{ "id": 8375273, "name": "IN RE: WILLIAMSON VILLAGE CONDOMINIUMS", "name_abbreviation": "In re Williamson Village Condominiums", "decision_date": "2007-12-18", "docket_number": "No. COA07-217", "first_page": "553", "last_page": "567", "citations": [ { "type": "official", "cite": "187 N.C. App. 553" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "639 S.E.2d 421", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637514 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "423" } ], "opinion_index": 0, "case_paths": [ "/se2d/639/0421-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 59-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1982, "pin_cites": [ { "page": "(a)(1)", "parenthetical": "emphasis added" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "306 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "139" }, { "page": "139" } ], "opinion_index": 0 }, { "cite": "63 N.C. App. 673", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526039 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "676" }, { "page": "676-77" } ], "opinion_index": 0, "case_paths": [ "/nc-app/63/0673-01" ] }, { "cite": "Colo. Rev. Stat. \u00a7 38-33.3-203", "category": "laws:leg_statute", "reporter": "Colo. Rev. Stat.", "weight": 3, "year": 2003, "pin_cites": [ { "page": "(4)" }, { "page": "256" }, { "page": "255" } ], "opinion_index": 0 }, { "cite": "Colo. Rev. Stat. \u00a7 38-33.3-205", "category": "laws:leg_statute", "reporter": "Colo. Rev. Stat.", "weight": 3, "year": 2003, "pin_cites": [ { "page": "(1)(h)" }, { "page": "254-55" }, { "page": "255-56" } ], "opinion_index": 0 }, { "cite": "Colo. Rev. Stat. \u00a7 38-33.3-101", "category": "laws:leg_statute", "reporter": "Colo. Rev. Stat.", "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "97 P.3d 252", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 9193706 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "255", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/p3d/97/0252-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 4702-117", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "256 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1979, "pin_cites": [ { "page": "393" }, { "page": "393" }, { "page": "393" }, { "page": "529-33" }, { "page": "391-93", "parenthetical": "holding that the plaintiff had substantially complied as a matter of law with statutory requirements for public sales of collateral securing unpaid debts" } ], "opinion_index": 0 }, { "cite": "297 N.C. 524", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571941 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "532" }, { "page": "532" }, { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0524-01" ] }, { "cite": "361 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739419 ], "year": 2007, "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0193-01" ] }, { "cite": "645 S.E.2d 864", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638641 ], "year": 2007, "pin_cites": [ { "page": "865" } ], "opinion_index": 1, "case_paths": [ "/se2d/645/0864-01" ] }, { "cite": "Colo. Rev. Stat. \u00a7 38-33.3-210", "category": "laws:leg_statute", "reporter": "Colo. Rev. Stat.", "weight": 3, "pin_cites": [ { "page": "(5)" } ], "opinion_index": 1 }, { "cite": "2004 WL 1813925", "category": "reporters:specialty_west", "reporter": "WL", "year": 2004, "pin_cites": [ { "page": "*1" } ], "opinion_index": 1 }, { "cite": "553 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "87" }, { "parenthetical": "citation and quotation omitted" } ], "opinion_index": 1 }, { "cite": "146 N.C. App. 401", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11358357 ], "year": 2001, "pin_cites": [ { "page": "405-06" } ], "opinion_index": 1, "case_paths": [ "/nc-app/146/0401-01" ] }, { "cite": "184 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8184791 ], "year": 2007, "pin_cites": [ { "page": "164" } ], "opinion_index": 1, "case_paths": [ "/nc-app/184/0162-01" ] }, { "cite": "507 S.E.2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "896" } ], "opinion_index": 1 }, { "cite": "349 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571692 ], "year": 1998, "pin_cites": [ { "page": "523" } ], "opinion_index": 1, "case_paths": [ "/nc/349/0520-01" ] }, { "cite": "Colo. Rev. Stat. \u00a7 38-33.3-203", "category": "laws:leg_statute", "reporter": "Colo. Rev. Stat.", "weight": 5, "year": 2003, "pin_cites": [ { "page": "(4)" }, { "page": "256" }, { "parenthetical": "emphasis supplied" } ], "opinion_index": 1 }, { "cite": "Colo. Rev. Stat. \u00a7 38-33.3-205", "category": "laws:leg_statute", "reporter": "Colo. Rev. Stat.", "weight": 2, "year": 2003, "pin_cites": [ { "page": "(1)(h)" } ], "opinion_index": 1 }, { "cite": "97 P.3d 252", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 9193706 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "255" } ], "opinion_index": 1, "case_paths": [ "/p3d/97/0252-01" ] } ], "analysis": { "cardinality": 1019, "char_count": 32933, "ocr_confidence": 0.754, "pagerank": { "raw": 2.56230658999868e-07, "percentile": 0.8154498582735905 }, "sha256": "799b8b703919677589eddb17f5e0e5a3425332a9aeed85cc8b07b82ff5e4373a", "simhash": "1:0b6da107d1fb6792", "word_count": 5123 }, "last_updated": "2023-07-14T22:19:56.575920+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ELMORE concurs.", "Judge TYSON dissents with a separate opinion." ], "parties": [ "IN RE: WILLIAMSON VILLAGE CONDOMINIUMS" ], "opinions": [ { "text": "McGEE, Judge.