House Bill 1011*-First Edition

GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2007

H 1

HOUSE BILL 1011*

Short Title: Housing Conditions/Inspections.		(Public)
Sponsors:	Representatives Gibson; and Faison.
Referred to:	Commerce, Small Business and Entrepreneurship.

March 26, 2007

A BILL TO BE ENTITLED

AN ACT requiring cities and counties to have probable cause before inspecting residential and nonresidential structures and requiring owners and landlords to improve the habitability of dwelling units by immediately repairing certain unsafe conditions.

The General Assembly of North Carolina enacts:

SECTION 1. G.S. 42-42(a)(2) reads as rewritten:

"(2) Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition. However, the landlord shall immediately repair or remedy any imminently dangerous condition in the premise after acquiring actual knowledge or receiving notice of the condition. For purposes of this subdivision, the term 'imminently dangerous condition' means any of the following:

a. Unsafe wiring.

b. Unsafe flooring or steps.

c. Unsafe ceilings or roofs.

d. Unsafe chimneys or flues.

e. Lack of potable water.

f. Lack of operable locks on all doors leading to the outside.

g. Broken windows or lack of operable locks on all windows on the ground level.

h. Lack of operable heating facilities capable of heating living areas to 65 degrees Fahrenheit when it is 20 degrees Fahrenheit outside from November 1 through March 31.

i. Lack of an operable toilet.

j. Lack of an operable bathtub or shower.

k. Rat infestation as a result of defects in the structure that make the premises not impervious to rodents.

l. Excessive standing water, sewage, or flooding problems caused by plumbing leaks or inadequate drainage that contribute to mosquito infestation or mold."

SECTION 2. G.S. 153A-364 reads as rewritten:

"§ 153A-364. Periodic inspections for hazardous or unlawful conditions.

(a) The inspection department ~~shall~~ may make periodic inspections, subject to the board of commissioners' directions, for unsafe, unsanitary, or otherwise hazardous and unlawful conditions in residential and nonresidential buildings within its territorial jurisdiction. Except as provided in subsection (b) of this section, the inspection department shall make periodic inspections only when there is probable cause to believe that unsafe, unsanitary, or otherwise hazardous or unlawful conditions may exist in a residential or nonresidential building. For purposes of this section, the term 'probable cause' means: (i) the landlord or owner has a substantial history of noncompliance with the county's ordinances on unsafe buildings; (ii) an occupant of the building has reported that substandard conditions exist within the building or an occupant has requested that the building be inspected; and (iii) the inspections department has actual knowledge of unsafe conditions within the building that was acquired as a result of routine business activities conducted by the inspection department. In conducting inspections authorized under this section, the inspection department shall not discriminate between single-family and multifamily buildings or between owner-occupied and tenant-occupied buildings. ~~In addition, it shall make any necessary inspections when it has reason to believe that such conditions may exist in a particular building.~~ In exercising these powers, each member of the inspection department has a right, upon presentation of proper credentials, to enter on any premises within the territorial jurisdiction of the department at any reasonable hour for the purposes of inspection or other enforcement action.

(b) A county may require periodic inspections under subsection (a) of this section as part of a targeted effort to respond to blighted or potentially blighted conditions within a Community Development Block Grant geographic area that has been designated by the board of commissioners, the Department of Commerce, Division of Community Assistance, or the United States Department of Housing and Urban Development."

SECTION 3. G.S. 160A-424 reads as rewritten:

"§ 160A-424. Periodic inspections.

