Newsletters

Community Associations Newsletter - Fall 2021

Date: December 15, 2021

2021 Maryland Legislative Update


The 2021 legislative session has produced several changes to Maryland Community Associations law. This article provides a brief summary of six bills passed by the Maryland General Assembly.

Condominiums and Homeowners Associations – Rights and Restrictions – Composting (HB 248 – repealing and reenacting, without amendments, § 9-1701(a) and (e) of the General Administration of the Office of Recycling and adding to § 11-111.5 of the Maryland Condominium Act and 11B-111.9 of the Maryland Homeowners Association Act) – Effective October 1, 2021

Maryland Condominium Act

The rights of unit owners in condominiums regarding composting have been clarified and a condominium’s governing documents may not prohibit or unreasonably restrict a unit owner from contracting with a private entity to collect organic waste materials from the unit owner for composting at a composting facility.

Any language in the governing documents that unreasonably impedes the ability of a private entity to access the common elements for the purpose of collecting organic waste materials from a unit owner shall be interpreted as a restriction on the unit owner’s right to contract for private composting services.

Maryland Homeowners Association Act

Similar to the legislation regarding condominium unit owner rights to compost, a homeowners association’s governing documents may not prohibit or unreasonably restrict a lot owner from composting organic waste materials for the lot owner’s personal or household use. The lot owner must own or have the exclusive right to use the area where the composting is being conducted and observes all laws, ordinances, and regulations of the state and local jurisdiction that pertain to composting. Alternatively, the lot owner may contract with a private entity to collect organic waste materials from the lot owner for composting at a composting facility.

As with the governing documents for a condominium, a homeowners association’s governing documents with language that unreasonably impedes the ability of a private entity to access the common elements for the purpose of collecting organic waste materials from a lot owner shall be interpreted as a restriction on the lot owner’s right to contract for private composting services.

Residential Construction – Electric Vehicle Charging (HB 784 – adding to § 12-205 of the Statewide Building and Housing Codes; HB 110 – adding to § 11-111.4 of the Maryland Condominium Act and § 11B-111.8 of the Maryland Homeowners Association Act) – Effective October 1, 2021

Statewide Building and Housing Codes

This amendment only applies to the construction of new housing units, which includes single-family detached homes and townhouses. If new construction includes one or more units that will include at least one garage, carport, or driveway for each housing unit, the builder or builder’s agent shall provide each buyer or potential buyer the option to include an electric vehicle charging station capable of providing at least level 2 charging[1] or a dedicated electric line of sufficient voltage to support the later addition of an electric vehicle charging station. The builder or builder’s agent shall give each buyer or prospective buyer information about any available rebate programs related to the purchase or installation of electric vehicle charging stations in addition to notice of their options for installation.  

Maryland Condominium Act and Maryland Homeowners Association Act

A recorded covenant or restriction, a provision in a declaration, or a provision in the bylaws or rules of the condominium or homeowners association is void if the provision is in conflict with the provisions in this legislation or prohibits or unreasonably restricts the installation or use of electric vehicle recharging equipment (“Equipment”)[2] in a unit owner’s or lot owner’s deeded parking space or parking space designated for use by a particular owner.

The governing body of a condominium or homeowners association may require the owner to seek approval for the installation or use of Equipment. The application for approval shall be treated in the same manner as an application for approval of an architectural modification. The governing body may not willfully avoid or delay the review or processing of the application. If an application is not denied within 60 days of the governing body receiving the application, the application shall be deemed approved, unless the delay is the result of a reasonable request for additional information. The approval or denial of an application shall be in writing. The governing body may also grant a license for up to 3 years, renewable at the discretion of the governing body, on any common element necessary for the installation of Equipment or for the supply of electricity to any Equipment.

