George C. Howell, Esq.|
Attorney for Appellee
Barbara Harmon-Schamberger, Esq.|
Charleston, West Virginia
Attorney for Appellants Gainer and Sluss
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE MAYNARD dissents and reserves the right to file
a dissenting opinion.
1. Where the issue on an appeal from the circuit court is clearly a question
of law or involving an interpretation of a statute, we apply a de novo standard of review.
Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
2. 'When a statute is clear and unambiguous and the legislative intent is
plain the statute should not be interpreted by the courts, and in such a case it is the duty of
the courts not to construe but to apply the statute. Point 1, syllabus, State ex rel. Fox v.
Board of Trustees of the Policemen's Pension or Relief Fund of the City of Bluefield, et al.,
148 W. Va. 369 [135 S.E.2d 262 (1964) ].' Syllabus Point 1, State ex rel. Board of Trustees
v. City of Bluefield, 153 W. Va. 210, 168 S.E.2d 525 (1969). Syl. pt. 3, Central West
Virginia Refuse, Inc. v. Public Service Com'n of West Virginia, 190 W. Va. 416, 438 S.E.2d
3. There are certain constitutional due process requirements for notice of a tax sale of real property. Where a party having an interest in the property can reasonably be identified from public records or otherwise, due process requires that such party be provided notice by mail or other means as certain to ensure actual notice. Syl. pt. 1, Lilly v. Duke, 180 W. Va. 228, 376 S.E.2d 122 (1988).
In this case, the Auditor of the State of West Virginia, the Honorable Glen B.
Gainer, III, and the Mingo County Redevelopment Authority (the Redevelopment
Authority) both claim the right to dispose of the same piece of property. The Auditor argues
that he followed the law and, through his agents, made a valid and enforceable tax-saleSee footnote 1
of the property to a new owner. The Redevelopment Authority argues that it had instituted
valid condemnation proceedings against the same property and that the Auditor should not
have been permitted to conduct the tax-sale.
The Circuit Court of Mingo County concurred with the Redevelopment Authority, and in an order dated August 25, 1998, voided the deed granted by the Auditor, granted the tax-sale purchaser a refund, and implicitly granted ownership of the property to the Redevelopment Authority. Subsequently, the Auditor appealed this decision. Because we find that the Auditor complied with the notice requirements of W. Va. Code § 11A-3-1, et seq., we find that the tax-sale was valid, and for the reasons set forth below, reverse.
This case involves the collision of a condemnation action and a so-called tax-
sale of land on which the taxes were delinquent. Irene Green owned an interest in property
on Mate Creek, near Red Jacket in Mingo County. In 1992, Irene Green died intestate,
leaving several heirs.See footnote 2
For reasons unknown, none of the Green heirs paid the property tax
for several years. This failure to pay the tax on Mrs. Green's real property initiated a
statutorily-required process whereby the land eventually would be sold for payment of the
taxes.See footnote 3
As this tax-sale process advanced, the property came to the attention of the
Mingo County Redevelopment Authority. The Redevelopment Authority decided that it
would like to acquire the late Mrs. Green's property to use the land to develop a housing
project. The Redevelopment Authority is an entity created by the County Commission of
Mingo County pursuant to W. Va. Code § 16-18-1, et seq., and charged with the duty of
ameliorating slum and blight in the county.See footnote 4
The Redevelopment Authority filed a condemnation proceeding against the
property on November 20, 1995.See footnote 5
Although the Redevelopment Authority served this
complaint upon the Mingo County Sheriff's office, counsel for the Redevelopment Authority
did not file a notice of lis pendens with the county clerk, which would have put any potential
purchasers on notice of the condemnation action.See footnote 6
The Redevelopment Authority named the State of West Virginia in the
complaint, apparently in an effort to discover any claim the State might have had on the
Green property. The Department of Tax and Revenue replied by letter dated January 16,
1996, that the State had no liens upon the property, but that the Mingo County Sheriff had
a lien upon the property for unpaid property taxes.See footnote 7
In spite of, or perhaps because of, the ongoing dealings between the Green
heirs and the Redevelopment Authority, no one had paid the taxes since sometime in 1992.
