The one last posted - on easements - should have been for Thursday, August 13.  I just can't read those little tiny numbers and boxes on the calendars anymore.  Sorry.  Ed.

DIRT Development for Friday, August 14, 2009
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri
dirt@umkc.edu

STATE AND LOCAL TAXATION; PROPERTY TAX SALE; PUBLIC NOTICE: Posting notice of a tax sale on the front door of a property, which is located fifty yards from a private roadway and is not visible from a public roadway complies with Pennsylvania notice requirements for tax sales.

In re: Upset Sale Tax Claim Bureau, 965 A.2d 1244 (Pa. Commw. Ct. 2009).

The original owner of the property at issue was delinquent in payment of taxes. As a result, the property was sold at a tax sale. The original owner filed objections to the sale and the purchaser was granted the right to intervene. In the trial court, the only disputed issue was whether the McKean County Tax Claim Bureau (the "Bureau") properly posted a Notice of Sale on the property in accordance with Pennsylvania law. Apparently mailed notice and publication notice were not in dispute.

The property, a hunting camp, fronted a private road but could not be seen from the nearest public road. Tax assessment employees posted the Notice of Sale on the property's wooden front door, which was located fifty yards from the private road. The Notice was printed on 8 by 11-inch paper and measured 6 by 7 inches.

The trial court set aside the tax sale. It stated that the Notice was "not conspicuous such that it will be seen by the public." Id. at 1246. In addition, the court determined that from the distance between the front door and the private road, one would not be able to read the Notice. The purchaser appealed.

The appellate court noted that the Pennsylvania notice statute is silent as to method of notice. The statute merely states that each property scheduled for sale shall be posted at least ten days prior to sale. However, the Pennsylvania courts have interpreted this statute to require a method of posting that must be reasonable and likely to inform the taxpayer, as well as the public at large, of an intended real property sale. In other words, the "posting must be . . . conspicuous, likely to ensure notice, and placed for all to observe." Id. at 1247.

The court then applied these notice requirements and, reversing the trial court, ultimately determined that the notice was sufficient. [!!!!]It rejected the contention that the Bureau was required to post the Notice so that it is visible from the public road. Emphasizing that the general public could still access the private road, the court stated that the Notice was still open to public observation. In addition, the court held that the Notice did not need to contain large enough print to be read from the private road, because "[a]ll that is required is that the notice be conspicuous, i.e. reasonably likely to inform the taxpayer and the public of the sale." Id. at 1247-1248.

Reporter’s Comment: The appellate court seems to have made an independent factual determination that the Notice was sufficiently conspicuous. The better approach would have been to remand to the trial court with instructions that it should not view as dispositive that the Notice could not be read from the private road or that it could not be viewed at all from the public road. It is questionable whether the trial court even viewed these factors as dispositive when it first decided the case.

Editor’s Comment:   It obviously is impossible to provide notice to the general public through a paper posted on a building’s front door, unless the door and the notice are the size of billboards.  There were other methods of notice provided, and consequently the posting requirement necessarily must mean only that the owner (or members of the public choosing to approach the building on the property  - in virtually every case by trespassing) would be able to read the notice.  Consequently, the editor agrees with the Reporter that the posted notice standard should be read quite broadly and not narrowly applied case by case.

The Reporter for this case was Mort Fisher of the Ballard Spahr Baltimore office.

Readers are encouraged to respond to or criticize this posting.

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