Johnson v. Fairfax Village Condo. IV, 87-773.

• Decision Date: 23 September 1988
• Docket Number: No. 87-773.,87-773.
• Citation: 548 A.2d 87
• Parties: Richard I. JOHNSON, Appellant, v. FAIRFAX VILLAGE CONDOMINIUM IV UNIT OWNERS ASSOCIATION, Appellee.
• Court: D.C. Court of Appeals

548 A.2d 87

Richard I. JOHNSON, Appellant, v. FAIRFAX VILLAGE CONDOMINIUM IV UNIT OWNERS ASSOCIATION, Appellee.

No. 87-773.

District of Columbia Court of Appeals.

Argued July 13, 1988.

Decided September 23, 1988.

Bernard A. Gray, Sr., Washington, D.C., for appellant.

Gary M. Hnath, with whom Michael B. McGovern, Washington, D.C., was on the brief, for appellee.

Before TERRY and ROGERS, Associate Judges, and GALLAGHER, Senior Judge.

GALLAGHER, Senior Judge:

This appeal arose after the trial court denied appellant's motion to vacate a prior order which granted summary judgment to appellee. Appellant contends the trial court erred in granting summary judgment to appellee because genuine issues of material fact remained in dispute, and appellee was not entitled to judgment as a matter of law. Because a material issue and certain documents, which are necessary to the disposition of this case, do not appear to have been considered by the trial court, the proceeding was not in a posture for grant of summary judgment. We therefore reverse and remand.

Appellee (the "Association") is a nonprofit association consisting of owners of condominium units in Fairfax Village Condominium IV ("Fairfax Village"), a development located in the southeast section of the District of Columbia. Appellant became an owner of a condominium unit in Fairfax Village in October of 1975. Sometime in 1980, appellant ceased paying his condominium assessments. In 1983, the Association commenced proceedings to foreclose on appellant's unit by selling it at a public auction pursuant to the provisions of a statutory power of sale remedy.¹ At this public sale, appellant's condominium unit was purchased by Esther Wiggins. Appellant's delinquent condominium assessments were paid from the purchase price tendered by Wiggins, who purchased the unit subject to a first mortgage. Appellant commenced a suit challenging the authority of the Association to sell his condominium without prior approval of a court.²

Although Wiggins then held title to the condominium, appellant refused to vacate the unit. After several attempts to obtain possession of the unit proved futile,³ Wiggins eventually ceased paying her assessed condominium fees. Appellant, who continuously remained in possession, did not pay the assessments either. When the monthly condominium assessments became $1,145.08 in arrears on April 5, 1985, the Association, for a second time, commenced a foreclosure proceeding pursuant to the statutory power of sale provision to recover the amount of the delinquent condominium assessments. The Association gave notice of the foreclosure by power of sale both to Wiggins — the record owner of title — and appellant, who the Association felt may have had an equitable possessory interest in the unit in view of his continuous residence there. Neither Wiggins nor appellant satisfied the assessments in arrears, and, consequently, the condominium unit was placed for sale at a public auction.⁴ Appellant attended this second foreclosure auction, but the Association eventually purchased the condominium because no other party bid on the unit. Thus, the Association acquired record title to the condominium unit in 1985.⁵

Appellant still refused to vacate the premises, prompting the Association to institute a suit for possession in the Landlord & Tenant Branch of the Superior Court. In response, appellant filed an Answer to the suit for possession which (a) asserted a plea of title,⁶ and (b) requested a trial by jury.⁷ Consequently, the Landlord & Tenant action was then certified to the Civil Division of the Superior Court, where it was consolidated with the existing claim that challenged the legality of the first foreclosure proceeding completed in 1983.⁸

In this consolidated action, appellant raised several claims.⁹ However, at the core of appellant's case is his contention that the bylaws of Fairfax Village IV preclude the Association from foreclosing on liens for unpaid assessments by executing a statutory power of sale. Appellant contends that the condominium bylaws bind the Association to proceed by a judicial foreclosure, which necessitates a formal adversarial proceeding to adjudicate the parties' rights. Under this theory, both foreclosure proceedings instituted by the Association against the condominium unit would be invalid. If both the foreclosure proceedings were improper, appellant argues, a fortiori, that (a) he is the proper owner of the condominium unit, and (b) the trial court's determination that the Association held record title to the property was error. The trial court order granting summary judgment does not address the bylaws argument; it simply states "that the foreclosure was executed in accordance with the provisions of D.C.Code § 45-1801, et seq. (1981)."

I.