(a) The inspection department ~~shall~~ may make periodic inspections, subject to the council's directions, for unsafe, unsanitary, or otherwise hazardous and unlawful conditions in residential and nonresidential buildings or structures within its territorial jurisdiction. Except as provided in subsection (b) of this section, the inspection department shall make periodic inspections only when there is probable cause to believe that unsafe, unsanitary, or otherwise hazardous or unlawful conditions may exist in a residential or nonresidential building or structure. For purposes of this section, the term 'probable cause' means: (i) the landlord or owner has a substantial history of noncompliance with the city's ordinances on unsafe buildings or structures; (ii) an occupant of the building or structure has reported that substandard conditions exist within the building or structure or an occupant has requested that the building or structure be inspected; and (iii) the inspection department has actual knowledge of unsafe conditions within the building or structure that was acquired as a result of routine business activities conducted by the inspection department. In conducting inspections authorized under this section, the inspection department shall not discriminate between single-family and multifamily buildings or structures or between owner-occupied and tenant-occupied buildings or structures. ~~In addition, it shall make inspections when it has reason to believe that such conditions may exist in a particular structure.~~ In exercising this power, members of the department shall have a right to enter on any premises within the jurisdiction of the department at all reasonable hours for the purposes of inspection or other enforcement action, upon presentation of proper credentials.

(b) A city may require periodic inspections under subsection (a) of this section as part of a targeted effort to respond to blighted or potentially blighted conditions within a Community Development Block Grant geographic area that has been designated by the city council, the Department of Commerce, Division of Community Assistance, or the United States Department of Housing and Urban Development."

SECTION 4. G.S. 160A-443 reads as rewritten:

"§ 160A-443. Ordinance authorized as to repair, closing, and demolition; order of public officer.

Upon the adoption of an ordinance finding that dwelling conditions of the character described in G.S. 160A-441 exist within a city, the governing body of the city is hereby authorized to adopt and enforce ordinances relating to dwellings within the city's territorial jurisdiction that are unfit for human habitation. These ordinances shall include the following provisions:

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(2) That whenever a petition is filed with the public officer by a public authority or by at least five residents of the city charging that any dwelling is unfit for human ~~habitation or~~habitation, whenever the occupant of a dwelling requests that the dwelling be inspected, or whenever it appears to the public officer (on his own motion) that any dwelling is unfit for human habitation, the public officer shall, if his preliminary investigation discloses a basis for such charges, issue and cause to be served upon the owner of and parties in interest in such dwellings a complaint stating the charges in that respect and containing a notice that a hearing will be held before the public officer (or his designated agent) at a place within the county in which the property is located fixed not less than 10 days nor more than 30 days after the serving of the complaint; that the owner and parties in interest shall be given the right to file an answer to the complaint and to appear in person, or otherwise, and give testimony at the place and time fixed in the complaint; and that the rules of evidence prevailing in courts of law or equity shall not be controlling in hearings before the public officer.

(3) That if, after notice and hearing, the public officer determines that the dwelling under consideration is unfit for human habitation, he shall state in writing his findings of fact in support of that determination and shall issue and cause to be served upon the owner thereof an order,

a. If the repair, alteration or improvement of the dwelling can be made at a reasonable cost in relation to the value of the dwelling (the ordinance of the city may fix a certain percentage of this value as being reasonable), requiring the ~~owner, within the time specified,~~ owner to repair, alter or improve ~~the dwelling in order to render it fit for human habitation or to vacate and close the dwelling as a human habitation; or~~ within a reasonable time, which shall be fixed in the order, any ordinance violations that are not imminently dangerous to the occupant of the dwelling and to render the dwelling safe for human habitation. If any of the following imminently dangerous conditions are found to exist in the dwelling, the order shall require the owner to immediately repair or remedy the conditions:

1. Unsafe wiring.

2. Unsafe flooring or steps.

3. Unsafe ceilings or roofs.

4. Unsafe chimneys or flues.

5. Lack of potable water.

6. Lack of operable locks on all doors leading to the outside.

7. Broken windows or lack of operable locks on all windows on the ground level.

8. Lack of operable heating facilities capable of heating living areas to 65 degrees Fahrenheit when it is 20 degrees Fahrenheit outside from November 1 through March 31.

