Community Associations Newsletter - Fall 2023
Date: September 22, 2023
Addressing Complaints of Marijuana Smoke In Community Associations Following Legalization Of Recreational Marijuana Use In Delaware and Maryland
As of April 23, 2023, and July 1, 2023, Delaware and Maryland, respectively, have legalized the personal use of marijuana. In light of the recent laws, common interest communities across these two states may soon (if not already), contemplate how to appropriately address an uptick in complaints related to marijuana smoke.
What can you do? As a rule of thumb, communities should refer to the language within their governing documents when reviewing complaints related to marijuana smoke. If the governing documents contain a prohibition on smoking in units or on the common elements, or both, then such prohibition likely includes marijuana smoke. In the absence of an express ban on smoking, a majority of governing documents prohibit activity that creates a nuisance or annoyance to owners. Without an express prohibition on smoking, however, communities may struggle prohibiting the smoking of marijuana within a unit based solely upon a nuisance restriction, especially in Maryland, where the court has held that tobacco smoke is not a nuisance per se. If the governing documents do not contain a prohibition on smoking but the community desires to prohibit smoking, the community may consider an amendment to its governing documents and/or promulgation of a Board adopted rule depending on the location within the community of the smoking ban.
Whether enforcing a strict ban on smoking or a nuisance provision in the governing documents, communities should follow their respective processes for enforcement of violations consistent with their governing documents, enforcement policies and/or state statutes. In doing so, communities should be mindful to verify complaints, conduct reasonable investigations and provide owners of alleged violations with notice of the violation and an opportunity to be heard. Absent emergent circumstances, we recommend consulting your WTP counsel before exercising self-help to abate an alleged violation.
A brief overview of the Delaware and Maryland laws are below. As always, if you have questions or would like assistance in handling your community’s smoke complaints or the review, interpretation or amendment of your governing documents, please contact your association’s Whiteford legal counsel.
Delaware
HB 1 amends Title 16 of the Delaware Code relating to marijuana. It removes all penalties for use or possession of a personal use quantity of marijuana and marijuana accessories. It further specifies that adult sharing of a personal use quantity or less of marijuana is legal for those 21 years of age or older and those 21 or older may possess, use, display, purchase, or transport accessories and personal use quantities of marijuana without penalty. The statute also specifies certain activities which remain unlawful, including consuming marijuana in an area accessible to the public or in a moving vehicle. Finally, the definition of "personal use quantity" of marijuana is updated to include not only 1 ounce or less of leaf marijuana, but also 12 grams or less of concentrated cannabis, or cannabis products containing 750 milligrams or less of delta-9-tetrahydrocannabinol.
HB 2, in part, amends Title 4, 11, 16 and 30 of the Delaware Code relating to the creation of the Delaware Marijuana Control Act, which regulates and taxes marijuana for recreational use and creates a framework for the production, manufacturing and sale of marijuana in a legal recreational industry.
Maryland
Possession. Individuals 21 and older may legally possess the “personal use” amount of cannabis. Personal use possession includes: (1) up to 1.5 ounces cannabis; or (2) up to 12 grams concentrated cannabis; or (3) cannabis products containing up to 750 mg strength delta-9-THC; or (4) up to 2 cannabis plants.
Cultivation. Individuals 21 and older may grow up to two (2) cannabis plants but no more than two (2) cannabis plants can be grown per residence, regardless of the number of adults who reside at the residence. The plants must be out of the public view and reasonable precautions must be taken so that they are not accessible by unauthorized individuals under the age of 21. Additionally, cannabis plants may only be grown on property owned by the grower or with the consent of the property owner.
Use. The law prohibits smoking of cannabis in specific locations, including public places. Smoking cannabis in a public place is a civil offense and may be penalized by up to a $50 fine for a first offense. Subsequent offenses can incur fines up to $150. The law also prohibits a driver from smoking cannabis in motor vehicles.
New Requirement in Maryland to Provide Notice of Increases
During the most recent Maryland legislative session, House Bill 151 “Real Property- Residential Leases- Notification of Rent Increases” was adopted which requires landlords to provide notification of rent increases to tenants. Cooperative housing corporations are perceived as landlords under the law. In addition, a condominium association or homeowners association that assumes a lease to a property either through foreclosure or some other means, can also be considered a landlord. As such, this law, which is effective October 1, 2023, is applicable to community associations.
