Judges: Ron Fields, Attorney General
Filed Date: 12/27/1990
Status: Precedential
Modified Date: 7/5/2016
The Honorable Bynum Gibson State Representative 312 South Main Dermott, AR 71638
Dear Representative Gibson:
This is in response to your request for an opinion on two questions concerning Eudora City Ordinance No. 333. Specifically, you note that Ordinance 333 provides for the condemnation and removal of houses, and/or buildings constituting a nuisance. The ordinance provides for a lien on the property taxes if the owner does not comply with the ordinance. Your questions concerning this ordinance are as follows:
1. Can the Chicot County Sheriff and Tax Collector collect the ad valorem taxes without collecting the lien that has been added if the owner refuses to pay?
2. If the property sells, will the new owner be responsible for the lien if the former owner did not pay?
Ordinance No. 333 was adopted in accordance with A.C.A.
Cities of the first and second class shall have the power to order the removal or razing of, or to remove or raze, any buildings or houses that in the opinion of the council have become dilapidated, unsightly, unsafe, unsanitary, obnoxious, or detrimental to the public welfare and shall provide, by ordinance, the manner of removing and making these removals.
Act 80 of 1983 provided for a lien on the property and an enforcement mechanism for the statute above. It is codified at A.C.A.
(b)(1) In any situation in which a city of the first or second class issues an order for the removal or razing of a building or house under the provisions of
14-56-203 , and such order is not complied with by the owner of the building or house and the city then removes or razes the building or house, a lien is granted and is given against the real property for the cost of the removal or razing. (2) The lien granted by this subsection shall also be enforced pursuant to the lien enforcement procedures set forth in subsection (a) of this section.
This provision is codified in a subchapter which gives municipalities power to order owners of real property to cut weeds, remove garbage, and to eliminate, fill up or remove stagnant pools of water. The subchapter provides for notice to the owner, and if the owner fails to comply with the order, then the city or town is authorized to correct the condition itself and charge the cost to the owner. The city or town is given a lien against the real property for the cost of the clean up.
The subchapter also contains procedures for enforcing this lien, and it is these enforcement procedures which have been made applicable to the lien created for failure to remove or raze a building or house under A.C.A.
(a) The lien provided for in
14-54-903 may be enforced and collected in either one of the following manners:(1) At any time within eighteen (18) months after work has been done, by an action in the chancery court; or
(2) The amount of the lien provided in
14-54-903 may be determined at a hearing before the governing body of the municipality . . . .
The determination of the governing body is subject to appeal by the property owner in the chancery court. The amount so determined at the hearing, plus ten percent (10%) penalty for collection, shall be certified by the governing body of the municipality to the tax collector of the county where the municipality is located, and placed by him on the tax books as delinquent taxes, and collected accordingly. The amount, less three percent (3%) thereof, when so collected shall be paid to the municipality by the county tax collector. [Emphasis added.]
The emphasized language above is also found in Ordinance 333. See Ordinance 333, 8(b). This language is relevant to your first question, which is whether the collector can collect the ad valorem taxes without collecting the lien. It is my opinion that the answer to this question is "no". The statute above provides that the lien is to be placed on the tax books "as delinquent taxes, and collected accordingly." Thus, the lien is to be treated exactly as delinquent taxes would be treated. It is my opinion that delinquent taxes must be paid before current ad valorem taxes are accepted. This conclusion follows from A.C.A.
(a) In order to redeem, whether with the county collector or the Commissioner of State Lands, and in order to purchase at the Commissioner's sale, the redeemer/purchaser of tax-delinquent land shall pay all delinquent taxes. . . .
Until the land is redeemed, and before the land is transferred to the Land Commissioner, the county clerk holds the tax-delinquent land. A.C.A.
It is my opinion that a similar conclusion applies to the lien created under Ordinance 333. According to the statutes, the lien is to be placed on the books as delinquent taxes and collected accordingly. Delinquent taxes must be paid before current taxes, and thus so must the lien created under A.C.A.
Your second question is whether the new owner will be responsible for the lien if the property and the former owner did not pay. It is my opinion that the answer to this question may depend upon the facts surrounding a particular sale. Because the lien is to be treated as delinquent taxes, it will, in my opinion, generally survive a sale by the owner to another private individual or entity. In this regard, A.C.A.
It is my opinion, moreover, that if the land sells at a Commissioner's sale as provided for in A.C.A.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.