IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1136-2
Filed: 4 August 2015
Mecklenburg County, No. 14-CVD-9222
STIKELEATHER REALTY & INVESTMENTS CO., Plaintiff-Appellant,
v.
ELISHA BROADWAY, Defendant-Appellee.
Appeal by plaintiff from judgment entered 18 July 2014 by Judge Matt Osman
in Mecklenburg County District Court. Heard in the Court of Appeals 18 March 2015.
The Law Firm of Ross S. Sohm, PLLC, by Ross S. Sohm, for plaintiff-appellant.
No brief filed on behalf of defendant-appellee.
HUNTER, JR., Robert N., Judge.
Stikeleather Realty & Investments Co. (“Plaintiff-Landlord”) appeals from a
bench trial judgment awarding trebled rent abatement and attorney’s fees to Elisha
Broadway (“Defendant-Tenant”) on claims of breach of the implied warranty of
habitability and unfair and deceptive trade practices. We reverse.
I. Factual & Procedural History
On 19 March 2014, Plaintiff-Landlord initiated a summary ejectment action
against Defendant-Tenant for breach of a residential lease agreement for failure to
pay rent for the month of March. On 31 March 2014, Defendant-Tenant filed an
answer and asserted the defense of retaliatory eviction pursuant to N.C. Gen. Stat. §
42-37.1, as well as counterclaims for (1) breach of the implied warranty of habitability
pursuant to N.C. Gen. Stat. § 42-42, (2) unfair and deceptive trade practices pursuant
STIKELEATHER REALTY AND INVESTMENTS CO. V. BROADWAY
Opinion of the Court
to N.C. Gen. Stat. § 75-1.1 et seq., (3) unfair debt collection practices pursuant to N.C.
Gen. Stat. § 75-50 et seq., (4) negligence, and (5) negligence per se.
On 22 April 2014, Plaintiff-Landlord filed an amended complaint, alleging
Defendant-Tenant also breached the lease by keeping an unauthorized pet. On 2
May 2014, Defendant-Tenant filed an amended answer and counterclaim, which
contained no substantive changes pertinent to this appeal. On 8 May 2014, the
magistrate entered judgment in favor of Plaintiff-Landlord on the primary claim of
possession and in favor of Defendant-Tenant on his counterclaim of breach of the
implied warranty of habitability only, awarding him $1,000.00 in damages. Plaintiff
appealed to the district court.
On 30 June 2014, the case was heard in Mecklenburg County District Court
before the Honorable Matt Osman. At that time, Defendant-Tenant had already
surrendered possession of the property. Therefore, the sole issue before the trial
judge was Defendant-Tenant’s counterclaim for breach of the implied warranty of
habitability. The transcript of this bench trial, as well as the record on appeal, reveals
the following pertinent facts.
In May 2010, Defendant-Tenant entered into a residential lease to rent a home
located at 2600 Catalina Avenue in Charlotte (“the property”) for $500 per month. At
this time, the property was neither owned nor managed by Plaintiff-Landlord. The
lease contained a page signed by Defendant-Tenant stating that a “Carbon/Smoke
-2-
STIKELEATHER REALTY AND INVESTMENTS CO. V. BROADWAY
Opinion of the Court
Detector”1 existed in the home and that it was in good working condition when
Defendant-Tenant took possession of the property. The lease also provided that
Defendant-Tenant shall make requests for repairs in writing. On 4 June 2013, Mr.
Kluth, a real estate broker, visited the property to obtain general information to list
the house. On 10 June 2013, Mr. Kluth returned to the property for another
inspection, this time bringing an interested buyer, Mr. Stikeleather, managing
partner of Plaintiff-Landlord, a limited liability corporation in the business of buying
and selling residential properties.
During this second pre-sale inspection, Mr. Stikeleather asked Defendant-
Tenant if the property had a smoke alarm and carbon monoxide alarm. Defendant-
Tenant responded that it did not. Mr. Kluth then went to his truck and returned
with a smoke alarm and carbon monoxide alarm for Defendant-Tenant to put in the
property.
