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Alabama Real Property Tax Sales, Redemption and Clearing Title

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Alabama Real Property Tax Sales, Redemption and Clearing Title Alabama Real Property Tax Sales, Redemption and Clearing Title William S. Hereford, Esq. Burr & Forman LLP 420 North 20th Street Suite 3400 Birmingham, Alabama 35203 [email protected] 43147136v1 © 2020 William S. Hereford ALABAMA REAL PROPERTY TAX SALES, REDEMPTIONS AND CLEARING TITLE1 I. AD VALOREM TAX COLLECTION – LAND AND LIEN SALES. Tax sales are the mechanism by which counties collect delinquent ad valorem taxes. There are two types of tax sales in Alabama. The first involves the county selling the taxpayer’s land to pay for the taxes, whereas the second involves the county selling the county’s lien against the land for the taxes owed. Under the first system, the purchaser obtains an interest in the property sold, evidenced by a certificate, which certificate may later be exchanged for a deed to the property. Under the second, recently updated, system, the purchaser at the sale obtains a lien on the property that can be foreclosed after three years. This latter sale of lien system was used for the first time in 2019 after legislative changes to the system in 2018. Ten counties have elected to use the sale of lien system in 2020.2 II. SALE OF LAND (§§ 40-10-1 through 40-10-143). The sale of land system, which is established in Alabama Code §§ 40-10-1 through 40-10-143, is the system historically used by all Alabama counties until 2019 when several counties adopted the revised sale of lien system. While the majority of Alabama counties continue to use the sale of land system, the counties using the sale of lien system increased 1 This publication does not constitute legal advice. The legal authority relating to many of the issues discussed is very nuanced, and determining the most appropriate response and strategy to a particular situation requires a careful review of the particular circumstances. Obtaining the assistance of experienced legal counsel is recommended. 2 The counties opting to use the sale of lien system in 2020 are: Baldwin, Calhoun, Cherokee, Cullman, DeKalb, Elmore, Jackson, Mobile, Shelby, and Talladega. 43147136 v1 2 from 2019 to 2020. It will be interesting to see if this trend to the sale of lien system will continue. A. Presale Noticing. Ad valorem taxes are billed on October of each year and are delinquent if not paid by December 31. The steps leading up to the sale of land for taxes begins after January 1. Upon receipt of a book of delinquent taxpayers, the judge of probate of the county where the real estate is located issues a notice addressed to each known delinquent taxpayer listed in the book.3 The notice informs the taxpayer of a hearing before the probate court and requests that the taxpayer show cause at the hearing as to why a decree for the sale of the taxpayer's property should not be made.4 The notice is to be served on the taxpayer residing in the county where the property is located by the tax collector by handing it to the taxpayer or his agent, leaving a copy of the notice at the residence/place of business of the party, or by certified or registered mail.5 Notification procedures vary if the taxpayer has died (service shall be made on the decedent's personal representative) or is a nonresident of the county where the property is located (service shall be made by publication).6 When property is assessed to an "owner unknown," notice of a hearing on the sale of property must be given by publication once a week for three successive weeks in a newspaper published in the county, 3 Ala. Code § 40-10-4. 4 Id. 5 Id. 6 Id. 43147136 v1 3 or if no newspaper is published therein, by posting the same at the county courthouse for three weeks.7 A decree of sale of the real property in question is issued if the taxpayer raises no valid defenses to the tax deficiency.8 Pursuant to section 40-10-12, notice of the sale shall be given via publication. Strict compliance with these procedures is required, and failure to comply with the requirements can render the tax sale invalid.9 Sales of real property must be confirmed by the probate court following the sale.10 An adequate description of the real property must be given in the advertisements of the sale, and the failure to do so can invalidate a resulting tax deed.11 B. Auction Sale. On the appointed day, the tax sale is conducted with properties being sold by public auction to the highest bidders for cash.12 If no one bids an amount sufficient to pay the sum specified in the decree of sale for a particular property, the judge of probate shall bid in such real estate for the State of Alabama for the amount specified in the decree.13 The properties which are bid in for the state are commonly referred to as "sold to state" properties. 