A surprising Nebraska Supreme Court opinion has spurred legislative changes to Nebraska’s tax sale laws. Partner Katie French has summarized Nebraska’s tax certificate law, the shocking case of Wisner v. Vandelay, and the legislature’s necessary but little-too-late response.
TAX CERTIFICATE LAW:
In the case of delinquent real estate taxes, the county treasurer may sell real property for taxes. The treasurer provides the purchaser a tax certificate that represents a transfer of the state’s lien on the property to the purchaser. A property owner can pay the amount paid by the purchaser of the tax certificate, and all subsequent taxes and interest, to the county treasurer to “redeem” their property. However, this redemption option is only available to the property owner for three years after the issuance of the tax certificate. After three-year period has passed, the holder of the tax certificate can either apply for a tax deed with the treasurer or proceed in an action to sell the property.
However, at least three months before applying for the tax deed, the holder of the tax certificate must give adequate notice to the record owner and encumbrancers of record. Following the issuance of a tax deed, the property owner can only recover the property if they prove the tax deed is void or voidable. A tax deed is void if notice the statutory notice requirements were not met. The decision in Wisner v. Vandelay Invs., LLC in August 2018 has spurred some changes to the statutory notice requirements that must be fulfilled before applying for a tax deed to ensure that delinquent taxpayers receive adequate notice of the risk to their property.
In Wisner, Gladys Pearl Wisner, the owner of a 480-acre farmland property, moved into a retirement home in North Platte. Her power of attorney was transferred to one of her sons, who assigned the duties to a trust officer at a local bank. Although the son assumed that the bank was paying property taxes, the bank officers never received any tax notices to pay. This resulted in unpaid property taxes that became delinquent. Investment company Vandelay acquired the tax certificate on this property, and following the requisite three-year period, sent notice of its intent to foreclose to the address where Wisner received her property statements, and the notice came back unclaimed. Vandelay then published notice in the Sutherland Courier-Times for three consecutive weeks. A tax deed was delivered to Vandelay.
Gladys’ son attempted to have the tax deed voided, by arguing that Vandelay was not entitled to provide notice by publication and that Vandelay did not comply with the statutory publication requirements, because the Courier-Times was not in circulation throughout the county. Additionally, he argued that the statutory period should be extended to five years for Wisner, because Nebraska statute provides additional time for those with mental impairment.
The Supreme Court of Nebraska found that the son did not present sufficient evidence to overcome the presumption of sufficient service or to prove that a mental condition existed to extend the statutory redemption period. Vandelay acquired the 480-acre, $1.1 million real estate by paying $50,000 in back taxes and interest, in what the dissenting judges characterized as a “windfall that borders on the obscene.”
WHAT DID BILL 463 CHANGE REGARDING NOTICE REQUIREMENTS?
This case and its seemingly disparate result spurred changes in the notification process to better ensure that delinquent taxpayers are aware of the risk to their real property. This bill was signed by Governor Pete Ricketts on March 27, 2019.
Significantly, Neb. Rev. Stat. § 77-1832 contains changes that amend the requirements for service of notice of the application for a tax deed. It now provides that service of the notice shall be made by personal or residential service on a person in actual possession of the property and on the person whose name the title to the real property appears of record who can be found in this state. If personal or residential service is not possible, certified mail or designated delivery service can be used. Additionally, certified mail or designated delivery service is required to be provided to every encumbrancer of record found by the title search. If the people entitled to notice cannot be found with a diligent inquiry, § 77-1834 allows notice by publication. However, this statute has been modified so that publication must be in the newspaper of general circulation designated by the county board.
To apply for a tax deed, Neb. Rev. Stat. § 77-1837 requires the tax certificate, copy of title search, and the issuance and notary fees. Additionally, if service was personal or residential service, the statute requires an affidavit proving service of notice and a copy of the notice at the time of application. If service was by publication, an affidavit of the publisher, manager, or newspaper employees is required, as well as a copy of the notice and an affidavit of the purchaser/assignee of the tax certificate.
Other changes stemming from Bill 463 include that Neb. Rev. Stat. § 77-1802 is amended to require the inclusion of the property’s parcel number along with the description of the property when creating the list of all real property subject to sale and the amount of all delinquent taxes against each item. Additionally, Neb. Rev. Stat. § 77-1831 is amended to eliminate the distinction of owner-occupied property from other real property, thereby requiring notice of application for a tax deed of at least three months for all real property.
Katie French, LDM Partner