9. Lack of an operable toilet.

10. Lack of an operable bathtub or shower.

11. Rat infestation as a result of defects in the structure that make the premises not impervious to rodents.

12. Excessive standing water, sewage, or flooding problems caused by plumbing leaks or inadequate drainage that contribute to mosquito infestation or mold.

b. If the repair, alteration or improvement of the dwelling cannot be made at a reasonable cost in relation to the value of the dwelling (the ordinance of the city may fix a certain percentage of this value as being reasonable), requiring the owner, within the time specified in the order, to remove or demolish such dwelling. However, notwithstanding any other provision of law, if the dwelling is located in a historic district of the city and the Historic District Commission determines, after a public hearing as provided by ordinance, that the dwelling is of particular significance or value toward maintaining the character of the district, and the dwelling has not been condemned as unsafe, the order may require that the dwelling be vacated and closed consistent with G.S. 160A-400.14(a).

(4) That, if the owner fails to comply with an order to repair, alter or improve ~~or to vacate and close~~ the dwelling, the public officer may cause the dwelling to be repaired, altered or improved or to be vacated and closed; that the public officer may cause to be posted on the main entrance of any dwelling so closed, a placard with the following words: "This building is unfit for human habitation; the use or occupation of this building for human habitation is prohibited and unlawful." Occupation of a building so posted shall constitute a Class 1 misdemeanor.

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(5a) If the governing body shall have adopted an ordinance, or the public officer shall have:

a. In a municipality located in counties which have a population in excess of 71,000 by the last federal census (including the entirety of any municipality located in more than one county at least one county of which has a population in excess of 71,000), other than municipalities with a population in excess of 190,000 by the last federal census, issued an order, ordering a dwelling to be repaired or vacated and closed, as provided in ~~subdivision (3)a,~~ subdivisions (3)a. and (4) of this section, and if the owner has vacated and closed such dwelling and kept such dwelling vacated and closed for a period of one year pursuant to the ordinance or order;

b. In a municipality with a population in excess of 190,000 by the last federal census, commenced proceedings under the substandard housing regulations regarding a dwelling to be repaired or vacated and closed, as provided in ~~subdivision (3)a.,~~subdivisions (3)a. and (4) of this section, and if the owner has vacated and closed such dwelling and kept such dwelling vacated and closed for a period of one year pursuant to the ordinance or after such proceedings have commenced,

then if the governing body shall find that the owner has abandoned the intent and purpose to repair, alter or improve the dwelling in order to render it fit for human habitation and that the continuation of the dwelling in its vacated and closed status would be inimical to the health, safety, morals and welfare of the municipality in that the dwelling would continue to deteriorate, would create a fire and safety hazard, would be a threat to children and vagrants, would attract persons intent on criminal activities, would cause or contribute to blight and the deterioration of property values in the area, and would render unavailable property and a dwelling which might otherwise have been made available to ease the persistent shortage of decent and affordable housing in this State, then in such circumstances, the governing body may, after the expiration of such one year period, enact an ordinance and serve such ordinance on the owner, setting forth the following:

a. If it is determined that the repair of the dwelling to render it fit for human habitation can be made at a cost not exceeding fifty percent (50%) of the then current value of the dwelling, the ordinance shall require that the owner either repair or demolish and remove the dwelling within 90 days; or

b. If it is determined that the repair of the dwelling to render it fit for human habitation cannot be made at a cost not exceeding fifty percent (50%) of the then current value of the dwelling, the ordinance shall require the owner to demolish and remove the dwelling within 90 days.

This ordinance shall be recorded in the Office of the Register of Deeds in the county wherein the property or properties are located and shall be indexed in the name of the property owner in the grantor index. If the owner fails to comply with this ordinance, the public officer shall effectuate the purpose of the ordinance.

This subdivision only applies to municipalities located in counties which have a population in excess of 71,000 by the last federal census (including the entirety of any municipality located in more than one county at least one county of which has a population in excess of 71,000).

[This subdivision does not apply to the local government units listed in subdivision (5b) of this section.]