\nWilliamson Village Partners, LLC (Plaintiff) is a commercial real estate firm. Plaintiff purchased a tract of land in Iredell County on 30 August 1999, with the intent of constructing two commercial'condominium buildings (Buildings One and Two) on the property. Each building was to contain three condominium units. Before Plaintiff began construction on Building One, Ben S. Thomas, T. Michael Godley, and Mark L. Childers (Defendants) entered into a contract to purchase one of the condominium units in Building One. The contract for sale referenced the \u201ccommercial condominium project to be constructed by [Plaintiff] . . . including Two (2) separate buildings.\u201d Under the terms of the contract, Defendants retained the right to approve the final plat and condominium declaration (the Declaration), which Plaintiff was required to record pursuant to N.C. Gen. Stat. \u00a7 47C-1-101 et seq., the North Carolina Condominium Act.\nPlaintiff and Defendants worked together to prepare the Declaration and plat. Defendants submitted suggestions to Plaintiff in January 2000 regarding a draft declaration and communicated additional comments and concerns regarding construction of Building One in May and July 2000. None of these concerns directly referenced Building Two. Plaintiff provided Defendants with updated copies of the Declaration and plat for final approval in or around late July 2000. The plat showed the location of Building One and included the future boundary of Building Two, with the following notation: \u201cEXTENTS OF FUTURE BUILDING ... \u2018NEED NOT BE BUILT.\u2019 \u201d The Declaration included the following provision:\nSection 16.1 Development Rights. Declarant hereby reserves the right to exercise those Development Rights granted herein and under the Condominium Act on existing and additional properties that will be brought under this Declaration of Condominium and as shown in Condominium Book 1 at Pages 105, 106 & 107 recorded in the Iredell County Register of Deeds.\nDefendants approved the Declaration and plat, and Plaintiff recorded the documents on 26 July 2000. Plaintiff conveyed a condominium unit in Building One to Defendants on 4 August 2000. The deed referenced Plaintiffs right, reserved pursuant to the Declaration, to construct additional condominium units on the property.\nPlaintiff conveyed the second condominium unit in Building One to Linda L. Cherry in May 2002 and the third unit in Building One to FLC Investments in January 2006. Plaintiff made both these grantees aware of its plans to construct Building Two adjacent to Building One. There is no evidence in the record that either of these grantees objected to the future construction of Building Two.\nPlaintiff apparently had intended to begin construction on Building Two shortly after it sold the last unit in Building One to FLC Investments. However, in late 2005, Defendants raised objections to the new construction. Specifically, Defendants claimed that the terms of the Declaration did not permit Plaintiff to proceed with the construction. There is no evidence in the record that Defendants brought this concern to Plaintiffs attention at any time between 1999 and late 2005.\nPlaintiff filed a complaint for declaratory judgment in Iredell County Superior Court on 16 February 2006. The complaint attempted to join the owners of all three condominium units in Building One as real parties in interest. Neither Linda L. Cherry nor FLC Investments responded to the complaint. Defendants filed an answer and moved for summary judgment, claiming that Plaintiff did not retain the right to construct Building Two because the terms of the Declaration did not comply with the North Carolina Condominium Act. The trial court granted Defendants\u2019 motion, \u201crendering] void ab intio [sic] any alleged right of Plaintiff, its successors or assigns, to construct any further buildings.\u201d The trial court also noted that its order bound the nonresponding owners of the additional condominium units in Building One.\nPlaintiff \u00bfppeals the trial court\u2019s order and argues, inter alia, that it retained its development rights because the Declaration substantially complied in good faith with the material requirements of the Condominium Act. We agree.\nA.\nA trial court should grant a motion for summary judgment if, when taken in the light most favorable to the non-moving party, \u201cthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2005). We review a trial court\u2019s grant of a motion for summary judgment de novo. Robins v. Town of Hillsborough, 361 N.C. 193, 196, 639 S.E.2d 421, 423 (2007).