The Association's case against the Respondent-Appellee Martin E. Rock a/k/a Martin A. Rock (Rock) concerns whether the Association, an office park condominium in Durham, North Carolina, formed before October 1, 1986, may foreclose a lien for assessments by power of sale pursuant to the provisions of the North Carolina Condominium Act. The Association filed its power of sale foreclosure in 2018 to enforce a Claim of Lien of event date filed pursuant to N.C. Gen. Stat. § 47C-3-116.1 The Association prevailed at the trial court. At the trial court, the trial court (both the Durham County Clerk of Court and the Durham County Superior Court, on appeal) agreed with the Association that the Association could use the provisions of the North Carolina Condominium Act (N.C. Gen. Stat. § 47C-1-101, et. seq. (the Act)), and, specifically, N.C. Gen. Stat. § 47C-3-116 to foreclose the Claim of Lien by power of sale. The North Carolina Court of Appeals reversed and remanded the case to the trial court for dismissal with a unanimous, published opinion concluding that the Act did not apply to the Association. The Court of Appeals' opinion completely ignored the fact that portions of the Act, including N.C. Gen. Stat. § 47C-3-116, are expressly applicable to condominium associations like the Association, formed on or before October 1, 1986. The Court of Appeals' opinion did not even address, in its entirety, N.C. Gen. Stat.§ 47C-1-102, which expressly makes certain provisions of the Act applicable to condominiums created on or before October 1, 1986. The Association petitioned the Supreme Court on this issue, and the Supreme Court allowed its Petition for Discretionary Review on February 9, 2022.
The Association respectfully requests that CAI permit the North Carolina Chapter of CAI to move the Supreme Court for leave to file an Amicus Curiae brief in support of the
Association's appeal. The Association's appeal is critical to the future assessment collection matters for pre-October 1, 1986, condominium associations. Should the Court of Appeals' opinion stand, such foreclosures would all have to be pursued as judicial foreclosures, significantly increasing the costs for the same to the association(s), and ultimately to the Unit Owners. However, the implications of the Court of Appeals' published opinion do not end with condominium collections. It is not a stretch to extrapolate the Court of Appeals' opinion to conclude that no provisions of the Act are applicable to pre-October 1, 1986, condominiums, and nor are any provisions of the North Carolina Planned Community Act (N.C. Gen. Stat.§ 47F-1-101, et. seq.)2 applicable to planned communities formed before January 1, 1999. Should that be the case, operation of condominiums and planned communities, depending on when formed, will be significantly impaired in North Carolina. The CAI Amicus Review panel have approved a CAI national amicus brief in this matter, upon review, due to the applicability of the Uniform Acts to pre-existing communities being critical and will become even more important given the recent change to the applicability section of the Uniform Acts.
Supreme Court of North Carolina Opinion - November 2022
Court: North Carolina Supreme Court
Topic: North Carolina Uniform Condo Act
Brief Author: Cynthia A. Jones, Esq. of Sellers Ayers Dortch Lyons, Charlotte, North Carolina Filed: April 18, 2022
CAI Amicus Review Panel: Mr. Robert Diamond, Esq., CCAL, Co-Chair of Amicus Committee, Mr. Stephen Marcus, Esq., CCAL, Co-Chair of Amicus Committee, Mr. Henry Goodman, Esq., CCAL (MA), Ms. Karyn A. Kennedy Branco, Esq., CCAL (NJ), Ms. Melissa Francis, Esq. (MI), Ms. Daniel Heaton, Esq. (CA)