Jurgensen v. New Phoenix Atlantic Condominium Council of Unit Owners

CATHELL, Judge. This case concerns a condominium unit owner’s use of a designated parking space on the condominium property and whether he acquired exclusive use of that parking space based upon the legal theories of easement by prescription or estop-pel. On March 9, 2000, Harold C. Jurgensen, petitioner, filed a five-count “COMPLAINT FOR INJUNCTIVE AND RELATED RELIEF” against The New Phoenix Atlantic Condominium Council of Unit Owners, respondent, in the Circuit Court for Worcester County. On May 26, 2000, petitioner filed a five-count “AMENDED COMPLAINT FOR DECLARATORY JUDGMENT, TO QUIET TITLE AND RELATED RELIEF.” In his complaint, petitioner was seeking a declaration that the owners of Unit 505 had the exclusive right to utilize parking space 32.

Respondent filed an Answer, a Motion for Summary Judgment, and an Amended Motion for Summary Judgment. Following a hearing on January 19, 2001, the Circuit Court issued a one-page Order on February 7, 2001, granting summary judgment for Respondent. Petitioner then filed an appeal to the Court of Special Appeals. In the Court of Special Appeals, the parties filed a Joint Motion to Remand the Case, which was granted by the Court on December 26, 2001.

Upon remand, respondent filed a Motion to Dismiss, to which petitioner filed a response. After a hearing on March 22,2002, the Circuit Court granted the motion as to Counts IV (Estoppel) and V (Breach of Fiduciary Duty). ¹¹¹ The three remaining counts of petitioner’s Amended Complaint 1 were addressed at a subsequent hearing on July 17, 2002. By Opinion and Order dated August 16, 2002, Judge Eschenburg of the Circuit Court granted summary judgment on the remaining counts in favor of respondent. Petitioner then appealed to the Court of Special Appeals.

On June 13, 2003, in an unreported opinion, the intermediate appellate court affirmed the judgment of the Circuit Court. Petitioner then filed a Petition for Writ of Certiorari with this Court, and, on September 10, 2003, we granted the petition. Jurgensen v. New Phoenix, 377 Md. 111 , 832 A.2d 204 (2003). Petitioner presents one question for our review: “Can a condominium unit owner acquire exclusive use of a general common element based upon easement by prescription or estoppel?” We hold that, under the facts of the case sub judice, petitioner did not acquire the exclusive use of a general common element of a condominium based upon the legal theory of an easement by prescription.

We also hold that the doctrine of equitable estoppel, even if applicable, is not appropriate in this instance. Respondent cannot be said to have acted in such a manner as to give petitioner the impression that he had an exclusive interest in the parking space. Furthermore, petitioner had the ability to view the Condominium Declaration and other documents, which did not grant petitioner an exclusive interest in the parking space. I. Facts The New Phoenix Atlantic Condominium (“Condominium”) is located in Ocean City, Maryland, and consists of 36 residential units.

The Condominium was established by declaration, bylaws and plats recorded among the land records of Worcester County in March 1975. The New Phoenix Atlantic Condominium Council of Unit Owners, respondent, is the unincorpo ¹¹² rated association of all unit owners that was established by the bylaws to govern the Condominium. 2 When the Condominium was established in 1975, the recorded Plats and Plans of the Condominium showed 31 parking spaces on Condominium property and each space was designated by the developers as a limited common element for the exclusive use of one specific unit at the time of the initial sale of each unit. 3 The rights to use these 31 spaces were considered appurtenances to the units to which they were assigned. 4 Unit 505 was one of five units originally without a dedicated parking space on Condominium property. Before the first transfer of Unit 505, however, the developers of the Condominium created two new parking spaces on Condominium property, identified as parking spaces number 32 and 33. A sign was thereafter posted on parking space number 32 designating it as parking for Unit 505.

The Condominium Declaration was never amended to reflect the existence of parking spaces 32 and 33. From 1976 until 1999, 23 years in total, three successive groups of owners of Unit 505 apparently used parking space number 32. Harold C. Jurgensen, petitioner, acquired title to Unit 505 of the Condominium by virtue of a recorded deed dated ¹¹³ December 28,1984. Thereafter, petitioner used parking space number 32.

