LETTER OF LAW
October 6, 2006
Dear Clients and Affiliates:
As a courtesy to you, we feel it is important to update you periodically with changes in the law and issues of community concern. With these periodic letters, we hope to keep you abreast of recent changes and matters of importance to you and the community association industry.
Below you will find a summary of some of the current issues and topics which our firm believes will be of interest to you. Part I addresses important changes in Federal and Maryland law including House and Senate bills passed by the Maryland legislature during the 2005-2006 session not already addressed previously and recent court cases. Part II highlights various funding and grants available to Community Associations seeking to beautify and improve the appearance of their neighborhoods. Part III discusses current issues and local news which directly affect our Communities. Part IV deals with information regarding the attorneys in our firm.
Should you desire further information on any of the issues or topics discussed in this letter, please call our office.
Part I
COMMON INTEREST ASSOCIATIONS AND PROSECUTING DRUG NUISANCES
Pursuant to Maryland Real Property Article Section 14-120, if a Common Interest
Association can prove that a tenant or owner is using their property for a "shooting gallery", storage of illegal drugs or paraphernalia, or is dealing drugs out of the property, then it has a right under Maryland law to file an injunctive action in the District Court to force an eviction. The Association, however, must have proof based upon police reports and personal knowledge prior to filing this action as general reputation can not be used as sole proof. The lawsuit must be filed in the District Court and must be heard within 14 days of service of process on the parties. Among other remedies, the Court can order that the tenant be evicted, or if it’s an owner, it can order the property to be sold, non-use for 1 year, or if not in a habitable condition, it can order the property razed. The Common Interest Association is entitled to recovery of its attorneys' fees if it prevails.
PERMISSION FROM CONDOMINIUM NOT NEEDED TO PENETRATE
GENERAL COMMON ELEMENTS IF SAFETY ISSUES INVOLVED
In Garfink v. The Cloisters at Charles Condominium, Inc., the Maryland Court of Appeals
ruled that a condominium unit owner did not need to obtain approval from the condominium board of directors prior to installing an exterior dryer vent to comply with the building code. In reaching its decision, the Court focused on provisions contained in the Condominium’s Declaration and By-laws. The Declaration granted each unit owner a right of use easement in the common elements "for the purposes providing maintenance, support, repair, or service for such unit to and for the ducts, pipes, conduits, vents, plumbing , wiring, and other utility services to the unit.” The Condominium’s By-laws prohibited unit owners from making any change or alteration to the exterior of any unit or the common elements until an application is submitted to, and approved in writing by the Board UNLESS the change or alteration was for the purposes of proper maintenance and repair. The Court reasoned, therefore, that because of these provisions allowing a unit owner to repair inherent construction defects that related to the safe use of their premises, prior approval from the Board was not needed.
SENATE BILL 10
The Maryland General Assembly approved legislation that broadens protections that already exist for residents in converted apartment buildings. Senate Bill 10, proposed by Montgomery County Sen. Brian E. Frosh, grants developmentally disabled residents the right to extend their leases for three years after a unit is converted into a condominium, a right currently afforded only to the elderly and physically disabled.
Under Senate Bill 10, “disability” means: (1) a physical or mental impairment that substantially limits one or more of an individual’s major life activities; (2) a record of having a physical or mental impairment that substantially limits one or more of an individual’s major life activities; or (3) being regarded as having a physical or mental impairment that substantially limits one or more of an individual’s major life activities. The bill’s definition of “disability” tracks the definition used in the federal Americans with Disabilities Act, as well as federal and State fair housing laws. The effect of the change is to include individuals with developmental disabilities as well as individuals with physical disabilities in the category of individuals who must be offered extended leases when a rental facility is converted to a condominium. The bill took effect on June 1, 2006.
Please note, our firm monitored legislation on a daily basis during the legislative session. If you would like a copy of the Legislation Chart kept by our office, please let us know.
