*1 GARFINK Danetta v. CHARLES, AT INC.
The CLOISTERS Term, 79, Sept. No. 2005. Maryland. Appeals
April 2006. May Reconsideration Denied *3 (James Carbine, P.C., Baltimore, on E. E. James Carbine brief), petitioner. for (Oliveri Associates, LLC, Annapolis, on & M.
John Oliveri brief), respondent. for CATHELL, WILNER, BELL, C.J., before
Argued HARRELL, BATTAGLIA, C. GREENE JOHN (Retired, Specially Assigned), JJ. ELDRIDGE CATHELL, J. concerning the installation dispute case from a
This arises (“Petitioner”) on vent Danetta a exhaust Garfink Petitioner’s condominium of her condominium unit. exterior re- at condominium County located Baltimore unit is (“Con- at Condominium The Cloister’s Charles known as gime dominium”). Charles, Inc. (“Respondent” The Cloisters “Council”) serving duly corporation, organized Petitioner asserts that council of owners. Condominium’s an express via gives right Declaration her Condominium’s to install the exterior opposition vent. of grant argument, to that respondent contends that such installation anof exterior vent is a violation of the Condominium’s Bylaws’ prohibition against alteration of the exterior facade of the condominium units. 1, 2003, July
On respondent filed a Complaint for Perma- Injunction nent in the Circuit Court for County Baltimore against petitioner, seeking a court order for removal of the exterior dryer exhaust in question. 28, 2004, vent On June petitioner filed a Motion for Summary Judgment, which was denied. The Circuit Court found in favor of respondent and 18, August on issued a Memorandum Decision and Order entering a declaratory judgment and a mandatory injunction compelling petitioner to remove the aforementioned exhaust 8, 2004, vent. On September petitioner filed a Notice of Appeal to the Special Court of Appeals. In response, on 9, 2004, September the Circuit Court stayed injunction pending resolution of the appeal.
The Court of Special Appeals, in an unreported opinion,
affirmed the judgment of the Circuit Court. Petitioner
filed
petition
certiorari,
writ
which
granted.
we
v.
Garfink
Cloisters,
389 Md.
(2005).
“1. Did the Court of Special Appeals err when it ruled that ‘traditional easement law’ does not apply to easements granted in condominium documents?
“2. Did the Court of Special Appeals err when affirmed the Trial judgment Court’s that the easement contained in the condominium’s declaration Petitioner, did not allow without prior approval of Respondent, repair a defect *4 in her dryer vent system by relocating the vent to the exterior of her house?
“3. Did the Court Special of err Appeals when it affirmed the Trial Court’s judgment that the by-laws of the condo- minium required Petitioner to obtain the prior approval of Respondent before she repair could a defect in dryer her system vent relocating vent to the of exterior her house?” to easements applies law easement traditional find that
We therefore, and, the Court documents in condominium granted did that the easement holding in its erred Appeals Special of circum- factual addition, particular under not apply. regards resolution due to our in this case and extant stances the bounds within easement, was petitioner find we the exterior to install of the express grant of the respondent of approval prior without exhaust vent dryer present, here was circumstances and, limited under contained within provision “prior approval” to the subject event, it came because and, Bylaws Condominium’s ac- petitioner’s Bylaws, in the contained exception under an provisions. the Bylaws’ not violate tions did Facts I. the Court opinion unreported from the quote
We Appeals: Special at the unit a condominium is the owner
“[Petitioner] Condominiums, at Charles The as Cloisters known regime duly organized is the County. [Respondent] in Baltimore of condominium the council serves which corporation main- such, obligated provide [respondent] As owners. declaration, rules, regula- to enforce tenance and regime. of the tions condominium unit her purchased [petitioner]
“In develop during the The Cloisters the model units] [one original The the project. phase construction ment and in each appliances household included installed construction installed, originally As them. unit, dryer among a clothes the furnace into and vented connected clothes was building, contrary of the room, to the outside rather than contract, and in violation construction the terms venting regulations.[1] building codes prevailing footnote 2: Appeals in their Special the Court 1. As stated original installation dispute that parties do not "The code, re-venting must be to building or that contrary local to the *5 system ran from the clothes the kitchen floor dryer through and into the basement During furnace room. the normal system of the clothes operation dryer, carry vent would exhaust, heat, lint, discharge and moisture dryer’s and into the furnace room. The furnace room contained two heater, a furnaces and hot each water of which were fired by gas potentially burners. This mixture hazardous elements was extant for approximately years. nine 2000,
“In fell dryer clothes ill and [petitioner], response, Sears, purchased replacement a from Roebuck & however, After viewing existing system, Co. vent Sears refused to install replacement a because ‘fire hazzard was identified.’ [sic]
“With the discovery the vent system posed fire hazard, upon refusal Sears install new that system, [petitioner] took upon herself to [have] venting system system [re-routed]. new was routed the dryer from through the wall laundry room into the adjoining garage, through then the garage through the exterior wall. A vent standard appliance, which dis- charged the dryer outside, exhaust and lint to the was installed into the exterior of the garage wall. [Petitioner] concedes that she neither sought nor permission obtained [respondent] to install the exterior vent. time,
“In short venting the new system created novel problems [petitioner] her neighbor, immediate Dr. Oscar Kantt. The vent within new 17 feet of the front door Dr. Kantt’s residence. Objecting on various to the grounds placement vent, Dr. Kantt complained to the [respondent] [Petitioner], about the discharge. Dr. Kantt, [respondent] were unable to resolve the amicably; matter consequently, this litigation ensued.