(5b) If the governing body shall have adopted an ordinance, or the public officer shall have:

a. In a municipality other than municipalities with a population in excess of 190,000 by the last federal census, issued an order, ordering a dwelling to be repaired or vacated and closed, as provided in ~~subdivision (3)a,~~subdivisions (3)a. and (4) of this section, and if the owner has vacated and closed such dwelling and kept such dwelling vacated and closed for a period of one year pursuant to the ordinance or order;

This subdivision applies to the Cities of Eden, Lumberton, Roanoke Rapids, and Whiteville, to the municipalities in Lee County, and the Towns of Bethel, Farmville, Newport, and Waynesville only.

(6) Liens. -

a. That the amount of the cost of repairs, alterations or improvements, or vacating and closing, or removal or demolition by the public officer shall be a lien against the real property upon which the cost was incurred, which lien shall be filed, have the same priority, and be collected as the lien for special assessment provided in Article 10 of this Chapter.

b. If the real property upon which the cost was incurred is located in an incorporated city, then the amount of the cost is also a lien on any other real property of the owner located within the city limits or within one mile thereof except for the owner's primary residence. The additional lien provided in this sub-subdivision is inferior to all prior liens and shall be collected as a money judgment.

c. If the dwelling is removed or demolished by the public officer, he shall sell the materials of the dwelling, and any personal property, fixtures or appurtenances found in or attached to the dwelling, and shall credit the proceeds of the sale against the cost of the removal or demolition and any balance remaining shall be deposited in the superior court by the public officer, shall be secured in a manner directed by the court, and shall be disbursed by the court to the persons found to be entitled thereto by final order or decree of the court. Nothing in this section shall be construed to impair or limit in any way the power of the city to define and declare nuisances and to cause their removal or abatement by summary proceedings, or otherwise.

(7) If any occupant fails to comply with an order to vacate a dwelling, the public officer may file a civil action in the name of the city to remove such occupant. The action to vacate the dwelling shall be in the nature of summary ejectment and shall be commenced by filing a complaint naming as parties-defendant any person occupying such dwelling. The clerk of superior court shall issue a summons requiring the defendant to appear before a magistrate at a certain time, date and place not to exceed 10 days from the issuance of the summons to answer the complaint. The summons and complaint shall be served as provided in G.S. 42-29. The summons shall be returned according to its tenor, and if on its return it appears to have been duly served, and if at the hearing the public officer produces a certified copy of an ordinance adopted by the governing body pursuant to subdivision (5) authorizing the officer to proceed to vacate the occupied dwelling, the magistrate shall enter judgment ordering that the premises be vacated and that all persons be removed. The judgment ordering that the dwelling be vacated shall be enforced in the same manner as the judgment for summary ejectment entered under G.S. 42-30. An appeal from any judgment entered hereunder by the magistrate may be taken as provided in G.S. 7A-228, and the execution of such judgment may be stayed as provided in G.S. 7A-227. An action to remove an occupant of a dwelling who is a tenant of the owner may not be in the nature of a summary ejectment proceeding pursuant to this paragraph unless such occupant was served with notice at least 30 days before the filing of the summary ejectment proceeding that the governing body has ordered the public officer to proceed to exercise his duties under subdivisions (4) and (5) of this section to vacate and close or remove and demolish the dwelling.

(8) That whenever a determination is made pursuant to subdivision ~~(3)~~ subdivisions (3) and (4) of this section that a dwelling must be vacated and closed, or removed or demolished, under the provisions of this section, notice of the order shall be given by first-class mail to any organization involved in providing or restoring dwellings for affordable housing that has filed a written request for such notices. A minimum period of 45 days from the mailing of such notice shall be given before removal or demolition by action of the public officer, to allow the opportunity for any organization to negotiate with the owner to make repairs, lease, or purchase the property for the purpose of providing affordable housing. The public officer or clerk shall certify the mailing of the notices, and the certification shall be conclusive in the absence of fraud. Only an organization that has filed a written request for such notices may raise the issue of failure to mail such notices, and the sole remedy shall be an order requiring the public officer to wait 45 days before causing removal or demolition."

SECTION 5. This act is effective when it becomes law.