In re Foreclosure of a Lien by Executive Office Park of Durham Association, Inc. against Martin E. Rock a/k/a Martin A. Rock

Summary

The North Carolina Supreme Court held that a condominium created before enactment of the North Carolina Condominium Act may use the statutory power of sale to foreclose an assessment lien for post-1986 nonpayment, unless the condominium declaration expressly provides otherwise. The court concluded that the governing declaration did not expressly exclude nonjudicial foreclosure. The court reversed the Court of Appeals and remanded for consideration of the respondent’s remaining argument that he was not in default.

Holdings

1. Under N.C.G.S. § 47C-1-102(a), N.C.G.S. § 47C-3-116(f)'s power-of-sale foreclosure remedy applies to condominiums created in North Carolina on or before October 1, 1986 for events and circumstances occurring after that date, unless the declaration expressly provides to the contrary.
2. The declaration did not expressly prohibit power-of-sale foreclosure or limit the association's foreclosure authority to judicial foreclosure; therefore, it did not provide to the contrary under N.C.G.S. § 47C-1-102(a).

Questions Presented

1. Whether N.C.G.S. § 47C-3-116(f)'s power-of-sale foreclosure remedy applies to a condominium created before October 1, 1986 when the declaration does not expressly provide to the contrary.
2. Whether the condominium declaration expressly excluded or limited foreclosure by power of sale.
3. Whether the case should be remanded for the Court of Appeals to address Rock's argument that he was not in default.

Disposition

reversed_and_remanded