team.  This year, I would like to focus on completing the position-player roster.  Here are the current options as I see them: (more…)

House Bill 41 now pending in the Maryland General Assembly would require condominiums, homeowner associations and cooperative housing corporations to register annually with the Maryland Department of Assessments and Taxation. Similar to a bill that was filed during the 2016 session but did not pass, the proposed law would require registration information that includes the name and contact information for each officer, board member, and property manager. along with such other information as the Department might require.  The bill proposes a $3 registration fee, and a $50 fine for failing to register.

In Daniels v. NVR, Inc., t/a Ryan Homes, the United States District Court for the District of Maryland upheld the validity of a contractual provision in a residential home purchase agreement that reduced the normal period of limitations for filing suit to one-year, despite the fact that the parties had entered into a tolling agreement.  In Maryland, the general period of limitations applicable to most civil claims is the three-year period established in Md. Cts. & Jud. Proc. Code Ann. Sec. 5-101.  This case involved construction defect claims concerning a newly constructed home.  The NVR purchase agreement contained a provision that made claims and disputes subject to a one-year period of limitations. The Court, which had jurisdiction on diversity found that this was not inherently unreasonable, and, therefore, was fully enforceable.

Interestingly, the parties had entered into a tolling agreement, which suspended the running of limitations during attempts to come to a resolution of the issues.   However, NVR successfully argued that the tolling agreement only suspended “statutes of limitations,” and did not toll a “contractual limitations period.”

Effective January 1, Ober|Kaler joined the national firm, Baker Donelson. The combined firm maintains the name Baker Donelson and has more than 800 attorneys across 25 offices in ten states and Washington, D.C.  I am excited and privileged to begin 2017 as a Baker Donelson shareholder in their Baltimore office, and look forward to continuing communications and sharing of information with the many readers and followers of this blog.

The Maryland Condominium Act, at Section 11‑109.2, makes mandatory an annual budget, and requires that the proposed budget be submitted to the unit owner membership at least 30 days before it is adopted.  It is also required that the budget contain seven specific line items.  These line items — income, administration, maintenance, utilities, general expenses, reserves, and capital items — must be set forth in the budget without exception and without to regard to any other line items that may be included.  The adoption of the budget is required to take place at an open meeting of the owners.  Here is the complete test of Section 11-109.2:

(a)        Preparation and submission.—The council of unit owners shall cause to be prepared and submitted to the unit owners an annual proposed budget at least 30 days before its adoption.

(b)        Items required to be included. – The annual budget shall provide for at least the following items:

(1)  Income;

(2)  Administration;

(3)  Maintenance;

(4)  Utilities;

(5)  General expenses;

(6)  Reserves; and

(7)  Capitol items.

(c)        Adoption. – The budget shall be adopted at an open meeting of the council of unit owners or any other body to which the council of unit owners delegates responsibility for preparing and adopting the budget.  (more…)

My firm, Ober Kaler, will be combining with the well-respected national law firm Baker Donelson.  The Baker Donelson firm presently has more than 700 attorneys and public policy advisors representing more than 30 practice areas across 21 offices in Alabama, Florida, Georgia, Louisiana, Mississippi, South Carolina, Tennessee, Texas and Washington, D.C.  This combination will bring together two strong firms with national reputations for exceptional client service.  It is anticipated that this combination will be effective January 1, 2017.  The combined firm, which will maintain the name of Baker Donelson, will rank among the 50 largest law firms in the country, with more than 800 attorneys and advisors across 25 offices in nine states as well as Washington, D.C.   I am looking forward to continuing my construction, litigation and real estate practice as part of this dynamic merger.

Please see the August edition of Building Baltimore Magazine for my article on the Maryland Court of Appeals decision in Balfour Beatty Infrastructure, Inc. v. Rummel Klepper & Kalh, LLP.  The case established that the economic loss doctrine precludes claims for alleged negligent design by a contractor against a design professional where there is no contract between them.   Building Baltimore Magazine is a publication of Associated Builders & Contractors, Inc. – Baltimore.  You can also read the entire article here by clicking the “more” button. (more…)

I frequently receive questions about illnesses related to exposure to microbial growth and other conditions in water damaged buildings, and whether such medical conditions can form the basis of a personal injury claim.  Molds, of course, are generally recognized as allergens that can trigger respiratory symptoms in certain individuals.  For that reason, mold in buildings is considered an environmental issue that requires proper remediation.  Moreover, mold damages building components if left unaddressed.  However, repairs needed to remediate a water damaged building, and proof of a causal connection between exposure to specific molds and a particular symptom in an individual, are very different matters.   In the case of Montgomery Mutual Insurance Co. v. Chesson, , 206 Md.App. 569 (2012), the Maryland Court of Special Appeals found “that there is a genuine controversy within the scientific community with regard to whether exposure to water damaged buildings causes human health effects.”  As a result of the Court’s determination that “there is no consensus in the relevant scientific community that exposure to mold causes” medical injury, the testimony of a physician that mold exposure had caused illness was deemed to be inadmissible. (more…)