Can a Maryland condo board control what an owner does with a patio or balcony, and who has to maintain it?

Plain-English summary

An attorney representing the Board of Directors of the Old Georgetown Village Condominium asked the Attorney General to clarify the board's authority over the condominium's "limited common elements," areas like patios, balconies, parking spaces, and storage units that the declaration or plat reserved for the exclusive use of one or more, but not all, unit owners. The board wanted to know the nature of a unit owner's property interest in these areas, whether the board could control their appearance, and who was responsible for keeping them in safe condition. The opinion concluded that a unit owner's interest in a limited common element was not full ownership but an indivisible tenancy-in-common interest shared with all other unit owners, giving the owner an exclusive or near-exclusive right to use the area rather than title to it. Under the Maryland Condominium Act and case law from other states, the board (or council of unit owners) had real authority to regulate the use, appearance, and any alteration of limited common elements, including approving or denying proposed changes like glass enclosures or landscaping, but that authority had to be exercised reasonably and could not be arbitrary or capricious. The board also had to carry property and liability insurance covering the limited common elements. Responsibility for day-to-day maintenance of a limited common element, by contrast, fell on the individual unit owner under the Old Georgetown bylaws, except to the extent the bylaws made the association responsible.

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a 1983 Maryland condo board stop an owner from changing their balcony or patio?
Yes, if the change qualified as an alteration to a limited common element. The opinion found the board had authority under both the Condominium Act and the condominium's own declaration and bylaws to review and approve or deny proposed alterations to limited common elements, based on factors like safety, cost impact on insurance, and harmony of design with surrounding structures.

Did the board's control over these areas have any limits?
Yes. The opinion identified a "reasonableness" standard drawn from case law in other states: a board could not adopt arbitrary or capricious rules bearing no relationship to the health, happiness, and enjoyment of the unit owners as a whole, and its decisions had to be grounded in the condominium's declaration, bylaws, and Maryland statutory law.

Who had to pay to maintain a patio or balcony that only one owner could use?
Under the Old Georgetown bylaws discussed in the opinion, the individual unit owner was responsible, at their own expense, for the normal maintenance, repair, and replacement of a limited common element appurtenant to their unit, such as clearing a balcony or patio, unless the bylaws placed that responsibility on the association instead.

Did the board have to insure a patio or balcony even though the owner had to maintain it?
Yes. The opinion explained that Maryland law required the board to carry property and comprehensive general liability insurance covering the common elements, including limited common elements, regardless of which party was responsible for day-to-day upkeep.

Background and statutory framework

Under the Maryland Condominium Act, Title 11 of the Real Property Article, a condominium comprises a fee simple ownership interest in each individual unit and a tenancy-in-common ownership interest, shared by all unit owners, in the condominium's common elements (RP §§11-106(a), 11-107(a), 11-108; citing Andrews v. City of Greenbelt). Common elements are divided into "general common elements" open to all owners and "limited common elements," defined as areas identified in the declaration or plat as reserved for the exclusive use of some, but not all, unit owners (RP §11-101(b)(1)), typically including balconies, patios, storage units, and similar features appurtenant to a specific unit. A unit owner's interest in a limited common element is not an absolute ownership interest but an indivisible fee simple interest shared as a tenant in common with the other owners, giving that owner an exclusive or near-exclusive right of use (RP §11-108).

The opinion found that RP §11-109(d)(12) gave the council of unit owners, or the board of directors if the bylaws delegated the authority, the express power to regulate the use, maintenance, repair, replacement, and modification of common elements on behalf of all owners, and that RP §11-115(2) barred a unit owner from altering or changing the appearance of common elements without board permission. Drawing on condominium case law from other states because Maryland's own appellate courts had not yet addressed the issue, the opinion identified a "reasonableness" limit on that authority (citing Hidden Harbour Estates, Inc. v. Norman and Papalexiou v. Tower West Condominium): board rules could not be arbitrary or capricious and had to relate to the health, happiness, and well-being of the unit owners as a group, though courts had upheld board authority to require uniform architectural review (Sterling Village Condominium, Inc. v. Breitenbach) and to enforce pet and entryway rules (Dulaney Towers Maintenance Corp. v. O'Brey; Ryan v. Baptiste). On maintenance, RP §11-108.1 made the council or board responsible for the common elements except as the declaration or bylaws otherwise provided, and the Old Georgetown bylaws placed normal maintenance of a limited common element on the individual owner while leaving the board responsible for carrying property and comprehensive general liability insurance on those areas under RP §11-114(a) and (c)(1).