CHANGES IN LICENSING REQUIREMENTS
A significant change in the laws which govern the licensing and regulation of stationary
engineers in Maryland became effective on October 1, 2005. The new law abolished the Board of Examining Engineers as well as the licensing system for these individuals which was based on three grades. In its place, the Board of Stationary Engineers was created and a licensing system based on five grades was instituted. Governor Ehrlich is currently in the process of appointing members to serve on the Board. The new law requires that an individual hold a license if he or she will provide stationary engineer services in Baltimore City, and county or any municipality in the State. Those holding current licenses issued by the Old Board as of October 1, 2005 are automatically "grandfathered" into the new licensing system. The licensing requirement governs boilers that operate at a pressure of more than 15 PSI with the following operating horsepower limits for each grade:
Grade 5 -- 30 to 99 horsepower (in a building not open for public use)
Grade 4 - 30 to 99 horsepower (in any building regardless of use)
Grade 3 - 100 to 299 horsepower (in any building).
Grade 2 - 300 to 499 horsepower (in any building).
Grade 1 - 500 or more horsepower (in any building).
We are advising our clients to make sure that any Engineer hired to perform work on boilers is licensed under the new licensing system. Any questions relating to this new licensing system should be directed to the Board’s office at 410-230-6162 or 1-888-218-6925. You can also email the Board at exameng@dllc.state.md.us.
TOWING LAWS TOUGHENED
IN PRINCE GEORGE’S COUNTY
Responding to complaints from consumers about “predatory towing”, the Prince George’s County Council has made it more challenging for automobiles to be towed, even from private property such as condominiums and homeowners associations.
By a vote of 8-1, the County Council passed “County Bill 41-2005" (“CB-41-2005"), proposed by Councilwoman Camille A. Exum (D-Dist 7) of Capital Hill, that requires towing companies to carry more insurance, prohibits towing companies from storing vehicles more than fifteen (15) miles from where it was towed or outside Prince George’s County without the owner’s or operator’s consent. The new law was signed on November 22, 2005. Some specific changes include:
• Before towing a car from private property, the towing company would have to present a “tow slip” approved by the County Police Chief, to the property owner or property owner’s agent. The property owner then must sign the slip before it can be affixed to the vehicle. In the case of a condominium or homeowners association, this means that someone from the Board or the management agent would need to be physically present in order to authorize the tow.
• Tow companies would be required to have at least $5,000 insurance per vehicle covering damage during tows and at least $100,000 in liability insurance per person.
• Need tow slip if vehicle is towed during the hours of 4:00 PM and midnight;
• Limits the cost of a tow not to exceed $100.00 for any vehicle up to 10,000 pounds;
• Allows payment by credit or debit cards when picking up a towed vehicle
• Vehicles cannot be “booted”
For more information on this towing bill, you can contact the Maryland Towing Association whose address is: Towing and Recovery Professionals of Maryland at (410) 414-5406.
CHARLES COUNTY HOMEOWNERS COMMISSION OPEN FOR BUSINESS
Anyone residing within a homeowners association in Charles County, Maryland can now file a complaint against their Board or the Association with the newly formed “Charles County Homeowners Association Dispute Resolution Board” (the “Board”). The seven-member Board was created by Charles County earlier this year in order to hear and resolve disputes between a homeowners’ association and a homeowner regarding the covenants or restrictions of the homeowners’ association. According to Mary Vance, Zoning Administrator in the Department of Planning and Growth Management, homeowners associations will be required to send notice to their members advising the members of their right to file a dispute with the Board. Anyone who would like to file a complaint, or obtain further information about the Board and its role, can contact Ms. Vance at Charles County - Dept of Planning & Growth Management, P.O. Box 2150, La Plata, Maryland 20646; Tel: (301) 645-0597; E-mail: vancem@charlescounty.org
EMERGENCY CHANGES TO FORECLOSURE LAW IN MARYLAND
The Court of Appeal’s Standing Committee on Rules of Practice and Procedure has recommended on an emergency basis proposed amendments to Rules 14-204, 14-205, and 14-206 which deal with foreclosure law. The proposed amendments correct a provision in Rule 14-206 pertaining to a notice that is required by Code, Real Property Article, §7-105 (a-1) to be sent to the record owner of residential real property no later than two days after the action to foreclose is docketed. This notice is in addition to the notice of sale that is required to be sent “not more than 30 days and not less than ten days before the date of the sale.” Furthermore, an affidavit in the proceeding must be filed anytime before ratification of the sale indicating that the notice requirement has been satisfied.
