Can a Maryland homeowners association ban family day care homes with a vote of just a small quorum instead of a majority of all members?

Plain-English summary

A member of the House of Delegates asked the Attorney General whether a homeowners association could enforce a bylaw prohibiting family day care homes if the prohibition was approved by only a majority of a quorum present at a meeting, rather than a majority of the association's entire membership. Some associations had bylaws setting quorums as low as 10% of membership, meaning a handful of members attending a meeting could impose the prohibition under that reading of the statute.

The Real Property Article's Homeowners Association Act generally protected the right to operate a family day care home, but let an association prohibit one if the prohibition was "approved by a simple majority of the total eligible voters of the homeowners association under the voting procedures contained in the declaration or bylaws." The Attorney General concluded that phrase required 50% plus one of the association's entire eligible membership to approve a prohibition, not just a majority of a small quorum, reasoning that the "voting procedures" language preserved an association's authority over how a vote is conducted (notice, ballots, and the like) but did not let an association redefine "a simple majority of the total eligible voters" down to a majority of a partial quorum. That reading was reinforced by the bill's legislative history: as introduced, the bill would have allowed a prohibition on a simple majority of votes cast at a meeting conducted under the bylaws, but a community association trade group warned this would let a tiny minority of members, in an example a quorum of 10 out of 100 unit owners, impose a ban, so the bill was amended before passage to require 51% of all eligible members. Because the statute reflected a legislative choice to tip the balance in favor of allowing family day care homes at a time of serious day care shortages, the opinion concluded any bylaw or vote approving a prohibition by anything less than a majority of the whole membership was legally ineffective.

Currency note

This opinion was issued in 1991. 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 the current text of RP §11B-111.1 and the Maryland Homeowners Association Act before relying on any specific rule described here.

Common questions

Could a Maryland homeowners association ban family day care homes with only a majority of the members who showed up to a meeting?
No. The opinion concluded that RP §11B-111.1(d)(2) required approval by a simple majority of the association's total eligible voters, meaning the entire membership, not just a majority of whatever smaller quorum a meeting happened to draw.

What did the phrase "under the voting procedures contained in the declaration or bylaws" actually let an association control?
The opinion read that phrase to preserve an association's authority over how a vote is conducted, such as notice and balloting methods, but not to let bylaws lower the required approval threshold below a majority of the entire membership.

How did the bill's legislative history support this reading?
The opinion pointed to a legislative history in which a community association trade group warned that the bill as introduced would let a small quorum, as little as 10% of members, impose a prohibition, and recommended the 51%-of-all-members standard that the General Assembly then adopted before passage.

Background and statutory framework

RP §11B-111.1, part of the Maryland Homeowners Association Act enacted by Chapter 492 (House Bill 464) of the Laws of Maryland 1989 (with a parallel Condominium Act provision added by Chapter 491, Senate Bill 567 of the same session), generally allowed the operation of a "family day care home," defined by reference to §5-501(d) and (e) of the Family Law Article as a residence where a paid provider cares for a child under 13 or a developmentally disabled person under 21 for less than 24 hours a day. Under RP §11B-111.1(d)(1) and (2), an association could adopt a bylaw or covenant expressly prohibiting such use, but that prohibition could not be enforced unless approved by a simple majority of the association's total eligible voters, and under RP §11B-111.1(d)(4) a prohibition could later be eliminated the same way. The opinion applied ordinary statutory construction principles, citing Morris v. Prince George's County on starting with the statute's plain language, and Baltimore County Coalition v. Baltimore County and Kaczorowski v. City of Baltimore on interpreting language in light of legislative purpose and history, to conclude the General Assembly meant to require a true majority of the whole membership.

Citations and references

Statutes:

• §11B-111.1 of the Real Property Article, the Homeowners Association Act's family day care home provision
• RP §11B-111.1(c) and (e), authorizing an association to impose certain regulations on family day care homes
• RP §11B-111.1(d), the mechanism for a homeowners association to prohibit family day care homes
• RP §11B-111.1(d)(1), authorizing a bylaw or covenant expressly prohibiting family day care homes
• RP §11B-111.1(d)(2), requiring approval by a simple majority of the total eligible voters for such a prohibition to be enforceable
• RP §11B-111.1(d)(4), allowing later elimination of a prohibition by the same voting standard
• §5-501(d) and (e) of the Family Law Article, defining "family day care home"
• RP §11B-111.1(a)(3), incorporating that definition for homeowners association purposes
• Chapter 492 (House Bill 464) of the Laws of Maryland 1989, enacting the Homeowners Association Act's family day care provision
• Chapter 491 (Senate Bill 567) of the Laws of Maryland 1989, the parallel Condominium Act amendment

