Daily Development for Thursday, September 20, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

ADVERSE POSSESSION; TAX TITLE: A sale under a tax foreclosure will terminate a title obtained by a completed adverse possession although the adverse possession title holder is not notified of the sale or of the tax delinquency.

Killion v. Meeks, No. 5-01-0924 (Ill. App. 9/13/02)

Defendants obtained title to certain property by purchasing at a property tax foreclosure sale. Plaintiffs alleged that they had obtained adverse possession of a strip of land along the common boundary of their land and the land described in defendant's tax deed. Plaintiffs alleged that they had been in continuous, open and notorious occupation of the property for 40 years, and, one can assume, were in possession of it at the time of the tax sale. Their possession had long exceeded the Illinois 20 year statute of limitations for adverse possession by the time of the sale.

The court noted that this was a question of first impression in Illinois, and not covered expressly by Illinois statutes regarding tax sales. Illinois statutes do, however, expressly exclude certain preexisting kinds of interests, from the effect of a tax sale, including easements and covenants, and the court based it reasoning on the maxim that the enumeration of certain items in a statute leads to the presumption that items not enumerated are excluded. In addition, Illinois precedent had established that a tax deed tolls the statute on an uncompleted adverse possession, requiring the possessor to commence a new period of adverse possession following the tax deed. But the court acknowledged that this precedent involves quite distinct policy concerns as opposed to the instant case, in which an adverse possessor would be deprived of property interests already established through a tax sale of which the adverse possessor is given no notice.

The court asserted that cases in Washington, Wisconsin and North Carolina had reached the same result.

Comment: The notion that the legislature's failure to enumerate adverse possession as an exempted class of interests in tax sale foreclosures indicates that the legislature had considered and rejected such interests is somewhat strained. The legislature also did not exclude other property owned by neighbors who had paid taxes on it, but one would assume that if a tax deed included a description of such property, the court would not rule that good title passed.

The difference here, of course, is that, although other parties than the landowners identified in the tax rolls were the owners of this adversely possessed strip of land, the taxes pertaining to that land had not been paid. It is the general maxim in property tax collection that the fact that a party has not received a bill does not mean that the party is not subject to remedies for tax liabilities. Property owners are expected to identify taxes that are payable on their lands and pay them.

It should be noted, though, that if this case is typical, the adverse possessors assumed that they were paying taxes on the strip in question, since they most likely believed that the strip was part of the land to which they held record title. The fact that they now will lose title without ever having had a chance to redeem their land from the tax lien seems unfortunate, but not necessarily unconstitutional. It would be a great burden on the tax collector to assess whether any property upon which it is making a tax lien claim is occupied by persons other than those the tax collector shows on its records as the owner. And, in any event, if the tax collector indeed made such an inspection it still would not pick up parties who had completed adverse possession and had since vacated the land (which they continued to own nevertheless).

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