“By purchase virtue her unit, the condominium agreed, [petitioner] as did all purchasers, other to the terms Therefore, comply existing the exterior to with the code. we need not requirements discuss the code in detail.” By-Laws.[2]” Declaration and [Foot of the Condominium note omitted.] complaint filed a the Circuit respondent July
On permanent injunc- County requesting for Baltimore *6 required immediately be in would petitioner tion which then make an dryer the exhaust vent and exterior remove to install an exterior respondent permission for application to vent. dryer exhaust resulted from for the dryer
The absence of an exhaust vent of the The appliance. defective installation inherently an to install the vent. simply forgot apparently builder County Building the Baltimore parties The conceded dryer outside of requires venting the of clothes exhaust Code3 Declaration the Condominium’s states: Article of Declaration, comply provisions with the of this "Each shall owner the Council or its By-Laws and the decisions and resolutions of uniformly lawfully as amended from time to time and representative, enforced, provision, any comply with such decision or and failure to resolution, damages, an for grounds be action Council shall thereof, any injunctive relief or or combination foreclosure and/or equity.” at any or relief available law or other action Declaration states: Article Condominium's addition. owners, occupants of present tenants and units "All and future with, comply provisions of subject this be to and shall shall Declaration, they By-Laws Regulations, the Rules and as and Conveyance acceptance of deed of time to time. The a amended from entering entering occupancy ... into a lease or the into of or any owner, agreement an between such tenant or constitute shall Declaration, provisions of this occupant and the Council that the may Regulations they as be amended By-Laws, the Rules and and time, owner, accepted tenant and ratified such or from time to are provisions and taken to be occupant all of shall be deemed such any person having running land and shall bind [with] covenants unit, though any in such such time interest or estate at length every stipulated in each and were recited provisions conveyance lease thereof.” deed Building adopted the of the County Code has standards 3. The Baltimore Code, 2000, Building of which section 1202.4.2 "Contam- International naturally ventilated states: "Contaminant sources inants exhausted” Mechani- spaces removed in accordance with International shall be Mechani- Fire Code." International cal Code and International Code, 2000, Dryer pertinent states in 504 "Clothes Exhaust” cal section part: that, made, if building application respondent were to authorize the installation of an exterior would have shape exhaust in some or form. The trial court first vent in order to an stayed proceedings opportunity afford parties negotiate parties apparently resolution. The on the of the agree placement could of the vent. Some suggestions respondent would have further violated 28, 2004, failed building July negotiations code. On after had resolution, reaching independent the Circuit Court con- stated, one-day ducted a trial. As the Circuit Court found respondent favor of and issued a Memorandum Decision and on 2004. The August Order order stated: [respondent’s] Injunc- “ORDERED that the Motion for (60) GRANTED, tive Relief is to take effect from sixty days furthermore, the date of this until the Order effective Injunction, [petitioner] compliance date of said inmay, condominium, Bylaws approval the rules and seek *7 from in order to to [respondent] find a reasonable resolution dryer the location of the vent.”
The Circuit based its decision of the upon analysis Court and, Condominium’s Declaration in the Bylaws accompa- decision, nying memorandum its reasoning, stating discussed in pertinent part: whole,
“Viewed as a including pertinent sections of the Declaration and the Bylaws, they are not conflict but rather compliment each other. Neither the Declaration nor the Bylaws authorize a unit any changes owner to make the exterior of the unit such as [petition- those made er], The does not the easement interpret contained in section 15.2 of the Declaration to a unit grant owner right unit, to independently alter the exterior of her espe- cially when the easement along is considered with on prohibition unapproved exterior alterations expressly dryers “504.1 Installation. Clothes shall be exhausted in accordance Dryer systems with the manufacturer's instructions. exhaust shall be independent systems convey of all other and shall moisture any products building.’’ of combustion to the outside of the reviewing After the relevant Bylaws. in the identified documents, the Court finds the condominium portions permit the intention of the Unit Owners that it was units maintain the to their services individual owners appearance not alter the exterior in a manner that does are neces- In the that some alterations their unit. event procedures adhere to the proper the unit owners must sary, Bylaws. omitted.] in the [Footnote as outlined consent from neither notified nor obtained “[Petitioner] dryer her to install a vent concerning plans [respondent] Upon learning unit. of her condominium on outside wall installation, notified [respondent] of the unauthorized of the vent because of its approve that it did not [petitioner] of a neighbor- to the front entrance proximity location and de- made numerous written [respondent] unit. The ing the vent and restore on the to remove [petitioner] mands original of the condominium to their the common elements acted direct contravention [petitioner] condition. of the of the terms express demands as well as these Bylaws. reg- codes county [petitioner] suggested
“The and/or to be vented outside. types dryers certain require ulations regulations those comply order argues She if to install the vent outside. Even permitted she was other alterna- required, there were outside ventilation was chosen Even [petitioner]. to the location tives that the current location experts agreed [petitioner’s] could vented. only place is not the where vent *8 to install properly sought permission the [petitioner] Had denied, unreasonably that would have and been vent However, nev- [petitioner] entirely. another issue been suggest an to opportunity provided [respondent] er placement to the reasonable solution or alternative Instead, ignore to she chose to its installation. prior vent of structural modifi- governing pre-approval the procedures
383 might cation and took the risk that the [respondent] [ ] object to her unilateral decision.” 8, 2004, September petitioner appeal
On noted an to timely 2004, Special 9, the Court of and on Appeals September stayed injunction Court Circuit resolution of that pending Special and, The Court of appeal. Appeals arguments heard 22, 2005, July on an unreported affirming filed opinion Circuit Court decision.
II.
Standard
Review
The case sub judice was tried in the Circuit Court for
Baltimore County.
8—131(c),
Pursuant
to Maryland Rule
we
review the case on both the law and the
give
evidence. We
regard
due
to the trial
judgment
court’s
of the witnesses’
credibility and will not set
judgment
aside the
of the Circuit
upon
Court based
the evidence unless
find it to
we
be clearly
8-131(c).
erroneous. Md. Rule
As
recently
we
Gray
stated
State,
(2005):
366,
v.
388 Md.
“The clearly erroneous standard
does not apply
legal
GEICO,
conclusions.
v.
65, 72,
Nesbit
382 Md.
854 A.2d
879,
(2004).
883
‘When the trial court’s order
“involves
interpretation and
application Maryland statutory and
law,
case
our Court must determine
whether
lower
court’s conclusions are legally correct under a de novo
’ Nesbit,
72,
standard of review.”
(1972)). The issue of whether traditional applies easement law law, thus, condominiums is a question we review de novo.
384
III. Discussion
it is first
tb°
before
addressing
questions
of the law relative to
condomini
necessary
review some
in Ridgely
Condominium
of
The Court
ownership.
um form
Association,
Inc. v.
“A
‘communal
condominium
are
individually
sup-
of
owned units which
ty consisting
v.
areas.’ Andrews
and
held facilities
ported
collectively
(1982).
Greenbelt,
69, 71,
4B Richard
owner,
(1996).
therefore, holds
hybrid
A condominium
ownership
consisting
interest
exclusive
property
tenancy
and a
in common with
apartment
unit
particular
elements.[4] Andrews,
common
other co-owners
all
Maryland
Act defines 'common elements’ as
4. "The
Condominium
elements’ are
except for the units.
‘Limited common
the condominium
but
for the exclusive use
one more
less
which are 'reserved
those
are
‘General common elements’
those
than all
owners.’
(1996
Maryland
Repl.Vol.) §
Code
11-101 of
which are not limited.
A.2d
Ridgely, Md. at
n.
681
at
Property
Real
Article.”
343
359
elements,
of common
limited common
n. 1. The 1996 definition
495
elements,
throughout
unchanged
general
common elements
(1974,
underlying
Repl.
action. See Md.Code.
the course of
Vol.),
l-101(c)
Property
§ 1
of the Real
Article.