The District of Columbia Condominium Act¹⁰ permits the Association to assess the cost of common expenses against the owners of condominium units. D.C.Code § 45-1852(c) (1981). The Act also provides that 141 assessments levied against a condominium unit . . . shall . . . constitute a lien in favor of the unit owners' association. . . ." D.C.Code § 45-1853(a). The lien "may be enforced against such condominium unit by a power of sale in favor of the unit owners' association if assessments are past due, unless the condominium instruments provide otherwise." D.C. Code § 45-1853(c) (emphasis supplied). Thus, the statute provides owners' associations an alternative means of recouping unpaid assessments, i.e., the lien may be enforced "in the same manner as a mortgage foreclosure, but [the statute] does not require it." Marside, Inc. v. Mosley, 29 Md.App. 366, 371, 347 A.2d 884, 887 (Md. Ct.Spec.App. 1975) (condominium association's foreclosure of lien by statutory power of sale is a permissive remedy). The pivotal issue, then, is whether the condominium instruments of Fairfax Village "provide otherwise," i.e., do the condominium instruments allow the Association to take advantage of the expedited procedure provided by the statute to foreclose on a lien for assessments, or do those condominium instruments "provide otherwise"?

Article X of the bylaws of Fairfax Village provides, in pertinent part:

2. Lien for Contributions.

(a) The total annual contribution of each Co-owner for the Common Expenses levied pursuant to these By-Laws is hereby declared to be lien levied against the Unit of such Co-owner within the purview of the Horizontal Property Act, which lien shall be effective as of the first day of each fiscal year of the Condominium. The Board of Directors, or the Manager or Managing Agent, may file or record such other or further notice of lien, or such other or further document as may be required by the then laws of the District of Columbia to confirm the establishment of such lien.

* * * * * *

(c) The lien for contribution may be foreclosed in the manner provided by the laws of the District of Columbia by suit brought in the name of the Board of Directors, acting on behalf of the Council. During the pendency of such suit the Co-owner shall be required to pay a reasonable rental for the Unit for any period prior to sale pursuant to any judgment or order of any court having jurisdiction over such sale . .

(Emphasis supplied.) Appellant contends that the bylaws' reference to foreclosure "by suit" and "pursuant to any judgment or order of any court having jurisdiction over such sale" requires the Association to resort to a judicial proceeding (in contrast to the power of direct sale remedy) to enforce a lien for unpaid assessments. Conversely, the Association relies on a different provision of the bylaws, which empowers the Board of Directors of the Association to enforce "by legal means the provisions of the Declaration [and] these Bylaws . . . [by] bringing any proceedings which may be instituted on behalf of the Co-owners." BYLAWS, Article III.1(i) (emphasis supplied). The Association argues that this language entitles it to take advantage of the expedited statutory remedy of foreclosing on liens for unpaid assessments by executing a power of sale, rather than commencing a proceeding in the Superior Court. See supra note 1.

When the bylaws were recorded and appellant purchased his unit in 1975, the only means available to the Association to foreclose on the lien was to commence an action for foreclosure in the Superior Court.¹¹ The provisions of the Condominium Act at issue here were not effective until two years later, i.e., March 29, 1977.¹² Since the power of sale provision of the Act is a permissive remedy and the bylaws do not authorize the Association to resort to this remedy, appellant argues, with some merit, that the Association was required to properly amend the bylaws to be able to take advantage of the new statutory remedy.

The condominium instruments, including the bylaws and the sales agreement, are a contract that governs the legal rights between the Association and unit owners. See Bauer v. Harn, 223 Va. 31, 36, 286 S.E.2d 192, 194 (1982); Pepe v. Whispering Sands Condominium Association, Inc., 351 So.2d 755, 757 (Fla.Ct.App. 1977). See also 1 ROHAN, CONDOMINIUM LAW & PRACTICE § 7.03 (1987). The condominium bylaws "represent a form of private law making, [in which] individual owners come together and agree to subordinate some of their traditional individual ownership rights and privileges when they choose this type of ownership experience." Ryan v. Baptiste, 565 S.W.2d 196, 198 (Mo.Ct. App. 1978). As such, these documents should be strictly construed as they are written, giving the language its clear, simple, and unambiguous meaning. See Hibbert v. Hollywood Park, Inc., 457 A.2d 339, 342-43 (Del. 1983) (applying general rules of contract and statutory construction to interpret corporation's bylaws); Wescott v. Burton Wood Manor Condominium Association Board of Managers, 743 S.W.2d 555, 558 (Mo.Ct.App. 1988) (strictly construing the governing bylaws); see also ...