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CCOC Decision Summary

#09-10, Smallis v. The Willoughby Condominium #09-10 (February 18, 2011) (Panel:   

The condominium unit owner's unit was damaged by a water leak from the unit above her in August, 2008.  The unit owner filed a claim with her own homeowner's insurance company, which assessed the damage at $18,000 and paid her $8,000.  She then filed a claim with the condominium for the remaining $10,000 in damages.  The condominium assessed the actual damages at only $2200, and refused to pay.  The unit owner complained to the CCOC that when she bought her unit the deductible was $1000 and that the condominium had never notified her that the deductible had been increased to $10,000.

At the hearing, the condominium argued that under Section 11-108.1 of the Maryland Condominium Act the responsibility for repairs and maintenance of private units belongs entirely to the unit owner.  It also argued that even if the condominium had a duty to repair private units under Section 11-114 (g) of the Act, that duty did not apply to any claims that were less than the condominium's master insurance deductible of $10,000.  The condominium's evidence showed that it properly changed the original deductible and sent notice of the change to all members.  Since the Complainant did not live in her unit, the condominium mailed the notices to her at the address where she resided.  None of the mail had ever been returned to the condominium.  The condominium also produced 3 witnesses concerning the extent of the damages to the unit.  The damage was limited to the parquet floor tiles in the unit and it was possible to replace the damaged tiles with used tiles from other units in the building that would match the remaining tiles; it was not necessary to replace all the tiles in the unit so that they would match.  The only evidence the unit owner produced on this point was a copy of her insurance company's general estimate, which did not explain why all the parquet tiles in the unit had to be replaced.

The condominium's expert witness also testified that he interpreted the condominium's own bylaws to require that it provide "single entity" insurance coverage.  This meant that it should cover damage to the private units as well as to the common elements.  Therefore he advised the condominium to have such coverage and, to the best of his knowledge, the condominium did have such coverage.  He opined that the condominium's duty to repair applied only to "covered claims", and since the damage here was  less than the master insurance deductible, it was not a "covered claim."

The panel first held that the deductible of $10,000 had been properly adopted, and that the condominium had complied with its own rules by mailing notices of the changes to the unit owner.

The panel then held that at the time the damage took place, the relevant law was governed by the Court of Appeals' decision in Anderson v. The Gables on Tuckerman, and that case, the Court held that under Section 11-108.1 of the Condominium Act, the condominium had no duty to make repairs in private units.  Although the law was later changed by the General Assembly, the changes were not in effect when the damage occurred.

The panel held that although the condominium had no duty under state law, as defined by the Anderson case, to make repairs in private units,  the condominium's bylaws in effect at the time of the damage did require it to do so and it had not amended those bylaws to take advantage of the Anderson decision. 

The panel then held that the condominium had a duty to make repairs in private units whether or not the amount of the damage was less than the deductible.  First of all, the amendments to the law allowed the condominium to pass on the first $5000 of the costs of repairs to the unit owner whose unit caused the damage.  The argument that there was no duty to repair if the damage was less than the deductible conflicted with that change.  Secondly, the General Assembly's amendments to Section 11-101.1 clearly stated that the condominium's duty to repair casualty damage under Section 11-114 (g) was an exception to the general duty of each unit owner to be solely responsible for all maintenance and repair of his or her own unit.

However, the panel found that based on the weight of the evidence before it, the actual damages suffered by the unit owner were $2200.  Since she had already been paid more than this by her own insurer, she was not entitled to a double recovery from the condominium.  Therefore, the panel denied any further relief to her on this claim and dismissed the complaint.         

 

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