"
specifies
means a
Maryland
Act
that a
'Unit'
Condominium
space
and on the
identified as such in
declaration
three-dimensional
improvements
within
plat
all
contained
condominium
and shall include
declaration,
in the
the boundaries of
space except those excluded
11-103(a)(3)
§
of this title.”
are
in accordance with
which
established
l-103(a)
particulars
declara-
(p).
provides
§
that a
11—101
Section
(a)(3)
pertinent part:
express.
tion must
Subsection
states
unit,
"(3)
description
including
perimeters,
its
general
A
each
location,
identify
data
it with reasonable
other
sufficient to
supra, 293 Md.
see also Starfish
73-74,
1064;
Condo,
Sew.,
Yorkridge
v.
693, 703,
295 Md.
(2) alter, to, the additions or May change make elements, appear- or the exterior of the common appearance condominium, the any portion a unit other of ance of or ” the of unit of council owners.... permission without any generic encompass ... in its sense to 5. term 'rule' is used "The or any by a condominium board of directors regulation in form enacted owners, original the or condominium's of unit contained council n. 2. 359 n. Ridgely, 343 Md. at documents.” indicated, Hereinafter, statutory refer- except where all otherwise (1974, Repl.Vol.), seq. §§ et 11-101 are to ences Md.Code Article, Maryland Condominium Act. Property also known as the Real history involving legislative the enactment of For discussion of Ridgely, 343 A.2d at Maryland Act Md. at Condominium see 495-96. added). § (emphasis 11-115 Section 11-124 provides guidance towards harmonization of various condominium instru- (c) declaration, ments. Subsection states that: bylaws, “The plat together and condominium shall construed and shall be incorporate to deemed one another to the extent that any of this requirement title as the content of one shall be if deemed the deficiency satisfied can be cured reference ll-124(c). (e) § any of the others.” provides Subsection hierarchy the condominium instruments should conflict arise, there stating: any “If conflict among provisions title, declaration, this plat, bylaws, condominium rules title, §to 11-111 adopted pursuant this provisions each shall control the succession listed com- hereinbefore ll-124(e). mencing § with ‘title’.” against backdrop
It is this of Maryland Condominium Act that the questions presented in case sub judice must be addressed.
A. Traditional Easement Law Applies Condominiums The Condominium’s Declaration states in Article 15.2: “In law, addition to each established unit have, thereto, shall appurtenant an easement com- mon purposes maintenance, elements providing for support, repair ducts, service such unit for conduits, vents, pipes, plumbing, wiring and other utility services to [Emphasis the unit.” added.] The Court Special Appeals, unreported its opinion, language, finding discussed this that: however, “Conversely, each such condominium must also shoulder the interest, burden associated and, thereby becoming both the servient the dominant es *12 distinguishable tate. This scenario is from the traditional easement, concept whereby one party obtains ease ment for her his or benefit and party another must shoulder benefit.[7] obligations associated that acknowledge 7. long This definition not standing implied does law of (easements). negative reciprocal covenants 388 strained, interpretation to be [petitioner’s]
“We believe and benefits of condominium obligations and that the mutual application do call for the of traditional ownership not easement law.” erred in Special Appeals that
Petitioner contends Court does not traditional easement law finding its decision agree. to condominiums. We apply in reasoning regards Appeals’ of Special The traditional law of treatment of easement is flawed. 11—106(a)(“Each § condominiums. applies easements See the incidents of real proper- in has all of a condominium 370, added.)); at 343 Md. 681 A.2d ty.” Ridgely, (Emphasis Furthermore, specifical- Declaration the Condominium’s unit in the in Article 6.1 that Condominium ly provides “[e]ach real and the of unit property has all the incidents of owner as real may acquired such therein shall have estate [Emphasis added]. property....” ‘nonpossessory interest “An easement through express grant arises real another’ and property MDR, 476, 486, 390 Md. Stansbury v. implication.” 688, (2006) 679, 403, Boyer, v. 301 Md. 484 (citing 409 Boucher Snider, # 630, (1984)); Venture v. A.2d 635 Calvert Joint 140 (2003). 18, 39, 854, As A.2d we stated 373 Md. (2003): 335, 833 Kirkpatrick, 377 Md. A.2d Miller v. ‘right-of-way’ are “In the terms ‘easement’ general, Land v. United synonymous. Chevy Chase Co. regarded (1999). 1055, 1063 States, 110,126, 733 A.2d 355 Md. a prop- reservation arises when express “An another, property of his but erty conveys part owner right conveyance reserving language includes right-of-way. the transferred land as a part use some Co., 234, 280, A. Park 146 Md. Knotts v. Summit (1924). every private ‘In instance of easement— 281-82 is, public—there exists enjoyed an easement feature of two distinct tenements—one characteristic County Bd. Comm’rs dominant the other servient.’ Inc., Atlantic-Md., 346 Md. v. Bell County Garrett
389 175, 171, (1997). 695 A.2d right 179 ‘Where a isway reservation, established the land property remains the estate, of the owner he is servient entitled to use it any purpose that does not interfere with the easement.’ McCardell, 132, 136, 522, Greenwalt v. 12 178 Md. A.2d 524 (1940) (citation omitted). The generally accepted rule for an express easement is ‘that an easement [because] is a restriction upon rights owner, of the servient property no alteration can be made owner the dominant estate which would increase such restriction except by mutual consent of both parties.’ Reid v. Washington Gas Co., Light 545, 548-49, (1963) 232 636, Md. 638 (citation omitted).”
Miller,
349,
377 Md. at
are,
833 A.2d at
however,
544. There
in contrast to the Court of Special Appeals’ opinion, instances
in which a dominant and servient
may
estate
both benefit and
shoulder
burden of
particular
covenant or easement.
This can
in
occur
the situation of an
negative
implied
recipro-
cal easement. As we
in
discussed McKenrick v. Savings
Bank,
118,
(1938):
