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KASS: Ask for legal docs if your board is in litigation

Q:   We have 100 condo units; 56 balconies require repair, four of which are in a danger zone and unusable.  Our condo declaration states  the board can make  a special assessment without vote of owners if an emergency exists. The Condo board did great research from experts and made the assessment that even good balconies require some repair.

A group of residents with fairly good balconies took the board to court because they did not get to vote.  The judge ruled the board was correct, but the group is now appealing.  We have not seen their appeal brief but in the meantime if somebody is hurt on said balconies, we can all be sued.

Granted, nobody wants to pay an assessment, but the alternative is to allow the balconies to further deteriorate and cause possible damage. Bonnie.

A:     Bonnie, welcome to the wonderful world of condominium living. As readers know, I always define a condominium as “democracy at its best and democracy at its worst.”

You certainly are entitled to review a copy of all legal pleadings. Court pleadings – unless a gag order is issued by a judge – are public documents. Your board should be able to allow you to review and copy.

Talk with the association attorney. Has a stay of the lower court order been issued? Perhaps the board can proceed with the four balconies based on the lower court decision.

Does the association have the right to collect attorneys’ fees if it prevails? The answer to this can be found in your bylaws. If so, do the plaintiffs understand they may personally be on the hook to pay the association’s legal fees in addition to paying their own lawyers?

And finally, what do your documents say about who pays for repairs to limited common elements? Some legal documents allow the association to bill the individual limited common element owners for the work that is done on balconies, even though the work was contracted by the association.

There are lots of questions, and if the association attorney cannot answer, then you should consider retaining your own attorney to get the answers.

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Q:   We have a couple of delinquent owners in our condo. Can we prohibit them from using the swimming pool?  Carey.

A:  Carey,  good timing because the Maryland Court of Appeals – the highest in the state – just last month handed down an opinion. According to the court, in order for a board to deny unit owners from accessing any of the common elements, there must be language in the Declaration – the highest power source in the association. In Elvation Town Condominum Regime II v Rose, the court said that suspending privileges is a “taking of property”. According to the court, the Roses “own an undivided percentage interest in the common elements” as provided by both the declaration and the Maryland condo act,  § 11-107(a). The restriction imposed upon them adversely affected their property interests in two of the common elements of Elvaton that other residents continue to enjoy: the parking lot and the pool, which percentage interest, as provided by § 11-107(c), “shall have a permanent character and . . . may not be changed without the written consent of all of the unit owners and their mortgagees.” The “suspension-of-privileges” rule adversely affected the Roses’ percentage property interest in access to the parking lot and the pool.”

In the Elvation case, the board adopted a rule stating that delinquent owners could not use the parking area or the swimming pool – both common elements. The Maryland high court made it clear that for such a taking to be legal, it has to be in the declaration – not the bylaws nor the rules.

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