Citations

Statutes:

• RP §§11-101(b), 11-101(b)(1) (definition of common elements and limited common elements)
• RP §§11-106(a), 11-107(a), 11-108 (unit and common element ownership interests)
• RP §11-108(b) (transfer of exclusive-use rights between unit owners)
• RP §11-108.1 (responsibility for maintenance, repair, and replacement of common elements)
• RP §11-109(d)(12) (council or board power to regulate use of common elements)
• RP §11-111(b) (declaration may condition LCE use on reasonable rules)
• RP §11-113(b)(4) (judicial recourse for a unit owner dissatisfied with a board decision)
• RP §11-114(a), (a)(1), (a)(2), (c)(1) (board's insurance obligations on common elements)
• RP §11-115(2) (unit owner may not alter common elements without board permission)
• RP §11-126(b)(2), §11-135(a)(1) and (2) (declaration and bylaws must be given to prospective buyers)
• RP §11-131(c)(1), (c)(4) (implied warranty on common elements runs from developer to board or unit owner)
• RP §11-104(c) (bylaws may regulate use and maintenance of common elements)

Cases:

• Andrews v. City of Greenbelt, 293 Md. 69, 73-74 (1982)
• Juno by the Sea North Condominium v. Manfredonia, 397 So.2d 297, 304 (Fla. Dist. Ct. App. 1981)
• Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180, 181-82 (Fla. Dist. Ct. App. 1975)
• Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685, 688 (Fla. Dist. Ct. App. 1971)
• Dulaney Towers Maintenance Corp. v. O'Brey, 46 Md. App. 464, 466 (1980)
• Ryan v. Baptiste, 565 S.W.2d 196, 198 (Miss. App. 1978)
• Pepe v. Whispering Sands Condominium Association, 351 So.2d 755, 757-58 (Fla. Dist. Ct. App. 1977)
• Mayfair Engineering Co. v. Park, 318 So.2d 171, 173 (Fla. Dist. Ct. App. 1975)
• White Egret Condominium, Inc. v. Franklin, 379 So.2d 346, 350 (Fla. 1979)
• Hidden Harbour Estates, Inc. v. Basso, 393 So.2d 637, 640 (Fla. Dist. Ct. App. 1981)
• Papalexiou v. Tower West Condominium, 401 A.2d 280, 285 (N.J. Super. 1979)
• Ritchey v. Villa Nueva Condominium Ass'n, 146 Cal. Rptr. 695, 701 (Cal. App. 1978)
• Parrillo v. 1300 Lake Shore Drive Condominium, 431 N.E.2d 1221 (Ill. App. 1981)
• Everdell v. Carroll, 25 Md. App. 458, 462-64 (1975)
• Supervisor of Assessments of Anne Arundel Co. v. Bay Ridge Properties, Inc., 270 Md. 216, 223 (1973)
• Reid v. Washington Gas Light Co., 232 Md. 545, 549 (1963)
• Casita de Castilian, Inc. v. Kamrath, 629 P.2d 562, 564 (Ariz. Ct. App. 1981)
• Herlihy v. Dunbar Builders Corp., 415 N.E.2d 1224 (Ill. App. 1980)
• Greentree Condominium Ass'n v. RSP Corp., 415 A.2d 248 (Conn. Sup. 1980)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1983/Volume68_1983.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Condominiums, Limited Common Elements, Nature Of Unit Owner's Interest, Power Of Board To Control Appearance, Responsibility Of Unit Owners To Maintain, Board's Authority Subject To Standard Of "Reasonableness".

July 13, 1983

David S. Boccio, Esq.

On behalf of the Board of Directors of the Old Georgetown Village Condominium, you have inquired about the scope of control that a board of directors ("board") may exercise over a condominium's limited common elements, such as the patios, balconies, parking spaces, and storage units.

We understand that the Board has raised questions about: (i) the exact nature of a unit owner's property interest in the condominium's limited common elements; (ii) the Board's right to control the appearance of these limited common elements; and (iii) responsibility for maintaining the limited common elements in a safe condition for use.