The correction is made by (1) a deletion from Rule 14-206 and (2) the addition of a new section (b), Notice to Record Owner, to Rules 14-204 and 14-205, that provides for the separate notice to the record owner of residential real property required by Code, Real Property Article, §7-105 (a-1) to be given two days after the foreclosure action is docketed. In summary, the change in the law allows that the affidavit of compliance with the Notice to Docket be filed anytime before ratification of the sale.
The amendments to the Rules apply to all actions commenced on or after January 10, 2006.
MOONING IS DECLARED LEGAL IN MARYLAND
In our last Letter of Law, we discussed the increase our office has noticed in disputes between neighbors who reside within common interest ownership communities. Many of you are already aware of the issue involving an argument between two neighbors (one on the Board, one not) in Montgomery County. You may also be aware that the Circuit Court for Montgomery County declared that “mooning” is “legal”. The facts “bare” (pun intended) repeating.
Raymond Hugh McNealy was accused of yelling and threatening his neighbor, Nanette Vonfeldt (a Board member), and then flashing his bare buttocks at her and her eight-year old daughter during an argument on the sidewalk. The mooning incident and alleged threats stemmed from a heated encounter between the two neighbors the night before at their home owner's association board meeting, according to McNealy's attorneys. Apparently, McNealy wanted Vonfeldt off the board, The Washington Post reported, and thus began the battle between these neighbors.
Subsequently, McNealy was charged with indecent exposure, a charge upheld by a trial
court judge. But McNealy appealed, arguing that state law only covers displays of a person's
"private parts", which does not include the buttocks. His attorneys cited a 1983 case of a woman
arrested in front of the US Supreme Court with only a cardboard sign on the front of her body.
An appeals court later ruled indecent exposure only relates to a person's genitals. Prosecutors
disagreed, saying Maryland law is ambiguous. Mr. Nealy, however, avoided a possible three-year prison sentence after Judge John W Debelius III ruled yesterday that the act was tasteless,
but legal. Judge John W Debelius stated that what Mr. McNealy reportedly did was a
"disgusting" and "demeaning" act. But it was not illegal. "If exposure of half of the buttock
constituted indecent exposure, any woman wearing a thong at the beach at Ocean City would be
guilty," Debelius said.
Please keep in mind that despite the Court’s ruling on this matter, neighbors should always strive to use tasteful humor when interacting with each other. This will help ensure that unnecessary disputes and disagreements are avoided.
NEW STATE LAW LIMITS THE USE OF DISABLED PARKING PERMITS
In an effort to prevent abuses by drivers without disabilities who are using the placards to
get better parking spaces, a new state law has been created to reduce the number of motorists
who are given special parking stickers with disability placards or disability license plates. The
idea is that the parking designation goes to disabled people and does not include those who drive
a vehicle for someone who's disabled.
Currently, there are about 89,000 cars with disabled parking license plates in Maryland,
officials from the Maryland Motor Vehicle Administration said. The new law is expected to reduce that number to about 60,000. The General Assembly enacted the changes at the recommendation of the Governor's Disabled Parking Task Force.
LETTERS OF ADVICE FROM ATTORNEY GENERAL'S OFFICE
The Courts & Judicial Affairs Division of the Attorney General's Office has announce that their web site is now officially available to the public. You can access the web site from the main page of the Attorney General's web site or directly at: www.oag.state.md.us/courts. Currently, the website has posted the 2004 and 2002 Land Records Seminars, plus letters of advice to the Clerks going back to 1987.
Part II
GRANTS AVAILABLE FOR PLANTING TREES AND OTHER BEAUTIFICATION EFFORTS WITHIN A COMMUNITY
Grants.gov
Grants.gov is designed to email notifications of different grant programs to registered users when grants become available. The user may request grant information based on agency, or topics, such as “housing”, “consumer protection”, etc. We suggest an Association register for this information so that it does not have to perform the constant and tedious searches through each agency site. As many agencies do not have a regularly set calendar date for announcement for submissions of applications, the benefits of this site are immeasurable.