On or around 26 June 2013, Plaintiff-Landlord purchased the property and
sent a letter to Defendant-Tenant notifying him that Plaintiff-Landlord was the new
owner and property manager. The letter also directed Defendant-Tenant to call
Plaintiff-Landlord to set up an inspection of the property and to put any requests for
repairs in writing.
1 While the word “detector” appears throughout the record on appeal, this Court uses “alarm”
synonymously, in order to reflect amendments by the N.C. General Assembly to this same effect. See
2012 N.C. Sess. Laws 350, 350-52, ch. 92, § 1-4 (replacing the word “detector” with “alarm” throughout
provisions of the Residential Rental Agreements Act).
-3-
STIKELEATHER REALTY AND INVESTMENTS CO. V. BROADWAY
Opinion of the Court
On or around 24 September 2013, Mr. Stikeleather went by the house to do an
inspection, but it had to be “quick” because of the presence of an unauthorized pet on
the premises. During this inspection, Mr. Stikeleather testified that he observed an
alarm in the living room, plugged into an electrical outlet in the wall, but he admitted
he did not verify whether it was working properly.
Near the middle of March 2014, Defendant-Tenant called Mr. Stikeleather and
told him he would be late with March’s rent; Mr. Stikeleather responded that he
would file eviction papers, which he did on 19 March 2014. Two days after the parties
appeared in small claims court near the end of March 2014, Plaintiff-Landlord sent
his repairman to install a smoke alarm and carbon monoxide alarm in the premises.
Defendant-Tenant felt it was unfair to be evicted for being only a few days late on
rent, so he went to City Code Enforcement, which issued an inspection report that
does not mention any issue with the property’s smoke alarm and carbon monoxide
alarm. Defendant-Tenant did not pay rent for the months of March, April, or May
2014.
The day after the bench trial, on 1 July 2014, the trial judge entered a
judgment containing the following pertinent findings of fact, whose order has been
reorganized by this Court in an effort to improve clarity:
3. [Defendant-Tenant] lived at 2600 Catalina, Charlotte,
NC (“the property”), for four years and three months.
....
-4-
STIKELEATHER REALTY AND INVESTMENTS CO. V. BROADWAY
Opinion of the Court
43. [Defendant-Tenant’s] son, Ronald Broadway (RB),
lived with his father at the property.
....
4. At the time [Defendant-Tenant] took possession of the
property in 2010 it was owned and managed by a different
landlord than the Plaintiff in this action.
....
65. [Mr.] Stikeleather is the managing partner of the LLC
that is [Plaintiff-Landlord].
....
76. [Plaintiff-Landlord’s] LLC owns approximately 200
properties and manages another 300 properties.
....
55. Mike Kluth is a real estate broker in Charlotte and he
sold the property to [Plaintiff-Landlord].
56. Prior to selling the house, Mr. Kluth visited the
property in June 2013 to obtain general information to list
the house.
....
58. During a second pre-sale inspection of the property in
June 2013, [Defendant-Tenant] told Mr. Kluth and [Mr.
Stikeleather] about the flooding in the basement. The
basement was dry when Mr. Kluth and [Mr. Stikeleather]
saw it.
59. During the second inspection [Mr. Stikeleather] asked
[Defendant-Tenant] about a Smoke/Carbon detector.
-5-
STIKELEATHER REALTY AND INVESTMENTS CO. V. BROADWAY
Opinion of the Court
[Defendant-Tenant] said there was not one present in the
property.
60. Mr. Kluth then went to his car and got a Smoke/Carbon
detector to place in the house.
61. Mr. Kluth does not know whether the detector, which
was not new, was operational. The detector could be
plugged into the wall and could also be run on batteries.
62. [Defendant-Tenant] testified that the detector
provided by Mr. Kluth did not work.
....
38. In June 2013, [Plaintiff-Landlord] notified [Defendant-
Tenant] in writing that the property had been sold and that
[Plaintiff-Landlord] was the new owner and property
manager. Plaintiff[-Landlord] admitted Plaintiff’s Exhibit
2, a letter dated June 26, 2013, detailing the change in
ownership.