Petitioner enjoyed the use of this parking space for many years, but, beginning in the fall of 1999, respondent, by its board of directors, 5 reconfigured a portion of the Condominium parking area, thereby reducing the size of space number 32. 6 Despite petitioner’s protests, respondent completed this reconfiguration in 2000. Petitioner sued respondent for breach of contract and promissory estoppel. He looked upon the Condominium’s action with respect to parking space number 32 as an unwarranted invasion of a property right belonging exclusively to him as the owner of Unit 505. Six months after filing the last amendment to his complaint, however, petitioner, in June 2001, sold Unit 505.

Petitioner claims that the Condominium’s action in not continuing Unit 505's exclusive right to use the parking space and its actions in reconfiguring the parking area, and thereby decreasing the size of parking space number 32, unfairly created a situation in which he was unable to sell his Unit for the price it would have sold for had the parking space retained its original dimensions. 7 II. Standard of Review An appellate court reviews a trial court’s grant of a motion for summary judgment de novo. Todd v. MTA, 373 ¹¹⁴ Md. 149, 154, 816 A.2d 930, 933 (2003); Beyer v. Morgan State Univ. 369 Md. 335, 359 , 800 A.2d 707, 721 (2002); Schmerling v. Injured Workers’ Ins. Fund, 368 Md. 434, 443 , 795 A.2d 715, 720 (2002); see also Fister v. Allstate Life Ins.

Co. 366 Md. 201, 210 , 783 A.2d 194, 199 (2001). “The trial court will not determine any disputed facts, but rather makes a ruling as a matter of law. The standard of appellate review, therefore, is whether the trial court was legally correct.” Williams v. Baltimore, 359 Md. 101, 114 , 753 A.2d 41, 48 (2000) (internal citations omitted) (quoting Baltimore Gas & Elec. Co. v. Lane, 338 Md. 34, 42-43 , 656 A.2d 307, 311 (1995)); see also Eng’g Mgmt. Servs. v. Md. State Highway Admin., 375 Md. 211, 229 , 825 A.2d 966 (2003) (“[w]hether summary judgment is properly granted as a matter of law is a question of law.

The standard for appellate review of a summary judgment is whether it is ‘legally correct.’ ”). 8 When reviewing a grant of summary judgment, we must make the threshold determination as to whether a genuine dispute of material fact exists, and only where such dispute is absent will we proceed to review determinations of law. See Todd, 373 Md. at 154-55 , 816 A.2d at 933 ; Beyer, 369 Md. at 359-60 , 800 A.2d at 721 ; Schmerling, 368 Md. at 443 , 795 A.2d at 720 . In so doing, we construe the facts properly before the court, and any reasonable inferences that may be drawn from them, in the light most favorable to the non-moving party. Todd, 373 Md. at 155 , 816 A.2d at 933 (citing Okwa v. Harper, 360 Md. 161, 178 , 757 A.2d 118, 127 (2000)). ¹¹⁵ III.

Discussion A. The Maryland Condominium Act Although petitioner contends that he has acquired the exclusive use of parking space number 32 based upon easement by prescription or equitable estoppel, it is necessary for this Court to first examine the numerous statutes that embody the law relating to condominiums in Maryland. The Maryland Condominium Act, Maryland Code (1974, 2003 Repl.Vol.), §§ 11-101 et. seq. of the Real Property Article, 9 regulates the formation, management, and termination of condominiums in Maryland. It is with the application of Maryland Condominium Act principles that we shall determine, first and foremost, whether parking space number 32 is to be classified as a general common element of the Condominium. 10 Then, and only then, can we determine whether petitioner has any exclusive interest in the parking space. Petitioner, as an owner of a unit in the Condominium, is deemed under the Maryland Condominium Act to own an undivided percentage interest in the common elements of the Condominium.

See § ll-107(a). Therefore, in regard to the common elements, petitioner can be said to have a tenancy in common in the general common elements with all of the other Condominium unit owners. As this Court explained in Ridgely Condominium, Ass’n, Inc. v. Smyrnioudis, 343 Md. 357 , 681 A.2d 494 (1996): “A condominium is a ‘communal form of estate in property consisting of individually owned units which are supported by collectively held facilities and areas.’ Andrews v. ¹¹⁶ City of Greenbelt, 293 Md. 69, 71 , 441 A.2d 1064, 1066 (1982). ‘The term condominium may be defined generally as a system for providing separate ownership of individual units in multiple-unit developments. In addition to the interest acquired in a particular apartment, each unit owner also is a tenant in common in the underlying fee and in the spaces and building parts used in common by all the unit owners.’ 4B Richard R. Powell, Powell on Real Property ¶ 632.1[4] (1996).

