Opinion No. (2007) ( 2007 )

Dear Senator Easley,

This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following question:

The holder of a County Treasurer's Certificate of Tax Sale may apply for a certificate tax deed pursuant to 68 O.S. Supp.2006, § 3118 two years after the date the tax lien was sold. When land is purchased with three years of back taxes owing under 68 O.S. Supp.2006, § 3108, when may the purchaser apply for a certificate tax deed pursuant to 68 O.S. Supp.2006, § 3118?

DELINQUENT AD VALOREM TAXES Article 31 of the Oklahoma Tax Code (68 O.S. 2001 Supp.2006, §§ 3101 — 3152) sets out specific procedures for the collection of delinquent ad valorem taxes.¹ In Oklahoma, all real property is subject to ad valorem taxes unless exempt.² Unpaid ad valorem taxes become a lien against the real property of the delinquent owner. 68 O.S. 2001, § 3101[68-3101]. The lien attaches when the tax is due; unless redeemed, the property is subject to sale after notice by the County Treasurer to satisfy the tax liability. 68 O.S. 2001 Supp.2006, §§ 3105(A), 3106. A sale is held on the first Monday in October and "all lands, town lots or other real property which shall be liable for taxes of any description for the preceding year, or years" are sold. 68 O.S. 2001, § 3107[68-3107].

At the sale, specific entities have "priority to offer the full amount due on any parcel of land." 68 O.S. Supp.2006, § 3108(A). If no redevelopment or neighborhood association invokes their preference it is provided:

B. [T]he first person who offers to pay the full amount due on any parcel of land shall be considered to be the successful purchaser. Any person offering to pay the full amount due shall only represent one person or legal entity at the sale. Brokers or agents representing or submitting bids for multiple parties or entities shall not be allowed. In the event that more than one such person shall so appear at the same time, the county treasurer shall decide the issue by fair and impartial drawing. Except as provided in subsection A of this section, parcels of land shall be sold to prospective purchasers on a first-come, first-served basis. The county treasurer is hereby authorized at all tax sales made under the laws of this state, in case there are no other purchasers offering the amount due, to purchase all or any real estate offered at the sale for the amount of taxes, penalty, interest and costs due and unpaid thereon, in the name of the county in which the sale takes place, the county acquiring all the rights both legal and equitable that any other purchaser could acquire by reason of the purchase. Whenever the county treasurer of any county shall purchase any real estate in the name of the county, the county treasurer shall note the purchase upon the sale record and show the same in the return of sale.

Id. (emphasis added). If no bids are received at the tax sale "the property stands sold to the county by operation of law." Dearing v. Stateex rel. Comm'rs of the Land Office, 642 P.2d 226, 229 n. 4 (Okla. 1982). Until 2004, purchases could be made throughout the year.³ Now purchases are only made at the sale held on the first Monday in October of each year. 68 O.S. 2001, § 3107[68-3107].

A person who purchases the land by paying the delinquent taxes, interest and costs in full, is issued a "County Treasurer's Certificate of Tax Sale." Id. § 3111. The holder of this tax sale certificate may apply for a tax deed from the county treasurer if the property has not been redeemed within two years. Section 3118 states:

A. If no person shall redeem any land on which the tax lien has been sold within two (2) years, at any time after the expiration, thereafter and on production of the certificate of purchase, the county treasurer of the county in which the sale of such land took place shall execute to the purchaser, or the heirs or assigns of the purchaser, a deed for land remaining unredeemed. The deed shall vest in the grantee an absolute estate in fee simple in the lands, subject however, to all claims which the state may have on the lands for taxes or other liens or encumbrances and shall extinguish the rights of any mortgagee of record of the lands to whom notice was sent as provided for by law. However, before any holder of a certificate of purchase issued at any tax sale of real estate shall be entitled to a deed as provided in this section, the holder of a certificate of purchase shall cause a written notice signed by such holder to be served, either by process server, by the sheriff or by restricted certified mail with return receipt requested, upon the owner of the land if the owner is within the state, upon the person in possession of the land, if the same be occupied, and upon all mortgagees and lienholders of record of the land, which notice shall recite the sale of the lands, specifying the date of such sale and notifying such person that unless redemption is made from such sale within sixty (60) days after the date of the service of such notice, a tax deed will be demanded and will issue as provided by law. If the real property to be sold is listed as homestead property on the last tax rolls, then in addition to all other notification requirements, the applicant shall also cause the notice of sale to be posted on the front door of the property by the county sheriff at least thirty (30) days prior to such deed being issued. The cost of the posting of the notice shall be added to the amount necessary to redeem the property from sale.

Id.

DISCUSSION Under the sale provisions of 68 O.S. Supp.2006, § 3108, a purchaser acquires an interest in the underlying property at the sale held on the first day of Monday of each October. If there is no purchaser the County is deemed to have purchased the property at that sale. Id.;Dearing, 642 P.2d 226, 229 n. 4. If the County is the deemed purchaser, the property will be re-offered for sale the next October if the tax liability has not been satisfied. 68 O.S. Supp.2006, § 3108. Two years after the property has been purchased by the County, the holder of the County Treasurer's Certificate of Tax Sale can make application for a deed. Id. § 3118(A).⁴

It is, therefore, the official Opinion of the Attorney General that:

The holder of a County Treasurer's Certificate of Tax Sale who purchases land with three years of back taxes owing at the sale held pursuant to 68 O.S. Supp.2006, § 3108, may apply for a certificate tax deed pursuant to 68 O.S. Supp.2006, § 3118(A) two years after the date the land was first deemed sold to the County for back taxes, i.e., the date the County first took title by operation of law. See Dearing v. State ex rel. Comm'rs of the Land Office, 642 P.2d 226, 229 n. 4 (Okla. 1982).

W.A. DREW EDMONDSON ATTORNEY GENERAL OF OKLAHOMA

DAVID L. KINNEY

ASSISTANT ATTORNEY GENERAL

¹ This office previously issued three Attorney General Opinions on this process. See A.G. Opins. 04-12, at 66-69; 02-12, at 67; 00-21, at 97, 99.

² See OKLA. CONST. art. X, § 6 (listing property exempt from taxation).

³ In 2004 the Oklahoma Legislature removed the following provision from Title 68, Section 3108:

If any person is desirous of purchasing the interest of the county in the real estate, the person shall have an absolute right to purchase a certificate by paying to the county treasurer the amount of all the taxes, penalties, interest and costs of sale and transfer, for the year or years so purchased, up to the date of the purchase; and thereupon the treasurer shall issue, assign and deliver to the purchaser a certificate of purchase to the real estate which assignment and transfer shall convey to the purchaser all the rights and interest of the county as fully as if the purchaser had been the original purchaser at the tax sale. The county treasurer shall note the assignment on the tax sale record.

2004 Okla. Sess. Laws ch. 177, § 1 (emphasis removed).

⁴ 68 O.S. Supp.2006, § 3125 provides:

If any real estate purchased by the county at delinquent tax sale shall remain unredeemed for a period of two (2) years from date of sale, the county treasurer shall proceed to sell such real estate at resale, which shall be held on the second Monday of June each year in each county.

Id.