Apparently, the Board's concern about the status of and control over condominium limited common elements is motivated, in part, by its awareness of the tension between traditional private property interests and the communal nature of condominium living. Our response, therefore, will involve an examination of relevant case law, as well as Maryland statutory law and the condominium's master documents, the Old Georgetown declaration, plat, and bylaws.

I
Condominium Property Interests

A. Background

The condominium regime may be viewed as a system of separate ownership of individual units in a multi-unit project. 1 Rohan and Reskin, Condominium Law and Practice §1.01(1) (1982). Under the Maryland Condominium Act, Title 11 of the Real Property Article ("RP Article"), a condominium project comprises two basic property interests: (i) a fee simple ownership interest in each condominium unit, held exclusively by the owner of that unit, and (ii) a tenancy in common ownership interest in the condominium's common elements. See RP §11-106(a), 11-107(a), 11-108; Comment of the Condominium Revision Committee of the Real Property, Planning and Zoning Section of the Maryland State Bar Association, reprinted in the 1975 Cumulative Supplement of the Real Property Article at 27. See also Andrews v. City of Greenbelt, 293 Md. 69, 73-74 (1982).

The common elements of a condominium are subdivided into "general" and "limited" common elements.1 The "general common elements", i.e., areas such as corridors, unrestricted parking spaces, gardens, and stairways, consist of all condominium property other than the individually owned units and areas defined as "limited common elements".

The "limited common elements" consist of those areas "identified in the declaration or on the condominium plat as reserved for the exclusive use of one or more but less than all of the unit owners". RP §11-101(b)(1). "Limited common elements" typically include, for example, shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, and all exterior doors and windows or other fixtures designed to serve one or more units.

The Declaration of the Old Georgetown Village Condominium ("OGVC Declaration") mirrors Maryland statutory law in vesting indivisible ownership of the common elements (defined as including both general and limited common elements) in the unit owners as tenants in common. Compare RP §11-107(a) with OGVC Declaration Article I, §1(a), Article III, §2, and Article V, §1. Similarly, those areas designated on the condominium plat as limited common elements are expressly "reserved for the exclusive use of the Unit owner(s) of the Unit(s) to which the [limited common elements] are declared to be appurtenant". OGVC Declaration, Article III, §2.

1 By definition, a condominium's "common elements" consist of "all of the condominium except the units". RP §11-101(b).

B. Limited Common Elements

Compared to the fee simple ownership of the condominium unit itself, a unit owner's property interest in the limited common elements ("LCEs") appurtenant to his or her unit is not an absolute ownership interest.

Instead, the unit owner shares an indivisible fee simple interest in the LCEs as a tenant in common with the other unit owners. Payment of a higher purchase price for a condominium with an LCE, a patio, for example, merely entitles the unit owner to an exclusive or near-exclusive right to use that particular area. See RP §11-108.2 See also Juno by the Sea North Condominium v. Manfredonia, 397 So.2d 297, 304 (Fla. Dist. Ct. App. 1981) (petition for rehearing); 64 Opinions of the Attorney General 334, 339 n. 3 (1979). The right to use an area designated as an LCE automatically passes with the unit when legal title is conveyed.

II
Regulation of Common Elements

A. Maryland Law

According to RP §11-109(d)(12), the council of unit owners, or board of directors, if authority is so delegated in the condominium bylaws, has the express power to "regulate the use, maintenance, repair, replacement, and modification of [condominium] common elements", on behalf of all unit owners. Cf. RP §11-114(a) (board or council to maintain property and comprehensive liability insurance policies on common elements); §11-131(c)(1) (implied warranty on common elements to extend from developer to board or council). RP §11-104(c) also states that the condominium bylaws may contain provisions "regarding the management and operation of the condominium including any restriction on or requirement respecting the use and maintenance of the . . . common elements".3

2 RP §11-108(b) entitles a unit owner who has exclusive use of a particular LCE to deed the exclusive use of that LCE to another unit owner. In so doing, however, the unit owner cannot grant full legal title to the second unit owner, because the grantor does not individually own the absolute fee simple interest in the LCE.

The policy behind consolidating in one representative body the management and regulatory control of all condominium property, excluding the individual units, is tailored to the condominium life style. As one Florida appellate court pointed out:

"[T]o promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization." Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180, 181-82 (Fla. Dist. Ct. App. 1975).