39. In addition to telling [Defendant-Tenant] about the
new management company, Plaintiff[-Landlord’s] Exhibit
2 also directed [Defendant-Tenant] to put any requests for
repair in writing and asked [Defendant-Tenant] to call
[Plaintiff-Landlord] to set up an inspection.
....
66. The only potential repair issue that [Plaintiff-
Landlord] was aware of at the time of the purchase was the
basement and the flooding.
....
2. The parties have also stipulated to the existence of a
lease between [Defendant-Tenant] and
Plaintiff[-]Landlord. . . .
-6-
STIKELEATHER REALTY AND INVESTMENTS CO. V. BROADWAY
Opinion of the Court
....
21. The lease contains a page signed by [Defendant-
Tenant] stating that the property had a “Carbon/Smoke
Detector” in the unit and that it was in good working
condition when [Defendant-Tenant] took possession in
2010.
....
29. Paragraph 17 of the lease states that [Defendant-
Tenant] shall make a request for repair in writing.
....
70. After taking ownership of the property, [Mr.
Stikeleather] went by the house in the fall of 2013 to do a
quick inspection. It was a quick inspection due to the
presence of [Defendant-Tenant’s] dog.
71. [Mr. Stikeleather] testified that the dog was not
permitted at the property[.]
72. [Mr. Stikeleather] did observe a detector that was
plugged in during [the] fall 2013 inspection but did not
verify whether it was working properly.
....
32. [Defendant-Tenant] called [Mr. Stikeleather] to tell
him that he would be late with the March [2014] rent and
[Mr. Stikeleather] said that he would file eviction papers.
....
75. [Plaintiff-Landlord] sent his repairman to install a
detector after the first hearing in small claims court in late
March 2014.
....
-7-
STIKELEATHER REALTY AND INVESTMENTS CO. V. BROADWAY
Opinion of the Court
22. [Defendant-Tenant] and [Defendant-Tenant’s] son[,
RB,] were present when a new detector was installed by
[Plaintiff-Landlord’s] employee in 2014.
....
47. RB testified that the property did not have a
Smoke/Carbon detector upon initial[] occupancy. There
[was] a blank spot where it appeared one had previously
been with a painted[-]over bracket.
48. RB was present when [Plaintiff-Landlord’s] staff came
out and installed a Smoke/Carbon detector, a few days
after the first court appearance in 2014. RB watched the
installation and [Plaintiff-Landlord’s] staff did not remove
an old detector prior to installing a new one.
....
33. [Defendant-Tenant] did not think it was fair to be
evicted for being seventeen days late on the rent so he went
to City Code Enforcement.
....
40. The city inspected the property and issued a list of code
violations. Plaintiff[-Landlord] admitted the Code
Enforcement report as Plaintiff’s Exhibit 3.
41. The Code Enforcement report does not list the
carbon/smoke detector.
....
68. [Mr. Stikeleather] told [Defendant-Tenant] several
times to put repair requests in writing, as required by the
lease.
-8-
STIKELEATHER REALTY AND INVESTMENTS CO. V. BROADWAY
Opinion of the Court
69. [Mr. Stikeleather] testified that he never received any
written or verbal repair requests from [Defendant-Tenant].
....
78. [Mr. Stikeleather] testified that he has made numerous
requests for access and for a key to the Property, including
by certified mail, so that he could do an inspection and
make repairs to the property. [Defendant-Tenant] never
responded to those requests.
79. [Defendant-Tenant] did not introduce any portion of
the Charlotte City Housing Code.
....
1. [Defendant-Tenant] did not pay rent for March, April or
May 2014, and that the monthly rent was $500.
Based upon these findings, the trial judge concluded the following as a matter
of law:
2. [Defendant-Tenant] has failed that [sic] show that
[Plaintiff-Landlord] breached the implied warranty of
habitability for the issues related to the flooded basement,
broken step, inoperable and broken windows and faulty
electrical system because [Defendant-Tenant] failed to
provide proper written notice of these issues and also failed
to provide reasonable access to [Plaintiff-Landlord] to
permit an inspection to determine if there were any
structural or electrical issues;
3. Where [Plaintiff-Landlord] knew on or about June 26,
2013, that the property did not have a smoke alarm or
carbon monoxide detector and did not verify that the
previously used device provided on or about that date by
Mr. Kluth was operable, [Plaintiff-Landlord] violated the
Residential Rental Agreement[s] Act which requires
provision of an operable smoke alarm and carbon monoxide
-9-
STIKELEATHER REALTY AND INVESTMENTS CO. V. BROADWAY
Opinion of the Court
detector. [Defendant-Tenant] is therefore entitled to rent
abatement;
....
