Daily Development for Thursday, February 17, 2000 By: Patrick A. Randolph, Jr.

Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

COTENANCY; RIGHTS OF COTENANTS IN PROPERTY; TAX FORECLOSURE: County's procedure in separately assessing respective interests of cotenants in property is not supported by statute and deprives cotenant of opportunity to protect its individed interest in the whole property from tax delinquency.

Kneedler v. League Wide, Inc., 979 P.2d 163 (Mont. 1999). Hence, a cotenant is an "interested party" entitled to notice before a tax deed may be issued, even to undivided interest of the other cotenant, and a cotenant who has not received notice of taxes dues is entitled to redeem the property until she receives all tax notices relating to the property, even five years following tax sale.

The Montana Supreme Court, rejecting approaches taken in Colorado and Kansas, held that a co-tenant's right to pay expenses associated with commonly owned property includes the right to pay taxes before they become delinquent and noted that in the absence of express statutory authorization for the county to fail to provide notice to the plaintiff of any tax delinquency affecting the property, the plaintiff's right to notice survived even the tax sale.

Also see: Burbach v. Sussex County Municipal Utilities Authority, 318 N.J. Super. 228, 723 A.2d 137 (App. Div. 1999) (A tenant in common is entitled to notice of a foreclosure sale even if its real property interest is not being sold.) But compare: In re Clallam County for Foreclosure of Liens for Delinquent Real Prop.Taxes for Year 1991, 922 P.2d 73 (Wash. 1996). (Cotenants are not entitled to notice of impending tax sale of another cotenant's individual interest in property.)

Comment: The editor likes the result in the principle case. If the parties have not sought partition, then each is acknowledging that the other has an interest in the whole, and third parties, including the county tax assessor, should not undertake actions that deny the existence of that interest in the whole.

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