Construction OberView: Condo Unit Owners Have Right of Action Against Council of Unit Owners for Failing to File Timely Suit Against Developer for Defects in Common Elements

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The Maryland Court of Special Appeals has recognized a cause of action by individual condominium unit owners where the council of unit owners has failed to take timely legal action against the project’s developer to address evidence of construction defects in the common elements. I was retained to take an appeal on behalf of a group of individual unit owners at the Avalon Court Six Condominium in Pikesville. In a reported opinion filed on September 29, 2011, the Court of Special Appeals held that individual unit owners have a right of action for negligence against the council of unit owners, acting through the board of directors, in failing to address defects in the common elements by bringing a timely claim against the developer. Greenstein et al. v. Council of Unit Owners of Avalon Court Six Condominium, Inc., No. 0485, September Term, 2009.

Under the governing documents for Avalon Court Six, in addition to the fact that the council of unit owners had the duty to maintain the common elements, its board of directors had the exclusive right to bring a suit relating to the common elements. Suit was filed against the developer in August 2006. However, it was held that the claim was not filed within the applicable statute of limitations....

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