A condominium owner, therefore, holds a hybrid property interest consisting of an exclusive ownership of a particular unit or apartment and a tenancy in common with the other co-owners in the common elements.” Ridgely, 343 Md. at 358-59 , 681 A.2d at 495 . See also Starfish Condominium Ass’n v. Yorkridge Service Corp., 295 Md. 693, 703 , 458 A.2d 805, 810 (1983) (stating that “[i]n a condominium regime unit owners own the common elements in fee as tenants in common.”). Section 11-101(c) of the Real Property Article defines what is meant by the term “common elements.” It states: “(c) Common elements. — (1) ‘Common elements’ means all of the condominium except the units. (2) ‘Limited common elements’ means those common elements identified in the declaration or on the condominium plat as reserved for the exclusive use of one or more but less than all of the unit owners.

(3) ‘General common elements’ means all the common elements except the limited common elements.” It is undisputed that the area of the Condominium property deemed to be parking space number 32 is not identified as a parking space or separate area on either the recorded Declaration or Plats and Plans. Those 31 original parking spaces that can be found in the recorded Condominium plats are deemed limited common elements under the Maryland Condominium Act, but no action was ever taken to make parking space number 32 such a limited common element. It certain ¹¹⁷ ly was never “identified in the declaration or on the condominium plat” as a limited common element. Therefore, by its nature, the area upon which parking space number 32 is laid out physically is (and at all times relevant here) properly classified as a general common element of the Condominium.

Because we hold that the area of parking space number 32 is to be classified as a general common element of the Condominium, it follows that petitioner, and his successors and assigns, 11 cannot seek exclusive rights to the parking space that he was permitted to use while he owned Unit 505. He is (or was) a percentage owner of all general common elements ¹¹⁸ of the Condominium, as are all unit owners, but he never formally acquired exclusive rights to parking space number 32. Numerous reasons support this conclusion. First, § 11-107(a) of the Real Property Article specifically forbids any unit owner from bringing an action for partition of the general common elements of a condominium.

Section ll-107(a) states that: “(a) Undivided percentage interest in common elements.— Each unit owner shall own an undivided percentage interest in the common elements equal to that set forth in the declaration.[ 12 ] Except as specifically provided in this title, the common elements shall remain undivided. Except as provided in this title, no unit owner, nor any other person, may bring a suit for partition of the common elements, and any covenant or provision in any declaration, bylaws, or other instrument to the contrary is void.” Secondly, the 1974 Condominium Declaration, in Article V, Section I, likewise prohibits any unit owner from bringing an action for partition of a common element. 13 That section, in full, states: “Section 1. Covenant Against Partition. The Common Elements, both General and Limited, shall remain undivided and appurtenant to the designated Unit.

No Owner of any Condominium Unit or any other person shall bring any action for partition or division thereof except as may be provided for in The Real Property Article, Section 11-107, Annotated Code of Maryland.” In essence, however titled, petitioner’s complaint seeks, in the context of condominium law, to partition a general common element — to divide it. ¹¹⁹ Thirdly, this Court’s holding in Ridgely, supra, is directly contrary to petitioner’s position that his parking space, originally a general common element of the Condominium, later became a limited common element by the actions of the Condominium developers. 14 In Ridgely, we stated that “unanimous consent of the [unit] owners is required for some amendments [to the declaration], such as altering percentage interests in common elements, changing the use of units from residential to nonresidential and vice versa, and redesignating general common elements as limited common elements.” Ridgely, 343 Md. at 360-61 , 681 A.2d at 496 (alterations added) (emphasis added). Section ll-103(c)(l)(iv) of the Real Property Article, which concerns condominium declarations, is also relevant to this issue. The statute states that: “(c) Amendments or orders of reformation. — (1) Except for a corrective amendment under § 11-103.1 of this title or as provided in paragraph (2) of this subsection, the declaration may be amended only with the written consent of 80 percent of the unit owners listed on the current roster. Amendments under this section are subject to the following limitations: (iv) Except as otherwise expressly permitted by this title and by the declaration, an amendment to the declaration may not redesignate general common elements as limited common elements without the written consent of every unit owner or mortgagee.” (emphasis added) ¹²⁰ Once again, the Condominium Declaration has similar language prohibiting amendments without unanimous consent.

