W. H. Dail Plumbing, Inc. v. Roger Baker & Associates, Inc. , 64 N.C. App. 682 ( 1983 )

308 S.E.2d 452 (1983)

W.H. DAIL PLUMBING, INC.
v.
ROGER BAKER AND ASSOCIATES, INC., and J. Gordon Fisher and wife, Shirley C. Fisher.

No. 8215SC1219.

Court of Appeals of North Carolina.

November 1, 1983.

Boxley, Bolton & Garber by Ronald H. Garber, Raleigh, for plaintiff, appellee.

Mount, White, King, Hutson, Walker & Carden, P.A. by Lillard H. Mount and Daniel E. Garner, Durham, for the defendants, appellants.

HEDRICK, Judge.

The issue presented is whether the trial court erred by entry of summary judgment allowing Dail to enforce the full amount of its lien against a single unit in a multi-unit condominium project.

As a broad general legal principal, it has frequently been held or recognized that a single blanket mechanic's lien upon or against several lots or properties for a total sum due to the claimant for labor or materials furnished thereto by him may not ordinarily, and in the absence at least of some showing of proper apportionment, be enforced against less than all of such tracts or parcels.

Annot. 68 A.L.R. 3d 1300, 1303. This principal has been adopted by several states, including Montana and Florida. The Supreme Court of Montana in Hostetter v. Inland Dev. Corp. of Montana, 172 Mont. 167, 175, 561 P.2d 1323, 1328 (1977) stated: "[I]t would be inequitable to burden some lesser portion of the liened premises with charges for labor and materials which were not actually furnished to that particular parcel. Consequently, this single lien, proportionately effective against each unit, would only be enforceable against each unit proportionately." The Florida District Court of Appeals, in dealing with the enforcement of a blanket lien against a condominium project stated: "However, the most equitable result would be accomplished by making each condominium unit liable only for its pro rata share based upon its pro rata interest in the condominium property as set forth in the declaration of condominium...." Southern Colonial Mortg. Co., Inc. v. Medeiros, 347 So. 2d 736, 739-40 (Fla. Dist.Ct.App.1977).

An examination of North Carolina law also reveals support for the majority rule. In Chadbourn v. Williams, 71 N.C. 444 (1874), plaintiff filed a lien for materials furnished to defendant. The materials were used to construct structures on two lots. The defendant sought to have the lien apportioned between the two parcels. The Supreme Court declined to require apportionment in that particular case, but said:

If the two lots had been sold or mortgaged to different persons, it might be necessary as between them, and to settle their respective liabilities to contribution, to ascertain as well as could be, the value of the materials used on each lot.... In this case as the Association is the assignee of the whole property subject to the plaintiff's lien, it can scarcely be material to distribute the burthen [archaic] between the several lots. If it becomes material, that can hereafter be done.

Id. at 448.

A condominium unit is a separate tract of property, distinct from the other units within the project. See N.C.Gen.Stat. Sec. 47A-5. When the condominium units are owned by different parties, the portion of the blanket lien applicable to each separate unit becomes material. It would be grossly inequitable to allow a blanket lien holder to enforce the entire lien against one unit of a multi-unit condominium project. Each unit shall be liable only for its proportionate share based upon the materials and labor furnished to that unit, and its proportionate part of labor and materials furnished the common area, under the contract that is the subject of the lien.

Thus the trial court erred in granting summary judgment for the plaintiff declaring the full amount of the lien to be enforceable against defendants' single unit. While the evidence in the record sufficiently establishes that plaintiff is entitled to have a portion of its claim of lien declared a lien against defendants' single unit, there remains a genuine issue as to what amount of the total claim of lien is to be declared a lien against the Fishers' Unit 104.

For the reasons stated summary judgment declaring the total amount of the claim of lien to be a lien against defendants' Unit 104 is reversed, and the cause is remanded for further proceedings.

Reversed and Remanded.

BECTON and EAGLES, JJ., concur.