Previously, this same court, in an action to enjoin a unit owner from substituting glass jalousies for porch screens, emphasized:

"Every man may justly consider his home his castle and himself as the king thereof; nonetheless his sovereign fiat to use his property as he pleases must yield, at least in degree, where ownership is in common or cooperation with others. The benefits of condominium living and ownership demand no less." Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685, 688 (Fla. Dist. Ct. App. 1971).

The board's adherence to and administration of the condominium declaration and bylaws ensures, to the extent possible, that "fair consideration ... be given to the rights and privileges of all owners and occupants of the condominium so as to provide a harmonious residential atmosphere", even though an individual unit owner's ability to vary an appurtenant LCE

3 As discussed in Part II B below, the OGVC Declaration and Bylaws contain several such provisions.

may be circumscribed. Dulaney Towers Maintenance Corp. v. O'Brey, 46 Md. App. 464, 466 (1980) (emphasis added). See Ryan v. Baptiste, 565 S.W.2d 196, 198 (Miss. App. 1978).

We here note that, under the statute, copies of the recorded condominium declaration and bylaws must be provided to a prospective unit owner on or before the time a contract of sale is signed. RP §11-126(b)(2) and 11-135(a)(1) and (2). Accordingly, each unit owner has notice of, and takes his or her property subject to, the express provisions of these documents. See Pepe v. Whispering Sands Condominium Association, 351 So.2d 755, 757-58 (Fla. Dist. Ct. App. 1977); Mayfair Engineering Co. v. Park, 318 So.2d 171, 173 (Fla. Dist. Ct. App. 1975). See also White Egret Condominium, Inc. v. Franklin, 379 So.2d 346, 350 (Fla. 1979).

B. OGVC Declaration and Bylaws

The OGVC Declaration explicitly states that a unit owner's right to use and enjoy the LCEs appurtenant to his or her unit is "subject to such reasonable rules and regulations as the Board of Directors . . . may from time to time enact". Article III, §2. See RP §11-111(b). The Condominium's Bylaws are far more detailed in this respect.

Article III, §2 of the OGVC Bylaws specifies the delegated powers and duties of the Board of Directors. This authority includes both the responsibility for controlling the use, operation, and maintenance of the common elements, Article III, §2(a) and (k), and the ability to enact "uniform Rules and Regulations from time to time for the use of the Property, as well as the conduct and enjoyment of the Unit owners", Article III, §2(i).

Section 13 of Article V (Operation of the Property) lists existing restrictions on the use of condominium property, "in order to provide for the congenial occupancy of the Property and for the protection of the values of the Units". The limited common elements are subject to extensive regulation.4 For example, the LCEs must be kept in an orderly and uncluttered condition; a "small, orderly house pet" is permitted, but it may not run unchecked on such property; laundry may not be hung from a balcony or patio, in fact, nothing may be stored or placed upon an LCE, absent consent from the Board. Article V, §13(h), (k), (n), and (o).

4 The Board is further authorized to adopt binding "house rules" relative to use of the condominium common elements. Article V, §13(q).

Finally, the Board has the express power to approve or deny any prospective alteration to condominium common elements or unit exteriors.5 Section 15 of Article V requires:

"The complete plans and specifications, showing the location, nature, shape, change ... [to be] submitted to and approved in writing as to [i] safety, [ii] the effect of any such alterations on the costs of maintaining and insuring the Condominium and [iii] harmony of design, color and location in relation to surrounding structures and topography, by the Board of Directors of the Association, or by the Architectural Control Committee designated by the Board of Directors."6

5 RP §11-115(2) states:

"Subject to the provisions of the declaration or bylaws and other provisions of law, a unit owner:

(2) May not alter, make additions to, or change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the condominium, without permission of the [board]."

In this regard, a unit owner's interest in a condominium LCE closely resembles an easement interest in real property. See generally Parrillo v. 1300 Lake Shore Drive Condominium, 431 N.E.2d 1221 (Ill. App. 1981); Everdell v. Carroll, 25 Md. App. 458, 462-64 (1975). Cf. Supervisor of Assessments of Anne Arundel Co. v. Bay Ridge Properties, Inc., 270 Md. 216, 223 (1973) (easement rights granted to lot owners for recreational use of beach). Just as an easement may not be modified to the detriment of the servient estate, absent mutual consent of both parties, see Reid v. Washington Gas Light Co., 232 Md. 545, 549 (1963), a unit owner may not alter features of an LCE, absent approval from the governing entity responsible for managing and regulating the use of condominium common elements on behalf of all unit owners.

