New Maryland Law Affects Developer Voting Rights in an HOA

Governor Hogan has signed into law legislation adopted by the General Assembly during 2019 session that deals with the voting rights of developers in homeowner associations where not all lots have been sold.  Senate Bill 305, which was passed unanimously by both Houses and signed by the Governor on April 30, 2019, amends Section 11B-111.7 of the Maryland Homeowners Association Act, and addresses the votes to which a developer is entitled with respect to whether lots have been subdivided and recorded.  Of course, any lot that has been sold must have first been subdivided and recorded.  The issue has been the developer’s votes on unsold lots that have not been subdivided and recorded.  Under current law, which will be changed when the new law takes effect on October 1, 2019, until all of the lots have been subdivided and recorded, a developer is entitled to the number of votes equal to the number of unsold lots that have been subdivided and recorded but remain unsold.  There is no vote for lots that have not yet been subdivided and recorded.  The new law provides that, once all of the lots have been subdivided and recorded, the developer is entitled to one vote per lot that remains unsold.  But, until all of the lots have been subdivided and recorded, the developer’s votes are to be as provided in the governing documents; i.e., the governing documents  control until every lot has been subdivided and recorded.  So developers will have control of determining the number of votes to which they are entitled by addressing the issue when the governing documents are prepared.  Arguably, however, if the governing documents are silent on the issue, the developer gets no votes on unsold lots until each and every lot is subdivided and recorded.

Condominium Bills That Passed the House of Delegates But Were Not Voted on in the Senate

The following House of Delegates bills in 2019 session of the Maryland General Assembly passed in a vote of the full House but failed to get out of committee in the Senate:

HB207 concerning members qualified to vote to amend bylaws.

HB249 concerning responsibilities for insurance deductibles.

HB392 concerning dispute resolution procedures.

HB655 concerning denial of rental licenses for units with assessments in arrears.

HB825 concerning rights of holders of mortgages and deeds of trust in connection with declaration amendments.

HB826 concerning unit owner’s installation of electric vehicle charging equipment.

HB1037 concerning council of unit owner meeting requirements.

 

 

Maryland General Assembly Considers Two Bills That Would Expand a Condominium’s Priority Lien

Senate Bill 374 and House Bill 250, pending in the Maryland General Assembly, would expand the portion of a condominium’s lien that has a priority over a first mortgage or first deed of trust.  Under the current provisions of Section 11-110 of the Maryland Condominium Act,  a portion of a condominium’s lien for delinquent assessments has a priority consisting of four months of assessments limited to a maximum of $1,200.  Additionally, it is limited to regular assessments only, and my not include (1) interest; (2) costs of collection; (3) late charges; (4) fines; (5) attorney’s fees; (6) special assessments; or (7) “any other costs or sums due under the declaration or bylaws of the condominium or as provided under any contract, law or court order.”  The proposed law would expand the priority to six months of assessments, eliminate the maximum limitation, and allow inclusion of the list of seven items that are now expressly precluded.

Maryland House of Delegates Passes Bill To Raise Condo Unit Owner Responsibility for Insurance Deductible

By a vote of 139 – 0, the Maryland House of Delegates has passed legislation that would make condominium unit owners responsible for a larger amount of the insurance deductible when the condominium’s policy pays for damage from an issue that originates in the owner’s unit.  Under Section 11-114, a condominium must maintain property insurance on the entire property, including the common elements and the units, except for improvements and betterments installed in the units by the owners. Where damage originates from a component of a unit, the liability of the unit owner is limited to the insurance deductible under the condominium’s policy up to a maximum of $5,000.  HB 249 would double the unit owner responsibility to $10,000.  The bill also adds clarifying language with regard to damage that is a common expense.  The current law provides that any damage originating from the common elements is a common expense.  HB 249 provides that this also would include damage originating from “an event outside of the condominium units and the common elements.”  The bill now moves onto the Senate Judiciary Committee.

Maryland House of Delegates Considers Bill Regarding Percentage Required For Amending Bylaws

Legislation pending in the Maryland House of Delegates seeks to supplement a prior revision that applied the percentage required for approval of amendments of condominium bylaws to only the number of unit owners “in good standing” — meaning unit owners not more than 90 days in arrears in payment of assessments of other charges. — rather than to the total number of owners.  A change to the Section 11-104 of the Maryland Condominium Act adopted during 2017 provides that, notwithstanding what the bylaws themselves require, the bylaws may be amended by the affirmative vote of 60% of the unit owners in good standing, “or a lower percentage if required by the bylaws.”  This had the effect of reducing the number of votes required to the extent that some unit owners were not “in good standing.”  House Bill 207 would go further and provide that any lower percentage contained in the bylaws would also be applied only to “unit owners in good standing.”  In other words, if the bylaws call for a percentage lower than 60%, that lower percentage requirement would also be determined only by the number of “unit owners in good standing” and not to the entire number of owners.  The bill also would affect homeowners associations by making the same amendment Section 11B-116 of  the Maryland Homeowners Association Act.

Maryland General Assembly Considers Two Bills That Expand the Condominium Common Element Implied Warranty

House Bill 069 and Senate Bill 379, now pending in the Maryland General Assembly, would apply the condominium implied warranty from a developer to all common elements, and not just those enumerated in the statute, along with any component that the council of unit owners is required to maintain, repair or replace, regardless of whether it is defined as a common element in the governing documents.  Under the current provisions of Section 11-131(d) of the Maryland Condominium Act, there is an implied warranty from a condominium developer to a council of unit owners, which applies to “the roof, foundation, external and supporting walls, mechanical, electrical, and plumbing systems, and other structural elements.”  The proposed law would establish that the implied warranty applies “to all common elements, including” those listed in the current law.  Additionally, the bills propose that the implied warranty is applicable “to any portion of the condominium that the council of unit owners is required to maintain, repair, or replace under the [governing documents] regardless of whether the portion of the condominium is designated as a unit or a common element.” (more…)