1. Municipal Corporations--minimum housing standards--condemned dwellings--cost
of removal--proceeds of personal property or appurtenances
The trial court erred by granting summary judgment in favor of plaintiff town in an action
to enforce a lien against defendants' real property to cover the costs of removing condemned
mobile homes because, while the town's ordinance is not necessarily inconsistent with N.C.G.S.
§160A-443(6)(c), issues of fact remain as to whether the town's actions were inconsistent with
the statute's requirement that any personal property or appurtenances be salvaged and the
proceeds applied to the cost of removal or demolition.
2. Costs--attorney fees_-enforcement of lien
The trial court erred by awarding attorney fees to plaintiff in an action to enforce a lien
against defendants' real property to cover the costs of removing condemned dwellings, because it
cannot be determined whether any lien existed when the town may have improperly failed to
salvage personal property and appurtenances from defendants' property and credit their value
toward the costs incurred.
Hornthal, Riley, Ellis & Maland, L.L.P., by Donald I. McRee,
Jr., for plaintiff-appellee.
Boxley, Bolton & Garber, L.L.P., by Kenneth C. Haywood, for
defendant-appellants.
HUDSON, Judge.
On 2 January 2001, plaintiff the Town of Hertford (“the town”)
filed suit seeking a judgment allowing it to sell the real property
of defendants Harris to satisfy a statutory lien. The town alleged
that defendants Harris owed for the cost of demolition of two
mobile homes it found in violation of the town's minimum housingstandards ordinance. Defendants Harris denied the lien and
counterclaimed for conversion. Plaintiff moved for summary
judgment, and by judgment filed 2 February 2004, the court granted
the motion on claims for costs, interest and fees. Defendants
appeal. As explained below, we reverse and remand.
Mr. Harris purchased land in the town in the 1950s and owned
two mobile homes on the property which he had used for storage
since 1964. Pursuant to the town's housing standards ordinance,
effective 8 April 1996 (“the 1996 ordinance”), the town building
inspector filed a complaint and notice of hearing against
defendants Harris. Following a hearing which defendants Harris did
not attend, the building inspector entered an order on 2 June 1999
that the mobile homes were not reparable and must be demolished or
removed. Defendants Harris did not appeal this order to the town's
zoning board of adjustment or to the superior court as provided for
by the 1996 ordinance or N.C. Gen. Stat. § 160A-446(c) and (f). On
13 September 1999, the town's board of commissioners adopted an
ordinance which specifically declared the Harris' property unfit
for human habitation, that defendants Harris had failed to comply
with the building inspector's order after a reasonable opportunity,
and ordered the structures removed or demolished. The town served
defendants Harris with a copy of this ordinance. Thereafter, the
town removed the mobile homes, incurring a cost of $3,284.
Defendants Harris failed to pay the town for these costs and the
town instituted this action. [1] Defendants first argue that the court erred in granting
summary judgment for the town. We agree.
When reviewing a grant of summary judgment, we review whether
there is a genuine issue of material fact and whether the movant is
entitled to judgment as a matter of law. Draughon v. Harnett Cty.
Bd. of Educ., 158 N.C. App. 705, 707-08, 582 S.E.2d 343, 345
(2003), affirmed, 358 N.C. 137, 591 S.E.2d 520 (2004), reh'g
denied, 358 N.C. 381, 597 S.E.2d 129 (2004). Because defendants
have stipulated that the facts here are not at issue, we consider
only whether the court properly found the town was entitled to
judgment as a matter of law. “Any error made in interpreting a
statute is an error of law.” Savings & Loan League v. Credit Union
Comm., 302 N.C. 458, 464, 276 S.E.2d 404, 409 (1981).
N.C. Gen. Stat. § 160A-441 et seq. codifies the powers of
municipalities to regulate minimum housing standards. N.C. Gen.
Stat. § 160A-443 authorizes a municipality to collect from a
property owner the cost of repair or removal and demolition of a
dwelling found unfit for human habitation. Specifically, the
statute provides:
If the dwelling is removed or demolished by
the public officer, he shall sell the
materials of the dwelling, and any personal
property, fixtures or appurtenances found in
or attached to the dwelling, and shall credit
the proceeds of the sale against the cost of
the removal or demolition and any balance
remaining shall be deposited in the superior
court by the public officer, shall be secured
in a manner directed by the court, and shall
be disbursed by the court to the persons found
to be entitled thereto by final order or
decree of the court.
N.C. Gen. Stat. § 160A-443(6)(c) (2001).
Pursuant to N.C. Gen. Stat. § 160A-441 et seq., the town
adopted its own ordinance establishing minimum housing standards.
Section 17 of the town's ordinance concerns the sale of personal
property to satisfy the cost of repairs, removal or demolition of
condemned properties and provides:
That the amount of the cost of repairs,
alterations or improvements, or vacating and
closing, or removal or demolition by the
public officer shall be a lien against the
real property upon which the cost was incurred
. . . . If the dwelling is removed or
demolished by the public officer, he shall
sell the materials of the dwelling, and shall
credit the proceeds of the sale against the
cost of the removal or demolition and any
balance remaining shall be deposited in the
superior court by the public officer, shall be
secured in a manner directed by the court, and
shall be disbursed by the court the persons
found to be entitled thereto by final order or
decree if [sic] the court
Defendants contend that the town's ordinance violates the
enabling statute quoted above because it fails to include language
requiring the sale of personal property, fixtures and
appurtenances. We disagree. The ordinance is not inconsistent
with the provisions of N.C. Gen. Stat. § 160A-443(6)(c). Greene v.
City of Winston-Salem, 287 N.C. 66, 73, 213 S.E.2d 231, 236 (1967).
Section 2(5) of the town's ordinance defines the term “dwelling” in
the ordinance as including “any outhouses and appurtenances
belonging thereto or usually enjoyed therewith.” Construed
together, these sections are not inconsistent with the requirements
of N.C. Gen. Stat. § 160A-443(6)(c). Greene, 287 N.C. at 73, 213
S.E.2d at 236. However, while the town's ordinance is not necessarily
inconsistent with the enabling statute, issues of fact remain as to
whether the town's actions were, so that summary judgment was not
appropriate here. Regardless of the specific wording of the town's
ordinance, the town must comply with the statute's requirement that
any personal property or appurtenances be salvaged and the proceeds
applied to the cost of removal or demolition. Defendants alleged
in their complaint and in an affidavit from Jessie Harris that the
removed mobile homes and their contents had a value in excess of
$5000. In its brief, the town contends that there was no
salvageable material on defendants property when the mobile homes
were removed. Because the existence and value of any personal
property and appurtenances on defendants' property are genuine
issues of material fact, summary judgment for the town was not
proper, and we vacate the judgment and remand for further
proceedings consistent with this opinion.
[2] Defendants also argue that the court erred in awarding
attorney fees to plaintiff. We agree. The town brought its action
to enforce a lien against defendants' real property to cover the
costs of removing the condemned dwellings. Because the town may
have improperly failed to salvage personal property and
appurtenances from defendants' property and credit their value
toward the costs incurred, we cannot determine whether any lien
existed. Thus, we vacate the award of attorney fees as well.
Reversed and remanded.
Judges TIMMONS-GOODSON and STEELMAN concur.
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