Saturday, August 31, 2019

Tax sales - notice - "additional notification efforts"

Delaney v. Montgomery County Tax Claim Bureau – Cmwlth. Court – August 27, 2019 – unreported memorandum decision**

Held:  Tax sale set aside because of failure of TCB to make proper “additional notification efforts”  concerning tax sale, as required by RETSL sec. 607.1, 72 P.S. sec. 5860.607a(a), when mailed notification is returned w/o signed return receipt or “under other circumstances raising a significant doubt as to the actual receipt of such notification by the named addressee.”

Burden of proof – filing exceptions overcomes presumption of regularity – strict construction – due process
“It is the taxing authority’s burden to prove compliance with the statutory notice provisions. Casanta v. Clearfield County Tax Claim Bureau, [435 A.2d 681, 683 (Pa. Cmwlth. 1981)]. In Hughes v. Chaplin, [132 A.2d 200, 202 (Pa. 1957)], our Supreme Court established that a prima facie presumption of regularity in a tax sale exists until the contrary is shown. In Dolphin Service Corp. v. Montgomery County Tax Claim Bureau, [557 A.2d 38 (Pa. Cmwlth. 1989)], this Court, harmonizing Casanta with Hughes, held that the filing of exceptions overcomes the presumption of regularity in the tax sale; accordingly, the filing of exceptions requires a bureau to prove that it has complied with the statutory notice requirements. Strict compliance with those requirements is required in order to ensure due process, and the burden to show strict compliance lies exclusively with the tax claim bureau. Michener v. Montgomery County Tax Claim Bureau, 671 A.2d 285, 289 (Pa. Cmwlth. 1996).” In re Tax Sale of Real Property Situate in Paint Township, 865 A.2d 1009, 1015 (Pa. Cmwlth. 2005).  (emphasia added)  It is well settled that the statutory notice provisions in the Tax Sale Law “must be strictly construed lest a person be deprived of property without due process.” Maya v. County of Erie Tax Claim Bureau, 59 A.3d 50, 55 (Pa. Cmwlth. 2013). The tax claim bureau has the burden of proving its compliance with the notice provisions. Id.

Significant doubt about actual receipt of notice – additional notice requirements – Sec. 607.1 – 72 P.S. sec. 5860.607a(a)
When there is “significant doubt” about actual receipt of notice of a tax sale, the tax claim bureau must undertake additional efforts to give notice
[B]efore the tax sale can be conducted or confirmed, the bureau must exercise reasonable efforts to discover the whereabouts of such person or entity and notify him. The bureau’s efforts shall include, but not necessarily be restricted to, a search of current telephone directories for the county and of the dockets and indices of the county tax assessment offices, recorder of deeds office and prothonotary’s office, as well as contacts made to any apparent alternate address or telephone number which may have been written on or in the file pertinent to such property. When such reasonable efforts have been exhausted, regardless of whether or not the notification efforts have been successful, a notation shall be placed in the property file describing the efforts made and the results thereof, and the property may be rescheduled for sale or the sale may be confirmed as provided in this act.  72 P.S. §5860.607a(a) (emphasis added). 
In this case, the TCB admittedly did none of those extra things, which the court called “the mandatory minimum search required” by RETSL.

Newspaper notice – fact of notice v. content of notice
The TCB presented evidence that notices had been placed in the local newspapers and legal journal.  However, the it not provide evidence of the content of those notices.  “[A]bsent any evidence concerning the content of the newspaper advertisements, the trial court erred in holding that the Bureau established compliance with the publication requirement of Section 602(a) of the Tax Sale Law.

Focus of RETSL on TCB compliance with each and every element of the statutory requirements
It is well settled that a failure by a tax claim bureau to comply with each and every statutory requirement will nullify a tax sale. Smith v. Tax Claim Bureau of Pike County, 834 A.2d 1247, 1252 (Pa. Cmwlth. 2003). Additionally, we have repeatedly explained that where notice is at issue, the proper focus is not on the alleged neglect of the owner, which is often present in some degree, but on whether the activities of the bureau comply with the requirements of the statute. Steinbacher v. Northumberland County Tax Claim Bureau, 996 A.2d 1095, 1099 (Pa. Cmwlth. 2010).


**An unreported Commonwealth Court case may not be cited as binding precedent, but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716