\nUnder the North Carolina Condominium Act (the Act), \u201c[a] declaration creating a condominium . . . shall be recorded in every county in which any portion of the condominium is located.\u201d N.C. Gen. Stat. \u00a7 47C-2-101(a) (2005). The Act lists more than a dozen specific items that must be included in the declaration, including, inter alia, a name for the condominium complex, a description of the property, and any use or occupancy restrictions. N.C. Gen. Stat. \u00a7 47C-2-105(a)(1), (3), (12) (2005). In addition, the declaration must contain \u201c[a] description of any development rights and other special declarant rights reserved by the declarant, together with a legally sufficient description of the real estate to which each of those rights applies, and a time limit within which each of those rights must be exercised[.]\u201d N.C.G.S. \u00a7 47C-2-105(a)(8) (emphasis added). However, the Act excuses nonmaterial noncompliance with these requirements where the declarant has substantially complied with the statute. See N.C. Gen. Stat. \u00a7 47C-1-104(c) (2005) (\u201cIf a declarant, in good faith, has attempted to comply with the requirements of [the Act] and has substantially complied with [the Act], nonmaterial errors or omissions shall not be actionable.\u201d).\nB.\nPlaintiff admits that the Declaration does not contain a development time limit, but argues that this omission is excusable under the \u201csubstantial compliance\u201d clause in N.C.G.S. \u00a7 47C-l-104(c). For the Declaration\u2019s noncompliance to be excused, Plaintiff, in good faith: (1) must have attempted to comply with the Act, and (2) must have substantially complied with the Act. In addition, the omission of the development time limit must be a nonmaterial omission. See id.\nDefendants do not allege that Plaintiff acted in bad faith, nor do Defendants allege that Plaintiff did not attempt to comply with the Act. The question, then, is whether Plaintiff substantially complied with the material provisions of the Act. Our Supreme Court has defined \u201csubstantial compliance\u201d as \u201ca compliance which substantially, essentially, in the main, or for the most part, satisfies the [statute\u2019s requirements].\u201d Bank v. Burnette, 297 N.C. 524, 532, 256 S.E.2d 388, 393 (1979).\nThe Act contains numerous requirements for condominium creation and operation. Many of the Act\u2019s requirements, both in N.C.G.S. \u00a7 47C-2-105 and elsewhere, deal with the contents of a condominium declaration. The Declaration at issue in the current case is a comprehensive thirty-five-page document that closely follows the Act\u2019s mandates. Among its other provisions, the Declaration includes: the names of the condominium complex and condominium association, see N.C.G.S. \u00a7 47C-2-105(a)(1); the name of the county in which the condominium complex is located, see N.C.G.S. \u00a7 47C-2-105(a)(2); a description of the real estate in the condominium, see N.C.G.S. \u00a7 47C-2-105(a)(3); the number of existing and potential future units in the condominium, see N.C.G.S. \u00a7 47C-2-105(a)(4); the boundaries and identifying numbers of each unit, see N.C.G.S. \u00a7 47C-2-105(a)(5); a list of common elements and areas, see N.C.G.S. \u00a7 47C-2-105(a)(6); a description of reserved development and declarant rights, see N.C.G.S. \u00a7 47C-2-105(a)(8); an allocation to each unit of interests in the common areas, as well as allocations of common expenses and voting rights, see N.C.G.S. \u00a7 47C-2-105(a)(11), N.C. Gen. Stat. \u00a7 47C-2-107 (2005); restrictions on the use, alienation, and occupancy of the units, see N.C.G.S. \u00a7 47C-2-105(a)(12); a recitation of easements and licenses affecting the property, see N.C.G.S. \u00a7 47C-2-105(a)(13); and the condominium plat, see N.C. Gen. Stat. \u00a7 47C-2-109 (2005). In addition to these mandatory requirements, the Declaration also includes a number of nonmandatory sections contemplated by the Act, including: rules regarding unit additions, alterations, and improvements, see N.C. Gen. Stat. \u00a7 47C-2-111 (2005); rules regarding the relocation of boundaries between units, see N.C. Gen. Stat. \u00a7 47C-2-112 (2005); rules for amending the Declaration and bylaws, see N.C. Gen. Stat. \u00a7 4702-117 (2005), N.C. Gen. Stat. \u00a7 47C-3-106 (2005); procedures for terminating the condominium, see N.C. Gen. Stat. \u00a7 47C-2-118 (2005); provisions regarding the structure of the condominium association and executive board, see N.C. Gen. Stat. \u00a7\u00a7 47C-3-101, -102, -103 (2005); provisions for an initial period of declarant control over the condominium association, see N.C. Gen. Stat. \u00a7 47C-3-103(d) (2005); provisions regarding upkeep and damages, see N.C. Gen. Stat. \u00a7 47C-3-107 (2005); provisions regarding insurance, see N.C. Gen. Stat. \u00a7 47C-3-113 (2005);. provisions regarding assessments for common expenses, see N.C. Gen. Stat. \u00a7 47C-3-115 (2005); and provisions for levying against units for unpaid assessments, see N.C. Gen. Stat. \u00a7 47C-3-116 (2005). It is clear from our review of the Declaration that the Declaration \u201cessentially, in the main, [and] for the most part, satisfies the [Act\u2019s requirements].