October 28, 1982
Mr. John H. Fitzgerald
Butte County State's Attorney
Butte County Courthouse
Belle Fourche, South Dakota 57717
Official Opinion No. 82-58
Tax Deed
Dear Mr. Fitzgerald:
You have requested an official opinion from this office in regard to the following factual situation:
FACTS:
On August 20, 1982, the County of Butte assigned a 1979 tax certificate to 'A'.
That tax certificate states the holder is entitled to a tax deed at the expiration of four (4) years from the date of certificate, which bears date of December 17, 1979. The real property is located within Belle Fourche, a municipality.
According to SDCL 10-25-1, the holder may conduct a proceeding to procure a tax deed within three years, if the property is located within a municipality; in addition SDCL provides that if the County assigns the certificate, proceedings may be commenced at any time within six (6) years of the date of the certificate, or at any time within one (1) year after the date of the assignment by the County.
Based on the above facts, you have asked the following question:
QUESTION:
May 'A' immediately start proceedings to procure a tax deed, because the same has been assigned by the County, or wait for the expiration of three years from the date of the tax certificate, because the property is in a municipality, or wait four years from the date of the tax certificate?
The laws of South Dakota, as with most other states, do not make the tax sale of property a final and irrevocable divestiture of the title of the owner. Practically all such statutes provide a means of procedure known as redemption, whereby the former owner and his successors in interest or anyone having substantial interest in the premises, defeats the sale and reinvests himself with title as complete and as unqualified as existed before the tax was assessed by repaying the amount which the purchaser paid for the property with interest and costs. 79 AmJur2d 988.
In South Dakota this procedure for redemption is contained in SDCL 10-24-1, which states that any person may redeem real property sold for taxes at any time before issuance of a tax deed. Statutes relating to procuring a tax deed after the tax sale has taken place and a certificate has been issued by the county or taken by the county and assigned to a purchaser are found in SDCL 10-25 and as you note, there is some confusion with respect to the time limits within which the proceedings may be commenced and a tax deed finally issued.
These statutes do two things. They first provide a minimum time for the commencement of proceedings to take a tax deed thus providing for the shortest time in which a person may redeem his property and secondly, provide a statute of limitations as to the maximum time in which the action may be completed.
The minimum times for taking tax deeds are found in SDCL 10-25-1 and provide generally that if the property is not redeemed, the purchaser may commence action as follows: four years from the date of sale unless the property is within the municipality and then after three years from the date of sale but within six years from the date of the tax sale certificate. This is applicable either under a situation where the county bid in the property and is the holder of the tax sale certificate or some other individual bought the property by paying the taxes and obtained the tax sale certificate. If the county initially procured the certificate and thereafter assigned it to a purchaser, that purchaser may within six years from the date of the certificate or within one year after the date of the assignment as he may elect, conduct the proceedings to procure the tax deed. SDCL 10-25-1.
In the event that proceedings to procure the tax deed are not commenced within six years after the date of the tax sale certificate, the lien of any taxes paid by the holder of the certificate and all rights thereunder are barred and the county treasurer is required to cancel the certificate and make note that the subsequent tax receipts are barred and of no validity.
SDCL 10-25-16.
This limitation does not apply to certificates so long as they are held by the county. If a certificate is assigned by the county which is dated more than four years preceding the date of its assignment, the purchaser shall have one year from the date of its assignment within which to commence proceedings to procure a tax deed. SDCL 10-25-17.
In answer to your question, since one year has not elapsed from the date of the assignment of the tax certificate, SDCL 10-25-1 is applicable and the assignee may immediately start proceedings to procure a tax deed. See also, 1937-28 A.G.R. 72; 1947-48 A.G.R. 209.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
