Andrews v. City of Greenbelt

Digges, J., delivered the opinion of the Court. In accord with a national trend, the General Assembly of ⁷¹ Maryland in 1963 authorized the existence of a communal form of estate in property consisting of individually owned units which are supported by collectively held facilities and areas. Md. Laws, 1963, ch. 387, presently codified with amendments as § 11-101 etseq. of the Real Property Article, Md. Code (1974,1981 Repl. Vol.).

The dispute here presents us with the novel question of whether the individual unit owners in such a "condominium regime” are entitled to separate awards for consequential damages to their respective units which result from a partial taking of the general common elements by way of eminent domain.* 1 The appellants, twenty-four of the individual unit owners in Greenbriar Condominiums — Phase I, here contend that the trial judge erred in omitting their names from the inquisition and in instructing the jury to determine a lump sum compensation award in favor of the council of unit owners, 2 as just compensation for the recoverable losses ⁷² suffered by all the parties in the complex. Even though the condominium documents ** 3 in this case appropriately authorize the council of owners to receive on behalf of the unit owners the damages payable for injury to the general common elements, we agree with the appellants that in order to effectuate the taking of any portion of these elements each unit owner must be named in the inquisition form submitted to the jury. We are unable, however, to determine from the record before us whether an individual unit holder, as opposed to the council of unit owners, is entitled to personally receive the damages, if any, for consequential injury to his respective unit caused by the city’s eminent domain action. We shall therefore vacate the judgment, and the inquisition upon which it was entered, and remand the matter to the circuit court for further proceedings.

This controversy began when the City of Greenbelt, Maryland, decided to construct a pedestrian bridge, principally as an access route for students attending the Eleanor Roosevelt High School, over the heavily travelled Baltimore-Washington Parkway. In order to accomplish this objective the city found it necessary to acquire in fee simple a small parcel of a parking lot (approximately one tenth of an acre) constituting a portion of the general common elements of the Greenbriar Condominiums. 4 Although not originally named as parties in the first amended condemnation petition, as were the developer, its corporate agent and the Council of Unit Owners of Greenbriar Condominiums, all 252 individual unit owners and their respective mortgagees at the instigation of the court were subsequently ⁷³ included by amendment as defendants in this case. While service of notice was accomplished as to each, only a small number of the individual unit owners filed a responsive pleading. Throughout the jury trial in the Circuit Court for Prince George’s County on the issues presented by this eminent domain action, the judge permitted the parties to introduce expert testimony regarding both the direct and consequential damages to the common elements, as well as any consequential loss to the remaining area of the condominium regime which resulted from the taking, but refused to allow testimony concerning any unit owner’s individual loss to his specific unit.

At the close of the testimony, the trial judge omitted the specific names of all the unit owners from the inquisition form and instructed the jury to calculate one lump sum to be awarded to the council of unit owners as just compensation for the taking. Thus, as a matter of law, each individual unit owner’s separate claim for consequential damages to his respective unit was denied. The jury, in response to the court’s instruction, returned the inquisition in favor of the council of unit owners in the amount of twenty-nine thousand dollars ($29,000). When the appellants noted their timely appeal to the Court of Special Appeals, we granted certiorari on our own motion, prior to consideration of the matter by that court, in order to address the important questions presented by this case.

Generally speaking, a condominium is considered "an estate in real property consisting of an undivided interest in common in a portion of a parcel of real property together with a separate interest in space in a residential, industrial or commercial building on such real property.” Annot., 72 A.L.R.3d 314 (1976). Since a condominium complex usually consists of numerous parties with property interests in the regime, a unit owner agrees as a condition of his purchase to be bound by rules and regulations promulgated by an association of unit owners for the administration and maintenance of the property. Such a condominium owner thus possesses a hybrid form of property interest: one in fee simple to the exclusion of everyone, and the other as a tenant in ⁷⁴ common with his fellow unit owners. 5 The Maryland Condominium Act embraces this dual form of property ownership, § 11-107 (a); 64 Op. Md. Att’y Gen. 334, 335 (1979), and specifically provides that the percentage interest of the unit owner in the common elements attaches to the unit and cannot be separated by sale, subdivision, or consolidation. § 11-107 (d).

Since the focal point of this controversy is a conveyance of a portion of the general common elements through eminent domain and no party here contests the authority of the City of Greenbelt to effectuate this taking, we turn our attention to the section of the condominium statute which controls the allocation of any just compensation award that becomes due as a result of the acquisition. 6 In relevant part Section 11-112 pertaining to eminent domain provides: (b) Allocation of award — Provisions in declaration or bylaws. — The declaration or bylaws may provide for an allocation of any award for a taking under the power of eminent domain of all of a part of the condominium. The declaration or bylaws also may provide for (1) reapportionment or other change of the percentage interests appurtenant to each unit remaining after any taking; (2) the rebuilding, relocation, or restoration of any improvements so taken in whole or in part; and (3) ⁷⁵ the termination of the condominium regime following any taking. (c) Same — In absence of provisions in declaration or bylaws. — Unless otherwise provided in the declaration or bylaws, any damages for a taking of all or part of a condominium shall be awarded as follows: (1) Each unit owner shall be entitled to the entire award for the taking of all or part of his respective unit and for consequential damages to his unit. (2) Any award for the taking of limited common elements shall be allocated to the unit owners of the units to which the use of those limited common elements is restricted in proportion to their respective percentage interests in the common elements.

