Harbor Watch Condo. Ass'n v. Emmet Cnty. Treasurer

308 Mich.App. 380

863 N.W.2d 745

HARBOR WATCH CONDOMINIUM ASSOCIATION

v.EMMET COUNTY TREASURER.

Docket No. 316858.

Court of Appeals of Michigan.

Submitted Nov. 5, 2014, at Lansing.

Decided Dec. 4, 2014, at 9:05 a.m.

John R. Turner for plaintiff.

Kathleen M. Abbott, Petoskey, for defendant.

Before OWENS, P.J., and MARKEY and SERVITTO, JJ.

Opinion

PER CURIAM.

Plaintiff appeals as of right an order of the trial court granting defendant's motion for summary disposition. We affirm.

Plaintiff is the condominium association for Harbor Watch, a condominium project located in Petoskey, Michigan. Defendant is a “foreclosing governmental unit” as defined in MCL 211.78(8)(a)(i ), authorized to foreclose upon properties for delinquent property taxes under Michigan's General Property Tax Act (GPTA), MCL 211.1 et seq. On February 17, 2011, the trial court entered a judgment of foreclosure due to delinquent property taxes, vesting absolute title to Units 40 through 42 and Units 67 through 100 of Harbor Watch in defendant if the Units were not redeemed by March 31, 2011.¹ The redemption period lapsed, and on May 25, 2011, defendant signed a notice of foreclosure for each unit and had the notices recorded in the office of the Emmet County Register of Deeds. Following the procedures required by MCL 211.78m, defendant conducted two public sales of the units. On September 16, 2011, defendant conveyed Units 73 and 74 by quitclaim deed, and defendant conveyed the remaining units on November 30, 2011, also by quitclaim deed.

Plaintiff initiated a complaint against defendant, asserting that defendant was required to pay the common expenses described in the Harbor Watch bylaws for the period defendant was an owner of the units. Specifically, plaintiff asserted that defendant owes plaintiff $97,366.09 in common expenses, late fees, and interest.

The parties filed cross-motions for summary disposition. Defendant asserted that it was required by law to foreclose the tax liens on the units and was therefore an involuntary taker of the property. Defendant argued that a condominium unit owner's duty to pay association assessments is contractual in nature, and that defendant, as an involuntary taker, did not agree to be bound by the terms of the condominium documents. Defendant further argued that it is not authorized by law to pay condominium association assessments because the GPTA controls how a country treasurer must allocate the funds received from a tax lien foreclosure auction, and the act does not provide a mechanism for defendant to pay plaintiff's assessments. Further, defendant argued that paying plaintiff's assessments would violate the Michigan Constitution and would be against public policy because the stated purpose of the foreclosure proceedings in the GPTA is to allow municipalities to collect unpaid taxes and quickly return delinquent properties to productive use.

Plaintiff argued that its own bylaws and the Condominium Act, MCL 559.101 et seq., do not draw a distinction between private owners of condominium property and governmental owners of condominium property. In response to defendant's argument that defendant was an “involuntary taker,” plaintiff cited MCL 211.78(5), which at that time stated, “The foreclosure of forfeited property by a county is voluntary and is not an activity or service required of units of local government for purposes of section 29 of article IX of the state constitution of 1963.”² Plaintiff argued that under this statutory subsection, defendant was a voluntary purchaser bound by the obligation to pay condominium assessments.

The trial court granted defendant's motion for summary disposition and dismissed plaintiff's complaint primarily on the basis of its determination that under the GPTA, defendant's ownership of the condominium units was involuntary. The trial court opined that the requirement that a unit owner pay assessments was enforceable against voluntary purchasers and that the language in former MCL 211.78(5), stating that foreclosure of forfeited property is “voluntary,” was intended to protect the law from a challenge under the Headlee Amendment³ as an unfunded mandate.

This Court reviews de novo a trial court's decision on a motion for summary disposition.