The conditions for approval include: (1) the installation does not unreasonably impede the normal use of an area outside of the owner’s parking space; (2) the owner agrees in writing to comply with all relevant building codes and safety standards to maintain the safety of all users of the common area and the architectural standards for the installation of the Equipment; (3) the owner agrees in writing to engage a licensed contractor to install the Equipment, and; (4) the owner agrees in writing to pay for the electricity usage associated with the separately metered Equipment. For a homeowners association, the installation must also be reasonably possible. Additionally, the owner and each successive owner of the Equipment shall be responsible for: (1) installation costs of the Equipment; (2) costs for damage to the Equipment, common element, or limited common element resulting from the installation, maintenance, repair, removal, or replacement of the Equipment; (3) costs for the maintenance, repair, and replacement of Equipment up until Equipment is removed; (4) costs for removal of Equipment and restoration of the common or limited common elements after removal, if the owner chooses to remove the Equipment, and; (5) the cost of electricity associated with the Equipment.

After the application is approved, the owner shall obtain any permit or approval for Equipment that is required by the county or municipal corporation in which the condominium or homeowners association is located. The owner also shall provide a certificate of insurance naming the condominium or homeowners association as an additional insured or reimburse the condominium or homeowners association for the cost of an increased insurance premium attributable to the Equipment.

Cooperative Housing Corporations, Condominiums, and Homeowner Associations – Virtual Meetings (HB 1023/SB 686 – adding to § 5-6B-25.1 of the Maryland Cooperative Housing Corporation Act, § 11-139.3 of the Maryland Condominium Act, and § 11B-113.6 of the Maryland Homeowners Association Act) - Effective June 1, 2021

The board of directors or governing body of cooperatives, condominium associations, or homeowners associations may authorize meetings to be conducted or attended by telephone conference, video conference, or similar electronic means. There is no requirement for specific authorization from members, unit owners, or lot owners to hold a meeting virtually. The equipment or system used to conduct or attend meetings virtually must permit everyone in attendance to hear and be heard by others participating in the meeting.

If the meeting will be held virtually, a link or instructions on how to access the Virtual Meeting must be included in the meeting notice. Anyone attending the meeting virtually shall be deemed present for quorum and voting purposes. 

For any matters requiring a vote, the cooperative, condominium association, or homeowner association may set the matter for a vote at the meeting and a ballot may be delivered to members with the meeting notice. Only members present at the meeting may vote. Members, unit owners, and lot owners who are not present at the meeting (physically or virtually) may vote by proxy in accordance with the requirements of the governing documents and be considered present for quorum purposes through their proxy. The board of directors or governing body shall set a deadline for the return of the ballot, including return by electronic transmission. The deadline for the return of the ballot shall not be later than 24 hours after the conclusion of the meeting.

The inability of members, unit owners, and lot owners to join a virtual meeting due to technical difficulties with their telephone, computer, or other electronic device does not invalidate the meeting or any action taken at the meeting. Lastly, nominations from the floor at the meeting are not required if at least one candidate has been nominated to fill each open board position.

Cooperative Housing Corporations, Condominiums, and Homeowners Associations – Reserve Studies (HB 567 – repealing and reenacting, with amendments, § 5-6B-26.1 of the Maryland Cooperative Housing Corporation Act, §§ 11-109(c)(16)(v), 11-109.2(c), 11-109.4, and 11-110(b)(1)(ii) of the Maryland Condominium Act, and §§ 11B-106.1(e), 11B-112.2(d), 11B-112.3, and 11B-117(a)(2) of the Maryland Homeowners Association Act) – Effective October 1, 2021.

The Maryland Cooperative Housing Corporation Act, Maryland Condominium Act, and the Maryland Homeowners Association Act now requires reserve studies to be conducted by associations located in Montgomery County. Montgomery County has now been incorporated into the existing language of the statute. Governing bodies for Montgomery County cooperatives and condominiums established on or after October 1, 2021, shall have an independent reserve study completed not less than 30 calendar days before the first meeting of the cooperative or council of unit owners. For Montgomery County homeowners associations established on or after October 1, 2021, the governing body shall have an independent reserve study completed not more than 90 calendar days and not less than 30 calendar days before the first meeting of the homeowners association. The governing body shall have an updated reserve study completed within 5 years after the date of the initial study, which shall be updated at least every 5 years thereafter.

