January 8, 1991

Wm. Mark Kratochvil
Deputy State's Attorney
Brookings County
501 3rd Street
Brookings, SD 57006

OFFICIAL OPINION NO. 91-01

Sale of mobile home for taxes

Dear Mr. Kratochvil:

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

FACTS:

Brookings County is experiencing an increasing number of mobile homes upon which the taxes are delinquent. Many of these mobile homes are occupied as residences by the title owners. Such owner-occupied mobile homes are subject to being claimed as a homestead pursuant to SDCL 43-31-2 and 43-45-3. Mobile home taxes became a lien upon the mobile home pursuant to SDCL 10-9-13. The procedure for collecting delinquent mobile home taxes is provided under SDCL ch. 10-22. SDCL 10-22-11 provides that "[N]o property shall be exempt from such seizure except personal property absolutely exempt from execution."

Based upon that factual scenario, you have asked the following question:

QUESTION:

May a mobile home which is owner-occupied as a residence and claimed as a homestead be levied upon and sold for delinquent mobile home taxes?

RESPONSE:

The assessment and taxation of mobile homes is addressed in SDCL ch. 10-9. The Director of Equalization is to assess the mobile homes, SDCL 10-9-7, and the County Auditor will then apply the mill rate to the assessed value for the mobile home, SDCL 10-9-9. The tax shall then become immediately due and payable, SDCL 10-9-10, and become a lien on the mobile home, SDCL 10-9-13.

The collection of delinquent mobile home taxes is made under SDCL ch. 10-22. SDCL 10-9-13.1. The procedure is for the County Treasurer to issue a distress warrant to the County Sheriff for collection of the taxes. SDCL 10-22-8, 10-9-13.1. The Sheriff would then execute on the distress warrant by seizing the mobile home and selling it for the delinquent taxes. SDCL 10-22-10, 10-22-18.

The question asked is whether the homestead exemption can shield a mobile home from the Sheriff's execution on the distress warrant. The homestead exemption statutes are found in SDCL ch. 43-31, with pertinent homestead statutes as follows:

SDCL 43-31-1. The homestead of every family, resident in this state, as hereinafter defined, so long as it continues to possess the character of a homestead is exempt from judicial sale, from judgment lien, and from all mesne or final process from any court, to the extent and as provided in this code, except that a creditor or lien holder of a mobile home classified as a homestead under 43-31-2 prior to January 1, 1973 shall not be cut off or subject to a homestead exemption. In addition, the homestead of a person seventy years of age or older and the unremarried surviving spouse of such person, so long as it continues to possess the character of a homestead, is exempt from sale for taxes.

SDCL 43-31-2. The homestead must embrace the house used as a home by the owner thereof, being either, real property or a mobile home as hereinafter defined, and if he or she has two or more houses or mobile homes thus used at different times and places, such owner may select which he or she will retain as a homestead.

Mobile homes shall include any vehicle without motive power which can provide adequate, comfortable, all season quarters for the purpose of making a residence thereof and which vehicle is larger than two hundred forty square feet, measuring at the base thereof. Such mobile home must be registered in South Dakota at least six months prior to the claim of exemption.

Since a mobile home may be a homestead under South Dakota law, the personal property exemption statutes of SDCL ch. 43-45 do not apply when the mobile home is declared to be a homestead. See also SDCL 10-22-11.

The liability of homesteads for accrued taxes is addressed in SDCL 43-31-29 as follows:

The homestead shall be liable for taxes accruing thereon, and if certified and recorded as hereinbefore directed, shall be liable only for such taxes, and may be sold to pay the same except as provided in 10-23-7, 43-31-1, or 43-45-3. (Emphasis added).

That section dictates that a homestead is liable and may be sold to pay for the taxes that accrue on the homestead itself. See Ramsey v. Lake County, 70 S.D. 61, ___, 14 N.W.2d 125, 126 (1944).

SDCL 10-23-7 does not apply to mobile homes, because it applies to the sale of real property for taxes. SDCL 43-45-3 indicates that a homestead "[a]s defined and limited in ch. 43-31, is absolutely exempt."

This leads back again to SDCL 43-31-1, which defines the parameters of the homestead exemption. Upon a careful reading of that statute, one will note that the exemption is for "judicial sale, from judgment lien, and from all mesne or final process from any court." Quite clearly those protections do not extend the homestead exemption to a sale by a County Sheriff under the guidance of a County Treasurer's distress warrant. The collection of mobile home taxes are not within the scope of the SDCL 43-31-1 protection. While SDCL 10-4-24 shields a homestead from taxes imposed by the legislature, it specifically exempts mobile homes from this additional protection. I also note that SDCL 43-31-1 provides protection from taxes on the homestead for anyone over seventy years of age. If the Legislature had wanted to extend this protection to all, it would have.

Therefore, I am of the opinion that an owner-occupied mobile home, which is claimed as a homestead, may be sold upon a distress warrant for delinquent mobile home taxes.

Respectfully submitted,

MARK W. BARNETT
ATTORNEY GENERAL

MWB:ss