At some point, the Sheriff of Mingo County (the Sheriff) offered the property for sale at
auction.See footnote 8
No one purchased the property at the Sheriff's sale, so pursuant to W. Va. Code
§ 11A-3-8 (1994), the Sheriff then certified the property to the Auditor of the State of
West Virginia.See footnote 9
Both procedures, the condemnation and the tax-sale, continued. In July 1996,
counsel for the Redevelopment Authority contacted an employee of the Auditor's office. On
August 16, 1996, that same employee of the Auditor's office faxed to counsel for the
Redevelopment Authority a detailed description of the taxes and fees then owing on the
property. However, for reasons unknown, neither the Green heirs nor the Redevelopment
Authority ever paid the taxes. Some eight months later, the Auditor's agent, Deputy
Commissioner of Delinquent and Nonentered Lands Stephen C. Sluss,See footnote 10
sold the property at
auction on April 23, 1997. At the auction, one Vida MaynardSee footnote 11
purchased the property from
the Auditor. However, there was still time at this point for the owner to redeem the property
by paying the accumulated taxes and fees. As required by statute, the Auditor's office
notified the Green heirs of the sale, and of the amount they would have to pay to redeem the
property before the Auditor issued a deed to the purchaser.
Meanwhile, back at the Mingo County Courthouse, the condemnation process had gathered speed, and on September 15, the Circuit Court of Mingo County entered an order approving the payment of $10,500 by the Redevelopment Authority into court (later to be paid to the Green heirs) and granting the Redevelopment Authority immediate possession of the property. Still, neither the Green heirs nor the Redevelopment Authority paid the required sums to the Auditor. The tax-sale process and the condemnation process finally collided on October 1, 1997, when Deputy Commissioner Sluss conveyed, at the request of the purchaser Ms. Maynard, a quitclaim deed to the Green property to one Maggie Harmon.See footnote 12 12
Within the context of its already pending condemnation action, the
Redevelopment Authority moved the Circuit Court of Mingo County to set aside the deed to
Ms. Harmon. The court then requested the Auditor to appear, so that the court could resolve
the question of ownership. After some delay, the Redevelopment Authority finally served
the Auditor with a copy of the complaint in the condemnation action and the judge conducted
hearings on November 24, 1997 and May 18, 1998.See footnote 13
After the hearings and examining briefs from the Redevelopment Authority and
the Auditor, Judge Thornsbury determined that the Auditor should have provided the
Redevelopment Authority with notice of the sale. Thereafter, the court issued an order
granting the Redevelopment Authority's Motion to Set Aside on August 25, 1998, in which
it voided the deed conveyed by the Auditor to Ms. Harmon, ordered any consideration paid
at the tax-sale to be returned to the buyer, and thus upheld its earlier grant of possession of
the Green property to the Redevelopment Authority.See footnote 14
The Auditor appealed the decision to this Court, and argues that he, the
Auditor, or his agents followed the statutorily mandated procedure for the tax-sale, and that
the tax-sale deed conveyed to Ms. Harmon was valid. However, for reasons not clear to the
Court,See footnote 15
the Auditor requests that this Court validate his adherence to the procedure, but still
set aside the deed to Ms. Harmon, order her consideration returned, and allow the
Redevelopment Authority possession of the property. Because we find that the Auditor
fulfilled his obligations under the statute, we hold that the sale by the Auditor must stand.
As an initial matter, the Auditor argues that, because of the importance of
finality in tax-sales, it is imperative that no court overturn a valid sale. To do otherwise
would invite a flood of challenges and would create title problems for thousands of buyers
who obtained their property through tax-sales.
We agree with the Auditor that confidence in one's title to land is of paramount
importance. As we have remarked previously, certainty above all else is the preeminent
compelling public policy to be served. Hock v. City of Morgantown, 162 W. Va. 853, 856,
253 S.E.2d 386, 388 (1979). We are also mindful that the government must make a timely
collection of property taxes in order to function properly. As pointed out by the Legislature:
In view of the paramount necessity of providing regular tax income for the state, county and municipal governments, particularly for school purposes; and in view of the further fact that delinquent land not only constitutes a public liability, but also represents a failure on the part of delinquent private owners to bear a fair share of the costs of government, . . .