C. The Standard of Reasonableness

Thus, by statutory law and express provision of the condominium documents, the Board of Directors has extensive authority to monitor and control the use and modification of condominium LCEs by a unit owner. A prospective owner is given advance notice of that authority. Accordingly, the owner's purchase of the unit involves acceptance of the condominium regime, with its concomitant restriction on the unit owner's ability to alter the property as he or she might otherwise desire.

Nevertheless, a consistent body of case law, as well as an express provision of the OGVC Declaration, requires that the exercise of the Board's authority over prospective LCE modifications be reasonable.

Specifically, Article III, §2 of the OGVC Declaration subjects a unit owner's use and enjoyment of the LCE appurtenant to his or her unit to "reasonable rules and regulations" enacted by the board of directors. The factor of "reasonableness" is one of the standards applied in judicial review of board regulatory activity. Hidden Harbour Estates, Inc. v. Basso, 393 So.2d 637, 640 (Fla. Dist. Ct. App. 1981); Ryan v. Baptiste, 565 S.W.2d at 198; Hidden Harbour Estates, Inc. v. Norman, 309 So.2d at 182. See Papalexiou v. Tower West Condominium, 401 A.2d 280, 285 (N.J. Super. 1979).7

6 According to the OGVC Bylaws, the Architectural Control Committee, effectively a subcommittee of the Board, has the authority to publish "statements of policy, standards, guidelines and establish such criteria relative to architectural styles or details, or other related matters, as it may consider necessary or appropriate". Article V, §20. A unit owner may protest a Committee decision in a hearing before the Board; Maryland statutory law provides recourse to the Maryland judicial system if the unit owner is dissatisfied with the Board's decision. RP §11-113(b)(4).

7 Other judicial standards used to test the validity of restrictions in a condominium declaration are (i) whether the restriction violates public policy, or (ii) whether it abrogates some fundamental constitutional right. Hidden Harbour Estates, Inc. v. Basso, 393 So.2d 637, 640 (Fla. Dist. Ct. App. 1981). See White Egret Condominium, Inc. v. Franklin, 379 So.2d 346, 349 (1979).

Essentially, the standard of "reasonableness" prevents a condominium board from adopting "arbitrary or capricious rules bearing no relationship to the health, happiness and enjoyment of life of the various unit owners". Hidden Harbour Estates v. Norman, 309 So.2d at 182. The court in Hidden Harbour, sustaining a rule that prohibited the use of alcoholic beverages in condominium common elements, remarked: "It is not necessary that conduct be so offensive as to constitute a nuisance in order to justify regulation thereof." Id. See also Ritchey v. Villa Nueva Condominium Ass'n, 146 Cal. Rptr. 695, 701 (Cal. App. 1978).

Evaluation of a board's "reasonableness" in its restrictions on the use or modification of condominium LCEs depends of necessity on the facts and circumstances of the particular case. However, courts have expressly recognized a board's desire to maintain aesthetic uniformity in a condominium's exterior as a legitimate reason for rejecting proposed architectural changes. Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685. See Juno by the Sea North Condominium v. Manfredonia, 397 So.2d at 304. Courts have also upheld, for example, board action with regard to the installation of locks on exterior entry-ways, Ryan v. Baptiste, 565 S.W.2d 196, and the enforcement of "house rules" allowing no more than one pet per unit, Dulaney Towers v. O'Brey, 46 Md. App. 464.

In summary, we believe that two elements must be present in order to sustain the validity of a board's decision or regulation regarding the use or modification of a condominium LCE. First, the board's authority to regulate the use or modification of the common elements must be exercised in accordance with Maryland statutory law, as well as relevant provisions of the condominium's own declaration and bylaws. See Juno By the Sea, 397 So.2d 297. Second, the board's decision or regulation must be reasonable, based on a legitimate concern for the health, happiness, and well-being of all the unit owners.

