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August, 2006 / Vol 7 Issue 1
Legal Briefs
Congratulations to Gabriel A. Riveros, Esq. for becoming a
licensed member of the DC Bar.
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We welcome Rebecca Silvia to C&B. Read
about her on our website.
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Mid-Atlantic AAA reports the
national average price of gas for regular, self-serve is
$3.09 per gallon, although Maryland is seeing up to $3.17 a
gallon in some places.
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In a recent letter from a new
client, Mr. Barr was told: "I will definitely recommend you
to anyone looking for outstanding, friendly and superb legal
service." Kelly Willoughby
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LEGAL DO'S AND DON'TS FOR REAL ESTATE PROFESSIONALS
As a licensed real estate
professional you should know that as a condition to becoming and
staying licensed in Maryland you must abide by the Maryland Real
Estate Broker’s Act (MREBA) and the Code of Ethics found in the
Code of Maryland Regulations (COMAR). Both create certain legal
duties and obligations that may be addressed at either the
Maryland Real Estate Commission or in a court of law. This is
not the same as the Maryland Association of Realtors Code of
Ethics which is not law, but just additional ethical duties
created by local boards and association committees. The MREBA
and COMAR Code of Ethics, may also give rise to civil liability
based on violations of those provisions where private litigants
are concerned.
So what are these legal
do’s and don’ts? For starters, under the MREBA, a licensed real
estate professional must refrain from (a) directly or through
another person willfully make a misrepresentation or knowingly
make a false promise; (b) intentionally or negligently fail to
disclose to any person with whom dealing, a material fact that
they knew or should have known and that relates to the property
being dealt with; (c) engage in conduct that demonstrates bad
faith, incompetency, or untrustworthiness or that constitutes
dishonest, fraudulent or improper dealings; and (d) with actual
knowledge of the violation, associate with any other licensed
real estate professional in a transaction or practice that
violates any provision of the MREBA.
In addition, under the
COMAR Code of Ethics, a licensed real estate professional shall
(a) protect the public against fraud, misrepresentation or
unethical practices; (b) make every reasonable effort to
ascertain all material facts and in order to fulfill the
obligation to avoid error, exaggeration, misrepresentation, or
concealment of material facts; (c) not be a party to the naming
of false consideration in any document; and (d) protect the
interests of the client and provide absolute fidelity primarily
to the clients’ interest.
These are just
some of the legal do’s and don’ts arising under the MREBA and
COMAR Code of Ethics. At COOVER
& BARR,
LLC
ATTORNEYS
AT LAW our attorneys are experienced real estate
attorneys who have successfully represented real estate
professionals with consistent favorable results. For more
information about our firm, please visit our web site.
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BARR WINS FOR WALMART!
Firm principal, John R. Barr, successfully
defended a decision of the Board of Appeals of Charles County,
Maryland to grant a special exception enabling Wal-Mart's Sam's
Club store in Waldorf, Maryland to sell gasoline.
The decision of the Board of Appeals was appealed by a competing
gasoline station. The appeal disputed, among other things,
whether the studies, reports and testimony of experts were
sufficient to carry the burden of proof in the special
exception requirements. The appeal was particularly difficult
to review because of a burdensome ordinance that requires proof
of facts, prima facie determination of lack of need, and minute
detail as to available facilities for motorists.
Barr had anticipated an appeal by competing businesses and was
prepared to provide the Court with an exhaustive brief. The
brief defended the Board's Decision and Order, both on the law
and the facts as presented, parts of which were adopted by the
Court in it favorable ruling for Coover & Barr's client.
CAN A MECHANIC’S LIEN BE ESTABLISHED FOR DESIGN AND PERMITTING
SERVICE? IT DEPENDS! by Gabriel A. Riveros, Esq.
The once settled law said that a
design professional must satisfy two (2) requirements in order to
be able to assert a lien for work furnished. First, plans must
have been (A) prepared by the design
professional; and (B) supervised by the design
professional for work furnished for or about the building that
incorporates those plans.. Those dual requirements that applied to
design professionals such as architects, engineers and those
providing like-kind services may have been substantially altered
and expanded!
Recently, the Maryland
Legislature passed HB 1060 in the 2006 Legislative Session, signed
by the Governor, and that amended Maryland Code Ann. Real Property
Article § 9-102(a) by adding the following language:
"Every building erected and every
building repaired, rebuilt, or improved to the extent of 15
percent of its value is subject to establishment of a lien in
accordance with this subtitle for the payment of all debts,
without regard to the amount, contracted for work done for or
about the building and for materials furnished for or about the
building, including... the provision of building or
landscape architectural services, engineering services, or land
surveying services..." [emphasis added]
Significantly, a plain reading of
the above amended statutory text indicates that all the design
professional need provide in order to be able to assert a lien is
their "services". This would suggest a modification of the prior
dual requirement of (A) preparation of plans; and (B) supervision
of the work furnished for or about the building that incorporates
those plans. Whether or nor design or permitting services can be
considered lienable items therefore hinges on what is meant by
"services"?
While not explicitly defined in
the statute, implicitly the suggestion of services could include
work that is characteristic of building architects, landscaping
architects, engineers or land surveyors to the project at hand, so
long as it is related to the construction of a building. If a
contract is involved which defines "services" than the question is
simplified somewhat-look at the contract’s definitions, if any. If
it is not defined, than the question becomes what is the ordinary
and customary industry definition and practice as to what
constitutes "services"? Since architectural services routinely
involve the planning, design and permitting stage before a
building is actually on the lot, the 2006 amendment appears to
substantially alter and expand the prior school of thought that
said a building was required on the lot before such incidental
work could become the subject of a mechanic’s lien, and which may
now include pre-construction design and permitting services!
Contact
COOVER & BARR, LLC
ATTORNEYS
AT LAW
for experienced counsel and full
protection of your legal rights.
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"FOR SALE" SIGNS STAYING OUT LONGER
The 5 year housing boom appears
to be at an end. Sales of new and existing homes have been
falling. One contributing factor, according to Martin
Crutsinger, of the Baltimore Sun, is rising interest rates.
With an overall slowdown in the economic growth last quarter,
even a moderate slowdown in housing could have a huge impact on
our economy, since the housing market has greatly contribution
to our growth in recent years. While economist stop short of
predicting a full blown bust in the housing market, unsold homes
have hit a record level and is likely to place even more
pressure on housing prices in the near future.
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