174 Md.
“That one owning land, a tract of in granting thereof, a part may validly impose upon the part granted upon restrictions the use thereof for the benefit retained, of the part upon part retained for the benefit of the part granted, upon both for both; that, benefit of where the in covenants the conveyance are not expressly for or on behalf of the grantor, his heirs and assigns, they are person- al land, and will not run that, with the but if in such a case appears that it was the intention grantors that the restrictions part were of a uniform general scheme or plan of development and use which should affect the grant- land ed alike, and the land retained they may be enforced equity; that covenants creating restrictions are to be con- strued strictly favor of the land, freedom of the against the person made; whose favor are they and that the burden is upon one seeking restrictions, to enforce such where they are not specifically deed, expressed to show by clear and satisfactory proof that the common grantor a part should affect the land retained as they
intended that development.” scheme of general of a uniform Mikolasko, 584-85; 128, 197 A. at but see Schovee v. Id. at (1999) (“In 578, and in McKenrick A.2d Md. since, an implied the assertion of all of the cases before *14 develop arising general from a of reciprocal plan restriction defining the not on a recorded Declaration premised ment was from a subject plat noting land to the restrictions or recorded in but plat, restrictions on the lots shown the imposition the of of uniform by grantor from the inclusion a common either from oral specific in to lots or restrictions individual deeds to restric subject to of lots purchasers commitments made conveyances of retained land would be tions that subsequent restrictions.”). case, In while not subject to the same law, Maryland reciprocity in case we find that explicitly stated and ser can exist between dominant of benefit and burden estates. vient Article 15.2 of language in judice the case sub an creates easement. express
the Condominium’s Declaration estate, appurtenant dominant granted An easement is (in petitioner’s units this case to the individual condominium elements,” i.e., unit, unit), “in the exterior of the common Condominium, estate, purpose “for the by the servient maintenance, for such unit support, repair service providing ducts, conduits, vents, pipes, plumbing, and to [Emphasis to the unit.” utility and other services wiring established when the properly This easement was added]. along Bylaws filed and Condominium Declaration was with the Condominium. plat, establishing is an contends that there Special Appeals The Court of in of an grant inherent conflict created such a easement argues a court that because the context of condominium. The is also a member individual condominium owner whole, she has an interest in unit owners as Condominium words, In other “both the and dominant estate[s].” servient an the common through easement over petitioner granted her condo- represented by as the estate elements dominant unit, of the Condominium she also minium but as member has an interest the servient estate virtue her interest in the common elements.8 The of Special Appeals finds to be distinguishable this scenario from the con- “traditional easement, whereby cept party one obtains easement for or her his benefit and another must party shoulder the obligations associated benefit.” We find no conflict in this petitioner situation. While “can be said to have a tenancy general common in common elements with all owners,” of the other Condominium unit petitioner owns her individual condominium unit in fee simple. Jurgensen v. New Owners, 106, Phoenix Atl. Condo. Council Unit 380 Md. (2004). These are wholly two different types estates. There is no conflict extant between two types ownership regards existence of express easement. such,
As we reiterate that traditional easement law applies granted documents, easements in condominium particular, granted by Condominium *15 Declaration in the case judice.9 sub
B. Interpretation Express Easement of job Our now is to interpret what exactly the easement provides for. In doing this we look to standard constructs of contract interpretation. The of establishment an in easement a condominium analogous declaration is to the establishment of an by deed.10We stated Miller: Act, Maryland ll-107(a), 8. Pursuant to the § Condominium petitioner percentage owns an undivided interest the common elements of the Condominium and can tenancy be said to have a in common in the elements, i.e., general unit, common the exterior of her condominium with all of the other Jurgensen Condominium unit See v. owners. New Owners, 106, 115, Phoenix Atl. Condo. Council Unit 380 Md. 843 A.2d of 865, (2004); 359, supra Ridgely, 870 Md. 343 at 681 at A.2d 495. examined, case, We have not nor will we so in application do this general of cooperative easement law to ownership opposed form of ownership. to condominium form of 10. Article 12 supports analogy, Condominium’s Declaration this stating pertinent part;
392 deed, a principles basic construing language
“In of an easement grant interpretation apply. of contract Buckler v. Davis Sand and strictly construed. by deed (1960). 319, 532, 538, 323 Md. 158 A.2d Corp., 221 Gravel grant an express of an easement created The extent the conveyance a construction depends upon proper ‘The rule for primary created. Id. the easement was which the rule is generally—and contracts the construction of a grant of an easement—is to the construction applicable give effect to the intention a should ascertain court made, if that be time the contract at the parties Id.” possible.’ 351, at further expounded upon Md. 833 A.2d 545. We
377 Passano, 1, v. 391 Md. 891 interpretation Tomran contract (2006): 336 A.2d interpreta- contract
“Maryland objective law of follows Cook, Owens-Illinois, Inc. v. 386 tion construction. 496, 969, (2005); 468, Taylor v. Nations- Md. 872 A.2d (2001); Bank, N.A., 166, 178-79, 645, 365 Md. 251, Bank, F.S.B., 363 Md. Chevy v.Wells Chase (2001). explained: We A.2d have under test must construing agreement A this court itself language agreement from the first determine parties in the person position a reasonable what at the time it was effectuated. would have meant addition, plain of the contract is language when the construction, is no room for unambiguous there parties they meant what presume court must Conveyance entering acceptance or the into of "The of a deed of entering occupancy unit shall constitute lease ... or the into *16 owner, occupant and the agreement such tenant an between Declaration, By-Laws, the and the provisions the of this Council that time, Regulations may time to they as be amended from Rules and owner, occupant accepted tenant or and all are and ratified such running provisions to be shall deemed taken covenants such of having any any person time land and shall bind at [with] unit, though provisions were as such recited interest or estate in such conveyance every or lease stipulated length in each and deed [Emphasis added.] thereof." circumstances, true test of expressed. In these what contract parties is meant is not to the intended what mean, it to person position but what reasonable parties thought Consequently, have it meant. would the clear and an unambiguous language agreement will give thought what that [way] parties it to agreement meant or intended mean. Daniels, 254,
General Motors v. 303 Md. Acceptance Corp. 261, (1985) (citations omitted). 1306, The cardinal rule of effect interpretation give contract is Owens-Illinois, the parties’ intentions. Md. at A.2d at 985.” 13-14,
The problem in the arises case of petitioner’s exercise easement, this her particular exterior installa- tion was defective because the exhaust not been properly had at the vented time the unit and at the time of constructed purchase nor fact did exist when Declaration establishing easement was filed. Had vent existed at *17 394 filed, clearly would petitioner
the time the Declaration was to element in order pierce to the common have an easement maintenance, a pre- or service on support, repair perform in the fact, In other condominium existing every vent. dryer an exterior exhaust vent has such Condominium those owner has an easement to service respective each unit’s 15.2 of the Declaration without provided by as Article vents The of the Board. seeking permission necessity was provision easement Declaration intent the essen- ability all to maintain unit owners with provide intended to through, run were tial ducts and vents which that their condo- through, the common elements surround run that when the Declaration minium units. It can assumed made, the drafters grant drafted and been, be, had the condominium units would believed that ducts, conduits, vents, plumb- all pipes, built to code and that been, be, or had wiring utility and other services would ing, that a to be appears dispute There no properly constructed. unit, failed to be respective for the but contemplated vent was building phase—otherwise installed the construction during been fire codes would have violated. probably codes constructed petitioner’s improperly fact that unit was negate aspect of The Cloisters does not this developer dryer an exterior exhaust vent requires easement. The unit Code, County Building in order to with Baltimore comply recognized, stating of Special Appeals as the Court supra, made, the installa- “if the Council must authorize application is tion of exterior vent.” the hazard remedy
It for petitioner was reasonable dryer construction of the improper original created enjoy system. reasonably grant In order exhaust easement, to install an exterior was entitled petitioner this, cases support we look to some exhaust vent. involving right-of-ways.11 'right-of- general, supra, we the terms 'easement' and "[i]n
11. As
stated
Miller,
349,
A.2d
way'
regarded
synonymous.”