W. Va. Code § 11A-3-1(1994).See footnote 17 17
We group the Auditor's assignments of error into two categories for the purposes of this opinion: (1) that the lower court made demands of the Auditor that are not required by the statute, and (2) that the lower court improperly equated phone calls, letters, and communications with another arm of state government with notice to the Auditor sufficient to trigger new obligations under the statute.See footnote 18 18
First we recognize that this area of the law has undergone significant change
in the last several years, with each change increasing the protections afforded the delinquent
land owner. As we noted in Lilly v. Duke, 180 W. Va. 228, 376 S.E.2d 122, (1988), the U.S.
Supreme Court cases of Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706,
77 L.Ed.2d 180 (1983), and Tulsa Prof. Collection Serv. v. Pope, 485 U.S. 478, 108 S.Ct.
1340, 99 L.Ed.2d 565 (1988), forced us to reevaluate earlier versions of the statute we are
[T]hese cases prescribe certain constitutional due process requirements for notice of a tax sale of real property. Where a party having an interest in the property can reasonably be identified from public records or otherwise, due process requires that such party be provided notice by mail or other means as certain to ensure actual notice, as set out in Mennonite:
Notice by mail or other means as certain to ensure actual notice
is a minimum constitutional precondition to a proceeding which
will adversely affect the liberty or property interests of any
party, whether unlettered or well versed in commercial practice,
if its name and address are reasonably ascertainable. 462 U.S.
at 800, 103 S.Ct. at 2712, 77 L.Ed.2d at 188. (Emphasis in
Thus, we conclude that W. Va. Code, 11A-3-2 (1967), was,
prior to its amendments in 1983 and 1985, constitutionally
invalid insofar as it permitted the sale of real property without
personal notice to affected owners and others having an interest
in the property.
Lilly v. Duke, 180 W. Va. 228, 231, 376 S.E.2d 122, 125 (1988). The end result of this
analysis was a new syllabus point underlining the importance of providing notice to those
who have an interest of record in property:
There are certain constitutional due process requirements for notice of a tax sale of real property. Where a party having an interest in the property can reasonably be identified from public records or otherwise, due process requires that such party be provided notice by mail or other means as certain to ensure actual notice.
Syl. pt. 1, Lilly v. Duke, 180 W. Va. 228, 376 S.E.2d 122 (1988). After this ruling, the
Legislature found it necessary to make additional changes to the statute, amending it again
effective July 1, 1994. We noted this change in a later case:
We recognize that, in 1994, our legislature amended and reenacted articles 3 and 4, substituting present W. Va. Code, 11A-3-1 to 11A-3-68 for former W. Va. Code, 11A-3-1 to 11A-3-44, concerning sale of land for taxes, and substituting present W. Va .Code, 11A-4-1 to 11A-4-7 for former W. Va. Code, 11A-4-1 to 11A-4-41, concerning sale of lands for school funds. . . .
Stewart v. SMC Inc., 192 W. Va. 441, 447, n. 18, 452 S.E.2d 899, 905 n. 18 (1994). Thus
the statute we address today differs substantially from that found lacking in Lilly, supra.
Bearing the statute's history in mind, we examine the obligations it places upon a sheriff and
The Code requires a sheriff to publish a list of properties on which the taxes
are delinquent and to send a notice of delinquency to certain parties. Specifically,
(a) On or before the tenth day of September of each year, the sheriff shall prepare a second list of delinquent lands, which shall include all real estate in his county remaining delinquent as of the first day of September, together with a notice of sale, in form or effect as follows: [description of required form omitted] . . . .
The sheriff shall publish the list and notice prior to the
sale date fixed in the notice as a Class III-0 legal advertisement
in compliance with the provisions of article three, chapter
fifty-nine of this code, and the publication area for such
publication shall be the county.
(b) In addition to such publication, no less than thirty
days prior to the sale the sheriff shall send a notice of such
delinquency and the date of sale by certified mail: (1) To the
last known address of each person listed in the land books
whose taxes are delinquent; (2) to each person having a lien on
real property upon which the taxes are due as disclosed by a
statement filed with the sheriff pursuant to the provisions of
section three of this article; (3) to each other person with an
interest in the property or with a fiduciary relationship to a
person with an interest in the property who has in writing
delivered to the sheriff on a form prescribed by the tax
commissioner a request for such notice of delinquency; and (4)
in the case of property which includes a mineral interest [which
does not apply in this case] . . . .
