Low-Value Tax Titles
Real Estate Taxes and Municipal Charges
With respect to low value (administrative) foreclosures, prior to 1986 proceedings in the land court to affirm the foreclosures were generally required by conveyancers, but the proceedings were discretionary only. See Massachusetts General Laws, Chapter 60, Section 80B. Since 1986, the provisions of Massachusetts General Laws, Chapter 60, Section 80C, which have the effect of affirming such foreclosures after a passage of twenty years from the treasurer's deed (not the taking), have been in effect. The statute applies to tax takings and sales made before its enactment, and has been declared constitutional in Lamontagne v. Knightly, 30 Mass.App.Ct. 647, 572 N.E.2d 1375 (1991). In Lamontagne the court, well aware of the constitutional questions, said:
In 1983, in Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), the United States Supreme Court addressed the issue of the notice required prior to a judicial foreclosure sale for failure to pay taxes. The Court held that the due process clause of the Fourteenth Amendment to the United States Constitution requires that a mortgagee be given notice by mail before foreclosure by sale of the mortgaged property. * * * The Court said that "[n]otice by mail or other means as certain as to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any [emphasis original] party . . ., if its name and address are reasonably ascertainable" (emphasis supplied). * * *
It is to be noted that, under Massachusetts law, a town board of assessors "must use 'reasonable diligence' to try to determine the owner" of real estate from records in the county's registry of deeds and registry of probate. Robertson v. Plymouth, 18 Mass.App.Ct. 592, 594, 468 N.E.2d 1090 (1984), quoting from Hardy v. Jaeckle, 371 Mass. 573, 580, 358 N.E.2d 769 (1976). "Reasonable diligence, of course, varies with the circumstances." Robertson v. Plymouth, supra. In the case of land of low value, furthermore, less effort by a municipality to effect notice will constitute "reasonable diligence." See id. at 596, 358 N.E.2d 769 (noting that it is too burdensome for board to examine title to every parcel of low value land before sale, court held that town was not required to search probate records where most recent transfer of parcel recorded in county registry of deeds was in 1852 and county probate records would not have shown owners at time of taking). See also Hilde v. Dixon, 16 Mass.App.Ct. 981, 983, 453 N.E.2d 1232 (1983).
Prior to the Mennonite case, the Supreme Judicial Court had upheld the adequacy of notice by publication to protect the due process rights of a mortgagee of land of low value. Guaranty Mort. Corp. v. Burlington, 385 Mass. 411, 432 N.E.2d 480 (1982). After the Mennonite case, the Supreme Judicial Court stated in Christian v. Mooney, 400 Mass. 753, 761 n. 10, 511 N.E.2d 587 (1987), appeal dismissed and cert. denied, 484 U.S. 1053 (1988), "The due process considerations stated in the Mennonite case cast some doubt at least on the reasoning in Guaranty Mortgage Corp. v. Burlington, [supra 385 Mass. at 419, 432 N.E.2d 480]...." We interpret that comment in Christian as addressing situations in which a mortgagee of record does not receive notice of a taking in spite of the fact that "its name and address are reasonably ascertainable" (emphasis supplied). Mennonite, 462 U.S. at 800, 103 S.Ct. at 2712. Without notice, a mortgagee would have no reason to suspect that its property interests might be affected. We do not, however, believe that the comment in Christian indicates that the Supreme Judicial Court intended to overrule Guaranty in its entirety; that is, we do not think the court intended the doubt it expressed in Christian to extend to low value land where the owners cannot readily be located by the town . . . . * * * We conclude that this case is governed by the rationale of Guaranty and, accordingly, we are unpersuaded by the due process challenge to the notice requirements of G.L. c. 60, § 79, as applied to the plaintiffs in this case.
Massachusetts General Laws, Chapter 60, Section 80C, although effectively removing any objection to a low value proceeding that has not been affirmed in the land court, will not correct a defect in a tax taking which revolves around a faulty assessment or an inadequate description. See Sheriff's Meadow Foundation, Inc. v. Bay-Courte Edgartown, Inc., 401 Mass. 267, 516 N.E.2d 144 (1987).
Accordingly, if the low value tax title followed the statutory requirements we can insure the title in a transaction provided that (i) the same was the subject of a treasurer's deed which was given more than twenty years ago, (ii) the assessment was against the proper party and (iii) the description is adequate for identification of the premises. If the foregoing requirements are met no exception needs to appear in the policy regarding the low value proceedings.
1 Tax taking, affidavit of low value by the commissioner of corporations and taxation, and a treasurer's deed.
2 The twenty year period begins to run from the date of the treasurer's deed is given, not from the time of the taking.