\u201d Burnette, 297 N.C. at 532, 256 S.E.2d at 393.\nPlaintiffs also argue that the omission of the development time limit was a nonmaterial omission. We agree. There is no evidence in the record that the timing of the construction of Building Two was a disputed issue at any time during the business relationship of Plaintiff and Defendants. Rather, the evidence clearly demonstrates that both parties contemplated and expected that Plaintiff would construct Building Two at an unspecified future time. Plaintiff purchased the property with the intent to construct two condominium buildings thereon. Plaintiff communicated its plan to Defendants. Defendants were actively involved in negotiating and preparing the Declaration and plat. During such negotiations, Defendants made numerous demands of Plaintiff. Some of these demands contemplated the future existence of Building Two, but none of the demands involved the timing of construction of Building Two. Defendants approved the final plat, which outlined the future site of Building Two. The final Declaration contained a section reserving Plaintiff\u2019s future development rights, but it did not set out a time limit for the exercise of those rights. Plaintiff suggests that the parties purposely omitted the timing clause in order to grant Plaintiff flexibility in determining the most opportune time to begin construction on Building Two. Defendants do not dispute this contention. Defendants approved the Declaration with the time limit omitted, and never expressed any concern over construction timing until more than five years after they approved the plat and Declaration.\nIn sum, other than the omission of a time limit for the exercise of reserved development rights, it appears that the Declaration contains every other relevant component either mandated by the Act or considered to be material by the parties.\nC.\nDefendants do not argue that Plaintiff failed to substantially comply with the Act. Rather, Defendants contend that the General Assembly did not intend for the Act\u2019s \u201csubstantial compliance\u201d clause to apply to omissions of development time limits. Defendants point to the mandatory language of N.C.G.S. \u00a7 47C-2-105(a)(8), which states that \u201c[t]he declaration for a condominium must contain ... a time limit within which [development] rights must be exercised\u201d (emphasis added). According to Defendants, the General Assembly\u2019s use of the word \u201cmust\u201d demonstrates the General Assembly\u2019s clear and unambiguous intent to make a development time limit a requisite part of a condominium declaration, notwithstanding the Act\u2019s \u201csubstantial compliance\u201d clause.\nIn support of this argument, Defendants rely on a case from the Colorado Court of Appeals. In Silverview v. Overlook at Mt. Crested Butte, 97 P.3d 252 (Colo. Ct. App. 2004), the Colorado court considered a similar argument regarding the Colorado Common Interest Ownership Act, Colo. Rev. Stat. \u00a7 38-33.3-101 et seq. Using language almost identical to N.C.G.S. \u00a7 47C-2-105(a)(8), the Colorado statute required that a condominium declaration \u201cmust contain . . . [a] description of any development rights . . . reserved by the declar-ant . . . and the time limit within which each of those rights must be exercised.\u201d Silverview, 97 P.3d at 255 (emphasis in original) (quoting Colo. Rev. Stat. \u00a7 38-33.3-205(1)(h) (2003)). The appellant\u2019s declaration failed to include a development time limit, and the trial court held that the omission rendered the appellant\u2019s development rights void ab initio. Id. at 254-55. On appeal, the appellant argued that the omission did not void its development rights. The appellant pointed to another portion of the statute which declared that \u201c[t]itle to a [condominium] is not rendered unmarketable or otherwise affected by reason of an insubstantial failure of the declaration to comply with this article.\u201d Id. at 255-56 (quoting Colo. Rev. Stat. \u00a7 38-33.3-203(4) (2003)). The appellate court disagreed. It found that C.R.S. \u00a7 33.3-203(4), by its terms, only applied to disputes concerning title and marketability. Therefore, it was inapplicable because it neither addressed nor excused noncompliance with the statute\u2019s development rights provisions. Id. at 256. Since the noncompliance provision did not apply, the mandatory language of the statute \u201cunambiguously require[d] any reservation of development rights to include a \u2018time limit within which each of those rights must be exercised.