The timeline differs for cooperatives, condominiums, and homeowners associations established before October 1, 2021. If the governing body previously had a reserve study conducted on or after October 1, 2017, the governing body shall have an updated reserve study conducted within 5 years after the date of the previous reserve study and continue to have reserve studies conducted every 5 years thereafter. If the governing body has not had a reserve study conducted on or after October 1, 2017, the governing body has until October 1, 2022 to do so. Additional reserve studies must be updated at least every 5 years thereafter.

Real Property – Impermissible Restrictions on Use – Portable Basketball Apparatuses (HB 1347 – adding to § 2-124 of the Rules of Construction for Real Property) – Effective October 1, 2021

A restriction on use[3] regarding land may not impose or act to impose an unreasonable limitation on the location and use of a portable basketball apparatus[4], provided that the property owner owns or has the right to exclusive use of the in which the portable basketball apparatus is placed and used. An unreasonable limitation includes significant increases in the cost of using a portable basketball apparatus or significantly decreasing the ability to use a portable basketball apparatus as designed and intended.

This legislation does not apply to a restriction on use on historic property that is listed in, or determined by the Director of the Maryland Historic Trust to be eligible for inclusion in, the Maryland Register of Historic Properties.

Condominiums and Homeowners Associations – Meeting Requirements (HB 539/SB 535 – repealing and reenacting, with amendments, § 11-109(c)(8) of the Maryland Condominium Act and 11B-111(4) and (5) of the Maryland Homeowners Association Act and by adding to § 11B-111(6) of the Maryland Homeowners Association Act) – Effective October 1, 2021

Maryland Condominium Act

The new legislation clarifies the requirements for additional meetings when, at a properly called meeting of the council of unit owners, the number of persons present in person or by proxy is insufficient to constitute a quorum. The new, additional requirements for notice of the initial meeting include language stating that an additional meeting may be called and the date, time, and place of the additional meeting must also be included. The majority of unit owners present at the initial meeting must also vote to call the additional meeting.

The additional meeting shall occur no less than 15 days after the initial meeting. No less than 10 days before the additional meeting, a separate and distinct notice of the date, time, place, and purpose of the additional meeting shall be delivered, mailed and/or sent by electronic transmission to each unit owner, advertised in a newspaper published in the county where the condominium is located or posted on the homepage of the condominium’s website.

Maryland Homeowners Association Act

The addition to the Maryland Homeowners Association Act also concerns guidelines for additional meetings. If, at a properly called meeting, the number of lot owners present in person or by proxy is insufficient to constitute a quorum, an additional meeting of the lot owners may be called for the same purpose. The requirements for calling an additional meeting includes whether notice of the initial meeting stated that the procedure for additional meetings might be invoked and the date, time, and place of the additional meeting. In order to proceed, a majority of the lot owners present at the original meting vote in person or by proxy to call for the additional meeting.

The additional meeting shall occur no less than 15 days after the initial meeting. No less than 10 days before the additional meeting, a separate and distinct notice of the date, time, place, and purpose of the meeting shall be delivered, mailed and/or sent by electronic transmission to each lot owner, advertised in a newspaper published in the county where the homeowners association is located or posted on the homepage of the homeowners association’s website.

The notice of the additional meeting shall contain quorum and voting provisions. At the additional meeting, lot owners present in person or by proxy constitute a quorum. Unless the bylaws provide otherwise, a majority of the lot owners present in person or by proxy may approve or authorize the proposed action at the additional meeting and may take any other action that could have been taken at the original meeting if a sufficient number of lot owners had been present.

This legislation may not be construed to affect the percentage of votes required to amend the declaration or bylaws or to take any other action required to be taken by a specified percentage of votes. 

Please contact a Whiteford, Taylor & Preston, LLP community association attorney for more specific advice based on your community’s individual needs and concerns.

[1] Level 2 Charging means that the charging capability of the electric vehicle charging station includes: (1) the ability to charge a battery or any other energy storage device in an electric vehicle through means of an alternating current electrical service with a minimum of 208 volts and; (2) meets applicable industry standards.
[2] Electronic vehicle recharging equipment means property in Maryland that is used for recharging motor vehicles propelled by electricity.
[3] Includes any covenant, restriction, or condition contained in a deed, declaration, contract, the bylaws or rules of a condominium or homeowners association, a security instrument, or any other significant instrument affecting the transfer or sale of real property or any other interest in real property.
[4] A portable apparatus or device designed for recreational use in conjunction with the game of basketball.