The new law requires that before increasing the tenant’s rent, the tenant be notified of the increase by first-class mail with a certificate of mailing, or, if elected by the tenant, by electronic delivery in the form of an email, text message or through an electronic tenant portal. If notice is delivered electronically, the landlord must maintain proof of transmission.
Regarding timing of the notice, for any tenancy for a term of more than one month, there must be at least 90 days advance notice. For any tenancy for a term or more than one week, but not more than one month, there must be at least 60 days’ notice of a rent increase. If a tenancy is for a term of a week or less, there must be at least 7 days advance notice if there is a written lease, or 21 days advance notice if there is no written lease.
The notice requirements under this law do not supersede local laws or regulations that may provide for additional notice or provide tenants with additional protections. There are also limited exceptions to this new law, including exempting notice of a rent increase in situations where a landlord, as required by law, has provided written notice of intent to terminate a tenancy.
This new law also establishes reporting requirements for local jurisdictions with laws limiting rent increases.
For more information on this new law, please visit the Maryland General Assembly page.
2023 Maryland Legislative Update
The 2023 legislative session has produced several changes to the Maryland laws applicable to community associations. This article provides a brief summary of these community association related bills recently passed by the Maryland General Assembly. Please note: All new laws set forth below will take effect on October 1, 2023.
Mandatory Insurance Coverage (HB 98) for Condominiums
This new law will have a significant impact on the insurance required to be held by condominium associations in Maryland with detached units. Specifically, Maryland Real Property Article, Sec. 11-114, now allows for the exclusion of detached, residential units from the master property insurance policy that a condominium association maintains. Notably, the law continues to require Maryland condominium associations to insure all common elements and units which have shared elements; however, the law no longer requires, or rather permits, a Maryland condominium association to choose whether or not it will include detached residential units in its master property insurance policy going forward.
Owners of detached residential units are now subject to a new requirement to have the entirety of their detached residential unit covered under a property insurance policy that they purchase. However, a plain reading of the law appears to indicate that an owner’s obligation is satisfied if their condominium association elects to include the detached residential unit in its master property insurance policy despite no longer being required to do so.
Unlawfully Restrictive Covenants (HB 182) Modification by Counties of Municipalities
This law extends the authority to modify or amend any “unlawfully restrictive covenant” of a Maryland condominium or cooperative association to the local county or municipal authority. Specifically, pursuant to this new change found in Maryland Real Property Article, Sec. 3-112, a covenant or restriction on ownership based on race, religious belief or national origin may be amended by the county of municipal authority within which the condominium or cooperative association is located upon thirty (30) days’ notice of such modification mailed to the membership by first class mail with instructions on how to object to such modification, and no such objections being received.
Judgement Garnishments & Sheriff’s Sales (HB 42 & SB277) Automatic Amount Exempt from Bank Garnishment and Sheriff’s Sales Extinguishes Subordinate Liens
These two amendments are sure to impact efforts to collect delinquent assessments from nonpaying owners.
Automatically, pursuant to Maryland Courts and Judicial Proceedings Article, Sec. 11-504, the first $500.00 in any banking deposit account is exempt from a garnishment issued to collect upon a court awarded judgment. This automatic exemption is triggered without any action by any party and shall be included in the court’s instructions on the garnishment.
On the other hand, the legislature has clarified the impact of enforcing a judgment by having the property sold by auction at a Sheriff’s Sale. Specifically, the sale of real property by a Sheriff’s Sale now expressly extinguishes any lien on or ownership-interest in the real property subordinate to the judgment being enforced by the Sheriff’s Sale. This amendment to Maryland Courts and Judicial Proceedings Article, Sec. 11-502, may result in subordinate lienholders paying a superior judgment to stop the Sheriff’s Sale and preserve their liens.
Please contact a Whiteford, Taylor & Preston, LLP community association attorney with any questions that you may have on any of these new laws or for more specific advice based on your association’s individual needs and concerns.
