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Volume 7 - Opinions of Counsel SBEA No. 86

Opinions of Counsel index

Taxes (enforcement) (in rem - liens of other tax districts) - Real Property Tax Law, §§ 1120, 1122:

A city which enforces its unpaid tax liens by in rem foreclosure pursuant to Article 11, title 3 of the Real Property Tax Law is not required to enforce county tax liens unless the county liens are held and owned by the city.

We are asked whether a city which enforces its unpaid tax liens by in rem foreclosure pursuant to Article 11, title 3 of the Real Property Tax Law, must include unpaid county taxes in the foreclosures. In support of its position that a city has such an obligation, the County relies upon the language of section 1122(3) of the Real Property Tax Law that the “List of Delinquent Taxes” shall contain as to each parcel a “statement of the amount of each tax lien upon such parcel” and upon an Opinion of the State Comptroller interpreting that provision (1948 Op.State Compt. 262). We do not agree with the County’s position, nor do we believe that the Opinion cited supports its position.

The language in section 1122, subdivision 3(c) referring to “each tax lien” must be read in the overall context of Article 11, title 3, in general, and that of section 1122 in particular. In this context it is clear that these provisions apply only to tax liens which have been “bid in” by the enforcing municipality.

Section 1120 sets forth the circumstances which enable a municipality to foreclose by an action in rem: “Whenever it appears that a tax district owns a tax lien which has been due and unpaid for a period of at least four years from the date on which the tax . . . became a lien, such tax lien . . . shall be summarily foreclosed by the tax district in the manner provided in this title” (emphasis added). This limitation is repeated in section 1122. The reference in subdivision 3(c) of section 1122 to “each tax lien upon such parcel” applies only to those parcels on the list provided for by subdivision 1. That list is “a list of all parcels of real property . . . affected by unpaid tax liens held and owned by such tax district” (emphasis added). If a lien is not owned by a tax district, it would not appear on the list and section 1122(3) would be inapplicable as to that lien.

The Opinion of the State Comptroller upon which the County relies is consistent with our interpretation. It states that a tax district may require a person redeeming taxes “to pay all tax liens against the property which are included in the list of delinquent taxes filed by the collecting officer” (emphasis added). As noted above, this list refers only to the liens owned by the foreclosing municipality. Therefore, unless the city owns the county tax liens on these properties on the list, it is not required to enforce those tax liens.

The interpretation urged by the County would lead to a situation in which every tax district which enforces its own taxes in rem must also enforce the taxes for every other jurisdiction which levies taxes upon the same property. Such an interpretation is consistent with neither the spirit nor the letter of Article 11, title 3.

May 3, 1982