Assess the Situation: What is a Considered a “Common Element?”

You may have read in the most recent CAI Law Reporter that an Association in Maryland was not authorized to suspend use privileges, absent such authority existing in the condominium declaration. Elvaton Towne Condominium Regime II, Inc. v. Rose, No. 33, Sept. Term 2016 (Md. Jun. 23, 2017). The basic facts of the case are the usual problem, a unit owner stops paying assessments for one reason or another and the association then notified the unit owner that their rights to use the pool were suspended until they were again current in their assessment payments. In the Elvaton case, the Maryland court reasoned that restricting the right to use the common element amounted to an unauthorized taking of the unit owners property, which the Association was not authorized to do absent some specific authority. The court held that the act provides that, except as provided in the declaration, the common elements are for the enjoyment of all unit owners and accordingly any restriction must be in a specific provision of the declaration.   Read the article…………..


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