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#194-O, Konig v. Whitehall Condominium (September 3, 1993) (Panel: Alper, Jacobsen, Kerstetter)

The condominium owner (CO) complained that the action of the condominium association (CA) in relocating a bicycle rack to a location in front of her windows, where it was visually offensive to her, constituted a misuse of the common elements in violation of the governing documents.

The CA moved to dismiss the complaint on the grounds that the Commission lacked jurisdiction over disputes that only involved the business discretion of the governing body of the CA under Section 10B-8(4).  The panel denied the motion, finding that the complaint involved the authority of the governing body to alter or add to a common element and/or to spend association funds under Section 10B-8(3)(A)(iii) and (iv).

The evidence at the hearing showed that the CO had numerous legal and factual bjections to the relocation of a bicycle rack to its current position in front of her unit, include allegations that it lowered the value of her unit, raised the insurance premiums to the CA, was a safety hazard, and visually objectionable.  The rack is 65 feet from the CO's unit.  Section 11-108 of the Maryland Condominium Act  states that the common elements may be used only for the purposes for which they were intended and shall be subject to the use of all members.  The bylaws provide that any alterations to the common elements that cost $25,000 or less can be made by the board of directors without the approval of the members, and the relocation of the bike rack cost less than $25,000.  The bylaws also provide that no "temporary structure" can be placed on the common areas.  The bike rack does not qualify as a "structure" as defined by the bylaws.  The CA plans to landscape the rack to make it more attractive.

The panel held that the bike rack is not a immoral, improper, offensive or unlawful use of the property in violation of the Declaration.  The prohibition against temporary structures applies against unit owners, not against the CA.  The relocation of the bike rack from one part of the common elements to another part is not a material change in the intended use of the common elements, and the board was within its authority under the bylaws to move it.  The board's decision is within the scope of its business judgment and must be upheld by the Commission unless there is evidence of fraud, dishonesty or incompetence.  The panel denied the CO's request to move the bike rack.

The panel also denied the CA's request for attorney's fees.  The panel found that the CO had not violated any rules which would have entitled the CA to charge her such fees, and the panel criticized the CA for failing to respond to the CA's concerns and for hindering the informal resolution of the dispute without good cause.  The panel ordered the CA to make diligent efforts to respond within a reasonable time to future correspondence from the CO concerning the bike rack.