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.”Section 11-131 of the Maryland Condominium Act provides for certain implied warranties from the developer that apply to both the units and the common elements. The warranties are expressly in addition to the implied warranties applicable to all new housing under Section 10-203 of the Real Property Article. The common element warranty provides that “the developer is responsible for correcting any defect in materials or workmanship, and that the specified common elements are within acceptable industry standards in effect when the building was constructed.” The warranty commences with the first transfer of title of a unit to a unit owner, except as to any common elements not completed at the time of the first transfer; in which case the warranty commences upon “the completion of that element or with its availability for use by all unit owners, whichever occurs later.” The warranty runs for 3 years from the date of commencement, “or 2 years from the date on which the unit owners, other than the developer and its affiliates, first elect a controlling majority of the members of the board of directors for the council of unit owners, whichever occurs later.”
The enumeration of specific components to which the warranty is applicable — “the roof, foundation, external and supporting walls, mechanical, electrical, and plumbing systems, and other structural elements” — has always left in question common element components that do not fall within those listed. The proposed law would clarify this by expressly making it applicable “to all common elements.” It would also go a step further by extending the warranty to any component that the council is required, under the governing documents, to maintain, repair or replace, even if it is defined as part of a unit.