Montgomery commission provides mediation, education for homeowners -- Gazette.Net


Among the houses in Potomac’s Avenel community, Camille Baroni’s home stands unique among the picturesque skyline.

Draped in blue tarpaulin to protect her home from the elements, her cedar shake roof is the second in 10 years she has had to replace. Hail destroyed the first in 2003, curling, breaking and removing the wooden shingles. A hurricane damaged the second in August, allowing water to leak into a couple of rooms of the home.

Instead of replacing her roof with the same material that had failed, or alternatives known to be less than well-performing products, Baroni sought permission to put on her home an asphalt roof — the same roof her next-door neighbor Rand Fishbein installed after the 2003 hail storm.

However, her homeowners association, Avenel Community Association Inc., denied the asphalt roof. Her case now is before Montgomery County’s Commission on Common Ownership Communities as she challenges the association’s denial based on its own governing documents, the precedence set by Fishbein’s roof and Montgomery County’s fire code.

In 2006, Fishbein went before a CCOC panel challenging a denial by Avenel for an asphalt roof and won. The commission panel determined denying him the ability to install the roof was unreasonable as, under Section 22-98 of the Montgomery County fire code, he could not be required to install a roof which did not meet the fire code, and it would be unreasonable to ask him to redesign his roof to support natural slate.

Both cases are typical of those heard by the CCOC, in that most of the complaints involve architectural details, said Peter Drymalski, a lawyer and investigator with the Montgomery County Office of Consumer Protection and the county staffer for the commission.

Established in 1991 with the Office of Common Ownership Communities as part of the Office of Consumer Protection, the commission registers community associations, educates associations and their members, and resolves disputes between homeowners and their governing associations. It also reviews proposed state and county legislation, and offers positions as it relates to common ownership communities.

The commission includes eight members who are residents of community associations and seven members who are professionals in the housing field, Drymalski said.

Montgomery County's Common Ownership Community legislation applies to condominiums, cooperatives and homeowner associations throughout the county, with the exception of those within the city of Gaithersburg.

More than 1,000 associations, composed of about 126,000 homes, are registered with the CCOC, meaning it serves about one-third of county residents, Drymalski said. It is funded primarily through a $3 annual fee per home paid by associations.

While the commission is more than 20 years old and county code requires associations to inform their membership about it each year, many people learn of it only when it becomes a remedial option for their situation.

“That tends to be the case, and we are trying to overcome it,” said Liz Molloy, chairwoman of the CCOC.

It was in the context of his case and through talking with other homeowners that Fishbein heard about the commission and said he found it to be a reasonable avenue for his situation.

Education is a priority of the commission, which provides a forum outside of court where residents and associations can resolve disputes. It publishes a newsletter and has produced pamphlets, fact sheets and guides about itself and how to prepare for a hearing.

“We are here if someone has a complaint that they believe falls within jurisdiction of the commission, we encourage them to file it and of course we would consider it,” Molloy said. “But we really want people to be working well within the system and not have to come to us.”

In 2011, the commission received 56 formal complaints, staged 11 hearings and issued 15 decisions, Drymalski said. In 2010, it received 91 complaints, conducted 17 hearings and issued 13 decisions.

Not every complaint that comes before the commission is heard by a panel, Molloy said. Panels consist of three members: a resident, a professional and a volunteer attorney, who serves as chair.

To be heard, both parties must first exhaust other options for resolution, such as mediation. Additionally, a complaint must meet the jurisdictional standards of the commission, set forth in the county code, she said.

The commission hears disputes involving the authority of a governing body to spend association funds, to alter or add to a common area or element, to require any person to take or not take any action, or to pay a fee, fine or assessment, are within the commission’s jurisdiction. Also within its jurisdiction are disputes surrounding the alleged failure of an association's governing body to properly conduct an election, give adequate notice of a meeting or other action, properly conduct a meeting, properly adopt a budget or rule, maintain or audit books and records, or allow inspection of books and records.

Each month, the commission meets and determines which complaints it has authority to hear. A county attorney is present to advise the commission as necessary, Molloy said.

The CCOC does not consider the merits of a complaint, but rather whether the complaint is within its authority to have a hearing. If the commission rejects jurisdiction of a complaint, the case is closed, but either party still has the right to sue in court.

Associations tend to win more disputes than homeowners, Drymalski said. Associations complain about issues such as violation of an architectural rule, where homeowner complaints are seldom so simple, he said.

Additionally, associations are more apt to hire legal representation and likely have been through a hearing before, where homeowners often are before the panel for the first time and can and often represent themselves, he said.

The commission has a booklet to aid homeowners in preparing for their case, but it is far from providing the same understanding as a law degree, Drymalski said.

Fishbein represented himself in 2006 saying he thought the law and governing documents of his association clearly supported his position and the cost of legal representation would be ill-spent.

Baroni said she opted to represent herself in her case, in part, because of the anticipated expense of hiring legal representation, but also because she felt she had been able to sufficiently educate herself about Avenel’s governing documents, available roofing alternatives — especially the failure rates of those alternatives — and the county code.

But she said she has faced challenges presenting her case because she is not a lawyer.

“I went there to present a case and I found that I was stifled by procedure and protocol, and what that meant to me was that the process was more important than the story,” she said.

But Baroni said she is optimistic that once her case is made, she could win based on its facts.

“A homeowner does not bring a case to be frivolous,” she said. “A homeowner brings a case because their primary investment, mostly, in most cases, is being treated in a manner which the homeowner wants another venue to address.”

In deciding disputes, the panels frequently are subject to what is known as the business judgment rule, something Drymalski said homeowners often struggle to understand.

Under the rule, a judicial body will give deference to the judgment of a community association board, said Jason Fisher of Lerch Early & Brewer of Bethesda, a lawyer with 13 years in community association law and member of the Community Associations Institute, a nonprofit trade organization. Fisher also is Avenel’s attorney in the Baroni case.

In the case of the CCOC, the panel presumes the association board acted in good faith when making its decision, and that its decision should not be overturned unless the board knowingly acted in bad faith, he said.

While the panel might disagree with an association’s decision, under the business judgment rule it assumes the association board is in the best position to make such a decision, Fisher said.

Under corporate law, a board has the authority to make its own rules so long as it does so within the functions of its bylaws and covenants, Drymalski said.

When the Avenel board upheld the decision by its modifications committee to deny Baroni the asphalt roof, its decision was effectively a business judgment, Fisher said.

He said the association amended its architectural guidelines in 2006 with respect to roofing as a direct response to Fishbein’s case.

Avenel holds that its decision on Baroni’s roof was done in good faith and within its established rules, Fisher said.

But Baroni disagrees. Her case is pending and scheduled to continue in July.

A CCOC panel’s decision is legally binding, but it does not take precedence over other decisions by a future panel, Drymalski said. However, subsequent panels can give weight to prior decisions if they choose.

Parties can take or appeal a case to the courts if the commisison doesn’t hear a case or if a party feels it was decided unfavorably. Decisions of the commission panel can be appealed to the Montgomery County Circuit Court as an appeal of record, where deference will given to the commission’s ruling and the case will only reviewed by the court for legal error or fact finding, Fisher said.

Residents also can circulate a petition for a special membership meeting of their association to change a rule, or they can run for their board.