#306-O, Thogerson v. Grand Bel Manor Condominium Inc. (June 6, 1996) (Panel: MacLeod, Chester, Auvil) (Auvil dissenting).

The condominium owner (CO) filed a complaint challenging the condominium association' (CA) actions to close down its trash room and install trash containers in the parking lot, thereby reducing the number of parking spaces available, and alleging that the board conducted closed meetings in violation of law and violated the automatic stay of the County Code.

The evidence at the hearing showed that the CA board of directors, after giving notice of its proposal to close down the trash rooms for reasons of economy and safety, voted to amend the CA rules by closing the trash rooms and installing a trash dumpster.  The CA then locked the trash rooms.  The CA's attorney advised the CA that its amendment was not properly adopted and was invalid, in part because there was no open meeting to discuss the change as required by Section 11-111 of the Maryland Condominium Act and because of defective notice to the members.  The CA sent out new notices and held a second board meeting at which it again adopted the amended rule. The unit owners then filed a petition for a special meeting to reverse the new rule.  In the meantime the CO filed this dispute, triggering the automatic stay provisions of Section 10B-9, and the Commission staff notified the CA of this requirement.  The CA president testified he did not receive the notice.  At the special meeting, there was no quorum, so the amendment was not reversed.  The CA cited the CO for violating the new rule by not disposing of her trash in the dumpsters.  Both sides and their witnesses testified on the pros and cons of using dumpsters compared to the trash room.  There was also testimony that the CA board often delegated authority to its president to act for it between meetings; that the board often met and voted by telephone.

The hearing panel held that the board's action to install dumpsters in the parking lot was not a violation of the Maryland Condominium Act's requirement that the common elements be used only for their intended purpose.  The use of the parking lot for the dumpster was for a common purpose, did not deprive any owner of his spaces in the lot, and did not give exclusive use to anyone.  Therefore it was more in the nature of a restriction of a use, rather than a denial of use.  In addition, although there was conflicting opinion on the wisdom of using a dumpster instead of a trash room, this was within the discretion of the board to decide.

However, the panel ruled that the CA had no right to close the trash rooms.  The trash rooms were limited common elements and under the Condominium Act, any change in the percentage interest of the owners in the common elements must be approved unanimously unless the governing documents otherwise provide.  By denying the unit owners the right of access to the trash rooms, without a unanimous vote to do so, the CA's action was a "prohibited taking of a limited common element." While the CA did not have the right to deny the unit owners all right of access to the room, it did have the right to decide to use the room for a different common purpose instead of using the room only as a trash room.

The panel ruled that the CA violated the law in attempting to amend the trash rule, and criticized the CA for making negative comments about the CO in the materials it distributed to its members on the issue.  However, the CA board had the legal authority to amend the rule and the panel declined to invalidate it at this time.

The panel held that the board violated the Condominium Act by holding telephone meetings and failing to notify the owners of the nature of the decisions made.  Nor may the board delegate its authority to one of its members.  The board's authority to delegate under the Condominium Act is limited to matters relating to the duties of a managing agent, and not to matters which only the board can decide.

The panel ruled that it did not have sufficient evidence to conclude that the CA violated the County's "automatic stay" provision, because the board president testified he did not receive the Commission's notice advising him not to enforce the disputed rule; and was unaware at the time that the CO had filed a complaint.

The panel ordered the CA to unlock the trash room and provide each unit member with a key to it, and to cancel all fines or violations imposed on the CO or any other unit owner for violation of the new rule.  The panel further ordered that if the board votes by phone, it must be in the form of a conference call so that all board members know the opinions of the others before voting; and any time the board meets by telephone it must provide minutes that allow the members to know what issue was considered and what was decided.