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Section 11-114 of the Maryland Condominium Act provides that Condominium Associations must maintain property insurance on the entire condominium including units, excepting improvements and betterments installed by the Unit Owner. Any deductible in the Master Policy is a common expense with one exception. The Association may recover up to $5,000 of its deductible from a Unit Owner if the loss originates from within his or her unit.
Despite this, some Condominium Associations still maintain that:
1. Unit Owners are responsible for the entire Master Policy deductible even if it exceeds $5,000, or
2. Unit Owners are responsible for all repairs to their unit if their negligence caused the loss, or
3. Unit Owners are responsible for all repairs to their unit even though the loss originated outside of their unit.
Typically, Condominium Associations rely on their Bylaws, asserting that they trump the statute or that the Association may opt out of the § 11-114 requirements.
These arguments were recently disposed of by the Circuit Court for Queen Anne's County in a declaratory judgment action, Elasik, et al. v. Queen's Landing Council of Unit Owners, Inc. After a wind storm damaged a dormer roof, Queen's Landing took the position that its Bylaws made the Unit Owner responsible for repairs or replacement of a roof which served only their unit and that the Unit Owners in question were responsible for 100% of the Master Policy deductible. In response to the Unit Owners' claim that the loss did not originate from within their unit and that the deductible was therefore a common expense, the Association maintained it could "opt out" of the statute. While the precise (and strained) arguments Queen's Landing made are set forth in the Court's Opinion, suffice to say they were rejected. As the Court noted:
"After Anderson, the Legislature went to great lengths to detail an association's responsibilities regarding insurance and reconstruction, so it would be inconceivable that they intended for an association to be able to evade those requirements by simply amending the bylaws .... Such an interpretation would be ironic, considering that the statute is titled "Mandatory Insurance Coverage."
- Point 1: A post July 1, 1982 condominium may not opt out of any of the mandatory insurance provisions in § 11-114. Provisions in Bylaws which conflict with § 11-114 are a nullity and may not be enforced.
- Point 2: If the loss originates from within a common or limited common element or from an external event, the Master Policy deductible is a common expense.
- Point 3: While a Unit Owner may be obligated by the bylaws to maintain, repair or even replace a limited common element which only serves his or her unit, if the limited common element is damaged in a casualty loss, the obligation becomes the Association's. The same would apply to a Unit Owner's responsibility to maintain and repair his unit, which becomes the Association's responsibility to repair after a casualty loss has damaged same.
- Point 4: It is unlikely that any Maryland Court will permit an Association to wiggle out of its § 11-114 responsibilities in light of the clear Legislative intent expressed in 2009 after the holding in Anderson was specifically rejected by the Legislature.
- Point 5: If Condominium Associations wish to have Unit Owners accept more financial responsibility for losses, they will need to have the Legislature amend the statute. Although I am not advocating any of the following, the Legislature could increase the Unit Owner's responsibility for the Master Policy deductible from $5,000 to $10,000 for losses that originate within his or her unit. The Legislature could make the Unit Owner responsible for repairs to his or her unit up to $5,000 regardless of where the loss originates. However, in the absence of legislation, Associations and their management companies which continue to ignore their responsibilities will face litigation for intentionally violating their statutory duties.
Should you have any questions concerning that above, or for a copy of the Opinion and Declaratory Judgment, please feel free to contact V. Timothy Bambrick at 410-783-6342 or at email@example.com all Community Association Law articles »
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