STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

May 1, 1969

Lee Tappe
State's Attorney, Charles Mix County
Platte, South Dakota 57369

OFFICIAL OPINION NO. 69-43

Fire Marshal must remove condemned building on county tax deed property. County may repair party wall on tax deed property

Dear Mr. Tappe:

We have received a request from your office for an official opinion on the following factual situation:

"Charles Mix County took a tax deed to a 25' lot in the City of Lake Andes. There is a dilapidated building on this property which the State Fire Marshal condemned two years ago. Snow and water have been accumulating on this property and are causing considerable damage to the property on the adjacent lot. The owner of that building demands that the County remove the condemned building on its properly. The problem is that the condemned building shares a party wall with the adjacent building on the other side of the lot. Should the condemned building be removed, it would expose the party wall to the elements which would certainly damage it."

The question asked relates to the county's power to repair the party wall if it tears down the condemned building.

It should be pointed out, first, that it is not the county's duty to raze buildings condemned by the State Fire Marshal. SDC 1960 Supp. 31.0305 (SDCL 34-30-1 to 34-30-12) provides the procedure to be followed when such buildings are condemned and removed. If the owner refuses to remove the building, the duty to do so falls upon the Fire Marshal, who can collect his expenses, in connection therewith, from a lien against the property.

I do not have information on whether the building was condemned before or after the county took the property by tax deed, but this is irrelevant because the county does not have the power or duty to expend public moneys for this purpose on tax deed land.

To understand this reasoning, it is necessary to point out that ordinarily a tax deed will vest an absolute estate in fee simple in the grantee, subject to state claims. The grantee, then is liable for any alterations or removals ordered by the State Fire Marshal. However, when a county acquires property by a tax deed, it holds as a trustee for the taxing districts within the county (1931-32 AGR 796). As a trustee, its duties and liabilities are different than those of a fee-holder.

A trustee does not, unless expressly granted, have the power or duty to make permanent or extensive improvements on trust property (see generally 90 CJS Trusts S282), consequently the county has limitations placed upon its handling of tax deed land. This area of the law has been the subject of several prior Attorney General's Opinions.

In 1941-42 AGR 117, the question was asked whether the county could pay for upkeep on the buildings on land acquired either by tax deed proceedings or by school mortgage foreclosures. The Attorney General stated, "The county is without express or implied authority to make expenditures for any new improvements on any of the lands referred to. The county has authority to make such repairs as may be clearly necessary to save existing improvements, owned by the county as part of the real estate, from destruction and loss. The budget item referred to should be used only for such a limited purpose."

In 1937-38 AGR 143, the question was asked if the county could repair a building taken by the county on a tax deed in order to expedite its rental or sale. The Attorney General there held that, absent any express authority to repair, the county had only the implied authority to make such an expenditure if it were clearly necessary to its express power to manage, rent and sell the property.

In 1931-32 AGR 796 the Attorney General held that there is no provision for a separate sale of buildings apart from the land on tax deed land owned by the county. Circumstance might arise under which the county, in its capacity as trustee, might be justified in selling the building separate from the other real property if it became necessary to do so, to preserve the same from destruction. He pointed out that such occasion would arise, however, only if doing so would accomplish the purpose for which the county holds the property in trust.

I follow and concur with the reasoning of my predecessors. In my opinion, the removal of a building, even though condemned, is a permanent and extensive improvement to property. A county, as trustee of tax deed property, does not have the power to perform this function. In such a case, the duty falls upon the State Fire Marshal.

The next problem put forth by your question is what to do about the party wall, assuming the building is torn down, by the Fire Marshal.

A party wall is for the common or mutual benefit and convenience of both owners, and each adjoining owner has the right to its full use as a party wall in the improvement and enjoyment of his property. As a general rule, neither of the adjoining owners of a party wall has the right to destroy or remove it. See generally 69 CJS, Party Walls, Sections 15-16.

As the party wall is a part of the property that passed with the tax deed, the county is authorized to repair or protect it. Even though a trustee cannot make permanent or extensive improvements en trust property without authorization, it is well settled that a trustee does have the implied power to make repairs to protect property placed in its trust. As the party wall is part of the property placed in the county's trust and has value of its own, the county does have the right to maintain and protect it.

Respectfully submitted,

Gordon Mydland
Attorney General