"Making Spirits Bright" - A Guide for Community Associations on Holiday Decorations


The holiday season is upon us.  Holiday lights and decorations now adorn both the inside and outside of residents’ homes. Perhaps now more than ever, homeowners yearn for a festive atmosphere to brighten their spirits and to assist in spreading joy to their family and neighbors. Associations are also putting up holiday decorations in their common areas - lobbies, libraries, etc. Simultaneously, Association boards are raising questions regarding rules and regulations for holiday displays. Why would associations want to regulate holiday decorations? Does the Board have the authority to regulate a homeowner’s exterior holiday display? What should be taken into consideration when developing and enforcing these regulations? How can owners and associations bring observance to the holidays while keeping the community safe, clean and harmonious? 

Why regulate?

While holiday decorations are intended to radiate cheer and goodwill, some tend to be ostentatious, noisy, or even pose a safety hazard to the neighbors in the community. For instance, it is not uncommon for police to receive 911 calls from disturbed neighbors during Halloween due to overly violent or gory displays. According to the National Fire Protection Association, the most calls for fires ignited by candles occur during the holidays season.[1] While there are local ordinances and regulations in many cities and counties that assist in controlling excessive lights and noise, use of open-flame or flammable devices in public areas, most annoyed homeowners prefer to rely on their own their associations to deal with the issue.

Is there authority?

The authority for Associations to regulate holiday decorations, if any, should be based on the governing documents.  It is important to note that while most covenants, codes and restrictions (CC&R) in the governing documents set up rules such as restrictions on number of pets or exterior paint colors, not all have specific rules regulating holiday decorations and display.  Some associations have established architectural review committees and rules pertaining to architectural control that provide aesthetic guidelines for homeowners, but not all.  Even for those that do, the guidelines may not cover every esthetic for exterior display, especially for holiday purposes.    
In addition, Associations’ bylaws typically preclude homeowners from creating an environment that would prevent other homeowners from using and enjoying their own property. That said, it would be helpful for community associations to set up rules that provide clear and specific guidelines for homeowners to follow when setting up holiday decorations and display.

What to consider
 
  • Decide the need: Engage with board members and other residents to decide whether the community will benefit from regulations on holiday decorations.
  • Consult with an attorney: Communicate with the Associations’ legal counsel and review the Associations governing documents regarding its authority in regulating holiday decorations.  Make sure the Board is following proper procedures in setting up the rules and effectively communicating the rules to the homeowners.
  • Set clear and reasonable rules: Provide specific rules such as (1) reasonable hours for lit holiday displays; (2) a reasonable timeframe during which to set up and remove holiday decorations; (3) size, location and boundaries of the display; (4) maximum decibel level and duration of noise that is allowed; (5) restrictions on hazardous decoration such as candles or fire pits to prevent harm to owners or the community at large.
  • Encourage communication first: When the Board receives complaints regarding holiday decorations, provide communication channels and encourage residents to resolve their issues with one another quickly and amicably.  This will help prevent unnecessary tension from arising and promote better understanding and inclusiveness in the community.
  • Ensure enforceability of the rules: Consult with the Associations’ legal counsel and provide proper procedure (1) for homeowners to report complaints or request a meeting with the Board, (2) for board members to schedule inspections, and (3) for the Association to levy fines on violation of the rules.

How to avoid trouble

If the Association decides to set up rules regulating holiday decorations and displays, the most important thing to keep in mind is to avoid discrimination claims under the Fair Housing Act. The Fair Housing Act prohibits housing providers from treating renters or homeowners differently because of their religion.[2] This means that none of the rules should show preference to one religion or holiday over another.  The guidelines should be carefully crafted in a way to avoid leaning into any religiously offensive of preferential verbiage. For example, it is easy to get into trouble if the rule says a homeowner can put up “Christmas lights” instead of “holiday lights” without mentioning lights for other religious or cultural celebrations such as Diwali, Kwanzaa, Hanukkah or the Lunar New Year.

