Foreclosure of Liens, In re
| Decision Date | 01 November 1996 |
| Docket Number | No. 63198-1,63198-1 |
| Citation | 922 P.2d 73,130 Wn.2d 142 |
| Parties | In re the Proceedings for Clallam County for the Foreclosure of Liens for Delinquent Real Property Taxes for the Year 1991, and some prior years. CLALLAM COUNTY, Appellant, v. Janice FOLK, Respondent. |
| Court | Washington Supreme Court |
David H. Bruneau, Clallam County Prosecutor, Christopher Melly, Deputy, Port Angeles, for Appellant.
Norm Maleng, King County Prosecutor, Margaret A. Pahl, Deputy, Seattle, for Amicus Curiae.
At issue is whether Clallam County complied with statutory and due process notice requirements when it gave notice of tax foreclosure proceedings to a tenant-in-common owning an undivided fractional interest in real property who failed to pay real property taxes on his undivided interest, but did not give notice of the proceedings to other cotenants of the property. We find that it did, and reverse the trial court order vacating the judgment of foreclosure and order of sale for lack of notice.
On September 7, 1994, Clallam County filed this action to foreclose a number of real property tax liens for 1991 and prior years. Interests in two of the parcels identified in the certificate of delinquency were held by James C. Cleland as a tenant-in-common. Mr. Cleland held a 1/36th undivided interest in each parcel. He acquired his interests through the estate of his wife, a member of the Makah Indian Tribe. Because Mr. Cleland was not Indian, he took his interest in the estate in fee, and it was subject to real property taxes. Mr. Cleland failed to pay real property taxes, interest and penalties on his 1/36th interests in the parcels, totaling about $842.
Pursuant to RCW 84.64.050, the Clallam County Treasurer ordered a title search to determine the record title holder of the property on which the taxes were delinquent. The title search was ordered only for Mr. Cleland's fractional undivided interest, and thus it did not disclose Respondent Janice Folk is Mr. Cleland's stepdaughter. She also acquired an undivided 1/36th interest in the parcels through her mother's estate. Respondent is evidently a member of the Makah Indian Tribe and does not hold her interest in fee. The County says that some of the cotenants of the parcels are Indians not subject to taxation. There is no issue concerning any delinquent taxes on Respondent's interest, and the County did not seek to foreclose any tax liens on her undivided interests in the two parcels.
any ownership interests in the two parcels of land held by any other cotenants. There is no dispute that the County properly gave notice of the tax foreclosure proceedings to Mr. Cleland.
Mr. Cleland did not appear or defend in the tax foreclosure proceedings. On November 18, 1994, Clallam County obtained a judgment of foreclosure and order of sale. Clallam County acquired Mr. Cleland's interests at the foreclosure sale because there were no other bidders for the property.
Six months after the sale, on May 19, 1995, Respondent tendered delinquent taxes, penalties and interest in the amount Mr. Cleland had owed. The tender was rejected. On June 1, 1995, Mr. Cleland quitclaimed any interest he had in the parcels to Respondent. On June 21, 1995, Respondent moved to intervene in the tax foreclosure proceedings and moved to vacate the judgment on the basis that proper notice of the proceedings had not been given to the cotenants of the two parcels. The trial court granted both motions, and on August 8, 1995, entered an order granting Respondent leave to intervene and an order vacating the judgment of foreclosure and order of sale and voiding the tax deed delivered to the County.
The County appealed, seeking direct review by this court, which was granted. 1
The County urges the court to draw a distinction between a case where the common property held by all the tenants-in-common is the subject of tax foreclosure proceedings and a case where only one tenant-in-common's individual undivided interest is the subject of such proceedings. In the former case, there is no question that all of the cotenants must be given notice under RCW 84.64.050. But where the individual undivided interest of only one tenant-in-common has been separately assessed for taxes which have remained unpaid, and only that individual undivided interest is the subject of tax foreclosure proceedings, the County is correct that neither RCW 84.64.050 nor due process requires notice of the proceedings to the other cotenants.
Certain jurisdictional requirements are prerequisites to the maintenance of a tax foreclosure action. In re Foreclosure of Liens, 117 Wash.2d 77, 811 P.2d 945 (1991). Absent compliance with those requirements, any subsequent foreclosure and tax sale may be void. One such jurisdictional defect is the " 'failure to give notice in compliance with the letter and spirit of statutory requirements.' " Id. at 84, 811 P.2d 945 (quoting Pierce County v. Evans, 17 Wash.App. 201, 204, 563 P.2d 1263 (1977)). "[L]ack of notice to an owner 'renders the sale and the tax deed void, or at least voidable, at the suit of the record owners or their grantee.' " In re Foreclosure of Liens, 117 Wash.2d at 89, 811 P.2d 945 ().