6. [Defendant-Tenant] is entitled to rent abatement of $150
per month;
7. [Plaintiff-Landlord’s] continued collection of rent
without verifying that [Defendant-Tenant] had been
provided an operable smoke alarm and carbon monoxide
detector constituted an Unfair and Deceptive Trade
Practice;
8. Because [Plaintiff-Landlord] has committed an Unfair
and Deceptive Trade Practice, [Defendant-Tenant’s]
damages shall be trebled;
9. [Defendant-Tenant’s] damages shall be offset by an
abatement credit of $350 for March 2014 where
[Defendant-]Tenant did not pay rent but before the new
detector was installed and $500 per month for April and
May 2014 where [Defendant-]Tenant did not pay rent but
after the new detector was installed for a total abatement
credit of $1350.
Based upon the foregoing, the trial judge entered the following judgment:
1. Defendant[-]Tenant’s claim for rent abatement and
Unfair and Deceptive Trade Practices is granted;
2. Defendant[-]Tenant is awarded damages in the amount
of $2250 ($1200 in rent abatement, trebled to $3600
pursuant to Chapter 75 minus tenant’s abatement credit of
$1350);
3. Defendant-[Tenant] is entitled to reasonable attorney
fees, pursuant to Chapter 75. [Defendant-Tenant] shall
submit an affidavit for attorney fees and [Plaintiff-
Landlord] shall have an opportunity to respond;
- 10 -
STIKELEATHER REALTY AND INVESTMENTS CO. V. BROADWAY
Opinion of the Court
4. All other counterclaims filed by [Defendant-Tenant] are
denied.
Plaintiff-Landlord appeals.
II. Analysis
Plaintiff-Landlord contends the trial court erred by (1) granting Defendant-
Tenant’s counterclaim for rent abatement under the Residential Rental Agreements
Act (“RRAA”), (2) improperly calculating the damage award under the RRAA, (3)
concluding the alleged RRAA violation constituted a breach of North Carolina’s
Unfair and Deceptive Trade Practices Act (“UDTP”), and (4) awarding Defendant-
Tenant reasonable attorney’s fees under UDTP. Because we agree the trial court
erred in concluding Plaintiff-Landlord violated the RRAA, the damages awarded for
rent abatement, which were trebled under UDTP, as well as the attorney’s fees
awarded under UDTP, must be reversed.
A. Standard of Review
“The standard of review on appeal from a judgment entered after a non-jury
trial is whether there is competent evidence to support the trial court’s findings of
fact and whether the findings support the conclusions of law and ensuing judgment.”
Cartin v. Harrison, 151 N.C. App. 697, 699, 567 S.E.2d 174, 176 (2002) (internal
quotation marks and citation omitted). “In all actions tried without a jury, the trial
court is required to make specific findings of fact, state separately its conclusions of
- 11 -
STIKELEATHER REALTY AND INVESTMENTS CO. V. BROADWAY
Opinion of the Court
law, and then direct judgment in accordance therewith.” Cardwell v. Henry, 145 N.C.
App. 194, 195, 549 S.E.2d 587, 588 (2001) (internal quotation marks and citations
omitted). The trial court’s findings of fact must include “specific ultimate facts . . .
sufficient for the appellate court to determine that the judgment is adequately
supported by competent evidence.” Montgomery v. Montgomery, 32 N.C. App. 154,
156-57, 231 S.E.2d 26, 28 (1977). Put another way, the trial court must make “specific
findings of the ultimate facts established by the evidence, admissions and
stipulations which are determinative of the questions involved in the action and
essential to support the conclusions of law reached.” Quick v. Quick, 305 N.C. 446,
452, 290 S.E.2d 653, 658 (1982). “Ultimate facts are the final resulting effect reached
by processes of logical reasoning from the evidentiary facts.” In re Anderson, 151 N.C.
