This question confronts countless condominium boards and managers in Maryland and beyond. You have to bring an ancient system (sprinkler, electric, fuses, plumbing) into compliance with modern day codes. The Bylaws dictate one set of procedures for repairs, and another (possibly more demanding) set for an improvements. A community association board should absolutely go to their attorney and find out which one their project falls under. However, if you recall this post, you know that if there is not explicit language in either the statute or a binding court case, then the attorney is really just giving you his/her opinion. And another party or attorney may disagree, so you could end up finding out in court what the “right” answer actually was.
The Case
So it was in the recently decided case of Willoughby Condominium of Chevy Chase v. Lawrence D. Dillon, Jr. et al. The condominium there faced the all-too-familiar issue: our fire suppression system is 50 years old. When we act to bring it up to today’s standards, is that (a) maintenance, repair, and replacement; (b) improvement; or (c) some combination of the two? (Interestingly, the court points out that neither party even raised the possibility that it could be both, and thus governed by both Bylaw provisions).
Two important things to note about this Court of Special Appeals opinion: First, it is unreported, and thus not to be used or cited as precedent in any case. So you ask, “Brian, why would we even want to read it then?” For me, the opinion gives us an important and fairly rare glimpse into how the appellate courts of Maryland will view cases like this in the future.
And second, it is a pretty remarkable opinion. Any practitioner in a narrow and specialized (fine, say “niche”) area of the law will likely admit that they have read opinions and thought: “That judge just doesn’t get it. They don’t see what I see from day to day and live in the nuances of these documents the way I do.” Candidly, I have thought it before, even while reading opinions written by jurists who are way, way smarter than I am. It’s a helluva thing, to be a judge, and called upon to rule intelligently in such varied fields of law, and on such limited records. So sometimes we look at an appellate opinion and think, “Eh, they kind of missed the point there;” or, “Resolves the case I suppose, but doesn’t help us narrow down the question for future parties.”
But whoa. That was entirely not the case here. This opinion weighs the right sections of the Bylaws, interprets them correctly, is deferential to the record, recognizes the problem that the old sprinkler system causes, and acknowledges the difficult nature and precedential value of the question. If you think you can do it better than this, I assure you that you are mistaken. While reading, I found myself wondering why this opinion was not published; it seems that future boards and attorneys could use it to guide them.
The Notice Problem
The first problem confronted by the court was that the board failed to provide proper, sufficient, or its seems any notice of the special meeting they held to discuss this issue. On pages 7-10 of the opinion, the court publishes a treatise on why they were required to do so, and how their arguments to the contrary were insufficient. If you are an FLS client doing a board training in the future, prepare to read those pages because I’ll basically just be quoting them from now on. This is exactly the sort of thing that an association board could benefit from having in a reported binding case: if you miss the notice period on your special meeting, don’t even bother trying to argue “no harm, no foul.” That will be a waste of time, just re-notice the meeting.
When associations come to an attorney presently after having held an improperly noticed meeting, an attorney may tell them that if they proceed, their decision may be invalidated. But what do impatient or unconvinced boards want? Not to start over at square one! They want the lawyer to fix it – so that attorney might endeavor to help them argue that the notice provision may not have been technically met, but the decision was a good one and they can proceed. If that attorney could hand the board pages 7-10 of Willoughby and say, “Look, you can keep going, but you will lose this case in the future,” it might be easier to convince the board to re-notice the meeting and get the procedure right – which is probably the best thing all around.
Improvement or Maintenance/Repair/Replacement?
Super interesting holding above there – but that was just the warmup! Then the Court of Special Appeals went on to tackle the question of: repair/replacement or improvement?
Lawyers, when they are trying to win a case, will often just focus on the provisions of a certain document that help them or that support their argument, and hammer it. Sometimes correct, and sometimes an effective manner of arguing (whether correct or not), but this can often lead to a failure to see the forest for the trees (whether willful or not).
What did I just say? Well the condo here said: look, we are responsible for all maintenance, repair, and replacement of common elements. And the owner here said: look, you have to get owner approval for additions, alterations, or improvements that cost more than $10,000. But the court here said: “a proper conclusion regarding the project must be discerned from the full context, purpose, and structure of the Willoughby’s bylaws.” (emphasis mine; I was giving this a standing ovation and had to figure out how to put that in word form)
Yes! The Court of Special Appeals then goes on to say: we’re not deciding this question right now. In fact, we don’t have to, because due to the notice failure, you have to go have the meeting again anyway. But if and when we do consider this case in the future, we may take into account: (1) Location, scope, and invasiveness of the project; (2) Whether any seeming improvement (here the pilasters to hide the wiring) is part of complying with county code; (3) If the improvement (here the better fire suppression system) were the only way to comply with county code; and (4) if the condominium owners have been required to vote on such maintenance/improvement questions in the past.
Conclusion
As we discussed, this opinion is not reported, and thus cannot be cited as precedent. So once again, another lawyer giving you the old “it depends.” But there is a lot to glean from the opinion. The big ones for me are: give proper notice of a meeting. If you fail to do that, don’t double down and keep pushing the results of that meeting; re-notice it and get it right. And when reading the Bylaws, take a step back and see the bigger picture. How do this issue, and your argument, and the provisions cited by the other side, all interact and fit together?