Cases:

• Morris v. Prince George's County, 319 Md. 597, 603, 573 A.2d 1346 (1990), on statutory construction beginning with the statute's plain language
• Baltimore County Coalition v. Baltimore County, 321 Md. 184, 203, 582 A.2d 510 (1990), on construing a statute to advance its legislative policy and context
• Wilde v. Swanson, 314 Md. 80, 92, 548 A.2d 837 (1988), on consulting legislative history to determine legislative purpose
• Kaczorowski v. City of Baltimore, 309 Md. 505, 515, 525 A.2d 628 (1987), same

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/1991/Volume76_1991.pdf (this opinion appears at printed pages 90-94 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

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

CONDOMINIUMS, COOPERATIVES, AND
HOMEOWNERS ASSOCIATIONS

Child Care - Majority Vote Required If Homeowners
Association Is To Prohibit Family Day Care Home

                           May 7, 1991

The Honorable Robert L. Flanagan
House of Delegates

 You have requested our opinion concerning §11B-111.1 of the Real

Property Article ("RP" Article), a provision in the Maryland
Homeowners Association Act dealing with family day care homes.
Specifically, you ask whether a homeowners association may enforce a
voting procedure under which a vote of less than a majority of the
members of the homeowners association may prohibit the use of a
residence as a family day care home.

 For the reasons stated below, we conclude that a family day care

home may be prohibited by a homeowners association only if the
prohibition is approved by a majority of all of the members of the
homeowners association. Any voting procedure in the bylaws of an
association that would allow such a prohibition to be imposed by any
lesser number of members of the association would be inconsistent with
RP §11B-111.1(d)(2).

                                  I

   Family Day Care Homes In Homeowners Associations

In Chapter 492 (House Bill 464) of the Laws of Maryland 1989, the

General Assembly amended the Maryland Homeowners Association Act
to address the operation of family day care homes in a homeowners
association.1 This provision generally allows the operation of family day
care homes in a homeowners association, subject to the right of the
homeowners association to impose certain regulations. RP §11B-
111.1(c) and (e).2

However, the statute permits a homeowners association to prohibit

family day care homes if it follows the procedure set out in RP §11B-
111.1(d):

            (1) Subject to paragraphs (2)
        and (3) of this subsection, a homeowners association
        may include in its declaration, bylaws, or recorded
        covenants and restrictions a provision expressly
        prohibiting the use of a residence as a family day care
        home.

             (ii) A provision described under subparagraph (i)
        of this paragraph expressly prohibiting the use of a
        residence as a family day care home shall apply to an
        existing family day care home in the homeowners
        association.

             (2) A provision described under paragraph (l)(i)
        of this subsection expressly prohibiting the use of a
        residence as a family day care home may not enforced
        unless it is approved by a simple majority of the total
        eligible voters of the homeowners association under
        the voting procedures contained in the declaration or
        bylaws of the homeowners association.3

 We understand from your letter that some homeowners associations

have sought to prohibit family day care homes on the basis of a vote of
a majority of a quorum of the members of the homeowners association.
Because the bylaws of an association invariably will specify some
number less than the whole of the membership as a quorum, in some
instances as low as 10% of the membership, a majority of the quorum
will always be less than a majority of the entire membership of the
association.

 1
   See also Chapter 491 (Senate Bill 567) of the Laws of Maryland 1989.

The legislation added comparable provisions to the Maryland Condominium Act.
See RP §11G-111.1.

 2
    A "family day care home" is a residence in which "care [is] given to a

child under the age of 13 years or to any developmentally disabled person under the
age of 21 years of age, in place of parental care for less than 24 hours a day, in a
residence other than the child's residence, for which the day care provider is paid."
§5-501(d) and (e) of the Family Law Article; RP §11B-111.1(a)(3).

 3
    If such a prohibition is adopted, it "may be eliminated and family day

care may be permitted by the approval of a simple majority of the total eligible
voters of the homeowners association under the voting procedures contained in the
declaration or bylaws of the homeowners association." RP §11B-111.1(d)(4).