RCW 84.64.050 provides in relevant part that notice of tax foreclosure proceedings must be given:
Notice and summons must be served or notice given in a manner reasonably calculated to inform the owner or owners, and any person having a recorded interest in or lien of record upon the property, of the foreclosure action.... Either (a) personal service upon the owner or owners and any person having a recorded interest in or lien or record upon the property, or (b) publication once in a newspaper of general circulation ... in the area of the property ... and mailing of notice by certified mail to the owner or owners and any person having a recorded interest in or lien of record upon the property, or, if a mailing address is unavailable, personal service upon the occupant of the property, if any, is sufficient.... The person or persons whose name or names appear on the treasurer's rolls as the owner or owners of the property shall be considered and treated as the owner or owners of the property for the purpose of this section.... PROVIDED, That prior to the sale of the property, the treasurer shall order or conduct a title search of the property to be sold to determine the legal description of the property to be sold and the record title holder, and if the record title holder or holders differ from the person or persons whose name or names appear on the treasurer's rolls as the owner or owners, the record title holder or holders shall be considered and treated as the owner or owners of the property for the purpose of this section, and shall be entitled to the notice provided for in this section.
The notice issue is twofold under the statute. First, "owners" of the property must receive notice. Id. Second, the statute also requires that "any person having a recorded interest in or lien of record upon the property" must be given notice. Id. As to "owners," regardless of what name appears as owner on the tax rolls, the proviso in the statute requires that the county treasurer order or conduct a title search to determine the record title holders, and provides that a record title holder is an "owner" for purposes of the statute.
Respondent does not claim that her name appears on the tax rolls as an "owner," but challenges the way in which the County determined the "owner" of the property through the title search. The county treasurer ordered a title search, but ordered it only as to Mr. Cleland's 1/36th undivided interest. The title search failed to disclose any other record owners of that 1/36th undivided interest. Respondent maintains that the treasurer failed to comply with the statute because the treasurer did not order a general title search of the parcels in which Mr. Cleland held a 1/36th interest, i.e., a search which would have disclosed any record ownership interest in the two parcels of real property, including ownership interests in the property by cotenants such as herself. These cotenants, she argues, are entitled to notice.
The proviso in the statute states that to ascertain the legal description and the record title holder(s), the treasurer must order or conduct a title search "of the property to be sold[.] " RCW 84.64.050 (emphasis added). The County did not proceed against the whole of the two parcels, but only against Mr. Cleland's undivided interests upon which the taxes were delinquent, and purported to sell only those undivided interests. Respondent was not an "owner" of the "property to be sold," and accordingly was not an "owner" entitled to notice under the statute.
This conclusion is consistent with the nature of the property held by a tenant-in-common. The essential attribute of a tenancy in common is possession; each cotenant is the holder of an undivided interest in the whole of the property, with the right to possession and enjoyment of the whole property. See Rouse v. Glascam Builders, Inc., 101 Wash.2d 127, 130, 677 P.2d 125 (1984). However, each cotenant's title is "separate and distinct, and each tenant owns a separate estate." Falaschi v. Yowell, 24 Wash.App. 506, 509, 601 P.2d 989 (1979); see Holohan v. Melville, 41 Wash.2d 380, 400, 249 P.2d 777, 255 P.2d 899 (1953). Thus, one tenant-in-common may sell, lease, or otherwise dispose of his or her interest in the common property without the consent of the other cotenants and without their joining in the conveyance. De la Pole v. Lindley, 131 Wash. 354, 357-58, 230 P. 144 (1924); see also Briggle...
To continue reading
Request your trial
-
Michelman v. Lincoln Nat'l Life Ins. Co.
...not have divested Irwin of his one-half beneficial interest in the policy without his consent. See generally In re Foreclosure of Liens, 130 Wash.2d 142, 922 P.2d 73, 77–78 (1996) (discussing co-tenant's rights and circumscriptions). Undoubtedly, Gail possessed affirmative defenses such as ......
-
Rutledge v. Beck
...orders. Accordingly, we address only those orders that are dispositive of all issues raised on appeal. [6] In re Foreclosure of Liens, 130 Wn.2d 142, 148-49, 922 P.2d 73 (1996) (Clallam County v. Folk). [7] Id. at 149. [8] Anderson & Middleton Lumber Co. v. Quinault Indian Nation, 130 Wn.2d......
-
Rutledge v. Beck, No. 64914-1-I (Wash. App. 6/1/2010)
... ... He claims this voids the orders vacating the liens of these deeds of trust against that property. Because the partition by sale is a proceeding in rem and the lis pendens that Rutledge recorded ... The former provision provides for the disposition of proceeds from a trustee's sale following a foreclosure on a deed of trust. This is a partition by sale, not a foreclosure. Thus, that statute is not relevant to this case ... Likewise, ... ...
-
Smith v. Ritzville Warehouse, Inc., No. 25698-7-III (Wash. App. 11/20/2007)
... ... Each cotenant in a tenancy in common has the right to possess and enjoy the whole property. In re Foreclosure of Liens, 130 Wn.2d 142, 148, 922 P.2d 73 (1996). But each cotenant owns a separate estate and may sell, lease, or otherwise dispose of his or her ... ...