W. Va. Code § 11A-3-2 (1995).See footnote 22
Essentially a sheriff must publish a notice in the paper, and must mail a notice
to parties with an interest of record, or to parties who have, in the prescribed manner notified
the sheriff of their interest in a given property. As we discuss below, these obligations of a
sheriff do not apply to the Auditor, who has his own statutory obligations. Also, nothing in
the record suggests that the Redevelopment Authority complied with any of the conditions
of W. Va. Code § 11A-3-2 (1995), quoted above. Although the Redevelopment Authority
did serve the Sheriff with a copy of the original complaint from the condemnation action (and
the record suggests that this may have been filed after the attempted sale had already
occurred)See footnote 23
there is no evidence that the Redevelopment Authority attempted to use the
statutorily mandated methods of providing notice to the Sheriff of its alleged interest in the
Green Property. We agree with the Auditor that the lower court erred in applying the
requirements of W. Va. Code § 11A-3-2 (1995) to the Auditor or his agents.
While we in no way intend to weaken the due process protections provided by
Lilly v. Duke, supra, we note that, in addition to the fact that the Authority did not follow the
statute and provide proper notice to the Sheriff, in this particular case the Redevelopment
Authority was not prejudiced by any lack of notice of the sheriff's sale. Indeed, the Sheriff
never sold the property, but rather certified it to the Auditor. Moreover, as the lower
court's order points out, the Redevelopment Authority had several communications with the
Auditors's office that revealed: that the taxes were delinquent, that the property was
potentially subject to a sale by the Auditor, and that by paying a certain amount by a certain
date any liens could easily be removed. It is obvious that responsible persons acting on
behalf of the Redevelopment Authority had actual notice of the status of the proceeding to
collect delinquent taxes on the property.
Id. In order to carry out these duties, the Auditor appoints deputy commissioners to act as
his agents. W. Va. Code § 11A-3-34 (1994). Once the sheriff has attempted a sale, any
property not purchased at the sale is certified to the Auditor, pursuant to W. Va. Code §
11A-3-8 (1994).See footnote 24
If no party steps forward to redeem such a property within 18 months after
certification, the land may be sold by a deputy commissioner. W. Va. Code § 11A-3-42
The Code requires the Auditor to create a list of all such properties and to
submit a copy of this list to the county clerk of each county. In so doing, the Auditor
certifies this list to deputy commissioners in preparation for sale. W. Va. Code § 11A-3-44
(1994). The Code requires the deputy land commissioner to sell the properties on the list at
Each tract or lot certified to the deputy commissioner pursuant to the preceding section shall be sold by the deputy commissioner at public auction at the courthouse of the county to the highest bidder between the hours of ten in the morning and four in the afternoon on any business working day within one hundred twenty days after the auditor has certified the lands to the deputy commissioner as required by the preceding section.
W. Va. Code § 11A-3-45(a) (1995).
The only notice requirement that applies to the Auditor is contained in the next
section, which requires the Auditor to publish notice of an impending deputy commissioner's
Once a week for three consecutive weeks prior to the auction required in the preceding section, the deputy commissioner shall publish notice of the auction as a Class III-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the county.
W. Va. Code § 11A-3-46 (1995). After the sale, the deputy commissioner submits a report
to the Auditor who then approves of each sale unless he finds a sale not to be in the best
interests of the state, in which case he will disapprove of the sale. W. Va. Code § 11A-3-51
The point at which a party has the obligation to mail or deliver personal notice
occurs after the deputy land commissioner's sale. Even after a sale, the original owner still
has an opportunity to redeem the property by paying the taxes. Once someone has purchased
a property at that sale, the new purchaser has an obligation to identify those parties entitled
to redeem the property before that new purchaser can receive a deed to the property.
(a) Within forty-five days following the approval of the sale by the auditor pursuant to section fifty-one of this article, the purchaser, his heirs or assigns, in order to secure a deed for the real estate purchased, shall: (1) Prepare a list of those to be served with notice to redeem and request the deputy commissioner to prepare and serve the notice as provided in sections fifty-four and fifty-five of this article; and (2) deposit, or offer to deposit, with the deputy commissioner a sum sufficient to cover the costs of preparing and serving the notice.