\u2019 \u201d Id. at 255 (quoting C.R.S. \u00a7 38-33.3-205(1)(h)).\nIn the case before us, Defendants\u2019 reliance on Silverview is unavailing. As the Colorado court noted, the noncompliance clause in C.R.S. \u00a7 38-33.3-203(4) did not apply to omissions of development rights time limits. Rather, it only applied to instances of statutory noncompliance that implicated title and marketability. Compare N.C. Gen. Stat. \u00a7 47C-2-103(d) (2005) (containing language identical to C.R.S. \u00a7 38-33.3-203(4)). In contrast, N.C.G.S. \u00a7 47C-1-104(c) forecloses any cause of action that might arise solely due to nonmaterial noncompliance with the Act. It therefore reaches to areas where the Colorado statute did not, including the declaration content requirements set out in N.C.G.S. \u00a7 47C-2-105.\nDefendants maintain, however, that because the General Assembly used the mandatory language \u201cmust contain\u201d in N.C.G.S. \u00a7 47C-2-105(a), it clearly did not intend for the \u201csubstantial compliance\u201d clause in N.C.G.S. \u00a7 47C-1-104(c) to apply to that portion of the Act. We disagree. In Johnson v. Manning, 63 N.C. App. 673, 306 S.E.2d 137 (1983), our Court considered whether the contents of a certain business document were sufficient to meet the statutory requirements for a limited partnership agreement. The controlling statute at the time required that \u201c[t)wo or more persons desiring to form a limited partnership shall. . . [s]ign and swear to a certificate, which shall state\u201d a number of items, including the name, location, character, and financial arrangement of the partnership. N.C. Gen. Stat. \u00a7 59-2(a)(1) (1982) (emphasis added), repealed by 1985 N.C. Sess. Laws ch. 989, \u00a7 2. The statute also required the partnership to file the agreement with the register of deeds in the county where the partnership had its principal place of business. N.C.G.S. \u00a7 59-2(a)(2). The purported partnership agreement failed to include some of the requirements of N.C.G.S. \u00a7 59-2(a)(1), and the partners had not filed the agreement as required by N.C.G.S. \u00a7 59-2(a)(2). Johnson, 63 N.C. App. at 676, 306 S.E.2d at 139. However, the statute excused minor violations of its requirements, declaring that \u201c[a] limited partnership is formed if there has been substantial compliance in good faith with the requirements of [the statute].\u201d N.C. Gen. Stat. \u00a7 59-2(b) (1982), repealed by 1985 N.C. Sess. Laws ch. 989, \u00a7 2. Our Court held that despite the shortcomings in the purported partnership agreement, it satisfied enough of the requirements of N.C.G.S. \u00a7 59-2(a) to raise a question of fact as to whether the parties had substantially complied with the statute. Johnson, 63 N.C. App. at 676-77, 306 S.E.2d at 139.\nOur holding in Johnson was predicated upon a recognition that even where the General Assembly uses mandatory language such as \u201cshall\u201d or \u201cmust,\u201d it may still excuse noncompliance with the use of a \u201csubstantial compliance\u201d clause. We therefore find that if the General Assembly did not intend for the \u201csubstantial compliance\u201d clause in N.C.G.S. \u00a7 47C-1-104(c) to apply to the declaration content requirements of N.C.G.S. \u00a7 47C-2-105, it would have excluded that section from its reach. Plaintiff may properly rely on the Act\u2019s \u201csubstantial compliance\u201d clause to excuse the omission of a development time limit in the Declaration.\nD.\nThe ultimate question, then, is whether Plaintiff substantially complied with all material portions of the Act. We find that Plaintiffs evidence on substantial compliance set out in Part B above \u201cso clearly establishes the fact in issue that no reasonable inferences to the contrary may be drawn.\u201d Burnette, 297 N.C. at 533, 256 S.E.2d at 393. We therefore hold that Plaintiff has substantially complied with all material portions of the Act as a matter of law. See id. at 529-33, 256 S.E.2d at 391-93 (holding that the plaintiff had substantially complied as a matter of law with statutory requirements for public sales of collateral securing unpaid debts). The Act thus prevents Defendants from raising their objection in response to Plaintiff\u2019s request for a declaratory judgment regarding its development rights.\nWe recognize that omission of a development time limit may preclude a finding of substantial compliance in cases where the timing of future construction is a material factor in a condominium project. On the record before us, however, this case does not present such a situation. We reverse the trial court\u2019s grant of summary judgment in favor of Defendants, and remand with instructions for the trial court to enter summary judgment in favor of Plaintiff.\nIn light of the foregoing, we do not address Plaintiffs remaining assignments of error.\nReversed and remanded.\nJudge ELMORE concurs.