Daily Development for Friday, April 14, 2006
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

CONDOMINIUMS; RIGHTS OF UNIT OWNERS; EASEMENTS: Easement to conduct “repairs” on appliances within units gives to unit owner the right to push venting system for clothes dryer (originally installed unlawfully by developer) through common element wall to vent to outside, as required by building code, without compliance with Declaration provision that association consent must be sought for any modification of exterior.

Garfunk v. The Cloisters at Charles, Inc., Md. C.t App. No. 79 (4/13/06)

Garfunk purchased a model unit in a condominium development.  The unit had a clothes dryer already installed.  Garfunk used it for seven years before, in the words of the court, the dryer “fell ill.”  When Garfunk arranged for a replacement, the installers informed her that the original dryer vented into an interior space containing live flames of both the forced air heating unit and the hot water heater.  This was a major fire hazard and a violation of local code, that required that clothes dryers be vented to the outside.  The court commented that the original builder, in developing the model unit “forgot” to vent the dryer.

The installer  refused  to replace the dryer with the vent where it had been, and Garfunk agreed that the installer should relocate the vent so that it passed through an exterior wall and vented outside, adjacent to her garage.  This spot was very near the entrance to an adjoining condominium unit, and the owner of that unit asked the association to compel Garfunk to remove the vent.

The Association filed suit to enjoin the maintenance of the vent.  The trial court granted the injunction, but Garfunk appealed.  The Court of Special Appeals affirmed, and Garfunk, apparently quite set on her dryer vent, appealed again.  At the level of the Maryland Court of Appeals, Garfunk prevailed in a split decision.

At issue was the interpretation of the easement rights given to unit residents in the original Declaration. The critical language construed by the court consisted of several provisions, some empowering the Association, but separate language granting easements rights to the unit owner.  As to the power of the association to control changes in units, the Declaration provided as follows:

“Subject to the provisions of the4 declaration or bylaws and other provisions of law, a unit owner:
                (1) May make an improvements or alterations to his unit that do not impair the structural integrity or mechanical systems or lessen the support of any portion of the condominium. 

                (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 council of unit owners.”:

But the Declaration also gave an easement to unit owners that apparently was independent of association approval:

“In addition to any easement established by law, each unit shall have, appurtenant thereto, an easement in the common elements for the purposes of providing maintenance, support, repair or service for such unit to and for the ducts, pipes, conduits, vents, plumbing, wiring and other utility services to the unit.”

Garfunk argued that this easement gave her the right to extend her dryer vent outside the unit without first consulting the association, as such act in her case was a “repair,” made necessary to remedy the faulty condition constructed by the original builder.  The lower appeals court had dodged the issue of interpreting the easement directly, stating instead  that an easement held by a condominium easement owner necessarily had to be viewed as “distinguishable from the traditional concept of easement,” since, in effect, the unit owner is both a dominant and servient owner.  Consequently, the interests of the community gave way to the autonomy or use normally associated with a dominant easement owner. 

The Maryland high court disagreed, ruling that other language in the declaration and statutes made plain that unit owners had all the normal property rights associated with ownership of their units. 

Having concluded that the easement of the unit owner necessarily was paramount to the rights of the Association, the high court then had to move to the issue of whether Garfunk’s maintenance easement gave her the right to punch a hole through the exterior of the common elements in order to vent her dryer.  (The court did not that the dryer vent itself was, under the language of the Declaration, not a common element, but individually owned by Garfunk.)

The court noted that, if the vent had been installed properly, there would have been no question that Gafunk would have had an easement for her vent to pass through the common element walls. But did this mean that she could push through the walls without prior consent when her vent did not already do so?  The court held that she could. 

“It was reasonable for petitioner to remedy the hazard created by the improper original construction of the dryer exhaust system.  In order to reasonably enjoy the grant of the easement, petitioner was entitled to install an exterior dryer exhaust vent. . . .”

The association argued that such a construction would open a “Pandora’s box” of potentially abusive behavior by unit owners.  Whenever a unit owner wanted to make a change in a utility connection, it would be free to carry out such a change without seeking association consent..  The court disagreed.  It stated that Gafunk’s situation was unique.  She alone did not have a dryer vent installed with her original unit.  She was not upgrading or replacing a facility, she was repairing an existing facility that was defective and unlawful when she received it.  Thus, only she was entitled to push her vent through the wall without association consent.    

The court went on to discuss whether the installation of the dryer vent at the location in question was necessary.  Although it did not say why it looked at this question, presumably if it was not necessary to fix the problem in this way, Garfunk did not have the right to do so.  But it is unfortunate that the court does not clarify this point, as we really have uncertainty as to what it views as the level of autonomy that Garfunk had.  It does comment that individual unit owners might have a claim against Garfunk, but doesn’t say what kind of claim (nuisance?)

The court concluded that, based on the evidence, Garfunk’s location of the vent at the subject location was effectively the only reasonable means of effecting the “repair” in question.

Three judges dissented on the grounds that the broad interpretation of the word “repair” and the subordination of the association’s approval rights to the unit owner’s repair right combined to endanger the well being of all associations.  The court was of the view that the association and Garfunk should have been compelled to negotiate to a satisfactory venting point - and to do this the court below should have concluded that Garfunk was required to get prior consent  - which, of course, the association could not withhold unreasonably.

Comment 1: If the majority is correct that the association failed to present evidence that there were reasonable alternatives to the location of the vent, and the law required an outside vent, then wouldn’t it be a meaningless requirement to compel Garfunk to go back now and seek association approval?  The association certainly had adequate opportunity to demonstrate how it was injured by Garfunk’s vent location, and wasn’t able to do so.  Therefore, the dissent probably should have been a concurrence.

Comment 2: It’s hard to blame the lawyers here.  How can one draft documents to take into account stupid construction errors on the part of your client developer?  The best that can be said for this situation was that, fortunately, Garfunk and her now unfriendly neighbors did not blow up together one evening during a “towel run” in the dryer.

But the problem is an interesting one from the standpoint of construction of condo documents.  .  Necessarily, the easements created for unit owners, and all other rights, are part of an organic whole - the creation of a community.  Still, the whole notion of the community is that some rights are held individually while others are held commonly.  To conclude that it is necessary to read all property interests vested in individual owners as subject to a “community gloss” is to minimize private ownership in a way that likely is inconsistent with what owners think they’re buying.

It is not surprising, however, that association advocates would take a different view, since they are focussed on the successful operation of the community.  It is for this reason that we get constant chipping away at limited common element rights, especially parking rights, and subordination of legitimate expectations of unit owners to broad powers in the association to amend the Declaration.  It’s a difficult balance. 

Comment 3:   The editor has long been of the view that the physical use rights that an affirmative easement creates are quintessential real property interests, and ought to be honored as such.  Consequently, he is not of the view that such rights ought to be subjected to a “condominium gloss.” 

As to the second part of the opinion - the notion that the right to “repair” includes the right to extend a vent pipe through a common element wall in order to comply with local building codes - that’s a little tougher, but in the end he agrees with that as well, and feels that it is satisfactory when the court notes that the interpretation is limited by these special facts.  

Comment 4: It could never happen here department: The editor’s dryer vent is a pair of old panty hose (not the editor’s) attached to a hose coming out of the dryer.  The panty hose are in a different part of the basement and through a wall from the open flames in the heaters, and there’s more than enough other junk likely to cause conflagration so that the dryer lint will just have to get in line. 

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