7 § 40-10-5. 8 § 40-10-11. 9 Morris v. Card, 135 So. 340, 343 (Ala. 1931); O'Barr v. Oberlander, 679 So.2d 261 (Ala. Civ. App. 1996). 10 § 40-10-13. 11 See § 40-10-14; Craig v. Swader, 143 So. 553 (Ala. 1932). 12 § 40-10-15. 13 § 40-10-18. 43147136 v1 4 C. Documents Evidencing the Acquired Interest from the Tax Sale. 1. Tax Certificate After a tax sale, the tax collector issues to the purchaser a certificate of purchase (a "tax certificate") containing certain details about the sale, including a description of the real estate sold, the amount of taxes due, and the date of the sale.14 A complete description of what must be included in the tax certificate is set forth in section 40-10-19 as follows: As soon after the confirmation of sale is made as may be practicable, the tax collector must make out and deliver to each purchaser, other than the state, a certificate of purchase, which shall contain a description of the real estate sold and show that the sum was assessed by the assessor, to whom assessed, the date of assessment, for what year or years the taxes were due, the amount of taxes thereon, the amount of and the name of the holder of each tax lien certificate related thereto, distinguishing the amount due the state and county and for school purposes and to each holder of a tax lien certificate and the fees and costs, that it was advertised and how long, that it was offered for sale and at what time, who became the purchaser, at what price and the fact and date of the confirmation of such sale.15 2. Tax Deeds If a property sold for taxes is not redeemed within three years from the date of the sale, then the purchaser is entitled to a deed (herein, a "tax deed") to the property issued by the probate judge.16 To receive the tax deed, the purchaser must return the original tax certificate and pay a fee of $5.00 to the judge of probate.17 Pursuant to section 40-10-29, such deed: 14 § 40-10-19. 15 § 40-10-19. 16 § 40-10-29 ("After the expiration of three years from the date of a sale of any real estate for taxes, the judge of probate . must execute and deliver to the purchaser, a deed to each lot or parcel of real estate sold to the purchaser and remaining unredeemed, . ."). 17 Id. 43147136 v1 5 shall convey to and vest in the grantee all the right, title, interest and estate of person whose duty it was to pay the taxes on such real estate in the lien and claim of the state and county thereto, but it shall not convey the right, title or interest of any reversion or remaindermen therein.18 Typically, a tax sale purchaser who obtains a tax deed will record the deed to provide notice of the tax purchaser’s interest in the property. D. Excess Bids. Alabama law provides that the property will be sold to the highest bidder, provided the bid at least covers the past due taxes and other amounts identified in the decree ordering the sale. What is known as an "excess bid," "overbid," or "surplus" arises when a tax sale purchaser bids an amount higher than the outstanding tax indebtedness and sales costs. These surplus funds are received and held by the county until they are released as provided by Alabama Code § 40-10-28, the statute governing the handling and disposition of the surplus funds. Section 40-10-28 was amended in 2013, 2014, and 2017. The current version of the statute provides for the following: (1) during the initial three year redemption period, anyone with a right to redeem is entitled to have the surplus funds applied as a credit toward the redemption of the property; and (2) following the initial three year redemption period, the county’s release of the surplus funds is conditioned on the property being first redeemed. Upon presentation of proof of redemption to the county, the county is to release the funds to the redeeming party.19 Without proof of redemption, the county can refuse to release the surplus funds, which funds eventually become the county’s property. 18 § 40-10-29. 19 § 40-10-28 (2017). 43147136 v1 6 E. Purchaser’s Right of Possession. The purchaser of property at a tax sale is entitled to immediate possession of the property upon the purchaser's receipt of a tax certificate.
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