The New Law on Suspension of Privileges

On June 23, 2017, the Court of Appeals, the highest court in the State of Maryland, issued an opinion in Elvaton Towne Condominium Regime II, Inc. (“Elvaton”) v. Rose.  On appeal were 2 issues:  (i) whether Elvaton had the authority to implement a rule temporarily suspending a delinquent unit owner’s right to use the common element parking lot and pool; and (ii) whether the Roses were precluded from pursuing a declaratory judgment action related to Elvaton’s Statement of Lien in the circuit court while a collection action for the same fees was pending in the district court.

By way of background, Mr. and Mrs. Rose were allegedly delinquent in the payment of condominium fees to Elvaton.  Elvaton filed a Statement of Lien against the Roses’ condominium unit and initiated a lawsuit in the District Court for Anne Arundel County to collect the past due fees.  In addition, Elvaton informed the Roses that, in accordance with the Condominium’s suspension of privileges rules, they were prohibited from parking in the Condominium’s parking lot overnight and could not use the pool until the delinquency was cured. 

The Court of Appeals, in relying on its opinion in Ridgely Condominium Ass’n v. Smyrnioudis, 343 Md. 357 (1996), affirmed the ruling of the Court of Special Appeals and held that the right to use the common elements was not a mere privilege, but was appurtenant to the condominium unit and, therefore, an interest in real property.  Restricting a condominium unit owner’s access to common property is a significant infringement of property rights and such a restriction can only be authorized through a provision of the declaration.  Since, Elvaton’s Declaration did not include the authority to restrict access to common elements temporarily in order to enforce the payment of fees, Elvaton could not accomplish this through the enactment of a mere rule. Rather, the suspension of privileges to use common elements when a unit owner becomes delinquent must be in the declaration.

With respect to the Roses’ contention that the circuit court should have issued a declaratory judgment on the validity of their debt, even though the issue was pending before the district court, the Court held that that there were no unusual or compelling circumstances that would entitle the Roses to have the dispute adjudicated by the circuit court.

Susan Rapaport is an attorney with the Community Association practice group at Davis, Agnor, Rapaport & Skalny, LLC. For questions about this article or other questions about the Elvaton case, please do not hesitate to contact Susan at 410.995.5800 or via email