Can Payment Plan Properties Be Sold?

When property taxes are not paid, the delinquent property is to be “bid off” to the county for the amount of unpaid taxes. This is kind of like an auction, but one where the county is the only person allowed to bid and only for the amount of unpaid taxes, interest and fees. The list is prepared in July, but the actual sale/bid off process occurs after the second Tuesday in  September and is preceded by notification printed in the paper.

Between July 1 and July 10 of each year, the county treasurer shall prepare a list of all real estate subject to sale, [ … ] . The county treasurer also shall prepare an accompanying notice stating that the county treasurer will sell the real estate described in the list to the county for the amount of the delinquent taxes and legal charges due on the real estate and that the sale will be on or after the first Tuesday of September following publication of the notice under K.S.A. 79-2303, and amendments thereto. (source)

This it he process for the county to take ownership of the land, but it is not a foreclosure process. People are still allowed to use the property until foreclosure occurs after a redemption period has passed.

If property gets left off the published list and the “bid off” that occurs in September, there is a provision for that as well.

If any county treasurer shall unavoidably omit or fail to sell any real estate for unpaid taxes on the first Tuesday of September, he or she shall advertise and sell such real estate on the fourth Monday of October next ensuing, and such advertisement and sale shall conform in all respects to the provisions of this act, and shall be as binding and valid as if such sale had been made on the first Tuesday of September. (source)

Interestingly, there is a provision for cases where property was left off the list for a given year as well.

If any county treasurer at any time discovers that any tract or lot of real estate has not been put on the list of delinquent taxes and not sold for any preceding year, the treasurer shall be required to place the omitted tract or lot on the list of delinquent taxes for the current year, and sell the tract or lot as directed by this act in other cases. (source)

So if property was left of the list in one year, it must be included the next. What that means in the case of Bourbon County is that if anyone didn’t pay taxes before 2010, were not printed in the paper for that year, but somehow managed to pay their 2010 taxes, the should have had their names printed in the paper and the property bid off to the county this year.  I’m not aware of any property that was in that specific situation, but it means that the the treasurer is allowed to add property from previous years if it is somehow left off.

Once the county owns the property, they can’t sell it until a redemption period has passed. The general provision is listed below.

(a) (1) Except as provided by paragraph (2) and subsection (b), real estate bid off by the county for both delinquent taxes and special assessments, as defined by subsection (c), shall be held by the county until the expiration of two years from the date of the sale, subject only to the right of redemption as provided by this section. (source)

There is an exception for property that is classified as a “homestead” to give it a three year redemption period instead of two. Also homestead’s can be partially redeemed whereas that doesn’t appear to be an option for non-homestead property.

Now here is where things get interesting. If property was not bid off to the county, then the beginning of the redemption period was not triggered.  If the beginning of the redemption period was not triggered, can the county foreclose and sell the property at the sheriff’s auction?  

I expected there to be some type of paper trail or some documentation attached to the deed of properties sold to the county, but that doesn’t appear to be the case. I’m not trying to imply that there was something wrong with the way the bid off process occurred, it is just different than what I’d expect. It does, however, make sense that sale to the county for unpaid taxes might be different than sale to an individual. If someone tries to sell property that is owned by the county, the abstract work involves looking into any back taxes.

Obviously the redemption period is a safeguard for citizens to give them a reasonable amount of time to redeem their property.  So it isn’t something you’d want to circumvent. As a non-lawyer reading the statutes, it would appear that people with properties that were not listed in the paper would be well within their rights to ask to see proof that the property was actually bid off to the county triggering the start of the redemption period.

There is a provision in the law for cases where a name is left off of the list published in the paper. The property can still be bid off to the county even without being listed in the paper.

No irregularity or informality in the advertisement nor any error or omission in the listing of the names shall affect the legality of the sale or the title to any real estate subject to sale or sold for taxes under the act of which K.S.A. 79-2302 is amendatory, or under the act providing for judicial foreclosure and sale of realty by county. (source)

If you read the context of this statute, it appears to be referring to the “bid off” by the term sale and not the actual foreclosure where the property is sold to someone other than the county.

I asked the Bourbon County Treasurer what exactly constitues a “bid off” and “sale” in this situation. If I understood correctly it is a matter of switching all the properties over in the computer.

I did ask if properties on the payment plan that were left out of the paper in the past, had been bid off to the county and was told that they were. So according to the treasurer’s office all of the properties were correctly sold to the county regardless of whether or not they were published in the paper.

It is unclear what would constitute proof that the bid off and sale to the county occurred for a piece of property. This may be as simple as showing the computer history that indicates when the property was switched to being owned by the county. It does not appear that this information is something that can be seen from the tax search available to citizens.

So what does this all mean? Well, if you have property with delinquent taxes that was not listed in the paper for the past few years, the county is going to need to be able to prove that a bid off did indeed occur which would trigger the start of the redemption period. Obviously I am not a lawyer, so there may be precedences or other laws that would come into play.  Either way, the county needs to be careful how it handles attempting to foreclose on property that has not gone through the normal publication, bid off and sale process.


3 thoughts on “Can Payment Plan Properties Be Sold?”

  1. Mark: You did a great job with researching this and bringing it together. I think that definitive answers will have to come from the Attorney General’s Office in order for this to be cleared up, they are the authority on the statutes and are there for that purpose and could have been consulted at any time by the County. I know that Terry Sercer has finished his audit but I’m not sure he would be making a judgement on the legality or competence involved with this. I just think we have pretty much said everything until new information surfaces. And, thank you for the effort you have put forth here.

    1. Adding that since the County Treasurer’s delinquent taxes could have been added to the tax sale that was to be held last January (I think that is when they would have had it),even though a property was never published, the three options available to her and others with delinquent taxes 2006 and older were (1) pay a year up before the end of the redemption period of Sept 1, 2010 to extend their time (2) pay ALL taxes, interest and fees prior to the foreclosure auction as required by statute or (3) delay the sale of those properties for a year allowing her to pay those 2006 taxes off in June of 2011. That doesn’t look good does it? I just had to say it because the intent is just so screaming in my face!

  2. Actually, I am not sure if all were included but I counted at least 40 properties that would have been published as delinquent in a timely manner because their contracts were signed well after the time that the publication of their delinquent taxes would have passed. Now, I have one so far that should have been on the list and will look at the other 39 as I have time. So, even for next year, I noticed that delinquent taxes for 2008, the contracts were signed well after the required publication date so they have been published and ready to auction if taxes have remained unpaid.

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