64, 145, addition, 149-50 the Baker Court stated: necessary
“What is for such proper reasonable and enjoy- of ment the way granted, thereby the limitations im- on the posed use the by depends land the proprietor, upon the terms of the the grant, purposes which it was for made, the nature and situation the property subject to easement, the and the manner it been which has used and occupied.” added).
45 at 340 Md. (emphasis While Baker dealt the issue a right-of-way across a servient estate and that road, estate’s right servient to place gates upon the language above is relevant to case sub judice.12 lookWe to the intentions of the parties interpreting the language the easement and to what is reasonable and necessary for the such proper enjoyment of It easement. was the intention of parties that existed the time the Condominium was constructed and the Declaration placed on record that condominium units be built to fire and code building specifica- States, 110, (citing Chevy 126,
at 544 v. Chase Land Co. United 355 Md. (1999)). A.2d Arnold, Lyman See also v. (Story, 15 F. Cas Circuit 12. Justice, 1828) (No. 8,626) (Justice C.C.D. R.I. Story, riding when circuit, court, for stating: wrote the circuit “In the construction of grants, adopted, that is gives doubtless be which entire and liberal seen, parties. distinctly effect the intention object When the is means, ordinary attained, by presumed which is to it be are to be purview parties. thing within of the If granted, the use of a is use, necessary enjoyment whatever is for of such or for the attain- use, is, by implication, granted ment of such also. But if be So, necessary, may too, only, but granted. be convenience it is not grants matter, according are subject construed to the and the terms, presumptions arising natural from their and thus to them render (citations expositions omitted)). of rational intentions.” therefore, system exhaust was re- proper dryer tions permission which no inception—at point for the unit at quired there been nor would have been necessary would have is This intention evidenced existence. respondent forty-seven condo- every other one of the additional fact exhaust vent—the dryer minium units has such an exterior permission of the Board. require do not repair which an exterior exhaust vent reason- dryer The installation of fully contemplated, prop- nd necessary, able and safe, er, of the and its importantly, operation and more contemplated Article fully maintenance was presence and Declaration.13 15.2 of the Tiffany’s Property Real states: Law of includes, by implication as an grant "The easement thereto, perform reasonably right acts as are such incident Accordingly, grant necessary the owner to make the effective. changes may and make such enter on the servient tenement proper necessary for the exercise of easement. therein as are *19 exercise, Thus, way right may prepare the land for having a of its one is, according may way, as it be a according to nature of the the way carriages. may footway, horseway, or all teams and He a a for soil, way, up up fill repair break level construct rocks, impediments supply deficien- depressions, blast remove So, too, way may change grade of an easement of to cies. he purposes for which it was and convenient for make it usable or, conveyed grantor excepts spring a on the land granted, where a retained, bringing premises right of water therefrom to the he and the reasonably right necessary make the right to do whatever is to has subsequently may he make altera- to take the water available. And by may in necessitated the servient tenement so this be tions in change however, far cannot, responsible. He conditions which he is not for tenement, in the servient which are not make alterations easement, though they necessary even conduce for the exercise of exercise, injuriously will if such alterations to the convenience of its tenement, change may nor he the surface of the so affect the servient injure seriously possibly destroy or the usefulness land as to that, Moreover, generally it been while estate. has stated servient case, may proper changes in made in a immaterial an easement materially changed may substantially enlarged so that it will or not be the servient estate.” be an increased burden on (3d ed.1939, Property, § Tiffany, Law Real Herbert T. (footnotes omitted). added) (emphasis The installation of Supp.) necessary proper exercise of by petitioner vent the exterior upon injure place burden and does not an undue the easement respondent. estate servient that the
Respondent concedes easement unit grants owners control over certain which systems through run the common Condominium, elements of the but asserts that easement does not to a unit grant “serve owner the right unfettered install a system new in completely an area which it has this, previously not been installed.” In support respondent contends that holding such a would let loose a open and virtual Pandora’s Condominium, box of monstrosities on the stating:
“then unit could owner install a gas heating system new replace the old electric heating system and run his new in, gas same, lines for through and around exterior facade of the unit without approval seeking Moreover, Respondent. (47) any of the forty-seven unit owners could holes in punch the exterior their condomini- um whenever, wherever, unit they pleased; however replace fan; window with exhaust install a new heat on pump pad; her attach parking solar panels the garage door; or attach a dish satellite to her steps, front all without any prior consent of the Respondent.” Respondent’s are concerns valid this case. The installa- tion of the exterior petitioner exhaust vent is not something that is original new addition to the construc- tion the other forty-seven condominium units. Every other condominium unit in The Cloisters has such already an exteri- or dryer exhaust system vent and the are able owners maintain those systems without approval of the Board because of the granted 15.2 of Article the Decla- ration. That system venting equally essential order for petitioner’s condominium unit to comply with Baltimore Coun- ty is, thus, Building Code and reasonable and necessary. Our holding does not allow owners the unfettered ability to *20 make changes to the exterior of their condominium unit prior without approval by respondent. Rather, it reasonably only allows the petitioner, where an obvious construction defect exists to to relating safety, install the exterior vent in reliance on rights granted (and by the express easement for that matter in exercise of in rights inherent an exception Bylaws). contained in the It is obvious that the in the of the easement that of the
intention drafters easement, the unit in the owners circumstances described necessary to maintain right the automatic would have of the permission ducts required venting and without this circumstances of the unusual Board. We believe case, of maintenance equivalent is the functional the situation dryer. operation for the reasonable and safe necessary limited, however, to situation particular is holding Our here extant. that the argues language also
Respondent Declaration must be harmonized with Article 15.2 Bylaws: IX of the in the Article language “Architectural Standards Committee. Architectural Standards construction of the Condomini Except original for the a. Developer property by um situate within Units any Unit or to any improvements Condominium con accomplished Elements or Limited Common General construction, and for original except currently with said or other repair[14] maintenance proper purposes provided, prohibited in these shall By-Laws wise build, erect, attach, screw, nail, install, apply, paste, hinge, screens, alter, any light, awnings, patio or construct remove fences, aerials, antennas, dishes, covers, decorations, radio devices, slabs, broadcasting or side receiving or television terraces, balconies, porches, walks, platforms, walls patios, alter, any including or otherwise any change or make whatsoever, color, any manner the exteri- alteration or upon any Condominium Unit General complete Elements until the plans Limited Common the Condominium specifications expense prepared exception argues extensively in her brief that there 14. Petitioner general against any of a Bylaws prohibition alteration to the within petitioner’s It is exterior facade. contention condominium unit’s proper repair” language purposes maintenance and "except exception. provided creates such an in Article IX *21 399 location, Unit proposing change, showing Owner nature, material, color, shape, height, type of construction form of proposed including, other change, without and/or limitation, (or any by other information specified Board Committee), to, designated its shall been have submitted conditions, and or approved approved writing by Board, or “Architectural Standards Committee” des by such ignated Board. Board, Committee,