III
Maintenance of the LCEs

RP §11-108.1 states:

"Except to the extent otherwise provided by the declaration or bylaws, the council of unit owners [or board] is responsible for maintenance, repair, and replacement of the common elements".8

The OGVC Board's general power to provide for maintenance of the common elements is articulated in Article II, §2(a) of the OGVC Bylaws. However, it is Article V, §12 that contains specific details as to responsibility for the maintenance and repair of the common elements.

According to Article V, §12(b)(i) of the OGVC Bylaws, each unit owner, at his or her expense, is responsible for the maintenance, repair, and replacement of fixtures, equipment, and the structure "wholly contained within [the] Unit and/or in a limited common element designated in the Declaration as being appurtenant to [the] Unit". Moreover, each unit owner must perform, at his or her expense, "the normal maintenance for any balcony or patio which is designated in the Declaration as being a limited common element appurtenant to [the] Unit". OGVC Bylaws, Article V, §12(b)(ii). Normal maintenance includes clearing the balcony or patio in both winter and summer, as well as performing repairs occasioned by unit owner misuse. To the extent that §12(b) does not require the unit owner to maintain or repair the common elements, the Association is responsible. See OGVC Bylaws, Article V, §12(a)(i), (iii), and (iv). See also Casita de Castilian, Inc. v. Kamrath, 629 P.2d 562, 564 (Ariz. Ct. App. 1981).

8 As noted in Part I A above, RP §11-101(b) defines common elements to include both limited and general common elements.

Clearly, the OGVC Bylaws place the primary responsibility for maintenance and repair of LCEs upon the unit owner.9 Nevertheless, we observe that, by law, the board must provide

9 We understand that a dispute has arisen concerning a unit owner's ability to repair existing LCE defects in light of a potential suit by the Board against the OGVC developer for breach of implied warranties on the common elements. Discussion of this particular issue is beyond the scope of this Opinion. We merely observe that RP §11-131(c)(1) provides that an implied warranty runs from the developer to the council of unit owners (or board); nevertheless, a suit for enforcement of the warranty on the LCEs may be brought by either the council or the unit owner to whose use the LCE is reserved. RP §11-131(c)(4). See also Herlihy v. Dunbar Builders Corp., 415 N.E.2d 1224 (Ill. App. 1980); Greentree Condominium Ass'n v. RSP Corp., 415 A.2d 248 (Conn. Sup. 1980).

insurance coverage for the LCEs, even though it is the unit owner that has both exclusive use of and responsibility for maintaining these areas.

Specifically, RP §11-114(a) requires the board to maintain:

"(1) Property insurance on the common elements . . . insuring against those risks of direct physical loss commonly insured against, in amounts determined by the council of unit owners but not less than any amounts specified in the declaration or bylaws; and

(2) Comprehensive general liability insurance, including medical payments insurance, in an amount determined by the council of unit owners, but not less than any amount specified in the declaration or bylaws, covering occurrences commonly insured against for death, bodily injury, and property damage arising out of or in connection with the use, ownership, or maintenance of the common elements."

RP §11-114(c)(1) continues: "Insurance policies carried pursuant to subsection (a) shall provide that . . . [e]ach unit owner is an insured person under the policy with respect to liability arising out of his ownership of an undivided interest in the common elements [the LCEs]." See OGVC Bylaws, Article V, §9, ¶¶ 1 and 9.10

10 In this regard, even though a unit owner is responsible for "normal" maintenance, repair, or replacement, he or she would not be liable for mishaps that occur on the LCE because of basic structural defects. See RP §11-114(a)(1) and (2).

IV
Conclusion

In summary, it is our opinion that the Old Georgetown Village Condominium Board of Directors has the statutory authority to monitor and control the appearance of the condominium limited common elements. This authority is further detailed in the condominium's declaration and bylaws. The Board's authority to control the LCEs' appearance also entails responsibility for providing insurance coverage on the LCEs. In contrast, despite the Board's control over the general appearance of these areas, the individual unit owner is responsible for the normal maintenance and upkeep of the LCEs appurtenant to his or her unit.

Stephen H. Sachs, Attorney General
Avery Aisenstark, Chief Counsel, Opinions and Advice
Lynette M. Phillips, Staff Attorney, Opinions and Advice

Editor's Note: The preceding Opinion was originally written as a letter of advice. Because the issues reviewed have not as yet been addressed by the Maryland appellate courts, it is published here in a slightly revised format.