January 20, 1981

Mr. Joaquin K. Hanson 
Minnehaha County State's Attorney 
415 North Dakota 
Sioux Falls, South Dakota 57102

Official Opinion No. 81-2

Liability of Real Estate Buyer for Special Assessments Levied, but not of Record, at Time of Purchase

Dear Mr. Hanson:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

On August 22, 1977, a resident of Sioux Falls, South Dakota purchased a tract of land in Minnehaha County.  On that same day he recorded his conveyance in the Office of the Register of Deeds.  A title search was done on this particular tract on or about August 22, 1977, showing a title free and clear of city special assessments.  However, the tract in question was subject to special assessments levied in 1972 but not put on the assessment rolls until January 1, 1979. 

The property was replatted and the County Treasurer required the assessments to be paid along with the taxes before signing the plat.  The assessments were then paid and the purchaser was charged for them.

Upon further inquiry the following additional facts were obtained: 

The City of Sioux Falls complied with all procedural requirements for adoption of the special assessment pursuant to SDCL § 9-43-1 through 9-43-27.  Specifically, the special assessment of the tract in question was on the assessment rolls filed in the office of the municipal finance officer of the City of  in 1972.  The City may or may not have included the tract in question on the assessment roll certified to the county auditor in 1972.  However, the city did certify this tract to the county  auditor on March 9, 1978.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  Who is entitled to the money in the hands of the County Treasurer? 

2.  Should the purchaser be reimbursed due to the fact that when he purchased the tract the special assessments were not of public record, although levied against the property, or should the City of Sioux Falls be entitled to the money and consequently take precedence over the purchaser who took the property with notice of the assessments?

IN RE QUESTIONS NO. 1 AND 2:

SDCL 9-43-28 provides: 

All special assessments lawfully levied upon real property in any municipality are a continuing lien thereon as against all persons except the United States and this state, from the date of the filing of the certified copy of the assessment roll in the office of the municipal treasurer until barred by §  9-43-60.

In view of §§ 9-43-28 it is my opinion that in the present case a lien  attached on the date of the filing of the certified copy of the assessment roll in the office of the municipal treasurer (or municipal finance officer, pursuant to SDCL 9-14-1) of the City of Sioux Falls.

It is further my opinion that if (which in this case is a matter of some doubt) the municipal treasurer failed to deliver the assessment roll to the county auditor within the time specified in SDCL 9-43-33, the lien has not been rendered invalid but rather the amount of the collection to be made by the county treasurer has been altered, pursuant to SDCL § 9-43-31 et seq. Furthermore, it is my opinion that SDCL 10-11-9 authorizes correction of the assessment roll to include the tract in 1978.

Finally, it is my opinion that a 'clean' title opinion does not affect the § 9-43-28 lien unless the 'clean' title opinion is the result of the failure of the city to file the certified copy of the assessment roll in the office of the municipal treasurer pursuant to § 9-43-28 or some other legal failure pursuant to SDCL § 9-43-1 through 9-43-27 which results in a special levy which is not 'lawfully levied' as required by § 9-43-28.

In answer to your questions, the City of Sioux Falls, not the purchaser, is entitled to the money in the hands of the County Treasurer, and the purchaser has no right to reimbursement for assessments paid.

Respectfully submitted,

Mark V. Meierhenry
Attorney General