Appeal from Superior Court of Clallam County. Docket No: 94-2-00812-1. Date filed: August 8, 1995. Judge signing: Hon. George L. Wood JR.
Authored by Barbara A. Madsen. Concurring: Barbara Durham, James M. Dolliver, Richard P. Guy, Gerry L. Alexander, Philip A. Talmadge. Dissenting: Charles W. Johnson, Charles Z. Smith, Richard B. Sanders
The opinion of the court was delivered by: Madsen
MADSEN, J. -- 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 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.
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.
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. *fn1
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 (quoting Pierce County v. Evans, 17 Wash. App. 201, 204, 563 P.2d 1263 (1977)).
"Lack 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 (quoting Slocum v. Peterson, 131 Wash. 61, 68, 229 P. 20, ...