Montgomery County’s Existing High-Rise Building Sprinkler Program Maryland 2023
As of February 2023, a total of seventy-six (76) high rise buildings in Montgomery County do not have sprinklers in each unit. The National Fire Protection Association (NFPA) reports that more than 2,500 people die in home fires each year. Yet, the risk of dying in a home fire decreases by about 80% when a home is equipped with a fire sprinkler system. Accordingly, for the safety of residents, visitors, and first responders, the Maryland State Fire Marshall has mandated that all existing residential high-rise buildings be completely retrofitted with sprinkler systems by January 1, 2033 to comply with Fire and Life safety codes.
Although the mandate is currently limited to high rise buildings in Montgomery County, the Maryland General Assembly is currently reviewing a Bill concerning fire protection and prevention with similar requirements for certain high-rise buildings to be fully sprinkled by January 1, 2033. The Bill proposes, amongst other things, requiring the installation of smoke alarms in public corridors that are accessible by units in high rise buildings, prohibiting landlords from requiring a tenant to reimburse a landlord for the cost of installing certain smoke alarms, as well as prohibiting landlords from requiring deaf or hard of hearing tenants to pay for the costs of a notification appliance.
Generally, a high rise includes buildings seven stories or more. However, any building that has an occupiable level that is 75 feet or more above the lowest level the fire department may access is considered a high-rise building. Any existing residential high-rise, whether an apartment or condominium, that does not have automatic sprinkler systems in both common and living areas, is subject to the state mandate. Although compliance with the mandate is required by January 2033, buildings will be considered in violation of the fire code until the required work is completed.
The State Fire Prevention and Task Group and the Montgomery County Department of Permitting Services (DPS) has developed the following four options to assist building owners in complying with the State Mandate:
- Option 1 – Building a Fire Suppression System – The installation of a DPS approved automatic sprinkler system throughout the building.
- Option 2 – Compliance with all applicable requirements of Chapter 31 of NFPA 101 –A building must be completely sprinkled unless (1) every dwelling unit has exterior exit access, or (2) an approved engineered life safety system is provided.
- Option 3 – Compliance with DPS’ alternative Systems and building performance requirements:
- Option 4 – Installation of all the requirements in Option 3, except items #2 and #10, with the additional requirement of smokeproof enclosures and a fire service elevator with an approved standby power system.
DPS’ compliance options refer to the 2018 edition of NFPA 101. However, applicants must comply with any amendments that supersede the 2018 edition when they are ratified. Although the 2021 edition of NFPA 101 has not been implemented by the State, Associations should be aware of changes within the guidelines as compliance will be required once the new edition is formally adopted.
Building owners or their designee(s) must consult with a design professional, licensed architect or professional engineer to select an appropriate option for their building. Once an option has been selected, building owners may enter into a Life Safety Agreement (LSA), otherwise known as a Fire Protection Agreement. This multi-year contract allows building owners to phase into the program over a period of more than a year due to financial concerns, to accommodate residents, or to coordinate with other processes. Once the LSA is finalized, the building will be deemed in compliance. However, a failure to comply with the agreement’s outlined deadlines will result in the immediate suspension of the use and occupancy of the building. Buildings with upcoming renovations will need to consider these options and the various requirements when planning any future projects. The Department of Commercial Construction will need to review and approve any fire protection system, as well as any modifications prior to the commencement of the work.
While the County’s new mandate may cause Montgomery County building owners and Community Associations financial stress, owners and Associations that fully equip their high rises with sprinklers may see relief in insurance premiums as a result of their investment. When considering insurance renewals, insurance companies often look not only at loss history, but whether buildings are financially sound, well managed and well maintained. As automatic sprinkler systems make property damage and injuries caused by fires preventable to a large extent, buildings that comply with the County’s requirements may be able to negotiate insurance quotes as they may qualify for more insurance carrier guidelines. However, those that fail to comply may experience a challenging insurance renewal or premium increase.
It is the responsibility of building owners to comply with the building and fire codes adopted by Montgomery County. Building owners or associations interested in starting the LSA process should complete the DPS registration form. Those with any questions about the mandate should consult with their Whiteford attorney about the requirements and how to best bring their buildings into compliance.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.