App. 94, 97, 564 S.E.2d 599, 602 (2002) (citation omitted). The trial court’s
conclusions of law are reviewed de novo, wherein this Court “considers the matter
anew and freely substitutes its own judgment for that of the lower tribunal.” State v.
Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (internal quotation marks
and citations omitted).
B. Violation of the RRAA
Plaintiff-Landlord first contends the trial court erred in granting Defendant-
Tenant’s claim for rent abatement in violation of the RRAA. We agree.
- 12 -
STIKELEATHER REALTY AND INVESTMENTS CO. V. BROADWAY
Opinion of the Court
Specifically, Plaintiff-Landlord challenges the trial court’s conclusion of law
No. 3, which states:
3. Where [Plaintiff-Landlord] knew on or about June
26, 2013, that the property did not have a smoke alarm or
carbon monoxide detector and did not verify that the
previously used device provided on or about that date by
Mr. Kluth was operable, [Plaintiff-Landlord] violated the
Residential Rental Agreement[s] Act which requires
provision of an operable smoke alarm and carbon monoxide
detector. [Defendant-Tenant] is therefore entitled to rent
abatement[.]
This singly-enumerated conclusion actually contains two legal conclusions:
first, that Plaintiff-Landlord violated the RRAA; second, that Defendant-Tenant is
entitled to rent abatement. We therefore discuss each conclusion separately.
Pursuant to the RRAA, codified at N.C. Gen. Stat. §§ 42-38 to -49 (2013), “a
landlord impliedly warrants to the tenant that rented or leased residential premises
are fit for human habitation. The implied warranty of habitability is co-extensive
with the provisions of the Act.” Miller v. C.W. Myers Trading Post, Inc., 85 N.C. App.
362, 366, 355 S.E.2d 189, 192 (1987) (citation omitted). The RRAA requires landlords
to provide fit premises and imposes upon them the following duties:
(a) The landlord shall:
(1) Comply with the current applicable building and
housing codes[] . . . to the extent required by the operation
of such codes[.]
(2) Make all repairs and do whatever is necessary to put
and keep the premises in a fit and habitable condition.
- 13 -
STIKELEATHER REALTY AND INVESTMENTS CO. V. BROADWAY
Opinion of the Court
(3) Keep all common areas of the premises in safe condition.
(4) Maintain in good and safe working order and promptly
repair all electrical, plumbing, sanitary, heating,
ventilating, air conditioning, and other facilities and
appliances supplied or required to be supplied by the
landlord provided that notification of needed repairs is
made to the landlord in writing by the tenant, except in
emergency situations.
N.C. Gen. Stat. § 42-42(a)(1)-(4) (2013). The RRAA provides an affirmative cause of
action to a tenant for recovery of rent due to a landlord’s breach of the implied
warranty of habitability. See, e.g., Cotton v. Stanley, 86 N.C. App. 534, 537, 358
S.E.2d 692, 694 (1987) (“Tenants may bring an action for breach of the implied
warranty of habitability, seeking rent abatement, based on their landlord’s
noncompliance with [N.C. Gen. Stat.] § 42-42(a)” (citation omitted)); see also Allen v.
Simmons, 99 N.C. App. 636, 644, 394 S.E.2d 478, 482 (1990) (“Tenants may bring an
action seeking damages for breach of the implied warranty of habitability and may
also seek rent abatement for their landlord’s breach of the statute.”).
The restitutionary remedy of rent abatement compensates tenants for
defective conditions of a premises which render it unfit for human habitation. See
Miller, 85 N.C. App. at 368, 355 S.E.2d at 193 (noting that rent abatement is “in the
nature of a restitutionary remedy[]”). This Court has held:
- 14 -
STIKELEATHER REALTY AND INVESTMENTS CO. V. BROADWAY
Opinion of the Court
[A] tenant may recover damages in the form of a rent
abatement calculated as the difference between the fair
rental value of the premises if as warranted (i.e., in full
compliance with [N.C. Gen. Stat. §] 42-42(a)) and the fair
rental value of the premises in their unfit condition for any
period of the tenant’s occupancy during which the finder of
fact determines the premises were uninhabitable, plus any
special or consequential damages alleged and proved.