\nJudge TYSON dissents with a separate opinion.\n. Defendants are the named partners of the law firm Thomas, Godley & Childers.\n. The deed conveyed a one-third undivided interest in the condominium unit to Ben S. Thomas and his wife, Angela L. McConnell; a one-third undivided interest to Mark L. Childers and his wife, Pamela J. Hendricks; and a one-third undivided interest to T. Michael Godley and William R. Carson as joint tenants. All six owners,of the condominium unit are defendants in this action.", "type": "majority", "author": "McGEE, Judge." }, { "text": "TYSON, Judge\ndissenting.\nThe majority\u2019s opinion holds plaintiff \u201csubstantially complied\u201d with the North Carolina Condominium Act (\u201cthe Act\u201d) notwithstanding plaintiff\u2019s failure to include in the declaration, a mandatory \u201ctime limit within which each of [the development] rights must be exercised . . .\u201d as required by N.C. Gen. Stat. \u00a7 47C-2-105(a)(8). I disagree and vote to affirm the trial court\u2019s decision granting summary judgment in favor of defendants. I respectfully dissent.\nI. Standard of Review\n\u201cA question of statutory interpretation is ultimately a question of law for the courts.\u201d Brown v. Flowe, 349 N.C. 520, 523, 507 S.E.2d 894, 896 (1998). This Court reviews the interpretation of a statute de novo. Oxendine v. TWL, Inc., 184 N.C. App. 162, 164, 645 S.E.2d 864, 865 (2007).\nII. Substantial Compliance\nPlaintiff argues the failure to include a time limitation for development rights in the declaration was a nonmaterial omission and it therefore \u201csubstantially complied\u201d with the Act. I disagree.\nA. North Carolina Law\nThe General Assembly enacted the North Carolina Condominium Act based upon the Uniform Condominium Act of 1980. According to the official commentary to the Act, the statutory provision at issue is not \u201csignificantly different\u201d from the Uniform Act.\nN.C. Gen. Stat. \u00a7 47C-2-105 (2005) provides, in relevant part:\n(a) The declaration for a condominium must contain-.\n(8) A description of any development rights and other special declarant rights reserved by the declarant, together with a legally sufficient description of the real estate to which each of those rights applies, and a time limit within which each of those rights must be exercised.\n(Emphasis supplied). Official Comment 9 to N.C. Gen. Stat. \u00a7 47C-2-105 states, \u201c[paragraph (a)(8) requires the declaration to describe all development rights and other special declarant rights which the declarant reserves. The declaration must describe the real-estate to which each right applies, and state the time limit within which each of those rights must be exercised.\u201d (Emphasis supplied).\nThe word \u201cmust\u201d is synonymous with- \u201cshall.\u201d Internet East, Inc. v. Duro Communications, Inc., 146 N.C. App. 401, 405-06, 553 S.E.2d 84, 87 (2001). This Court has stated, \u201c[t]he word \u2018shall\u2019 is defined as \u2018must\u2019 or \u2018used in laws, regulations, or directives to express what is mandatory.\u2019 \u201d Id. (citation and quotation omitted) (emphasis supplied). The majority\u2019s opinion correctly states that delineation of a time limit in N.C. Gen. Stat. \u00a7 47C-2-105(a)(8) is a mandatory requirement, but holds, despite the plain language and legislative intent of the statute, that plaintiff has substantially complied with the Act pursuant to N.C. Gen. Stat. \u00a7 47C-1-104(c) (2005).\nN.C. Gen. Stat. \u00a7 47C-1-104(c) states, \u201c[i]f a declarant, in good faith, has attempted to comply with the requirements of this chapter and has substantially complied with the chapter, nonmaterial errors or omissions shall not be actionable.\u201d (Emphasis supplied). The threshold issue presented is whether the omission of the statutorily required express time limit for future development is nonmaterial. The majority\u2019s opinion states plaintiff has substantially complied with the Act because \u201cthe Declaration contains every other relevant component either mandated by the Act or considered to be material by the parties.\u201d I disagree.\nB. Silverview v. Overlook at Mt. Crested Butte\nThis appears to be an issue of first impression in North Carolina. In the absence of controlling authority, we must look to other jurisdictions to review this issue. I find the reasoning and holding in Silverview v. Overlook at Mt. Crested Butte to be directly on point and persuasive. 97 P.3d 252 (Colo. App. 2004), cert. denied, No. 04SC179, 2004 WL 1813925, at *1 (Colo., Aug. 16, 2004). In Silverview, the Colorado Court of Appeals held, based on the language of Colo. Rev. Stat. \u00a7 38-33.3-205 (2003), that the omission of a time limitation on the development rights in the declaration rendered the rights void ab initio. In virtually identical language to N.C. Gen. Stat. \u00a7 47C-2-105(a)(8), Colo. Rev. Stat. \u00a7 38-33.3-205(1)(h) states:\n(1) The declaration must contain:\n(h) A description of any development rights and other special declarant rights reserved by the declarant, together with a description sufficient to identify the real estate to which each of those rights applies and the time limit within which each of those rights must be exercised.