Tag: barment

How To Successfully Foreclose the Right to Redeem Following a Tax Sale

Tyner v. Edge, which was decided by the Georgia Court of Appeals on May 22, 2020 (A20A0265), provides guidance on the process of foreclosing the right of redeem following a tax sale.

The court clarifies several aspects relating to properly barring the right to redeem:

(1) With regard to foreclosure of the right to redeem, Georgia law holds that a party who owns “any right, title, or interest in or lien” on the subject property is entitled to redeem (see O.C.G.A. § 48-4-40). Therefore, because of the word “any,” even a party with an unrecorded interest is entitled to redeem a property lost at a tax sale.

(2)  A party’s failure to record its interest does, however, have consequences because the holder of an unrecorded interest is not entitled to get a notice of foreclosure of the right to redeem. See OCGA § 48-4-45(a)(1)(c) and Freeman v. Eastern Sav. Bank, 271 Ga. 439, 440 (1) (520 SE2d 902) (1999). This means a tax deed holder can successfully bar the right to redeem without notifying persons or entities not in the chain of title. For this reason, a title search and careful examination of the title search is necessary in all cases.

(3) Regarding service by publication, the court confirmed that if the name and address of an interested party can be reasonably ascertained, notice of a tax sale by publication does not meet the requirements of due process. Hamilton v. Renewed Hope, Inc., 277 Ga. 465, 466 (589 SE2d 81) (2003). Consequently, tax deed holders must make a reasonable effort to locate all interested parties to successfully complete a barment, and cannot simply rely on publication.

(4) Payment of taxes, in and of itself, does not create an interest in property sufficient to trigger the notice requirements mentioned above. Thus, in this case, the party trying to redeem, who was not in the chain of title but had paid taxes, was not entitled to receive a barment notice.

Here, the tax deed owner won and the party trying to redeem lost. However, all parties who deal with tax deeds in Georgia can learn from this case. If you own a tax deed and need a lawyer, please call us at (404) 382-9994 to discuss barring the right to redeem for your tax deed.

Georgia tax deeds: What if the delinquent taxpayer is deceased?

When a property owner dies, often taxes go unpaid, and the property gets transferred at a tax sale. This typically happens when a property owner dies without close family or when the decedent’s family thinks it’s too much hassle taking over the property (maybe the property is in bad shape or there is little equity).

As every good tax deed purchaser knows, 366 days after the tax sale, notices to terminate the right to redeem can be sent out. But who do you send these to when the main person entitled to redeem, the homeowner, is dead.

O.C.G.A § 48-4-45 answers this question and instructs that “heirs of any deceased owner of any land entitled to notice pursuant to this Code section shall be served by the sheriff or notified as provided in this article.” Ok. So if the former owner is deceased, you are required to serve his or her heirs. Seems simple enough, but how do you determine who the heirs are?

In our office, we start by getting the death certificate of the deceased individual. This tells us where the decencent was living and (normally) provides information regarding at least one family member. We then contact family members to determine the heirs. As you can imagine, family members aren’t thrilled to talk to an attorney’s office who’s trying to “take property away from” a loved one recently passed. However, after explaining the situation, we usually get the family members to help us.

We also check the probate courts to see if the dead person has an estate and had a will. If so, we get the probate paperwork. If the person died intestate (without a will), then we follow Georgia statutory intestate rules to determine the heirs, and try to get “affidavits of descent” from family members. These affidavits help establish who the decedent was married to, the identity of the children, and so forth.

This can be a lot of work. In one case, we had an elderly decedent who died without a will, wasn’t married, and had had nine children. Several of those children had passed, meaning several of the grandchildren were heirs. We ended up having to locate and serve approximately 19 heirs spread all over the country.

If you need to send out notices of foreclosure of right to redeem in Georgia, and are facing a similar situation, we’ll be happy to discuss your situation and answer any questions. Please call us at 404-382-9994.

Can a tax commissioner apply excess funds to post-tax sale property taxes?

Iglesia Del Dios Vivo Columna Y Apoyo De La Verdad La Luz Del Mundo, Inc. v. Downing, 321 Ga. App. 778 (2013) addressed this issue, and the answer, quite simply, is NO. (Bonus points for being able to say the plaintiff’s name in that case three times fast.)

The guiding statute is O.C.G.A. § 48-4-5, which provides that any excess funds existing “after paying taxes, costs, and all expenses of a sale made by the tax commissioner” shall be distributed “to the owner or owners as their interests appear in the order of priority in which their interests exist.”

So, while a tax commissioner is authorized to apply excess funds to satisfy outstanding property taxes owed by the delinquent taxpayer that accrued before the tax sale, it can’t do so after the tax sale. This reasoning for this is that the tax deed purchaser, not the delinquent taxpayer, is liable for post-tax sale property taxes.

What about a situation in which post-tax sale property taxes accrue before the tax deed purchaser has barred the right of redemption? In this situation, the delinquent taxpayer still has possession and the tax deed purchaser doesn’t have full title. Is the delinquent taxpayer jointly liable with the tax deed purchaser? According to the Downing case, the answer is no.  Only the tax deed purchaser is liable for post-tax sale property taxes; this is regardless of whether the right to redeem has been barred.