Article VI, Section 3 of the Declaration states: “Section 3. Amendment. This Declaration may be amended only with the written consent of every Unit Owner and Mortgagee and any amendment shall become effective only when recorded among the Land Records where this Declaration is recorded.” In the case sub judice, the unanimous written consent of all unit owners to grant Unit 505 exclusive rights to parking space number 32 was never given. Unit 505’s use of the space was merely permitted by the Condominium developers and acquiesced in thereafter by the Condominium.

Therefore, the area underlying parking space number 32 remains, as it has been since its creation, a general common element of the Condominium. The parking space is owned, and thus controlled, by respondent, the Council of Unit Owners. See Md.Code (1974, 2003 Repl.Vol.), § 11-109(e) of the Real Property Article (stating that “[a] unit owner may not have any right, title, or interest in any property owned by the council of unit owners other than as a holder of a percentage interest in common expenses and common profits appurtenant to his unit.”). Only the unanimous written consent of all unit owners could have changed parking space number 32 from a general common element to a limited common element.

There is no evidence that any such consents were ever given. In Alpert v. Le’Lisa Condominium, 107 Md.App. 239 , 667 A.2d 947 (1995), the Court of Special Appeals had before it a case similar to the one now before this Court. In Alpert , the intermediate appellate court upheld a nonunanimous decision of the condominium owners that passed a rule and amended the bylaws by assigning exclusive parking privileges to certain parking spaces. 15 In that Court’s later decision in Sea Watch ¹²¹ Stores v. Council of Unit Owners, 115 Md.App. 5 , 691 A.2d 750 (1997), however, the intermediate appellate court, acknowledging this Court’s holding in Ridgely, stated that “Alpert and the Court of Appeals’s Ridgely are plainly inconsistent. The Court of Appeals has clearly stated ... that what was done in Alpert cannot be done.” Id. at 25, 691 A.2d at 759 .

The Sea Watch decision correctly interpreted this Court’s holding in Ridgely, a holding that we reiterate now — there cannot be a redesignation of common elements without the unanimous written consent of all the unit owners of a condominium. Lastly, the deed by which petitioner took title to Unit 505, dated December 28, 1984, makes no mention of petitioner acquiring an exclusive interest in parking space number 32. The deed did convey unto petitioner a condominium unit subject to the Declaration and Plats referred to therein, and specifically stated, in pertinent part, as follows: “THAT FOR AND IN CONSIDERATION of the sum of ONE HUNDRED FIVE THOUSAND and 00/100ths DOLLARS ($105, 000.00), and other good, valuable and sufficient consideration, receipt of which is hereby acknowledged, the said Grantors do hereby grant and convey unto HAROLD CLAUS JURGENSEN, his personal representatives and assigns, all the following described property: “ALL that lot of ground situate in the Town of Ocean City, Worcester County, Maryland, and described as follows, that is to say: Unit Number 505, in THE NEW PHOENIX ATLANTIC CONDOMINIUM, a condominium ¹²² project according to the Declaration dated December 5, 1974, and recorded in Liber F.W.H. No. 466, Folio 624, et seq., and The Master Plats recorded with the Declaration in the Plat Book F.W.H. No. 48, Folios 4 through 14, inclusive, among the Land Records of Worcester County, Maryland, together with the use and enjoyment of the Limited Common Elements appurtenant thereto, as set forth in said Declaration, and together with the undivided 2.588% interest in the General and Limited Common Elements declared in said Declaration to be an appurtenance to the above described unit; and BEING all and the same property conveyed unto Grantors by Deed dated May 4, 1981, and recorded among the aforesaid Land Records in Liber F.W.H. No. 757, Folio 346. “REFERENCE to the preceding deed and plat and to all references therein contained is hereby made for a more particular description of the property hereby conveyed.” 16 (emphasis added). Because parking space number