September 10, 1984
Mr. Patrick Kiner
Davison County State's Attorney
Davison County Courthouse
Mitchell, South Dakota 57301
OFFICIAL OPINION NO. 84-38
Notice fees
Dear Mr. Kiner:
You have requested an official opinion from this office in regard to the following factual situation:
FACTS:
The passage of Senate Bill No. 46 by the 1984 Legislature now codified as SDCL 10-23-2.1 and 2 and 10-26-5.1 requires County Treasurers to give notice by certified mail to certain persons in addition to the notice required by 10-23-2 which provides for notice by publication of the sale of real property for the nonpayment of taxes or assessments. There is much confusion and debate as to how the above-referenced sections are to be interpreted.
Based upon the above facts, you ask the following questions:
1. Is the $3.00 fee provided for in SDCL 10-23-2.1 to cover cost of sending the notice charged only once or is the $3.00 fee charged for each notice required by this section? Example, if the Treasurer sends notice to: (1) owner of the real property (2) holder of a special assessment certificate would the fee be $3.00 for both or $6.00?
2. Should 10-23-2.2 and 10-26-5.1 be read to mean all parties mentioned shall receive a notice only upon request and after the $3.00 fee is paid, or does the request and $3.00 fee apply to 'any other person who has or claims an interest in the property?'
3. If the request for notice and $3.00 fee applies only to 'any other person who has or claims an interest in the property,' does the $3.00 fee apply to notices sent to:
A. Person in possession
B. Person in whose name the property is taxed
C. Mortgagee
D. Mortgage assignee, if any
4. Again is the $3.00 fee assessed against the property only once, or for each notice sent?
5. What is the Treasurer's responsibility for determining extent of persons with a property interest or need to have notice? For example, if it is not a matter of record who is in possession of the property, mortgagee and mortgage assignee, if any, is Treasurer obligated to ascertain who must have notice?
6. Property owners with multiple legal descriptions may receive several notices. Is the $3.00 fee provided for in 10-23-1 and 2 and 10-26-5.1 to be assessed only once, or against each legal description for each notice sent? If the fee is to be assessed only once, what legal description if there are several?
IN RE QUESTION NO. 1:
It would appear that the $3.00 fee provided for under § 10‑23‑2.1 (requiring additional notices be sent to an owner of real property, to any person holding a special assessment certificate which is a lien upon the real estate, to any holder of a bond which has been issued in lieu of assessment certificate and to the city auditor or town clerk) applies to each notice sent. The $3.00 fee is intended to cover the costs of sending a notice by certified mail. If a number of notices are required to be sent out a single $3.00 notice fee certainly will not achieve the goal of covering costs. Each notice sent demands that a $3.00 fee be charged.
IN RE QUESTION NO. 2:
An analysis of § 10-23-2.2 (requires additional notice be sent to the person in possession of the real property, the person in whose name the property is taxed, the mortgagee, and the mortgagee assignee) and § 10-26-5.1 (requiring additional notice be sent to the person in possession of the real property, the person in whose name the property is taxed, the mortgagee named in any unsatisfied mortgage then in force upon the real property, to any assignee of a mortgage, to any person holding a special assessment certificate which is a lien upon the real estate, to any person who, is the holder of a bond issued in lieu of assessment certificates, and to the city auditor and town clerk) leads to the conclusion that the above statutes require that those persons possessing certain property interests specifically mentioned by statute automatically receive the necessary notice. No provision has been made to assess a $3.00 notice fee against these persons.
In both statutes, provisions are made to accommodate 'any other person who has or claims an interest in the real estate.' This provision would include anyone who has or claims a property interest which is not required by statute to receive an additional notice. These people may receive notice if they follow certain procedural requirements set out by statute. First, they must request that notice be sent to them and second they must pay a $3.00 fee to the county treasurer. Only if the proper request is submitted and the fee is paid will the county treasurer supply those persons claiming an interest in the property, and who are not otherwise required by statute to receive such service, with the proper notice.
IN RE QUESTION NO. 3:
The person who has possession of the property, or in whose name the property is taxed or who is the mortgagee or mortgagee assignee, automatically receive notice under § 10-23-2.2. The statute makes no mention of any fee to be assessed against any of the above parties upon the sending of the required notice. As discussed above, the fee mentioned under this provision applies solely to those particular individuals who have or claim to have an interest in the property and are not required by statute to be sent notice. Thus, in answer to your question it appears that the Legislature did not intend that those parties holding the particular property interests of which you inquired are obligated to pay a notice fee.
IN RE QUESTION NO. 4:
If the statute requires that notice be sent and provides for a fee to cover the costs of said notice, the fee is assessed for each notice sent.
IN RE QUESTION NO. 5:
In Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 314, 94 L.Ed. 865, 70 S.Ct. 652 (1950) the Supreme Court held that prior to an action which will affect an interest in life, liberty, or property protected by the Due Process Clause of the Fourteenth Amendment, a state must provide 'notice reasonably calculated, under all circumstances, to appraise interested parties of the pendency of the action and afford them an opportunity to present their objections.' In Mennonite Board of Mission v. Richard C. Adams, 462 U.S. 791, 77 L.Ed.2d 180, 103 S.Ct. 2706 (1983) the high court addressed the sufficiency of notice issue and adhered to the principal espoused in Mullane. In the Mennonite case, the court held that when the person holding a particular property interest is identifiable in the public records, constructive notice by publication must be supplemented by notice mailed to that person's last known available address, or by personal service. The Supreme Court stated that unless the person with the property interest is not reasonably identifiable, constructive notice alone will not satisfy the notice requirements of Mullane.
Following the principals mandated in Mullane and Mennonite Board of Missions, it is the duty of the county treasurer to send notice to all persons who as a matter of record possess a property interest which requires receiving notice. If it is not a matter of record as to who retains a particular property interest, constructive notice, pursuant to SDCL 10-23-2 is sufficient. Constructive notice entails the publishing once each week for two consecutive weeks preceding the sale notice of said sale in the official city newspaper. In the event the city has no official newspaper, notice is deemed to have been given by the written or printed notice being posted at the door of the courthouse or building in which the circuit court is commonly held.
It is not the responsibility, nor is it within the realm of duties to be carried out by a county treasurer, to arrive at a legal conclusion regarding the extent of property interests retained by a particular individual. The county treasurer's duty is to notify, by certified mail, all those whose identity and location are reasonably ascertainable, and who, as a matter of record retain a property interest which requires that notice be served.
IN RE QUESTION NO. 6:
For all practical purposes, it would appear that if one person owns property with multiple legal descriptions, one notice is sufficient. Any person with a legally protected property interest is entitled to notice reasonably calculated to apprise him of pending action. Once that notice is received the mandate of Mullane has been met. Hence, a property owner with multiple legal descriptions need only receive one notice.
Since the $3.00 fee is charged and collected against the property the county treasurer need not concern himself with which particular legal description the fee be assessed against, so long as the fee is assessed.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
