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Attorney General Marty Jackley

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OFFICIAL OPINION NO. 71-51, Counties may not employ real estate brokers to dispose of county-owned land, however such title was obtained by the county. SDCL 7-29; SDCL 7-31.

STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 27, 1971

Mr. Jon Mattson
State's Attorney, Lawrence County
Deadwood, South Dakota 57732

OFFICIAL OPINION NO. 71-51

Counties may not employ real estate brokers to dispose of county-owned land, however such title was obtained by the county. SDCL 7-29; SDCL 7-31.

Dear Mr. Mattson:

You have requested my official opinion in answer to these questions:

1. May a county engage the services of a real estate broker in attempting to sell property held by the county either by virtue of tax deed proceedings or otherwise?

2. If the answer to question no. 1 is in the affirmative, may the county add to the sales price of such property, and as an expense of the sale, the commission paid to such real estate broker?

As our court stated in State ex rel. Jacobsen v. Hansen (1955) 75 SD 476, 68 N.W. 2d 480:

A county in this state is a creature of statute and has no inherent authority. It has only such powers as are expressly conferred upon it by statute and such as may be reasonably implied from those expressly granted. Pearson v. Johnson, 59 S.D. 163,238 N.W. 644; South Dakota Employers Protective Association v. Poage, 65 S.D. 198,272 N.W. 806; State ex rel Ball v. Board of County Commissioners of Beadle County, 68 S.D. 237, 300 N.W. 832. As the representative of the county having general control over its property and the management of its business and fiscal affairs, SDC 12.0691, the county board can exercise authority in these respects only in so far as statutes confer power upon the county.

The statutes conferred power to dispose of real estate held by the county, except property acquired by tax deed is governed by the provisions of SDCL 7-29-3 through 7-29-13, inclusive. The statutes for the resale of tax-deed properties appear in SDCL 7-31.

A reading of these statutes discloses no direct authority to hire real estate brokers, or any other agents for the sale of such land. The authority to employ such agents cannot be reasonably implied from the express mandates of the statutes.

Question no. 1 is answered, NO. Such answer renders any answer to question no. 2 moot.

Respectfully submitted,

Gordon Mydland
Attorney General