by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

COTENANCIES; TENANCY IN COMMON; TAX FORECLOSURE; NOTICE: Cotenants are not entitled to notice of impending tax sale of another cotenant's individual interest in property.

In re Clallam County for Foreclosure of Liens for Delinquent Real Prop. Taxes for Year 1991, 922 P.2d 73 (Wash. 1996).

Respondent owned an undivided 1/36 interest in two parcels of land, which she held as a tenant in common with others. The county in which the property was located instituted tax foreclosure proceedings against and provided notice to one of common owners. The other co-owners, including respondent, did not receive notice. A tax sale subsequently was held at which no bidders appeared, and the county acquired title to the delinquent owner's interest. After the county rejected the respondent's tender of delinquent taxes, interest, and penalties, she moved to intervene in the foreclosure proceedings and to vacate the judgment and sale in favor of the county, which the trial court granted.

The Washington Supreme Court reversed, holding that a state statute requiring notice to "owners, and any person having a recorded interest in or lien of record upon . . . the property to be sold" did not apply because the property to be sold was only the taxpayer's 1/36 interest in the two parcels, not the entire property. Since any co-tenant may convey its own individual interest in the property by deed or by will without the consent or knowledge of the other co-tenants, it made no difference that the conveyance here was pursuant to a tax sale or that the grantee was the county.

Comment: It is unlikely that there is any constitutional notice right here, and perhaps the statute is properly construed. But isn't the overall policy a bad one nevertheless? Don't cotenants have an appropriate interest in the other cotenancy interests, and doesn't it make sense to require that the tax collector give them notice of a pending tax foreclosure sale?

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