W. Va. Code § 11A-3-52(a) (1995). The deputy land commissioner then takes the purchaser's list and mails a notice prepared in accordance with W. Va. Code § 11A-3-55 (1995) to every person on the list. In the event that no one comes forward to redeem the property before the deadline given in the notice, the deputy commissioner conveys a deed for the property to the new purchaser pursuant to W. Va. Code § 11A-3-59 (1995). Nothing in the record suggests that Auditor Gainer or Deputy Commissioner Sluss failed to comply with any of these requirements.
Essentially, the only way that the Redevelopment Authority may successfully
challenge the conveyance of the deed to the new purchaser is to show that the
Redevelopment Authority should have been on the list prepared pursuant to W. Va. Code
§ 11A-3-52 (1995) of those to be served with notice to redeem. However, the record
reflects that, as of the time of the deputy land commissioners sale, the Redevelopment
Authority had not given constructive notice of its standing by filing a lis pendens, nor had
it served the Auditor or Deputy Commissioner Sluss with the complaint in its condemnation
The Redevelopment Authority made the argument below, and the judge agreed,
that either the phone calls and letters exchanged between counsel for the Authority and an
employee of the Auditor's office, or the communications between the Authority and the State
Department of Tax and Revenue were sufficient, in lieu of proper notice to the Auditor or
proper recordation of the pending action. We are not persuaded by this argument.
It is true that counsel for the Redevelopment Authority called the Auditor's
office and spoke with an employee about the Green property. It is true that the employee
then faxed to the Redevelopment Authority a document showing the taxes and fees due on
the property. But we cannot equate this interaction with filing proper notice in the
courthouse or properly serving the Auditor with a complaint in the condemnation action.
While this might have been, and probably was, sufficient to give the Authority actual
knowledge of the pendency of the tax collection process, it was not sufficient to convert the
Authority into an entity entitled to service of formal notice under the statute.
A purchaser of the property at the Auditor's sale is required to assemble a list
of parties who hold some interest in the property. The purchaser must make a diligent search
of public records to identify interested parties. If we allow a call to the office to equal notice,
then we place upon the Auditor (and presumably every sheriff) the near impossible burden
of creating a duplicate system of recordation of property interests for people who called in,
which the purchaser would also have to search to find additional interested parties. This we
will not do.
Nor are we in agreement that the Redevelopment Authority's communications
with the Department of Tax and Revenue constituted any sort of notice to the Auditor. As
the Department correctly informed counsel for the Redevelopment Authority, there is no
direct or departmental connection between the offices. We are not inclined to find that
communicating with the Department of Tax and Revenue is the legal or practical equivalent
of service of notice on the Auditor, or can in any way affect the Auditor's sale of the
In sum, we are not sympathetic to the Redevelopment Authority's arguments;
the Redevelopment Authority did not properly record its interest in the clerk's office; it did
not follow the proper procedures to provide the Sheriff with notice of its interest; it did not
serve the Auditor or his Deputy Commissioner with the complaint in the condemnation
action, and, perhaps most significantly, it did not pay the taxes, or arrange with the Green
heirs to pay the taxes, even though it had actual knowledge that the property was delinquent
and subject to sale by the Auditor almost a year before the property was sold at auction.
For the reasons stated, the judgment of the Circuit Court of Mingo County is
reversed and remanded for further proceedings consistent with this opinion.
Reversed and remanded.
4Urban Renewal Authorities or county or regional Redevelopment Authorities, though similar in organization and function, should not be considered identical to County Development Authorities, which are governed by W. Va. Code § 7-12-1 et seq., and have their own powers, duties, and limitations.See footnote 25
delinquent and nonentered lands to sell such lands without the
necessity of proceedings in the circuit courts; (5) to reduce the
expense and burden on the state and its subdivisions of tax sales
so that such sales may be conducted in an efficient manner while
respecting the due process rights of owners of real property; and
(6) to provide for the disposition of escheated and waste and
W. Va. Code § 11A-3-1(1994)
We disagree with the Auditor's other assignment of error, that the Redevelopment Authority did not have standing to challenge the sale. We feel that the lower court had discretion to consider this matter, as it already had the pending condemnation action before it, although ordinarily any such suit should be filed on behalf of the former owners.
Although the Legislature granted the power of eminent domain to economic development authorities, it limited that power. Specifically, economic development authorities only have the power to take land by eminent domain when a given authority already owns or controls three-quarters of the land needed for a given project.W. Va. Code § 7-12-7a (1978).