                                II

               Construction of RP §111.1(d)(2)

A. Statutory Language

 "[T]he beginning point of statutory construction is the language of

the statute itself." Morris v. Prince George's County, 319 Md. 597,
603, 573 A.2d 1346 (1990). "[S]ometimes," the Court of Appeals
continued, "it may not be necessary to go further than scrutiny of
statutory language, for the language itself may be sufficiently expressive
of the legislative purpose or goal." Id.

 In our view, the language of RP §11B-111.1(d)(2) rather clearly

conveys the legislative objective. The provision that disallows a
prohibition of family day care homes "unless it is approved by a simple
majority of the total eligible voters of the homeowners association"
decisively reflects an intention that this use of a residence not be
prohibited unless 50% plus one of all of the people who constitute the
association are opposed to the use. At a time when a shortage of day
care is a serious public policy issue, the General Assembly meant to tip
the scales in favor of family day care homes.

 To be sure, the required approval "by a simple majority of the total

eligible voters of the homeowners association" is made subject to "the
voting procedures contained in the declaration or bylaws of the
homeowners association." But that latter phrase should not be construed
to permit a number of votes smaller than "a simple majority of the total
eligible voters" to impose the prohibition. "When we look at the
statutory language, we attempt to give effect to all the words in the
statute." Morris v. Prince George's County, 319 Md. at 603. If the
phrase about "voting procedures" were construed to allow a homeowners
association to authorize a majority of a small quorum to impose the
prohibition, the legislative requirement that such a decision be taken
only by a majority of the entire membership would be undermined.

 This construction does not render meaningless the phrase "under the

voting procedures contained in the declaration or bylaws of the
homeowners association." This language preserves the association's
right to determine methods of voting and the like.

B. Legislative History

  When we construe a statute, we do so "in a way that advances the

legislative policy involved." Baltimore County Coalition v. Baltimore
County, 321 Md. 184, 203, 582 A.2d 510 (1990). We "consider not
only the literal or usual meaning of ... words, but their meaning and
effect in the context in which the words were used, and in light of the
setting, the objectives, and purpose of the enactment." Baltimore
County Coalition, 321 Md. at 204. And we are always free to consult
legislative history "as part of the process of determining the legislative
purpose and goal." Wilde v. Swanson, 314 Md. 80, 92, 548 A.2d 837
(1988). See also Morris v. Prince George's Co., 319 Md. at 604;
Kaczorowski v. City of Baltimore, 309 Md. 505, 515, 525 A.2d 628
(1987).

The legislative history of this provision fully supports our

construction of the language. As you point out in your request for our
opinion, this very issue was considered and resolved by the General
Assembly.

 As introduced, House Bill 464 would have permitted a homeowners

association to prohibit family day care homes on approval "by the
eligible voters of the homeowners association by a simple majority of
the votes cast." This vote was to be "conducted in accordance with the
terms of the bylaws and rules" of the association. Had this provision
been enacted, undoubtedly a majority of whatever quorum was specified
in an association's bylaws would have been sufficient to approve a
prohibition.

 However, a local chapter of the Community Associations Institute,

a nonprofit organization representing the interest of community
associations, pointed out that this language "would allow an extreme
minority of members of any association to prohibit family day care and
could render the legislation meaningless. Many homeowners
associations have very low quorum requirements, some as low as 10%,
and, in effect, a meeting could be held where a quorum of 10 unit
owners are present in a 100 unit association and a majority of those 10
unit owners could implement the restriction." Letter from Steven A.
Silverman to Delegate William S. Horne, Chairman of the House
Judiciary Committee (February 6, 1989).

  This key participant in the legislative process recommended that the

bill "be modified to provide that the association may expressly prohibit
the use of a unit as a family day care home upon an affirmative vote of
51% of all eligible members of the association." RP §11B-111.1(d)(2)
was amended to accomplish that modification.

                            III

                        Conclusion

In summary, it is our opinion that a family day care home may be

prohibited in a community association only with the approval of 50%
plus one of all members of the association. Any attempt by a
homeowners association to enforce a prohibition approved by any
smaller number of members would be legally ineffective.

                                       J. Joseph Curran, Jr.
                                       Attorney General

                                       Jack Schwartz
                                       Chief Counsel
                                       Opinions and Advice