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Volume 8 - Opinions of Counsel SBEA No. 68

Opinions of Counsel index

Tax sales (notice) (transfer of ownership) - Real Property Tax Law, §§ 1002, 1014:

Mailed notice of unredeemed lands required by section 1014 of the RPTL should be addressed to the owner of record at the time of the mailing.

Published notice of tax sale required by section 1002 should identify the record owner at the time of publication and, if different, the owner whose name was listed on the tax roll upon which the delinquent tax was levied.

Section 1002(2) requires a published notice of a county tax sale to include the name of the owner or occupant “as the same appears on the tax roll”. This language has been judicially construed as referring to the tax roll upon which the delinquent taxes were levied (Taccone v. DiRenzi, 92 Misc.2d 786, 40 N.Y.S.2d 722 (S.Ct., Ontario Co. 1978)). We have similarly interpreted language in section 1014, with respect to mailed notice of unredeemed lands (6 Op.Counsel SBEA No. 117). Thus, subsequent grantees would not be identified in the published notice of tax sale, nor entitled to notice by mail of unredeemed lands.

While both the case and our Opinion were correct at the time issued, we believe each must be reconsidered today in light of the 1983 decision of the United States Supreme Court in Mennonite Board of Missions v. Adams, 462 U.S. 79, 103 S.Ct. 2706, 77 L.Ed.2d 180. In that case, the Court declared unconstitutional an Indiana statute which provided for notice of tax sale by publication only. The Court held that in the event of a tax foreclosure proceeding any person having a “substantial interest” in property subject to such proceeding is entitled to personal notice or notice by mail if that interest is a matter of public record and the name and address of the party are “reasonably ascertainable.”

There can be little doubt that our Opinion interpreting section 1014 is no longer valid in light of the Mennonite case. Assuming that the name and address of a subsequent owner of property are “reasonably ascertainable”, to mail a notice of the pending expiration of the redemption period to the former owner would be an exercise in futility and would contravene the clear intent of the Supreme Court decision. (There is at least one State court which has so construed a similar statute. See, White v. Lee, 470 A.2d 849 (S.Ct., N.H. 1983).)

The issue in regard to the notice by publication is somewhat different. For one, the opinion in the Mennonite case noted the limited value of such notice: “Because they are designed primarily to attract prospective purchasers to the tax sale, publication and posting are unlikely to reach those who, although they have an interest in the property, do not make special efforts to keep abreast of such notices” [citations omitted] (103 S.Ct. at 2711). Given this summary dismissal of published notice, the Court did not consider whether the form of such notice should include the most current information regarding ownership, etc.

Nonetheless, we note that there may be some instances where notice by publication will be the only means-albeit one of last resort-of informing a present owner of pending tax sale proceedings (e.g., where the records show an incorrect mailing address, or where the owner has changed his mailing address without notifying taxing officials). Accepting this possibility, we recommend that published notice include the names of current owners of tax delinquent property to the extent practicable.

Thus, if at the time a published notice of tax sale is prepared, county officials are aware that a transfer of title has occurred (e.g., through receipt of a real property transfer report (EA-5217),{*} by examination of a subsequent assessment roll, etc.), we believe that the name of the new owner should be included in the notice. However, given the fact that the courts have held local officials to a strict accounting in determining the validity of a tax sale, consideration should also be given to including some reference to the name of the person who held title at the time the delinquent tax became a lien.

For example, assume a January 1, 1985 tax levied on property owned by and assessed (on the 1984 roll) to A. B. Jones. Property owner A.B. Jones subsequently conveys to C.D. Smith, who is listed as the owner on the 1985 assessment roll. In August, 1985, the county prepares its notice of tax sale for publication. How should the owner be listed? We recommend that the notice be in a form such as “Smith, C.D., formerly Jones, A.B.”. This would satisfy both the spirit and the letter of the law.

October 31, 1985

{*}  When an assessor receives a real property transfer report less than five days prior to the expiration of the warrant for collection of taxes or after the expiration of that warrant, the assessor must report to the tax enforcement officer (generally the county treasurer) the new tax billing address and tax map designation in the report (See, RPTL § 574(1), as amended by L.1980, c.751).