(3) Any award for the taking of general common elements shall be allocated to all unit owners in proportion to their respective percentage interests in the common elements. At the outset we resolve a dispute relative to the proper interpretation as to the just quoted § 11-112 with particular reference to subsection (c) (1). In this regard, it is now axiomatic that the guiding principle of statutory interpretation is to ascertain and carry out the real intent of the legislature when it enacts a statute. See, Harbor Island Marina v. Calvert Co., 286 Md. 303, 311 , 407 A.2d 738, 742 (1979); Frank v. Baltimore County, 284 Md. 655, 658 , 399 A.2d 250, 253 (1979).

If the intent can be discerned from the words utilized in the enactment, with the terminology chosen being given its ordinary and popularly understood meaning, the court need look no further as that clearly expressed intention will control. See, Mauzy v. Hornbeck, 285 Md. 84, 92, 93 , 400 A.2d 1091, 1096 (1979); Gietka v. County Executive, 283 Md. 24, 27 , 387 A.2d 291, 292 (1978). It is our view that the Maryland Condominium Act, by the wording of § 11-112 itself, demonstrates the adoption of a legislative scheme for the allocation of condemnation awards. This sec ⁷⁶ tion unambiguously provides that, absent a contrary direction in the condominium documents, awards for the taking of a portion of an individual unit, as well as any consequential damages resulting from a partial taking of such a unit or a partial taking of the limited common elements (if compensable), shall be paid to the affected unit owner.

On the other hand, awards for the taking of a portion of the general common elements, as well as any consequential damages to the remaining such elements, are to be paid to all unit owners in proportion to their respective interests in those areas. With this interpretation before us, we point out that none of the parties disputes that the collective interests of the owners in the one-tenth of an acre of general common element property taken here in fee simple, along with any consequential damages to the remaining general common areas, are to be compensated for through the payment of a lump sum award to the Greenbriar Condominiums Council of Unit Owners. Consequently, the primary question for this Court now becomes whether there can ever be a compensable consequential injury to an individual unit which results from an actual taking of a portion of only the general common elements. It is usually held that one whose land is harmed because of an act done pursuant to the proper exercise of eminent domain is not entitled to compensation unless there has been a physical taking or invasion of his property which impairs its use.

Friendship Cemetery v. Baltimore, 197 Md. 610, 619 , 81 A.2d 57, 61 (1951); DeLauder v. Baltimore County, 94 Md. 1, 7 , 50 A. 427, 429 (1901); Garrett v. Lake Roland R.R. Co., 79 Md. 277, 295 , 29 A. 830, 832 (1894); 4A Nichols: The Law of Eminent Domain, § 14.01[1] (3d ed. 1981). When an owner’s land is taken, as just compensation therefor, he is entitled to the market value of the property which is to be estimated with reference to the uses and purposes to which it is adapted at the time of the condemnation. State Roads Comm. v. Hance, 242 Md. 137, 139 , 218 A.2d 33, 35 (1966); Brack v. M. & C. C. of Balto., 125 Md. 378, 381 , 93 A. 994, 995 (1915). Moreover, if the land being acquired is part of a larger unitary tract, so as to constitute a partial taking, the ⁷⁷ owner is entitled not only to receive the value of the land taken but also to payment for any consequential damages caused to the remaining area.

Mont. Co. v. Old Farm Swim Club, 270 Md. 708, 711 , 313 A.2d 458, 460 (1974); State Roads Comm. v. Hance, supra at 139, 218 A.2d at 35 ; State Roads Comm. v. Adams, 238 Md. 371, 376-77 , 209 A.2d 247, 249 (1965); Reindollar v. Kaiser, 195 Md. 314, 319 , 73 A.2d 493, 495 (1950); Improvement Co. v. Gas Etc. Co., 156 Md. 581, 588-89 , 144 A. 710, 713 (1929); 4A Nichols, supra, at § 14.01[2], However, in order to recover consequential damages, it is necessary that "[t]he parcel taken and the remainder area must (prior to the taking) have constituted a single physical unit.” 4A Nichols, supra at § 14.02. Because a condominium consists of two property interests, each distinct from the other yet statutorily necessary and inseparable for the condominium’s legal existence, there is posed a conceptual problem with regard to entitlement of consequential damages.

We believe, nonetheless, that an individual unit owner’s interest in the common elements and in his particular unit constitutes a single parcel of real property for purposes of condemnation actions. Although this Court until now has had no occasion to examine in depth the question of when two separate property interests constitute the same physical unit in the eminent domain context, we note that our sister states, although not fashioning an invariable rule or principle, have focused their attention on three guidelines when considering this matter: 1) unity of ownership; 2) unity of use; and 3) unity of contiguity. See 29A C.J.S., Eminent Domain § 140 and cases cited therein (1965). For there to be "unity of ownership” in two tracts of land some courts have required that the party claiming damages possess the same interest or estate in both parcels of property.

Glendenning v. Stahley, 173 Ind. 674 , 91 N.E. 234, 238 (1910); Duggan v. State, 214 Iowa 230 , 242 N.W. 98, 99 (1932); Tillman v. Lewisburg & N.R. Co., 133 Tenn. 554 , 182 S.W. 597 , 598 (1916); Annot., 95 A.L.R. 2d 887 , 893 (1964). We