\n(Emphasis supplied).\nIn Silverview, the Court stated, \u201cthe word \u2018must\u2019 connotes a requirement that is mandatory and not subject to equivocation. Thus, in using the word \u2018must,\u2019 the plain language of [Colo. Rev. Stat.] \u00a7 38-33.3-205(1) (h) unambiguously requires any reservation of development rights to include a \u2018time limit within which each of those rights must be exercised.\u2019 \u201d 97 P.3d at 255.\nThe Colorado General Assembly also enacted a statute with language that is similar to N.C. Gen. Stat. \u00a7 47C-1-104(c). Colo. Rev. Stat. \u00a7 38-33.3-203(4) (2003) states, \u201c[t]itle to a unit and common elements is not rendered unmarketable or otherwise affected by reason of an insubstantial failure of the declaration to comply with this article. Whether a substantial failure impairs marketability is not affected by this article.\u201d (Emphasis supplied). The majority\u2019s opinion correctly states the Colorado Court of Appeals found the statute\u2019s noncompliance provision inapplicable because the dispute did not concern title or marketability. Id. at 256. However, the Court subsequently states, \u201ceven assuming [the noncompliance provision] were to apply, we find Overlook\u2019s argument unpersuasive.\u201d Id.\nThe Colorado Court of Appeals held that examples of insubstantial defects included omitting the words \u201c \u2018condominium,\u2019 \u2018cooperative,\u2019 or \u2018planned community\u2019 \u201d from the declaration or the failure to include \u201cthe plats or plans to comply satisfactorily with the requirement that they be clear and legible.\u201d Id. The Court further stated, \u201cOverlook\u2019s mathematical argument that missing only one out of twenty-three requirements must necessarily be an \u2018insubstantial failure\u2019 is overly simplistic. ... we [do not] believe that the General Assembly intended an omission that leads to development rights being reserved with no time limitation to be considered insubstantial.\u201d Id. (emphasis supplied).\nThe Colorado Court of Appeals relied on two subsections as the basis of its holding:\n(2) ... This provision does not extend the time limit on the exercise of development rights imposed by the declaration pursuant to section 38-33.3-205(l)(h).\n(5) If a declarant fails to exercise any development right within the time limit and in accordance with any conditions or fixed limitations described in the declaration pursuant to section 38-33.3-205(1) (h), or records an instrument surrendering a development right, that development right shall lapse ....\nColo. Rev. Stat. \u00a7 38-33.3-210 (2) and (5) (2003). The Court concluded \u201c[t]hese subsections are consistent with the conclusion that the omission of a time limitation is not \u2018insubstantial\u2019.\u201d Id.\nC. Analysis\nThe North Carolina and Colorado General Assemblies enacted virtually identical provisions regarding the mandatory requirements the declarant must comply with in order to reserve future development rights. Although Colorado law is not binding on North Carolina, I find the Colorado Court of Appeals\u2019 analysis of virtually identical statutes to be directly on point and persuasive to the facts and legal issue before us.\nN.C. Gen. Stat. \u00a7 47C-2-110 (2005) is a very similar provision to Colo. . Rev. Stat. \u00a7 38-33.3-210(2). N.C. Gen. Stat. \u00a7 47C-2-110(b) expressly limits future development rights by stating:\nDevelopment rights may be reserved within any real estate added to the condominium if the amendment adding that real estate includes all matters required by, and is in compliance with, G.S. 47C-2-105 and, if a leasehold condominium, G.S. 47C-2-106 and also if the plats and plans include all matters required by G.S. 47C-2-109. This provision does not extend the limit on the exer cise of developmental rights imposed by the declaration pursuant to G.S. 47C-2-105(a)(8).\n(Emphasis supplied). Further, Official Comment 1 to N.C. Gen. Stat. \u00a7 47C-2-110 states:\nThis section generally describes the method by which any development right may be exercised. Importantly, while new development rights may be reserved within new real estate which is added to the condominium, the original time limits on the exercise of these rights which the declarant must include in the original declaration may not be extended. Thus, the development process may-continue only within the self-determined constraints originally described by the declarant.\n(Emphasis supplied).