Maple Grove Twp. v. Misteguay Creek Intercounty Drain Bd., 298 Mich.App. 200, 206, 828 N.W.2d 459 (2012). A motion brought under MCR 2.116(C)(8) tests the legal sufficiency of the complaint, and dismissal is warranted under this rule if the opposing party has failed to state a claim on which relief can be granted. Rorke v. Savoy Energy, LP, 260 Mich.App. 251, 253, 677 N.W.2d 45 (2003). A motion for summary disposition under MCR 2.116(C)(10) is properly granted if no factual dispute exists, entitling the moving party to judgment as a matter of law. Rice v. Auto Club Ins. Ass'n, 252 Mich.App. 25, 30–31, 651 N.W.2d 188 (2002).

The validity of the condominium documents and the requirement that a unit owner pay assessments is not in dispute. This case presents the question whether a county treasurer is liable for condominium assessments during the time it holds title to a condominium unit that is subject to forfeiture and foreclosure under the GPTA.

The Condominium Act specifically states, “Each unit co-owner, tenant, or nonco-owner occupant shall comply with the master deed, bylaws, and rules and regulations of the condominium project and this act.” MCL 559.165. Under the relevant condominium bylaws, all of the costs, fees, and expenses incurred or payable by the condominium association are to be paid to the association by the owners of the condominiums in proportion to their percentage of value. “Owner” is defined in the condominium master deed as “any Person owning one or more Units.” “Person” is defined as “any natural person, corporation, [etc.], or other entity that exists under the laws of the State of Michigan.” The master deed, which was recorded in the Office of the Emmet County Register of Deeds, states that all its terms are “covenants running with the land....”

However, as pointed out by defendant, the GPTA required defendant to foreclose on the forfeited units. Defendant cannot be held liable for assessments when it was performing a statutory obligation. MCL 211.78h(1) states as follows:

Not later than June 15 in each tax year, the foreclosing governmental unit shall file a single petition with the clerk of the circuit court of that county listing all property forfeited and not redeemed to the county treasurer under section 78g to be foreclosed under section 78k for the total of the forfeited unpaid delinquent taxes, interest, penalties, and fees.... [Emphasis added.]

And, MCL 211.78g(2), referred to in MCL 211.78h(1), provides as follows:

Not more than 45 days after property is forfeited under subsection (1), the county treasurer shall record with the county register of deeds a certificate in a form determined by the department of treasury for each parcel of property forfeited to the county treasurer, specifying that the property has been forfeited to the county treasurer and not redeemed and that absolute title to the property shall vest in the county treasurer on the March 31 immediately succeeding the entry of a judgment foreclosing the property under MCL 211.78k. [Emphasis added.]

Use of the term “shall” designates the actions of the county treasurer as mandatory rather than discretionary.

Plaintiff nonetheless asserts that the version of MCL 211.78(5) in effect at the relevant time provided that defendant's acquisition was voluntary. Former MCL 211.78(5) stated, “The foreclosure of forfeited property by a county is voluntary and is not an activity or service required of units of local government for purposes of section 29 of article IX of the state constitution of 1963.” “[I]t is important to ensure that words in a statute not be ignored, treated as surplusage, or rendered nugatory.” Robertson v. DaimlerChrysler Corp., 465 Mich. 732, 748, 641 N.W.2d 567 (2002). When used in a statute, the phrase “for purposes of” necessarily indicates that the words that follow that phrase limit the application of the statute. Accordingly, the phrase was used in former MCL 211.78(5) to indicate that the Legislature did not intend to violate the Headlee Amendment, Const. 1963, art. 9, § 29, by creating an unfunded mandate. Therefore, the trial court properly held that the Legislature intended that this subsection serve to insulate the GPTA from a challenge under the Headlee Amendment. To hold that the word “voluntary” as used in former MCL 211.78(5) is evidence that foreclosure proceedings under the GPTA are not mandatory would render the limitation “for purposes of [the Headlee Amendment]” nugatory.

Defendant also correctly asserts that the GPTA provides no mechanism by which it can pay plaintiff's assessments. The GPTA, in MCL 211.78m, prescribes the procedure a county treasurer must follow to dispose of foreclosed properties at public auction. The GPTA directs the county treasurer to “deposit the proceeds from the sale of property under this section into a restricted account designated as the ‘delinquent tax property sales proceeds for the year _____’.” MCL 211.78m(8)....