b. In event the designated its approve, disapprove, fails to design such and location (60) sixty days within after said plans specifications and it, have been submitted to not be approval will and required fully this Article will be deemed to have complied been with. submitted, If plans specifications are not all any and alterations shall be changes deemed violations of this and/or Article.” that,
Respondent pursuant Maryland asserts to the Condomin- Act, ium and Bylaws Declaration be should construed ll-124(c) (“The declaration, § together. See bylaws, con- plat dominium shall be construed together shall incorporate deemed to one another to extent any requirement of this title as to the content one shall be deficiency deemed satisfied if the can be cured reference to others.”). contention, of this support cites to respondent a Court of Special opinion, Appeals Dulaney Towers Corp. Maintenance (1980), v. O’Brey, 46 418 Md.App. A.2d 1233 which states: “When a as to controversy right arises a resident’s as a unit condominium, owner the courts must examine the condo- enabling minium’s for provisions, statutes relevant consider declaration, the master deed or study bylaws, attempt to reconcile the three.” Id. at 418 A.2d at (citing Condo., Breitenbach, Sterling Village Inc. v. So.2d (Fla.App.1971)). Respondent correct in its assertion that the Court should attempt to reconcile or harmonize the provi- sions of the Bylaws. Declaration and Both Declaration and the Bylaws, under the limited circumstances of the pres- case, repair ent for provide of an relating inherent defect provid- to the approval, point without Board even safety If, however, are not they the exterior. so venting
ing is a conflict between the Declaration and and there compatible by construing the that cannot be cured two Bylaws then the Declaration would together, provisions pertinent *22 prevail. a resolution in provides Act Maryland Condominium ll-124(e) (“If there is any § of
the case such conflict. See declaration, title, the of this the provisions conflict among §to 11- adopted pursuant or rules plat, bylaws, condominium title, control the this the of each shall provisions 111 of ‘title’.”).15 In commencing hereinbefore with listed succession case, the granted in Article 15.2 of Condo this the easement conflict, Declaration, if to be a would there were minium IX of Bylaws. in Article Re language over the control 11-115(2) § the Real Prop contends that of further spondent over the a Title section which controls provides Article erty 11-115 argument. This is an erroneous Section Declaration. states: bylaws or and the declaration
“Subject provisions to the of law, a unit owner: provisions other of (2) to, alter, change or make additions May not elements, appear- or common the exterior of the appearance condominium, of any portion of other ance a unit ” (Em- of the council of permission owners.... without added.) phasis addition, provide XVI Bylaws in Article 2: provi- subject to all By-Laws These are subordinate "Conflict. All of provisions the Act. Declaration and to the of sions context, hereof, repugnant except clearly where shall terms meaning Act. In the event Declaration, as in the Declaration have same By-Laws and any between these conflict control; conflict
provision Declaration the event of the shall Act, applicable By-Laws and the Sections between the provisions the Act control.” ll-124(e), § Though, pursuant provisions title control over case, provisions § the declaration this 11-115 specifically “[sjubject states that it is to the provisions of the declara- ” tion .... also Liability See Sea Watch Stores Limited v.Co. Condo., Council Unit Owners Sea Watch 115 Md.App. (1997) 11-115(3) 43, 691 § A.2d (discussing that “if holding the condominium documents conflict section], provisions of the condominium con- [the documents trol, because the statute is made ‘subject’ to the condominium documents”). Therefore, existed, if a conflict the Declaration would control this instance. The easement is valid and applies the Condominium and is in harmony, under these circumstances, limited Bylaw with the provision permits breach of the exterior walls for repair maintenance with- out prior approval of the Board. (and Provision),
C. The Easement Bylaws Separately Together, Allow Petitioner to Install the Dryer Ex- haust Vent on the Exterior her Condominium Unit *23 Without Prior Approval Respondent Where the Defect They Repaired is an Inherent Initial Defect, Relating to Construction, Safety, Public in the a Unit We have consolidated and petitioner’s modified second and questions third presented due to subject their in overlap matter. Petitioner contends that the Court of Special Appeals (1) erred in finding that the easement did not petitioner allow repair dryer defect her system exhaust by installing the exterior vent prior without approval by respondent and (2), concert, that Bylaws Condominium’s specifically require petitioner to obtain prior such approval. We that find the installation of the exterior dryer exhaust vent neces- was sary to correct an initial construction further, defect and it reasonable, was necessary proper, and safe use of the unit petitioner therefore empowered was by the Declaration and Bylaws with the opportunity to repair the inherent defect by installing the venting system without the prior approval respondent. repair This of an was initial construction defect and, pursuant to the intent of provisions easement of the them- Bylaws in the exception express and the
Declaration necessary. not the Board was selves, prior approval inherent limited to instances where is holding Our defect and where initial construction from an results problem easement express contains an Declaration the Condominium repair without exception permitting Bylaw there is a Furthermore, only relates as our decision prior approval. Board neces- approval prior the issue of whether rights individual owners’ it does not affect other sary, adversely are affected.16 rights if their individual recourse facts and But, particular under the Bylaws the Condominium’s to obtain require petitioner of this case did circumstances be- respondent from the for the installation prior approval Declara- the Condominium’s granted by cause of the supra. as discussed tion, exception, the Bylaws as as well Exhaust Vent Dryer the Exterior D. Location of Appeals, of Special the Court The Court and Circuit alternate that there were several state along respondent, placed could have been the exterior- vent locations of his enjoyment Dr. Kantt’s that it not interfere with order Re record, however, not reflect this. does property. The first alterna locations. identifies four alternate spondent though system up exhaust running dryer a new tive is chimney duct, through out would vent main furnace which proposal unacceptable, This the roof of the house. International Mechanical 504.4 of the section would violate “[cjlothes exhaust Code, 2000, states which connector, vent connected to vent shall not be ducts moving involved and third alternatives The second chimney.” couple either “a position from its installed the exterior vent inches.” to sixteen of feet” or “twelve couple or a inches *24 it different from where was substantially Neither of which is remedy provide not serve to installed would originally given final alternative was complaint. for Dr. Kantt’s may to other like be available of nuisance Traditional actions owners, appropriate. if individual respondent’s questioned when counsel petitioner’s expert wit- trial, ness at in the following as outlined colloquy: ... In response my question “[Counsel:] whether the alternatives that were discussed here were the only alternatives, your response on depends was much mon- how ey you spend? want to Yes.