\nAlthough the North Carolina Condominium, Act does not have a provision identical to Colo. Rev. Stat. \u00a7 38-33.3-210(5), stating failure to exercise the development right within the prescribed time causes the development rights to lapse, I find the addition of the subsection and Official Comment above to be indicative of the General Assembly\u2019s intent to require inclusion of a time limitation for future development rights a mandatory and material part of the declaration. The majority\u2019s reliance upon N.C. Gen. Stat. \u00a7 47C-l-104(c) to excuse the omission is misplaced. This statute expressly applies to only \u201cnonmaterial errors or omissions\u201d and is inapplicable in this case.\nFurther, the majority\u2019s holding excusing plaintiff\u2019s omission on the ground that plaintiff otherwise substantially complied with the Act because \u201cthe Declaration contains every other relevant component either mandated by the Act or considered to be material by the parties\u201d was expressly disavowed by the Colorado Court of Appeals.\nThe General Assembly\u2019s intended purpose in enacting N.C. Gen. Stat. \u00a7 47C-2-105(a)(8) was for the declarant to fully disclose to and inform the buyer, upon purchase, of any future development rights the declarant maintains over the property and the timing in which those rights must be exercised. The buyer can then decide whether to purchase the property based on the present conditions and the disclosed conditions which may exist at a specified time in the future. Based upon the plain and mandatory language of the statute, N.C. Gen. Stat. \u00a7 47C-1-104 should not be used to grant plaintiff future development rights it did not expressly reserve to exercise within a stated time period.\nIII. Conclusion\nN.C. Gen. Stat. \u00a7 47C-2-105(a)(8) expressly and mandatorily requires the declaration of condominium to include a time limit within which future development rights must be exercised. The failure to include this time limitation is a material omission, which renders the development rights void ab initio.\nThe substantial compliance provision of N.C. Gen. Stat. \u00a7 47C-l-104(c) is inapplicable to this mandatory and material provision of the Act. The trial court correctly granted summary judgment in favor of defendants and its order should be affirmed. I respectfully dissent.", "type": "dissent", "author": "TYSON, Judge" } ], "attorneys": [ "McIntosh Law Firm, by James C. Fuller and Prosser D. Carnegie, for Plaintiff-Appellant.", "Eisele, Ashbum, Greene & Chapman, PA, by Douglas G. Eisele, for Defendants-Appellees." ], "corrections": "", "head_matter": "IN RE: WILLIAMSON VILLAGE CONDOMINIUMS\nNo. COA07-217\n(Filed 18 December 2007)\nHousing\u2014 commercial condominium buildings \u2014 North Carolina Condominium Act \u2014 substantial compliance\u2014 development time limit\nA commercial condominium developer substantially complied with the Condominium Act even though the declaration did not include a development time limit for the exercise of reserved development rights and thus could build an additional condominium building on the property because: (1) the Condominium Act under N.C.G.S. \u00a7 47C-2~101(a) excuses nonmaterial noncompliance with its requirements where the declarant has substantially complied in good faith with the material requirements of the statute; (2) the omission of the development time limit was a non-material omission, and the evidence demonstrated that both parties contemplated and expected that plaintiff would construct Building Two at an unspecified future time; (3) defendants approved the declaration with the time limit omitted, and never expressed any concern over construction timing until more than five years after they approved the plat and declaration; (4) other than the omission of a time limit for the exercise of reserved developments rights, the declaration contained every other relevant component either mandated by the Act or considered to be material by the parties; (5) even where the General Assembly uses mandatory language such as \u201cshall\u201d or \u201cmust,\u201d it may still excuse noncompliance with the use of a substantial compliance clause; (6) if the General Assembly did not intend for the substantial compliance clause in N.C.G.S. \u00a7 47C-l-104(c) to apply to the declaration content requirements of N.C.G.S. \u00a7 47C-2-105, it would have excluded that section from its reach; and (7) although the omission of a development time limit may preclude a finding of substantial compliance in cases where the timing of future construction is a material factor in a condominium project, this case does not present such a situation.\nJudge TYSON dissenting.\nAppeal by Plaintiff from order entered 20 November 2006 by Judge Preston Cornelius in Superior Court, Iredell County. Heard in the Court of Appeals 19 September 2006.\nMcIntosh Law Firm, by James C. Fuller and Prosser D. Carnegie, for Plaintiff-Appellant.\nEisele, Ashbum, Greene & Chapman, PA, by Douglas G. Eisele, for Defendants-Appellees." }, "file_name": "0553-01", "first_page_order": 583, "last_page_order": 597 }