Volume 6 - Opinions of Counsel SBEA No. 32
Taxes (delinquent) (tax deed - effect) - Real Property Tax Law, § 1020:
The conclusiveness of the presumption of regularity of tax sale proceedings, set forth in subdivision 3 of section 1020 of the Real Property Tax Law, is only effective where a valid conveyance has been made and the two year statute of limitations, which began running when the deed was recorded, has expired.
Real Property Tax Law, section 1010, provides that the owner, occupant or any other person may redeem real property sold for taxes at any time within one year from the last day of sale by payment of specified sums to the county treasurer. Section 1014 provides that the county treasurer shall, at least three months prior to the expiration of the one year redemption period, publish a notice containing a list of lands in the county sold for taxes and unredeemed, specifying every unredeemed parcel, the amount necessary to redeem, and a statement that such lands will be conveyed to the tax sale purchaser unless redeemed by a specified date.
Section 1018 provides, among other things, for a deed of conveyance to the tax sale purchaser by the county treasurer, after compliance with the foregoing sections. The effect of this conveyance is set forth in section 1020. Subdivision 1 states that such a conveyance “shall vest in the grantee an absolute estate in fee, subject, however, to (a) all claims of the county or state for taxes, liens or other encumbrances and subject to all easements or rights of way which were in existence at the time of the levy of the tax, the nonpayment of which resulted in the tax sale, (b) redemption as provided in section ten hundred twenty-two and ten hundred twenty-four of this chapter and (c) cancellation as hereinafter provided.”
Subdivision 3 of section 1020 has considerable bearing on this inquiry. This subdivision provides both that every such conveyance shall be presumptive evidence of the regularity of all proceedings and that after two years from the recording of the conveyance the presumption shall be conclusive, with the following proviso:
provided, however, that any such conveyance shall be subject to cancellation by reason of (a) the prior payment of the taxes, the nonpayment of which resulted in the sale, (b) the illegal levy thereof by the city or town or (c) any defect in the proceedings affecting jurisdiction upon constitutional grounds, if application is made to a court of competent jurisdiction within five years from the expiration of the period allowed by law for the redemption of lands sold at the particular sale sought to be cancelled.
Subdivision 1 of section 1022 provides that, as to any real property which at the time of the expiration of the one year given for redemption is actually occupied, the period of redemption is three years from the date of the sale. However, the extended period may be reduced to a minimum of 18 months upon service of a written notice to the occupant and filing of proof of service pursuant to various subdivisions contained in section 1022. Section 1024 provides the same extended period of redemption to mortgagees as section 1022 provides to occupants.
In the factual situation under consideration, there is no indication of whether the subject property was occupied or mortgaged at the expiration of the one year redemption period. Nor is there any indication that, if the property was occupied or mortgaged, the period of redemption was reduced to 18 months by serving the occupant or mortgagee and filing proof of such service. However, we are told that there had been a mortgage on the first parcel. Nevertheless, the dates supplied do indicate that the 36 month redemption period had expired for both parcels prior to the tax sale purchasers obtaining tax deeds from the county treasurer.
The tax deed on the first parcel was recorded on January 17, 1975. The tax deed on the second parcel was recorded on January 12, 1976. By virtue of section 1020(3), there is a conclusive presumption that the proceedings were in accord with law as to the first parcel because the requisite two years from the date of recordation of the conveyance has expired. However, this presumption will not be conclusive as to the second parcel until January 12, 1978.
In view of the fact that two years have not passed since the date of recording the deed to the second parcel, there is only a presumption of regularity as to the tax sale and prior proceedings. The former owner or mortgagee could, under the right factual circumstances, overcome this presumption. For example, in an action to declare invalid and void a tax deed from a county treasurer, evidence showing that the tax collector failed to post the required number of notices as to his receipt of the tax roll and warrant, and that the notices failed to specify the time or requisite number of days that the collector would be in attendance to collect taxes, was sufficient to overcome the presumption of regularity of the tax sale proceedings (Werking v. Amity Estates Inc., 2 N.Y.2d 43, 137 N.E.2d 321, 155 N.Y.S.2d 633, appeal dismissed, 353 U.S. 933,77 S.Ct. 812, 1 L.Ed.2d 756, rehearing denied, 353 U.S. 989, 77 S.Ct. 1281, 1 L.Ed.2d 1146; see also, Barzler v. Fischer, 272 App. Div. 665, 75 N.Y.S.2d 97, and Petition of Town of Brookhaven, 78 Misc.2d 499, 354 N.Y.S.2d 794).
As to the first parcel, the presumption is now conclusive. However, the period of five years from the expiration of the period allowed for redemption of the lands sold at the particular sale sought to be cancelled. Thus, where there had been a prior payment of taxes by means of redemption, the tax deed will be void (Satterlee v. Senter, 61 Misc.2d 813, 303 N.Y.S.2d 928). Also, where a property owner intends to pay all his taxes, but is unable to do so because of a mistake in description, a payment will exonerate the entire property and a tax sale of the excluded part will be held invalid (Conklin v. Jablonski, 67 Misc.2d 286, 324 N.Y.S.2d 264). As to an illegal levy of taxes, where a city executed a tax deed on county property, which was exempt from city taxes, the tax deed was set aside (Budd v. Franco, 194 App. Div. 803,185 N.Y.S. 797).
It must be remembered that the conclusiveness of section 1020 is only effective where a valid conveyance has been made and the two year statute of limitations has commenced running from the recording of that deed. In Mattioli v. Corradino, 24 Misc.2d 157,199 N.Y.S.2d 905, the county treasurer executed a deed five years and nine months after the issuance of the certificate of tax sale. Under section 1018(3), if application for a conveyance is not made within five years from the last day of the sale, the certificate of sale becomes void. Therefore, there was no conveyance at all, and the tolling of the two year statute of limitations never commenced.
As indicated above, the question of whether a tax deed could be successfully challenged depends upon the manner in which all the proceedings surrounding the sale and subsequent delivery of the deed were conducted. Only by examining all the applicable local records can a tax sale purchaser ascertain if all the proceedings involved in the tax sale and subsequent thereto were in accordance with law so as to preclude a successful challenge to the validity of this tax deed.
June 24, 1977