Unity Gardens
Unity Gardens is a non-profit grant program that encourages neighborhoods, non-profits, and schools to participate in greening projects and environmental enhancement projects. Grants of up to $1000 are awarded to community groups to conduct greening projects in Anne Arundel County. Funds may be used for trees, plants, fliers and other materials to support these activities. Grants will be awarded in the Spring and Fall of each year. In order to be eligible for these grants, projects must be located in Anne Arundel County, must be organized by community based non-profit groups and the applicant groups must have a bank account. The application is available online at www.severnriver.org
For Contact: Unity Gardens, 1715 Sinclair Road, Crownsville, Maryland 21032. Phone number: 410-721-6609. Fax number is: 410-721-6609. E-mail: unitygardens@earthlink.net .
TREE-MENDOUS Maryland Program
This national award-winning action program of the Department of Natural Resources, Forest Service provides opportunities for citizens, schools, community associations, and businesses to work together to "re-green" the state. TREE-MENDOUS Maryland can help you customize a program for your community. Contact: DNR Forest Service TREE-MENDOUS Maryland, Tawes State Office Building, Annapolis, MD 21401. Phone number: 410-260-8531. Email: tgalloway@dnr.state.md.us ; Website: www.dnr.state.md.us/forests/treemendous/ .
Leaf-by-Leaf Program
This TREE-MENDOUS Maryland spin-off provides a fun way community groups to raise money to purchase trees and re-green their neighborhood. A participating group receives a poster showing a tree with 40 white leaves and each time a supporter makes a donation, a green leaf sticker is placed over the white leaf. When all 40 leaves are green the group's goal is met. Funds collected are then used to purchase trees through the DNR Forest Service's TREE-MENDOUS Maryland program. Contact: TREE-MENDOUS Maryland 580 Taylor Ave., Annapolis, MD 21401 email: tgalloway@dnr.state.md.us , 410-260-8531.
Community Forestry Workshop
This workshop, co-sponsored by the City of Westminster, Bartlett Tree Experts, and the Maryland Community Forest Council, is designed specifically for state and local governments, and corporate and private company grounds crews and their supervisors. The all-day program includes lectures, discussions, and fieldwork on topics ranging from basic tree biology, tree planting, pruning standards, soils and soil compaction, safety, hazards and insects and disease. Contact: MCFC via DNR - Forest Service, Tawes State Office Building, Annapolis, MD 21401; 410-260-8531.
Maryland Urban Community and Forest Committee (MUCFC)
The Maryland Urban and Community Forest Committee (MUCFC) strives to unite and encourage citizens to protect and enhance Maryland’s community trees and forest ecosystems. MUCFC is a sub-committee of the Maryland Association of Forest Conservancy District Boards. To request funding assistance from MUCFC for your project, contact Pam Kelly at pkelly2@dnr.state.md.us. The maximum grant awarded per project is $1,000.
Municipal Tree Restoration Program
Communities are supplied with 50 free trees in return for planting and maintaining them according to research specifications. Contact: Penn State University, 109 Ferguson Building, University Park, Pennsylvania 16802. 814-865-3281.
Additional Resources
National Arbor Day Foundation Web Site:
http://www.arborday.org/
Native Trees & Shrubs:
www.dnr.maryland.gov/criticalarea/trees.html
Department of Natural Resources Education:
www.dnr.maryland.gov/education
TEAM: Teaching Environmental Awareness in
Maryland:
http://www.dnr.state.md.us/education/teamdnr/
We hope that our communities are able to take advantage of these programs to assist in its efforts to beautify their neighborhoods. Please let us know if you need our assistance in obtaining or maintaining funding under any of these programs.
PART III
ASSOCIATION’S RESPONSIBILITY TO PROTECT THIRD PARTIES
In a previous newsletter we discussed the responsibility of an Association to provide
reasonable and appropriate measures to protect third parties against foreseeable injury or loss.