“Making Spirits Bright” with guidelines

Overall, holiday decorations and displays are essential in “making spirits bright” during the holiday season.  By establishing clear and reasonable guidelines for holiday decorations, the Association can ensure the community maintains a safe and harmonious environment. We hope this article assists with providing guidance on the issue. If you have any additional questions, do not hesitate to contact us.
[1] https://www.heartlandfire.org/DocumentCenter/View/1478/Holiday-Safety-Tips-from-NFPA-and-HFR#:~:text=December%20is%20the%20peak%20time,the%20remainder%20of%20the%20year.
[2] https://www.fairhousingnc.org/know-your-rights/religion/

Shoveling Out - Snow Removal Responsibilities and Liability for Community Associations


In this article, we examine snow removal laws in the District of Columbia (DC), Virginia and Maryland.

Private Streets and Sidewalks

Community Associations are usually required to remove snow from any private streets and sidewalks part of the Common Area or Common Elements. Community Associations should always first refer to their governing documents to determine their maintenance responsibilities. If a Community Association is responsible for maintaining streets and sidewalks, then it must take reasonable steps to keep them clear and safe during a storm. Failure to do so could result in liability if someone is injured due to slippery conditions. DC, Virginia and Maryland all provide different standards in regards to the steps a Community Association should take to reasonably remove snow and ice.

Virginia

Of the three jurisdictions, Virginia is arguably the most lenient. It allows Community Associations to “wait until the end of a storm and a reasonable time thereafter before removing ice and snow from an outdoor entrance, walk, platform or steps.” Accordingly, Virginia Community Associations will not be held liable for injuries due to snow and ice, as long as they take reasonable steps to clear the private sidewalks and walkways after a storm has ended. It is important to note that this does not mean a Community Association needs to clear all the private walkways. Instead, Community Associations are only required to clear enough walkways to give owners and their tenants and guests access to the property and their homes.

Maryland

In Maryland, snow removal laws are largely county specific. It is of vital importance that each community is familiar with local and county regulations regarding snow removal. We have listed the basic snow removal regulations of certain counties below for your convenience. Aside from county regulations, like the Virginia courts, the Maryland courts will look at each matter on a case-by-case basis to determine whether a Community Association took reasonable steps to remove snow and ice from the private walkways and streets.  

DC

DC places the highest standards on Community Associations in regard to what is considered reasonable snow removal. Under DC case law, a Community Association is required to exercise reasonable care to remove snow and ice from private sidewalks and walkways that has accumulated, or is accumulating, to avoid injury if it knows or should know there is a dangerous condition present. This means that, unlike in Virginia, Community Associations in DC cannot wait until after a snowstorm has ended to clear snow and ice from private walkways. Instead, if at any time a Community Association knows or should know there is a dangerous condition on the walkways, it must take steps to make them safe or risk liability for injuries. If a Community Association in DC hires a contractor for snow removal but that contractor does an inadequate job and does not clear the snow or ice completely, the Community Association may still be liable for injuries.

Public Streets and Sidewalks

In general, Community Associations are not responsible to clear snow from public streets. That duty rests with the City or County in which the Community Association is located. However, there may be snow removal duties placed on a Community Association regarding public walkways and sidewalks depending on the city or county in which it is located. This is certainly the case in Maryland. At the end of this article we have provided a list of the snow removal requirements enforced by DC and various cities and counties in Virginia and Maryland. However, does failure to abide by a local ordinance mean liability for an injury on a public sidewalk?
In all three jurisdictions, Courts have generally held that the duty to remove snow from public sidewalks is a non-delegable duty of the local or state government. This means that even if there is an ordinance in place requiring a Community Association to remove snow and ice from public sidewalks, they will generally not be liable for injuries due to their failure to do so. Of course, this does not mean a Community Association will not be liable if it does something to create an additional hazard, like dump all of the snow from the Common Area onto the public sidewalks.

