FROM THE EDITOR
From The Editor
Liable, Not Just Primary Liable, or Fixing an Attorney General's Opinion on IDOTS 20 Years Later
Committee Revises 2007 MD Opinion Report
How Can You Help "Green" MD Buildings
What's in a Name?
Liability without Fault Based Upon the Lawful Use of One's Property











 


Marc B. Bergoffen
Bregman, Berbert, Schwartz & Gilday, LLC

Recent economic data suggests that the economy is showing signs of relief.  At the same time, there remains a large amount of commercial real estate debt coming due while banks continue to be stingy on making loans.  And with unemployment continuing to creep upward, we may not yet be out of the woods.  In this fall edition – nicknamed the Ed Levin Edition – we have articles on the Attorney General Opinion regarding IDOTs, the recent revisions to the 2007 Maryland Opinion Report, a “Green” article, as well as others.  We hope you enjoy this edition and if you have a topic of interest, please feel free to submit an article for the next edition.


 LIABLE - NOT JUST PRIMARILY LIABLE, OR - FIXING AN ATTORNEY GENERAL’S OPINION ON IDOTS 20 YEARS LATER

By Edward J. Levin

The senior assistant Howard County Solicitor kept trying to convince me of a particular point.  If a recordation tax on an indemnity deed of trust (an “IDOT”) becomes due and the grantor of the deed of trust does not pay it, then the lender must pay it, she contended.  No, I said, the lender does not have liability for payment of the recordation tax even in that instance.  We both relied on the same opinion of the Maryland Attorney General for our positions.  But after doing some digging in my old files, I realized why we were coming to the opposite answer to the question posed:  we were looking at different versions of the same opinion....


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 COMMITTEE REVISES 2007 MARYLAND OPINION REPORT


By Edward J. Levin

The Special Joint Committee of the Section of Business Law and the Section of Real Property, Planning and Zoning of the Maryland State Bar Association, Inc. recently revised its 2007 Report on Lawyers’ Opinions in Business Transactions, and the revisions were approved by the Section Councils of each of the sponsoring sections. 

The 2007 Report, which is more than 260 pages long, includes four illustrative opinions and an illustrative certificate from a company officer to the opinion giver.  The 2007 Report updated, revised, and added to the Maryland Opinion Report that was written in 1989 and published at 45 Bus. Law. 705 (1990).  The 1989 Report was widely used by opinion givers and opinion recipients in Maryland because of its balanced approach, and the 2007 Report has been widely used for the past two years.  The illustrative opinion letters in the 2007 Report are particularly user-friendly because they note to which of the specific opinions the assumptions and qualifications relate, and they include guidance to opinion givers in their footnotes.  Maryland lawyers frequently referred to the 1989 Report, and they now refer to the 2007 Report, because of the Reports’ discussions regarding the due diligence that is necessary to render the various opinions that are addressed in them. 

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 HOW YOU CAN HELP "GREEN" MARYLAND'S BUILDINGS


By Claire E. Buchner, Esq., LEED AP (BD+C)

We all know that “going Green” is good.  Regardless of your position on global warming or your political affiliation, everyone generally agrees that being kind to the environment and its resources is beneficial.  But most of us do not really know what “Green” means beyond placing our glass bottles and aluminum cans in the recycling bin and remembering to turn off the lights.  While any effort to divert waste from landfills and to conserve electricity is a worthy endeavor, nothing will so quickly advance Maryland's future like voter support for state and local Green legislation. 

There are hosts of ways in which the state and local governments can legislate toward a greener and more sustainable Maryland.  It is a subject too large to tackle in this one article.   But because emissions from buildings are one of the largest threats to the environment, this article focuses on the common sense initiatives identified by the Maryland Chapter of the United States Green Building Council (USGBC Maryland) that may be introduced in the state and local legislatures this upcoming term.  Such initiatives are designed to slow or reverse the deterioration of the environment and energy supplies and may even stimulate a greener economy in Maryland.

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 WHAT'S IN A NAME? OR, THE IMPORTANCE OF NAMING AN INDIVIDUAL AS TRUSTEE UNDER A MARYLAND DEED OF TRUST

By Edward J. Levin

When drafting a deed of trust to secure real property in Maryland, in order to give the lender the full panoply of rights upon foreclosure, specifically name at least one individual as a trustee.

An Individual Must Sell the Property at Foreclosure

Revisions to the Maryland Rules which became effective on May 1, 2009 emphasize that the person who sells a property at foreclosure must be an individual.  Maryland Rule 14‑214(a) now provides, “Only an individual may sell property pursuant to the Rules in this Chapter.” 

As revised in 2008, Section 7-105 of the Real Property Article of the Maryland Code (RP) provides statutory authority for lien instruments executed in connection with a loan transaction to include language authorizing individuals to sell property at foreclosure sales upon default in the loan documents.  There is no requirement that the person who sells property at foreclosure be a Maryland resident.


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 LIABILITY WITHOUT FAULT BASED UPON THE LAWFUL USE OF ONE'S PROPERTY: NARROWING THE SCOPE OF NUISANCE CLAIMS IN MARYLAND?

Jean-Marie Sylla, Jr., Esq.

Recently, the Court of Special Appeals of Maryland seemingly narrowed the scope of real property nuisance claims.  Gallagher v. H.V. Pierhomes, LLC, 957 A.2d 628 (Md. App. 2008).  In the context of real property law, a claim of nuisance generally involves: (1) the use of property or (2) conduct, both of which interferes with the legal property rights of others by causing damage, annoyance or inconvenience.  The inexact tort “is a broad concept characterizing ‘the defendant’s interference with the plaintiff’s interest.’” Black’s Law Dictionary citing Prosser & Keeton, Torts 617 (5th ed. 1984).  Not surprisingly, some commentators have characterized nuisance claims as a “garbage can of claims” because of the potential of attachment of liability without fault, as well as, the potential for unpredictable results. See Eliot Shavin and Chad Baruch, Sovereign Immunity For Nuisance And Takings Claims In Texas After City Of Dallas v. Jennings, 58 SMU L. Rev. 195 (2005), citing William L. Prosser, Nuisance Without Fault, 20 Tex. L. Rev. 399, 410 (1942).

With respect to the law of real property, there are two types of nuisance -- public and private.  In essence, both public and private nuisance torts involve the balancing of real property interest of respective use of land between landowners.  The touchstone of both the public and private nuisance cause of action is the level of unreasonableness of the use or conduct involved.  See W. Prosser, Restatement of Torts (Second) § 821B(1) (1979).   Normally, questions of reasonableness of conduct are normally left to the trier of fact, and courts are hesitant to disturb a jury’s finding.  While Maryland recognizes both the public and private torts, the Court of Special Appeals of Maryland held, in Gallagher v. H.V. Pierhomes, LLC, 957 A.2d 628 (Md. App. 2008), that pile driving activity did not constitute either a private or a public nuisance under Maryland law as a matter of law despite a jury’s finding to the contrary. 
 

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