Marside, Inc. v. Mosley
| Decision Date | 04 December 1975 |
| Docket Number | No. 303,303 |
| Citation | 347 A.2d 884,29 Md.App. 366 |
| Parties | MARSIDE, INCORPORATED v. Tamara MOSLEY. |
| Court | Court of Special Appeals of Maryland |
Robert G. Durnal, Gen Burnie, for appellant.
Michael Bowen Mitchell, Baltimore, with whom were Clifton J. Gordy, Jr., and Harry A. E. Taylor, Baltimore, on the brief, for appellee.
Argued before GILBERT, LOWE and MASON, JJ.
On May 27, 1975 we granted certiorari to review an interpretation of Real Property Art., § 11-110(f) by the Circuit Court for Anne Arundel County. That section provides for the enforcement of a lien against a condominium unit arising from assessments permitted by the Horizontal Property Act, to maintain the common elements of the condominiums.
Sec. 11-110(d) declares that any such assessment:
'. . . constitutes a lien on the unit on which it is assessed, if a statement of lien in recorded within two years after the date the assessment becomes due. . . .' (Emphasis added).
There follows § 11-110(f) purporting to discuss 'Enforcement of lien.' That section contains the equivocal sentence calling for interpretation under the facts of this case:
'(f) Enforcement of lien.-The lien may ben enforced and foreclosed by the council of unit owners, or any other person specified in the bylaws, in the same manner, and subject to the same requirements, as the foreclosure of mortgages or deeds of trusts on real property in the state containing a power of sale, or an assent to a decree.
Suit for any deficiency following foreclosure may be maintained in the same proceeding AND SUIT TO RECOVER A MONEY JUDGMENT FOR UNPAID ASSESSMENTS MAY BE MAINTAINED WITHOUT WAIVING THE LIEN SECURING THE SAME. No action may be brought to foreclose the lien unless brought within three years following the recordation of the statement of condominium lien. No action may be brought to foreclose the lien except after ten days' written notice to unit owner given by registered mail-return receipt requested, to the address of the unit owner shown on the books of the council of unit owners.' (Emphasis added).
We find ourselves factually limited in our review because of the absence of any transcript of testimony. This is due to the unique procedure utilized by the judge below for obtaining the facts he felt necessary to his determination. The court served an order upon the parties calling upon them to admit or deny certain factual predicates set forth by him. We too are restricted to the admissions or explanations in the affidavits of response to these factual 'propositions.' Although the procedure helped narrow the issue for which we granted certiorari, it also makes more difficult a review on the merits.
At appears that appellant, Marside, Incorporated (Marside), purchased for $525.00 at a constable's sale a condominium unit owned by appellee Tamara Mosley. Marside filed an action of forcible entry and detainer in the District Court of Anne Arundel County to obtain possession of the property. The District Court issued a Warrant of Restitution. This was appealed by appellee to the Circuit Court. That court ruled that the deed was a nullity, based upon its interpretation of § 11-110(f), and rescinded the Warrant of Restitution.
Mrs. Mosley had been indebted to the Council of Co-Owners of Warfield Condominium for the sum of $330.83 as a result of assessments to maintain the common elements of the property. To collect the debt due it, Warfield declined to perfect a line pursuant to § 11-110(d), but chose rather to sue in District Court where it obtained a money judgment for $330.83. This judgment was recorded on June 14, 1974 among the District Court judgment records filed in the Circuit Court. There is no evidence or allegation that 'a statement of condominium lien (was) recorded among the land records of the county . . .' in compliance with prerequisites of § 11-110(d) which reads in full as follows:
Still following the common law procedure for enforcement of a money judgment for debt, a writ of fieri facias was issued out of the District Court and levied on Mrs. Mosley's condominium. A constable's sale was subsequently held and Mrs. Mosley's condominium was sold to Marside. A deed was then executed by the constable to Marside. The fourth and final proposition set forth for affirmance or denial by the court below, and the parties' affidavits in response, 1 sharpens the question before us: i. e., does the enactment of § 11-110(f), effective July 1, 1974, provide an additional, simplified procedure for lien security and enforcement of assessments for common elements of condominiums, or is the new remedy an exclusive one, precluding all other procedures for recovery of the debt?
The court's 'MEMORANDUM OF DECISION AND ORDER' held, in effect, that the procedure provided in § 11-110(f) for enforcement of a lien is an exclusive remedy for recovering money owed as assessments for common expenses of the common elements. The court said in part that:
'Section 11-110(f) of the Real Property Article, Maryland Code, as enacted in 1974 requires that a condominium lien be enforced and foreclosed-in the same manner as foreclosure of mortgages or deeds of trust on real property. Therefore, the 'W' Rules of Maryland Rules of Procedure apply. Rule W 72b requires that an action to foreclose a mortgage shall be filed in an equity court of the county in which the mortgaged property is located.
Therefore, it is obvious that all actions undertaken by Appellee in the District Court subsequent to the obtaining of the judgment were contrary to the statutes and rules of procedure in such cases made and provided. The District Court, lacking jurisdiction to foreclose a condominium lien, the deed upon which the warrant of restitution was based was void and the warrant improperly issued. Scarlett v. Robinson, 112 Md. 202, 206 (76 A. 181).'
Our opinion differs from that of the trial judge only in his use of one word, 'requires.' We think that § 11-110(f) 'permits' enforcement of a condominium lien in the same manner as a mortgage foreclosure, but does not require it. The language of § 11-110(f) is permissive, not mandatory, indicating that the legislative intent was to provide an additional procedure of collection but not to restrict recovery to that procedure alone. The section begins, 'The lien may be...
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Johnson v. Fairfax Village Condo. IV, 87-773.
...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 p......