Id. at 371, 355 S.E.2d at 194 (citations omitted). However, N.C. Gen. Stat. §
42-42(a) also imposes affirmative duties upon landlords to ensure premises are fit for
human habitation. Pertinent to the instant case, the RRAA requires landlords:
(5) Provide operable smoke alarms[] . . . and install the
smoke alarms in accordance with either the standards of
the National Fire Protection Association or the minimum
protection designated in the manufacturer’s instructions,
which the landlord shall retain or provide as proof of
compliance. The landlord shall replace or repair the smoke
alarms within 15 days of receipt of notification if the
landlord is notified of needed replacement or repairs in
writing by the tenant. The landlord shall ensure that a
smoke alarm is operable and in good repair at the
beginning of each tenancy. . . .
....
(7) Provide a minimum of one operable carbon monoxide
alarm per rental unit per level[] . . . and install the carbon
monoxide alarms in accordance with either the standards
of the National Fire Protection Association or the minimum
protection designated in the manufacturer’s instructions,
which the landlord shall retain or provide as proof of
compliance. A landlord that installs one carbon monoxide
alarm per rental unit per level shall be deemed to be in
compliance with standards under this subdivision covering
the location and number of alarms. The landlord shall
replace or repair the carbon monoxide alarms within 15
- 15 -
STIKELEATHER REALTY AND INVESTMENTS CO. V. BROADWAY
Opinion of the Court
days of receipt of notification if the landlord is notified of
needed replacement or repairs in writing by the tenant.
The landlord shall ensure that a carbon monoxide alarm is
operable and in good repair at the beginning of each
tenancy. . . .
N.C. Gen. Stat. § 42-42(a)(5), (7) (2013) (emphasis added). Breaches of provisions of
the RRAA such as these, included within the implied warranty of habitability, can be
remedied by retroactive rent abatement. However, the quantity of damages must be
appropriate. We recognize the importance of ensuring operable smoke alarms and
carbon monoxide alarms in rental units. Yet the amount a landlord is liable for a
violation of N.C. Gen. Stat. § 42-42(a)(5) or (7) requires an evaluation of fair market
value determined with more specificity than was calculated by the trial judge.
In the instant case, in reviewing the trial court’s decision de novo, we hold its
findings of fact do not support its conclusion that Defendant-Tenant is entitled to rent
abatement. Therefore we reverse.
While N.C. Gen. Stat. § 42-42(a)(5) and (7) impose upon landlords the duty to
provide operable smoke and carbon monoxide alarms, the duty is triggered only if a
landlord is notified of its needed repair or replacement, or if it is the beginning of a
tenancy. Here, Defendant-Tenant never notified Plaintiff-Landlord in writing, as
required, the alarm provided by Mr. Kluth was defective or inoperable. Regardless
of whether Plaintiff-Landlord discovered during the second pre-sale inspection the
property did not have an alarm, there was no finding Plaintiff-Landlord knew or
- 16 -
STIKELEATHER REALTY AND INVESTMENTS CO. V. BROADWAY
Opinion of the Court
should have known the alarm provided by Mr. Kluth was not operable. Nor was there
a finding Plaintiff-Landlord was notified about its inoperability. Furthermore, the
trial court failed to make any finding as to when, if ever, a new tenancy was created
after Plaintiff-Landlord became the new property owner and manager. Lacking the
essential findings that Defendant-Tenant notified Plaintiff-Landlord the alarm
provided by Mr. Kluth needed replacement or repair, or that a new tenancy was
created after Plaintiff-Landlord became the property’s owner and manager, the trial
court’s findings of fact do not support its conclusion that Plaintiff-Landlord breached
the RRAA.
As to the award of rent abatement, the trial court did not articulate its
rationale with any specificity in declaring how Plaintiff-Landlord’s alleged failure to
verify the property had an operable smoke alarm and carbon monoxide alarm—
without more—entitles Defendant-Tenant to a restitutionary remedy such as rent
abatement. The trial court made no finding that the premises was unfit or
uninhabitable during the period in which Defendant-Tenant paid rent. There was no
finding or articulation supporting the value of the premises in its “uninhabitable”
state, other than Defendant-Tenant’s testimony his apartment’s fair market value
dropped $200.00, when considering all issues he alleged were breaches of the implied
warranty of habitability.