This sentiment was further affirmed in a recent Florida case, Vazquez v. Lago Grande
Homeowners Association,
which held that a condominium development that marketed units
with an emphasis on security was liable for the death of a resident for its failure to provide
security. Notably, the Russett Community Association (hereinafter “Russet”), which represents
about 10,000 residents in western Anne Arundel County, has taken steps towards obtaining an
on-duty county police officer who will stay in their neighborhood and address their specific law
enforcement needs. Furthermore, Russet is willing to the their own funds to accomplish their
goal. Currently, the community is covered by regular patrols from the county's Western District,
and residents hire private security to patrol their suburban streets. Interestingly, Russet is not
alone in its efforts. In Annapolis the city's housing authority hires private security and off-duty
officers to complement regular police patrols. In neighboring Prince George's County, voters in
Bowie, frustrated by limited county police resources, recently voted to establish their own
department.
While we are aware that not all Communities have the resources to take the steps that Russet has taken, we would like to further stress the importance of implementing and developing some sort of security method in order to protect yourselves and the residents of your Communities and to enhance the property values and avoid liability in the future.
28 MARINAS CERTIFIED AS CLEAN IN ANNE ARUNDEL COUNTY
The Atlantic Marina Resort in Pasadena - a 55-slip boatyard perched on the mouth of the Patapsco River - is the most recent property to be certified by the state's Department of Natural Resources as a "Clean Marina." The designation, which shows that a marina has surpassed environmental regulations, has been bestowed on 94 of the state's roughly 600 boating facilities, according to the DNR. Twenty-eight marinas have received the designation in Anne Arundel County.
The Clean Marina designation is given to any marina that secures a passing score on a 68-
item checklist. Submitting to the inspection is voluntary and it is free of charge - aside from any additional maintenance that needs to be done at the marina in order to receive it.
For a list of Clean Marinas in the state, visit: www.dnr.state.md.us/boating/cleanmarina/cleanmarinas.html .
PART IV
Kathleen Elmore, Ellen Throop, and Maricruz Bonfante attended the Community Associations Institute (CAI) conference in Las Vegas in January 2006. All three attorneys came back with a vast amount of knowledge and information which will be utilized and incorporated into the quality representation provided by our firm.
Kathleen Elmore will be giving a presentation on community association law at a National Business Institute (NBI) seminar on November 8, 2006. Ms. Elmore is a frequent lecturer for NBI, CAI, and the Maryland Institute for Continuing Professional Education of Lawyers (MICPEL). The program on November 8th will be a joint program with Sherri R. Heyman, Esquire, a partner in the law firm of Rosenberg, Martin, Funk and Greenberg, LLP, Baltimore. For more information on the program, please call 1.800.930.6182.
Kathleen Elmore is the new President-Elect of the Paca Brent Inns of Court for the 2006-2007 session. Ellen Throop has been elected Secretary of this organization. The Inns of Court is a group designed to improve the skills, professionalism and ethics of the bench and bar. The Paca Brent Inn meets approximately once a month both to "break bread" and to hold programs and discussions on matters of ethics, skills and professionalism and is composed of judges, lawyers, and law clerks.
Both Ellen Throop and Maricruz Bonfante have been appointed to the Peer Review Committee for the Attorney Grievance Commission. The peer review committee has informal meetings with complainants and respondents to resolve attorney disputes.
Ellen Throop has been elected Treasurer of the Chesapeake Chapter, Community Associations Institute.
Please be advised that, Tamara A Stoner, is no longer associated with the law firm of Elmore & Throop, P.C. Ms. Stoner is pursuing other opportunities and we wish her well. Marjorie Osorno became an associate attorney with the firm on June 13, 2006. Ms. Osorno previously worked at the firm as a law clerk.
Maricruz Bonfante and Marjorie Osorno participated in the Anne Arundel County Bar Foundation’s Victims Fund Run in September 2006. The Victims' Fund was established nine years ago for Anne Arundel County crime victims who can't afford to replace damaged or stolen property. Ms. Bonfante and Ms. Osorno will also be participating in the Susan B. Komen Race for the Cure on October 21, 2006. In addition to raising funds, the Komen Race helps raise awareness of the importance of a positive breast health program.
Conclusion
We trust that you have found our “Letter of Law” useful and informative and we hope to provide these on a regular basis as a courtesy to our clients. Your comment is welcomed. Please note that the information provided herein is general in nature. For specific questions relating to your association or circumstances, please call (410) 544-6644.
Very truly yours,
ELMORE & THROOP, P.C.
By:____________________________
Kathleen M. Elmore, Managing Partner
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