How to Stay Out of Trouble

So, what should a Community Association do to avoid liability for a slip and fall case? In general, a Community Association should always fulfill the maintenance responsibilities that are delegated in its governing documents, which usually includes removal of snow and ice from its private streets and walkways. It should also heed the local ordinances regarding snow removal of public sidewalks. Another important step is to keep records of the conditions of the streets and sidewalks, as well as the snow removal efforts. If a slip and fall lawsuit is ever filed, those records can save a Community Association from liability by evidencing it took the requisite reasonable steps to clear snow and ice.

In the end, while snowstorms can be a great excuse to take a day off from work or school, they can be a massive headache for Community Associations. We hope this article will help lessen that headache. However, if you have any questions, do not hesitate to contact us.

State and Local Ordinances
 
  • District of Columbia; Community Associations are required to clear snow from the public sidewalks around the property within 8 hours of daylight after the snow stops falling. If the snow is not removed, then the City is actually required to do so, but can charge the Association for costs incurred.
 
  • Virginia; Virginia does not have a statewide law regarding snow removal from public walkways or sidewalks. Instead, it is up to the discretion of the individual cities and counties to pass such ordinances. Below is a list of the applicable ordinances in Northern Virginia:
    • Alexandria; Community Associations are responsible for clearing public walkways adjoining the property within 24-72 hours after snow stops falling, depending on the severity of the storm. 
    • Arlington County; Community Associations are required to clear snow from walkways adjacent to the property. Snow must be cleared within 24-36 hours of snowfall depending on the accumulation. Failure to comply may result in a civil penalty of up to $100.
    • Fairfax County; Community Associations are not legally obligated to clear the public sidewalks and walkways but are urged to help.
    • Falls Church; Community Associations are required to remove snow and ice from public sidewalks surrounding the property 6 hours after snowfall or risk a fine. If the snow falls at night, Community Associations have 6 hours after sunrise to remove it. Snow / ice must not be placed on city streets. 
    • Loudoun County; Community Associations are responsible for clearing snow and ice from public walkways adjoining the property. Walkways must be cleared within six hours after snow stops falling. If it snows overnight, snow must be cleared by noon of the next day. Failure to follow these rules can result in a fine of up to $250.
    • Prince William County; Community Associations are asked to help clear public sidewalks and walkways, but are under no legal obligation to do so.
 
  • Maryland; Similar to Virginia, Maryland has left snow removal laws to the discretion of its Cities and Counties. Below is a list of the applicable ordinances in the cities and counties in the DC Metro area:
    • Frederick County; Community Associations are required to shovel public sidewalks around the property within 12 hours after the end of snowfall.
    • Laurel; Community Associations are required to clear ice and snow from sidewalks fronting the property within 12 hours after the cessation of snowfall or ice accumulation at risk of a fine.
    • Montgomery County; Community Associations must clear sidewalks around the property within 24 hours after a snowstorm ends. There are however additional restrictions for the following cities in Montgomery County:
    • Gaithersburg; Community Associations have 12 hours to shovel after snow stops falling. Residents and business owners are required to remove snow and ice from the public sidewalks abutting their property within 12 hours of the last precipitation; however, when possible, property owners should wait until the snow removal crews have cleared the roadways to avoid continuous clearings.
    • Rockville; snow removal from sidewalks, driveways and entrances are the responsibility of the adjacent property owner, occupant, community association or business. Snow and ice must be cleared from all paved sidewalks abutting your property within 24-72 hours of the end of the snowfall, depending on the snowfall totals (up to 3 inches = within 24 hours; 3-9 inches = 48 hours; 10 inches or more = 72 hours). City crews coordinate road clearing and sidewalk work depending on the severity of the storm. Accessible curb ramps, sidewalks and pathways that abut publicly-owned property are cleared by crews from City departments.
    • Prince George's County; Community Associations must have public sidewalks around the property cleared by 48 hours after snowfall. After a warning period, county inspectors can issue a $100 fine for sidewalks that have not been shoveled.
    • Takoma Park; snow and ice must be removed from sidewalks by 7 PM of the day on which it has fallen or accumulated, or by the end of 4 hours of daylight after the fall or accumulation, whichever is later. Sidewalks in front of commercial establishments must be kept free of snow and ice at all times between the hours of 9 AM and 5 PM. The County’s Department of Housing and Community Affairs is responsible for enforcing the County requirement for rental properties.