[Witness:] Other
[Counsel:] alternatives exist? on your Based financial expenditures,
[Witness:] yes. Right. now, And that directly [Counsel:] contradicts what earlier, you testified that other alternatives didn’t exist? That is true. [Witness:] Okay. So now
[Counsel:] what I need to be to let able judge know is that some alternatives do exist besides the placement current vent. That is what I’m hearing you? from I Yeah. believe my
[Witness:] testimony that we could it move six to you me, twelve inches. And asked if I heard you right, things: two Number I you said something said out the hallway you didn’t relate to and then you turn around and said to me that it be could moved I if you said to spend want of money. lot It simple, is we all dry tear wall out the garage, tear we out and drop the ceiling down and we can dryer move the to the second floor and it shorten We up. can move the dryer anyplace is, around that there move garage out. If you want to spend the money, pal, give to me.” It not a to, viable alternative effectively, remodel completely petitioner’s condominium unit by tearing down walls and dropping order to ceilings be able provide exterior ventilation for the clothes dryer in a different location. The system exhaust was improperly installed developer the first they instance when had the opportunity to locate exterior vent wherever would have been most preferable. Petitioner had the vent installed in the most logical place, evidenced by the Court Special Appeals’ recitation of the facts of the case: “The system new was routed from the *25 into adjoining room laundry wall of the
through the through garage exterior garage, through then Thus, of petitioner’s original find the location wall.” we most exhaust vent to be the of the exterior installation in the sub presented under the facts case option reasonable judice.
IV. Conclusion provides of the Condominium’s Declaration Article 15.2 an Bylaws provides IX of the easement and Article express obtaining prior ap- Board requirement from the exclusion The circumstances here specific present. under the proval allow this individual of both documents specific provisions the inherent construction to repair condominium owner premises of her that relates to the safe use without defect For the aforementioned reasons we reverse prior approval. Special Appeals. judgment THE OF APPEALS OF COURT SPECIAL JUDGMENT THAT REMANDED TO COURT REVERSED. CASE THE INSTRUCTIONS TO REVERSE JUDGMENT WITH THE COUNTY OF CIRCUIT COURT FOR BALTIMORE THAT FOR REMAND THE TO COURT AND TO CASE THIS CONSISTENT WITH FURTHER PROCEEDINGS IN AND IN THE OPINION. THIS COURT COSTS BE THE APPEALS PAID BY SPECIAL TO COURT OF RESPONDENT. BATTAGLIA, JJ.,
WILNER, HARRELL, Dissent. WILNER, J., Opinion by which HARRELL and Dissenting BATTAGLIA, JJ., join. Occasionally, make bad law.
It is often said that hard cases applica- in which normal a court is faced with situation well-established on their that are either legal principles tion objective interpre- from the naturally or that would flow own statutory mandates will of broader common law tation unduly is judges that the of the court feel produce a result unfair, harsh, litigant. temptation to a arises or even those apply principles as the ordinarily require, law would instead, and the judges, look for some way to create a little bubble, exception, to avoid the perceived harsh or unfair that, course, result. What often happens they when do law, itself, certain, that the reliable, and, becomes less less end, just. less *26 That is what the is proposing to do here. The Court believes Ms. Garfink should be able to her dry clothes Code, violating without Fire county as indeed she should. To her objective, however, allow to achieve that the Court stretches the scope of an easement beyond well what the plain language of the easement gives would allow and less even than lip service to a clear and critical element of the condominium regime—control over the common elements and exte- building by rior the council of unit owners.
There are three problems with Court’s approach, apart from ignoring the wisdom the adage hard cases make that, bad law. first is despite its valiant effort to circum- scribe its ruling just case, to this the ruling cannot be so neatly cabined. The scope articulated the Court is ambigu- and, ous as it attacks critical of nearly elements every residen- tial condominium project and most other developments that subject are to reciprocal covenants, restrictive it will create considerable uncertainty and likely generate will a good bit of litigation in an area that should remain absolutely clear and Second, certain. even if the Court could make the contours of clear, its self-created bubble so that its ruling really is unique situation, to this one the ruling would then wholly be inconsis- tent the long with and consistent view this Court that certiorari is not to granted except to consider an issue of public importance, one that beyond is just interest of It litigants. is hardly consistent with that notion for this Court to establish a rule applicable only to one unique situa- this, tion such as that has no anyone interest to beyond Ms. Garfink and the council of unit owners of The Cloisters at Charles, Inc. Finally, and perhaps important, most it is unnec- essary this case. One does not go have to through legal gyrations and gymnastics—the unwarranted stretching of others—in sharp and the contraction legal principles
some dry her clothes without violat- Ms. Garfink permit order Fire county Code. ing notes, her unit purchased
As the Court Ms. Garfink unit developer as a model been used It had a in it that included with the dryer had clothes was apparently located in the unit is clear.1 was dryer sale. Where a to the it fair contrary, absence of evidence In the used while the that the not intended to be dryer inference was or some other only a model. Whether for that unit served reason, into the room and not to dryer vented furnace was prior outside. Whether that was Code violation Garfink, she certainly pur- became one when to Ms. sale did, it she dryer. to use Use began chased the incident, It however, years. nine luckily without about died, the technician service refused only when venting, Ms. the new one because unlawful install hole in by punching decided to deal matter Garfink from the council seeking permission wall the exterior without *27 controversy did the before us surface. of unit owners statutory, prop- correctly identifies relevant The Court Code, Maryland that apply. contractual erty, provisions Article, of part Property § 11-115 of Real which Act, that, “[s]ubject provides Maryland Condominium or other of bylaws provisions of the declaration provisions law,” make or alterations to may improvements a unit owner or impair integrity not the structural his or her unit that do support portion of of the systems any mechanical or lessen to, alter, or may condominium, change but make additions elements, or the exterior the common appearance of ... the council permission a unit without appearance argument, were asked the Court whether the oral counsel 1. At drawings, plans, or condominium contained architectural record floor unit and indicating where the in Ms. Garfink's documents situated, diyers similarly development that had as other units dryers vented other units’ were when well how and where those originally We were advised that such documents were not constructed. in evidence. added). ll-124(c) unit owners. (Emphasis requires Section declaration, bylaws, plat and condominium be con- together another, strued and be deemed to incorporate one i.e., harmony to be read in and not a manner that would Thus, declaration, create conflict. unless the bylaws, plat, or otherwise, construed together, dictate the law requires unit from get permission owner the council unit owners before making any alteration or addition that changes appearance of a common element or the appearance exterior of a unit. pertinent provision the condominium declaration is 15.2, § which grants each unit “in the common maintenance, elements purposes providing support, for ducts, or repair service for such unit to and pipes, conduits, vents, plumbing, wiring utility other services to (Emphasis supplied). ducts, the unit.” If there are pipes, conduits, vents, plumbing, or wiring, other utility services serving elements, the unit that upon intrude the common unit pursuant easement, owner to that may, enter the common elements for the purpose maintaining, limited supporting, ducts, or repairing, those servicing pipes, conduits, vents, or easement, however, etc. I see nothing that permits a owner, unit approval without of unity council owners to ducts, new conduits, vents, install pipes, plumbing, wiring, utility other services in the common elements where none previously existed. The Court apparently just for does—but case; this one I do not.
