A recent lawsuit filed in Baltimore, Maryland, by one condominium unit owner against a neighboring unit owner and her condominium association illustrates potential liability for condominium associations in unit owner disputes.

The Plaintiff, Dr. Medea M. Marella, is a condominium unit owner at the Harper House Condominiums in Maryland. According to the allegations in her complaint, in 2004, Dr. Marella noticed the strong smell of cigarette smoke entering her unit. She traced the source of the smoke back to her neighboring unit owner on the other side of a common wall between the two units. Dr. Marella complained to her neighbor who refused to stop smoking in the neighboring unit. Dr. Marella then complained to the condominium association about the common ductwork between the units that she alleged was contributing to the smoke transfer from one unit to the other. The smoking neighbor and the association both allegedly refused to act until Dr. Marella obtained legal counsel and proved that smoke was being transferred through common ductwork into her unit. The association then conducted repairs on the ductwork, alleviating the problem for a period of time, but the strong smoke smell came back in 2010. Dr. Marella tried again to resolve the issue with her neighbor and the condominium association to no avail. She then sued her neighbor on a nuisance theory, and her condominium association for breach of fiduciary duty.

The nuisance count against the neighbor is based on her neighbor’s alleged substantial interference with the use and enjoyment of Dr. Marella’s condominium unit, because Dr. Marella claimed that she was unable to use one bedroom, unable to invite guests over, and had suffered serious medical complications from the secondhand smoke. The breach of fiduciary duty count against the association alleges that the condominium association Declaration, By-Laws, and Maryland law all require the association to inspect, maintain, and repair common elements of the condominium, namely the common ductwork and dividing wall between the units. As Shaun Marker pointed out in Association Held Responsible for Repairs to Interconnected System of Pipes Viewed as Common Property, individual unit owner property issues are often tied to common systems such as plumbing or ductwork, implicating the association and a master insurance policy.

Although these facts are merely the allegations of one side in a lawsuit, if proven to be true, it could result in liability on the condominium association for not resolving the dispute between neighbors that involves alleged defects in common elements of condominium property. Insurance issues weren’t raised in the complaint, but as I previously mentioned in Property Damage Claims Can Also Implicate Liability Insurance Issues, it is highly likely that either a property insurance claim will be made or a liability insurer will be called in to defend against this lawsuit.