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Maryland Unit Repairs & Community Associations*
By Brian Bichy
*This article originally appeared in the October 2004 edition of Quorum™, a publication of the Washington Metropolitan Chapter Community Associations Institute.
Pursuant to the Maryland Condominium Act, the Board of Directors and its authorized designee, i.e. management agent, have the right to enter a unit to make repairs in certain circumstances. Additionally, your condominium association’s governing documents may expand a Board’s right to enter a unit to perform inspections or even repair certain unit components. The following will discuss the Board’s authority to enter units under the Maryland Condominium Act (“Act”) and also the Act’s limitations that may be addressed by your association’s governing documents.
Section 11-125 of the Act provides that the council of unit owners or its authorized designee, such as its management agent, shall have an irrevocable right and an easement to enter units to make repairs when the repairs reasonably appear necessary for public safety or to prevent damage to other portions of the condominium. Except in cases involving manifest danger to public safety or property, the council of unit owners shall make a reasonable effort to give notice to the owner of any unit to be entered for the purpose of repair. The key language noted above is that the Board has the authority to enter units when the repairs appear necessary for public safety or to prevent damage to other portions of the condominium. The typical scenario in a condominium involves a water leak from a unit that damages a unit below. In such circumstances, Section 11-125 provides sufficient authority for the Board or management to enter the unit and make the necessary repairs. However, Section 11-125 requires that the Board make a reasonable effort to give notice to the owner, unless it is a case that involves manifest danger to public safety or property. The terms “reasonable effort” and “manifest danger” are quite general and are certainly subject to various interpretations depending on the circumstances. Thus, it is always best to obtain consent from the owner prior to entering the unit. Of course, practically, this may not be possible. An owner may be on vacation or the association may have no contact information besides the unit address. The Board and management should exercise due diligence and common sense in its attempt to notify the owner prior to entering the unit or in its determination to simply enter a unit immediately due to the potential danger to either public safety or property damages to the condominium. If the Board or management is unsure whether it should enter a unit immediately without notice to the owner, it may want to consult its attorney if there is sufficient time.
Although Section 11-125 provides sufficient authority for the Board to enter units to make repairs, such authority does not include the right to make inspections. In order to prevent numerous water damages claims, many associations prefer to make periodic inspections of individual units’ air conditioning units; toilets; showers; sinks; and other plumbing. However, the Act does not provide inspection authority of such unit components. Many condominium association governing documents do provide such inspection authority. If your association documents do not provide such authority, an amendment to the Bylaws may be necessary. The adoption of rules and regulations that provide for inspection of unit components is an option, however, such rules and regulations may be subject to challenge if not authorized by the Declaration (or Master Deed) or Bylaws. Under the Maryland Condominium Act, can the condominium association assess the costs of entering the unit, such as the use of a locksmith, and/or assess the costs of making the necessary repairs to the owner whose unit the association entered? Section 11-125 of the Act states that if damage is inflicted on the common elements or any unit through which access is taken, the council of unit owners is liable for the prompt repair. Therefore, even if an owner’s unit is the cause of damages to another unit and the reason for the association’s entry, according to Section 11-125, the condominium association remains liable for the costs to enter the unit. Similar to the association’s right to inspect units, your association’s governing documents may authorize the assessment of costs for entering the unit to an owner based on negligence or misuse. A negligence standard oftentimes may be difficult to establish and many damages are caused by accidents without clear evidence of negligence or misuse. Alternatively, you may want to amend your association’s governing documents to use an “origination” standard to assess such costs of entry. If the reason for the entry by the association originated from a unit component, then such owner is responsible for the costs of entry regardless of whether the owner was negligent. This standard is the same as the one used in the recent insurance deductible amendment to the Act.
Additionally, the Act does not provide any authority regarding the assessment of the costs of making the necessary repairs against the owner whose unit the association entered. Again, your association’s governing documents will determine whether you may assess such costs of repairs against the owner. Certain documents may also apply a negligence standard to the assessment of these repair costs. Similar to the above, you may want to amend your governing documents to use an “origination” standard to assess such repair costs. Further, you should also make sure that you have the authority to impose a lien for such repair costs similar to unpaid assessments. Lien authority may also be useful for the above costs of entry. A lien can be an invaluable tool to assist the collection of these repair costs.
As you can see, the Maryland Condominium Act does provide the Board with certain authorities to enter a unit and make repairs to prevent damages to the condominium. Unfortunately, the Act is limited in its scope and does not provide authority for inspections of unit components that may be useful for preventive maintenance, and does not provide authority to assess the costs of entering the unit or the actual costs of repairs against the owner. Your association governing documents may broaden the Board’s rights and authorities to address the Act’s limitations, or you may wish to amend your documents to address same. In light of the rising insurance costs, preventive maintenance can be crucial to your condominium’s overall fiscal health and should help to reduce potential insurance claims. Particularly in multi-family living units such as condominiums, a water leak or defective air conditioning unit can damage several units and potentially cost the association several thousand dollars.
Finally, a useful tool to assist an association to gain access to units, particularly in an emergency, is the adoption of a key policy. A key policy typically requires a unit owner to provide the site manager or property manager with a duplicate key that may only be used in certain limited circumstances, based on either the Act and/or the authorities contained within your governing documents. For instance, if your governing documents do not authorize inspections of unit components, unless a unit owner consents to such inspection and entry of the unit to conduct the inspection, the Board or management does not have authority to use the key to enter a unit for merely an inspection. In this example, pursuant to the authorities in the Act, the Board may enter the unit using the key to make repairs to prevent damage to the condominium or as necessary for public safety. The primary advantage of having a duplicate key is to avoid hiring a locksmith or breaking the lock to gain entry in the case of an emergency. This not only eliminates such costs but also can potentially save thousands of dollars of damages if you can access a unit immediately in an emergency and repair the problem.
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