Monday, October 07, 2019

tax sale - notice - personal service - incarcerated owner is "owner-occupant"

Appeal of Hansford – Cmwlth. Court – October 1, 2019 – reported, precedential

Held:  Incarcerated person was an “owner occupant” under Real Estate Tax Sale Law, 72 P.S. secs. 5860.102 and thus was entitled to written notice of the tax sale, by personal service, under 72 P.S. secs. 5860.601(a)(3).

Heightened concern for owner-occupants
Section 601(a)(3) [of the RETSL] demonstrates the General Assembly’s ‘heightened concern for owner occupants being divested of the very property in which they are residing.’ Matter of Tax Sales by Tax Claim Bureau of Dauphin C[ty.], 651 A.2d 1157, 1159 (Pa. Cmwlth. 1994). We have said that, ‘[b]y enacting [S]ection 601[(a)(3)] [of the RETSL], the [General Assembly] expressed a desire to provide a qualitatively different type of notice to an owner occupant and afford such owner with increased protection by way of additional notice.’ McKelvey v. Westmoreland C[ty.Tax Claim Bureau, 983 A.2d 1271, 1274 (Pa. Cmwlth. 2009).  Famageltto v. Cty. of Erie Tax Claim Bureau, 133 A.3d 337, 346-47 (Pa. Cmwlth. 2016). 

Focus on compliance of tax claim bureau, not on the alleged neglect of the owner
In reviewing the validity of a tax sale, the court must focus ‘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].’ [In re Consol. Reports & Return by Tax Claims Bureau of Northumberland Cty. of Props.], 132 A.3d [637,] 644 [(Pa. Cmwlth. 2016)] (quoting Smith [v. Tax Claim Bureau of Pike Cty.], 834 A.2d [1247,] 1251 [(Pa. Cmwlth. 2003)]). It is the conduct of the [Bureau] that is determinative of compliance with statutory notice provisionsClemmer v. Fayette Cty. Tax Claim Bureau, 176 A.3d 417, 422 (Pa. Cmwlth. 2017).

Temporary absence of owner-occupant is not dispositive
The fact that an owner may be temporarily physically incapable of inhabiting his property does not mean he is no longer an owner occupant, e.g. if hospitalized or incarcerated.  The tax claim bureau is not w/o a possible remedy in this situation.  Under circumstances where an owner who resides at the property may not be physically present at his property during the relevant time period, if the owner cannot be personally served, “the [B]ureau may petition the court of common pleas to waive the requirement of personal notice for good cause shown,” otherwise, the Bureau is mandated to personally serve the owner occupant. 72 P.S. § 5860.601(a)(3). The Bureau did not request waiver of personal service in the instant case.

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