February 21, 1991

Ms. Sara Grim
Gregory County Treasurer
P.O. Box 437
Burke, SD 57523-0437

OPINION NO. 91-08

Payment of Real Property Taxes By Non-Owner 

Dear Ms. Grim: 

You have requested an official opinion of this Office concerning the following factual situation:

FACTS

I would like to request an Attorney General's opinion concerning payment of real estate taxes. I cannot find anything in the law books that states who can pay the taxes on a parcel of property. As Treasurer, I feel I can accept payment from anyone on taxes and not just the deeded owner. We accept payments all the time for taxes paid by loan companies, escrow accounts, etc. 

I have had two instances recently where a customer was angry because we accepted payment for taxes from someone other than the deeded owner. Does this put a lien on the property, say if someone else pays the taxes for a number of years? This concerns property taxes that are not delinquent. 

Based upon the above factual situation, you ask the following questions: 

QUESTION NO. 1:

Can the payment of real property taxes on a parcel of property be made by anyone or just the owner of the property? 

QUESTION NO. 2:

Does the payment of the real property taxes by a non-owner result in a lien against the property? 

IN RE QUESTION NO 1: 

To answer the question presented, it is appropriate to note the duties of a county treasurer. SDCL 7-11-1 states: 

The county treasurer is the collector of taxes. He shall keep his office at the county seat. It is his duty to receive all money belonging to the county from whatever source derived and other money which by law is directed to be paid to him. 

Every year each county auditor makes out a tax list of taxes to be collected by the county treasurer. SDCL 10-17-1, 10-17-7. The county auditor certifies the tax list and charges the county treasurer with the collection of the tax. SDCL 10-17-9. It is the duty of the county treasurer to collect the taxes on the list. SDCL 7-11-1, 7-11-4, 10-21-1. 

I can find no reference in the South Dakota Codified Laws stating that the only person who can pay the real property taxes is the actual owner of the property. In fact, SDCL 10-24-8 seems to indicate just the opposite:

Nothing contained in §§ 10-24-5 and 10-24-6 shall operate to give any stranger or disinterested person redeeming or paying taxes, any lien upon the property or claim against owners or lien claimants, except such as he may have by contract with them or by law.

The concept of non-owners paying real property taxes also is embraced by SDCL 10-24-16, which allows lien holders to pay the taxes and add the amount of taxes to their lien claim. South Dakota's adverse possession statutes also recognize the situation of a non-owner paying real property taxes. SDCL 15-3-15. 

Therefore, I am of the opinion that there is no provision in the South Dakota Codified Laws that prohibits non-owners of real property from paying the taxes for the real property. Carrying that one step further, I am of the opinion that there are no restrictions in the South Dakota Codified Laws as to who may pay taxes on a parcel of property. 

IN RE QUESTION NO. 2:

The facts indicate a situation where non-owners pay the real property tax and there is a question of whether a lien attaches to the property. Using SDCL 10-24-8 as guidance, I am of the opinion that no statutory lien is created when a non-owner pays non-delinquent real property taxes unless otherwise specifically granted. An example of such a specific grant is the one for lien holders under SDCL 10-24-16. 

If a non-owner pays non-delinquent real property taxes and there is no specific statutory provision for a lien, I am of the opinion that the rights and duties as between the owner and the payor are a private matter that should not be a concern of the treasurer. If the taxes become delinquent, the real property sold for taxes, and a tax sale certificate issued, the non-owner who would purchase the certificate (pay the taxes) would have the corresponding rights as found in SDCL ch. 10-23. 

To summarize, I am of the opinion that the payment of real property taxes on a parcel of property can be made by anyone, not just the owner of the property, and that payment by a non-owner does not create a statutory lien unless specifically provided for in law. 

MARK BARNETT
ATTORNEY GENERAL

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