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CCOC Decision Summary

#16-12, Taylor v. Heritage Green Condominium Association (January 18, 2013) (Panel: Alkon, Kabakoff, Brandes, adopting a recommended decision of the Office of Zoning and Administrative Hearings, Lynn Robeson, hearing officer)

The unit owner complained that her association was not enforcing its rules banning excessive noise against the residents of the unit located above hers.  She also complained that she was not given a prompt hearing by the association’s board of directors and that she was not given a fair hearing, either, because she was not allowed to present all her evidence to the board.

 In the interest of resolving the case expeditiously, the CCOC accepted jurisdiction and referred the dispute to the Office of Zoning and Administrative Hearings (OZAH), which assigned it to a hearing officer.  The hearing office conducted a full hearing with the parties and their witnesses, and issued a recommended decision to the CCOC hearing panel.

The evidence showed that the unit owner had lived in her unit for many years.  At first she had no complaints, but at some point the unit above hers became a rental property and tenants with children moved in.  She began to complain to the association about noise, and her complaints persisted even after the original tenants moved and were replaced by other tenants.  She claimed that the noises took place at all hours, including after 9pm and early in the morning, preventing her from sleeping.  Her witnesses were her mother and sister, and they corroborated the testimony about noise

 The landlord responded by installing carpets on padding in the unit to deaden the noise. The manager and a board member testified that carpeting is not required by the rules of the association, but it was installed, and once it was installed they were not aware of any new complaints about excessive noise.  The association’s witnesses stated that in a multi-unit building, some noise is normal and unavoidable.  They declined to take any action against the landlord or his tenants because they concluded, after the board’s hearing, that the noise was not excessive.

The hearing officer found that the association’s rules prohibited “annoyances,” “nuisances” and “disturbing noises.  She noted that although no Maryland court had ruled on the issue of excessive noise in condominiums, the Commission had done so, and had adopted the principle that the words “disturbing noises” meant such noises as would “unreasonably disturb a person of normal sensibilities.”

The hearing officer evaluated the evidence.  She said that although there was evidence that the noise was excessive “due to the hours at which it occurs,” the evidence was “not overwhelming” because the unit owner’s witnesses had not been in her unit since the carpets were installed.  Nor was there any impartial testing done to measure the noise levels, and while the testimony showed that the noise may have become more frequent after children moved into the unit, it did not show that the noise level was louder.

Even more significant to the hearing officer was the fact that the evidence did not show that the association violated its own procedures or did not act in good faith.  The board’s hearings allowed testimony from all witnesses present; and the board responded to the complaints by working with the landlord to have carpeting installed.  The board’s decision not to take additional action, such as fining the landlord, are within its allowable discretion and are protected by the business judgment rule which mandates that a board’s decisions be upheld unless there is evidence of fraud or bad faith.

The CCOC hearing panel reviewed and adopted the hearing officer’s recommendations that the case be dismissed.  The panel pointed to the Court of Special Appeals’ decision in Black v. Fox Hills North Community Association (see Appendix B) as holding that an association has the right to refuse to enforce a rule if it acts without fraud, dishonesty, or incompetence.”  The factual findings of the hearing examiner did not show any fraud, dishonesty or incompetence, but rather that the association responded to the complaints, obtained some relief for the unit owner, evaluated her evidence, and made a reasoned decision to take no further action.  The panel dismissed the complaint.

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