- 17 -
STIKELEATHER REALTY AND INVESTMENTS CO. V. BROADWAY
Opinion of the Court
We recognize that in Cotton v. Stanely, 86 N.C. App. 534, 358 S.E.2d 692
(1987), a case decided prior to the enactment of either provision at issue,2 this Court
held indirect evidence of fair rental value, such as a tenant’s testimony as to his belief
of the “as is” fair rental value of the premises, is sufficient to support a calculation of
rent abatement damages to compensate for a landlord’s violation of N.C. Gen. Stat. §
42-42(a). Id. at 539, 358 S.E.2d at 695. This Court in Cotton held “[a] party is not
required to put on direct evidence to show fair rental value,” as a fact-finder is able
to “[f]rom their own experience with living conditions[]” determine the “as is” fair
rental value of the property to calculate an appropriate damage award for a tenant
due to a landlord’s violation of the RRAA, as it was enacted at the time. Id. In Cotton,
this Court concluded a landlord who breached the RRAA “[would] be liable for the
difference between the fair rental value of the units ‘as is’ and the units’ fair rental
value ‘as warranted,’ for the period between the expiration of a reasonable
opportunity to repair after notice to the [landlord] and the date repairs were made,
plus any special and consequential damages alleged and proven.” Id. at 539, 358
S.E.2d at 695-96.
Here, Defendant-Tenant testified as to what he perceived was the property’s
fair market value in its allegedly dilapidated condition, which included a flooded
2 N.C. Gen. Stat. § 42-42(a)(5) became effective in 1996. 1995 N.C. Sess. Laws 189, 191-92, ch.
111, § 2. N.C. Gen. Stat. § 42-42(a)(7) became effective in 2010. 2008 N.C. Sess. Laws 950, 953-54, ch.
219, § 2.
- 18 -
STIKELEATHER REALTY AND INVESTMENTS CO. V. BROADWAY
Opinion of the Court
basement that occurred “at least 50 times,” a broken back step, frequent electrical
shortages, inoperable bedroom windows, a busted pipe in the kitchen that caused
water seepage for three to four months, mold in the kitchen and bedroom walls, a hole
in the apartment that rats entered through, and an uneven floor. Although the trial
judge concluded Plaintiff-Landlord did not breach the RRAA as to these other
issues—as Defendant-Tenant failed to provide proper written notice and reasonable
access to Plaintiff-Landlord to conduct an inspection—the trial judge determined
Defendant-Tenant should be entitled to $150.00 in rent abatement for each month
Plaintiff-Landlord allegedly violated the RRAA by failing to verify the operability of
the alarm. While this calculation is markedly difficult, the trial judge provided no
basis for how he reached it, other than “[i]n the totality, . . . the Court [extracted
$150.00] out of the $200.00 that [Defendant-Tenant] cited, [and] decided that was
appropriate.” We can discern no rationale for how $150.00 per month in rent
abatement is an appropriate calculation under these facts, or how a restitutionary
remedy such as rent abatement would be appropriate for an alleged violation of N.C.
Gen. Stat. § 42-42(a)(5) or (7) alone.
In summary, lacking these and other specific findings of facts essential to
support its conclusions Plaintiff-Landlord breached the RRAA and Defendant-Tenant
is entitled to rent abatement, the trial court’s judgment must be reversed. Because
we conclude the trial court’s findings do not support its conclusion Plaintiff-Landlord
- 19 -
STIKELEATHER REALTY AND INVESTMENTS CO. V. BROADWAY
Opinion of the Court
breached the RRAA, Defendant-Tenant’s claims for rent abatement and UDTP, as
well as the award of trebled damages and attorney’s fees pursuant to UDTP,
necessarily fail.
III. Conclusion
Based upon the foregoing and our review of the record, we reverse the trial
court’s judgment.
REVERSED.
Judges Stephens and Tyson concur.
- 20 -
Case
Combined Opinion