Finally, IX there is Art. bylaws which, except for original units, construction of improvements accomplished therewith, concurrently and “proper repair,” maintenance and unit prohibit owners from “in altering any manner whatsoev- er” the of any exterior condominium any common *28 element approval without the council of unit owners. That clear, unambiguous provision read, the can bylaws be and read, be should harmoniously with the easement contained in § 15.2 of the § declaration and 11-115 of Real Property If Article. a unit owner wants to install a new duct or vent in the common element or exterior of the building, other than for one, existing an he or she needs or maintenance repair council.
to from the get approval harsh, about Art. nothing strange, oppressive is There only is probably IX. that not common but requirement It is regimes, it has an condominium and universal residential noted, imposes law beneficial As obviously purpose. itself requirement. that that, unless the of council requirement
On the supposition
IX of the
for
both the statute and Art.
provided
approval
not
Ms. Garfink will
bylaws
inapplicable
is somehow rendered
clothes,
require-
holds that the
dry
her
Court
able
indeed,
is,
objective,
To achieve
inapplicable.
ment
in Art. IX for
tacitly
exception
“repair”2
construes
for
holes in the exterior wall
new
extending
punching
as
ducts,
vents,
That
the like.
is a rather
eondu'
pipes,
extension,
authority,
for
cites no
which the Court
dramatic
the requirement
that could well emasculate
loophole
creates a
Indeed, such a cavalier extension could
approval.
of council
uncertainty
into the law
considerable confusion
inject
well
implications
Perhaps wary of
generally.
of easements
applicable only
declares it
ruling,
tortuous
the Court
such a
898,
(Opinion
situation here extant”
at
particular
“to the
220)
the inherent problem
A.2d at
or “to instances where
initial construction defect and
from an
where
results
express
Declaration contains
Condominium
prior
without
Bylaw exception permitting
repair
there
ais
222).
402,
at
That
Opinion at
continues
approval”
however,
“repair”
Art. IX for
exception
that the
presume,
invasions
the common
includes
installation
new
entirely
majority favors
Garfink’s
It
clear whether
Ms.
"repair.”
example,
position
For
because of its construction of
220,
states,
398,
that in
majority
op.
"[w]e
at
897 A.2d at
believe
case,
this
the situation is the functional
the unusual circumstances of
necessary
opera-
equivalent
and safe
of maintenance
reasonable
majority
dryer.”
(Emphasis supplied). The
elsewhere
tion
relies
396,
219),
(see Maj. op.
A.2d at
on
also
but
“maintenance”
justifying its
confusingly
"repair”
equally
conclusion. See
alludes
Maj.
A.2d at 223-24.
op. at
Upon analysis, just this it is not at all clear small the how bubble is that the has is particular Court created. “the What situation here extant?” What is a “construction defect?” Suppose the contract fan over the stove required exhaust or in forgot the bathroom the to it or developer install Garfink, later, installed it Would nine improperly? years Ms. roof, be punch able to holes the at a new exterior wall location her to choosing, accommodate belated addition of a hood range or bathroom exhaust on the that theory fan she was re- correcting construction defect? The bubble quires that the express condominium contain “an easement.” suffice; What it kind easement will does matter how the easement is worded? Must easement be in the precisely language of this one in order for special apply rule to new and, not, if how much of a deviation will be allowed? Does really Court intend to hold the words “maintenance” statute, easement, “repair,” bylaw, as used and the encompasses new invasions the exterior walls other ducts, common elements for the pipes, installation of new so, vents? If in this affect ruling every case will virtually State, condominium in the not to rights-of-way mention other forms It easements. will not be limited at all.
That problem first with the analysis; Court’s contour bubble created for at Ms. Garfink is not all clear. if it Even could properly construed as to Ms. limited situation, Garfink’s peculiar how is a ruling such consistent with the long-standing principles governing the our exercise of discretion in granting certiorari? case, this How is as molded Court, by the of any importance anyone other than Ms. Garfink and the council of unit of The owners Cloisters Charles, Inc.? Is there another Ms. out Garfink there some- where? record, on
Finally, this disregard plain Court’s for each meaning of the provisions acknowledges it relevant is wholly unnecessary. There is a way far easier Ms. allow Garfink to connect her dryer to the a far outside world and more important principle Although confirm. Ms. Garfink approval did seek from council her installing before injunctive require relief to her the action for
vent—hence ruling in favor stayed the vent—the its remove Circuit negotiate that the could sensible parties of the council so in the egos way Unfortunately, appears got solution. clear from the record that It seems common sense. rejected it in did her solution and proposed council consider *30 equally of the of alternatives that either violative favor were that, result, and as a unreasonably expensive or Fire Code rejected Ms. were Garfink. as a
When,
regime
condominium
or
result
part
either as
of a
deed,
is required
in a
an owner
to seek
covenants
restrictive
council, board,
a
or association
from
approval
and obtain
before under-
through
or
documents
property
created
or alteration
the exterior of
improvement
some
taking
act
authority must
body
approval
property,
owner’s
reject
application
It
reasonably
good
may
in
faith.
and
v.
212 Md.
arbitrarily
Kirkley
Seipelt,
or
See
capriciously.
(1957) (refusal
430,
a
133,
“would have to be
127,
128 A.2d
434
faith,
not high-
made in
and
good
determination
reasonable
manner”);
handed,
County
v.
Carroll
captious
whimsical
145,
(1964)
553,
Buckworth,
547,
200
(“ap-
Md.
A.2d
147
234
...
the power
must be reasonable and
proval
disapproval
faith”);
Imp.
Harbor
v.
good
exercised
View
Ass’n
must be
422,
(1973);
365, 373, 311 A.2d
426
270 Md.
Colan-
Downey,
(2000).
Lake,
371,
Md.
Ms. Garfink home, in order to it must vented to outside her be record, it is unclear where conform to the Fire Code. On this is, comparable for the vent place the most appropriate located. See other vents in condominium are where n. supra. only significance case, facts, that this with its peculiar has is
really once confirming again principle that approval bodies must act reasonably. That does have public that is a “cert-worthy” issue. Resolution of that importance; I issue propose will allow Ms. Garfink to her dry clothes It lawfully. sought will achieve Justice by the Court without basic torturing legal principles and making bad I law. too judgment would reverse the of Special Appeals, but I remand would the case that court with instructions to judgment reverse of the Circuit Court and remand parties court to introduce into evidence (and/or reflecting documents dryers where are vented were vented at the time of original construction of the condo- units) minium in all units similar to the one Ms. Garfink occupies. place, With that basis in reasonable resolution this dispute should clear. the parties Should not reach an solution, amicable the Circuit Court may assess the reason- ableness the parties’ competing positions. I would continue until stay a final resolution is achieved. *31 Judges HARRELL and BATTAGLIA authorize me to state join they this dissent.
v.
Allan M. PICKETT. 74, Sept. Term,
No. 2005. Appeals
Court of Maryland.
April 2006. Reconsideration May Denied