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CCOC Decision Summary

#669-0, Vivien Szu-Tu and Daniel A. Bean v. Timberlawn South/Tuckerman Walk Homeowners Association, (August 5, 2004) (Panel: Stevens, Kivitz, and Smith)

The Commission on Common Ownership Properties (Commission) ruled on the allegations regarding selective enforcement of the use restrictions and the parking regulation, but not on the other issue of snow removal.

The complainant homeowners (HO) complained that motorcycles were parked parallel to the curb and perpendicular to parking space lines.This practice allegedly poses potential threat of vehicle damage to those parking in adjacent spaces. The HO also claimed that when cars had to park behind the cycles they extended into an unsafe manner and blocked the fire lane.The homeowners' association (HOA) countered that the HOA had clarified the regulation in Jan. '04, so that the motorcycle problem no longer existed.Fire lane designation and signage has to be authorized by the county executive or his designee, and the property manager will contact the Fire Department to investigate the need for formal fire lanes.The Commission ruled that the motorcycle parking issue had been resolved.

The HO complaint regarding selective enforcement of use restrictions specifically identifies a house where a Second Language Testing Institute (SLTI) is conducted.The Declaration of Covenants, Conditions and Restrictions (Declaration) states that lots shall be used exclusively for residential property with an exception for "professional use"for a number of designated professions. The declaration continues to state that no part of the property shall ever be used for any business; therefore, an ambiguity exists.The SLTI employed a non-resident person. The Declaration states that a professional office is "limited to the person actually residing in the dwelling." However, whether or not an employee is allowed is not clear.In Sept. 2003, the county found a the SLTI to be a "registered home occupation," which allows one non-resident employee and five client visits per day

The Commission concluded that the SLTI now comports with county law, and that the HOA believes it complies with Declaration.The Commission found that the Declaration does not explicitly state that there also may be no other employee, nor does the Declaration include other explicit limitations.The Commission held thatsince the Declaration does not include a specific prohibition against an employee in the authorized professional office, the Commission will not add one.Maryland courts have ruled that when there is a doubt as to the intention of the parties in a covenant running with the land, it ought to be interpreted to keep the restriction on use within the narrowest limits and favor freedom of use of the property.See Harbor View improvement Assn. v. Downey, 270 Md. 365 at 371-72, 311 A.2d 422 (1973).

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