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08/21/92 ELLIOT B. MALONE v. JACK ROBINSON

August 21, 1992

ELLIOT B. MALONE, APPELLANT
v.
JACK ROBINSON, ET AL., APPELLEES



Appeal from the Superior Court of the District of Columbia; (Hon. Robert A. Shuker, Trial Judge)

Before Steadman, and Schwelb, Associate Judges, and Mack, Senior Judge.

The opinion of the court was delivered by: Per Curiam

PER CURIAM:

Appellant Elliot Malone challenges a decision of the trial court granting appellees Robinsons' suit to quiet title in a residence, inherited by Malone from his deceased parents, and purchased by the Robinsons at a tax sale. Appellant bases his challenge in significant part on the District's failure to take any further action to furnish notice of the expiration of the two-year redemption period after the District's official notice of the expiring redemption period, sent by certified mail, was returned by the postal service as "unclaimed." Against the backdrop of the constitutional issues presented by a contrary construction of the regulation, we construe the D.C. regulation providing that a record owner "be notified, by certified or registered mail, of the final date by which he must redeem his property," 9 DCMR § 317.3 (1982), to require the District to take some reasonable additional action to contact the record owner if the notice is returned unclaimed.

I

The owners of record, John and Fonnie Malone, died in 1976, leaving their son, Elliot, as sole heir and executor. Elliot paid off the mortgage in 1978. He testified that he resided in the home for four years after the death of his parents but subsequently found lodging with friends in Montgomery County in order to be near his place of employment. He continued to receive mail at the District home, checking at least once a week. He did not think it was necessary to have the property formally recorded in his name.

Mr. Malone testified that in December 1982 he received a notice of a registered *fn1 letter addressed to his parents. He went to the post office with identification and a letter of administration but the post office would not release the letter to him. In January 1984, he received a tax bill and he went to the District's Department of Finance and Revenue (hereafter "Department" or "DFR") to pay the amount of $1,471.20. In 1985, he paid taxes in the amount of $1,639.74. In 1986, he paid taxes in the amount of $1,491.00. He testified that he was told by a tax clerk that the amounts were applied to the earliest existing due taxes.

Meanwhile, on January 23, 1981, some two years before Mr. Malone received the notice of a certified letter addressed to his parents, the residence was sold to Mr. Robinson at a tax sale for unpaid 1980 taxes. *fn2 The tax deed was executed on June 17, 1986. *fn3

Mr. Malone testified that the first knowledge that he had that the property was no longer his came in July of 1986 when Mr. Robinson pinned a copy of the tax deed on his door. Mr. Malone denied having received a notice of expiring redemption. Documentary evidence was introduced at trial showing that a letter dated December 1, 1982, headed "Notice of Expiring Redemption Period for the January 1981 Real Estate Sale" and sent by certified mail to the Malones, was returned to the Department marked "unclaimed." The record does not indicate whether the Department made any further effort to contact the Malones.

The files before us show three further notices of the expiring redemption period, dated September 13, 1984, February 12, 1985, and June 12, 1985, sent to a mortgagee of the property, explaining that the residence had been sold, that the two-year redemption period had expired in January 1983, but that "in light of a recent court decision" the mortgagee might redeem the property by paying the amount necessary to redeem within thirty days. A returned letter from the financial institution, dated June 26, 1985, advised the government that the mortgage was paid off in 1978.

A

Appellant contends that he was deprived of his property without due process of law because he did not receive notice as required by statute. *fn4 The fundamental, constitutional right to the preservation of one's property, as well as one's life and liberty, requires strict adherence to due process requirements. The power to convey property for nonpayment of taxes can be validly exercised only by strict compliance with the relevant statutes and regulations. Frassetto v. Barry, 497 A.2d 109, 113 (D.C. 1985); Boddie v. Robinson, 430 A.2d 519, 522 (D.C. 1981); Watson v. Scheve, 424 A.2d 1089, 1092 (D.C. 1980). Thus, if the District fails to comply with the statute and regulations, the sale is invalid and must be set aside. Keatts v. Robinson, 544 A.2d 716, 719 (D.C. 1988) (Keatts I); Boddie, supra, 430 A.2d at 521-22.

Prior to a tax sale, the District must send the record owner notice of delinquency and must advertise in two newspapers of general circulation that the property will be sold. D.C. Code §§ 47-1301, -1302 (1990). The statute also provides that the owner of real property sold for nonpayment of delinquent taxes has the right to redeem the property at any time within two years of the sale. D.C. Code §§ 47-1304, -1306 (a) (1990). In furtherance of this statutory right of redemption, the Council of the District of Columbia in 1975 adopted Regulation 74-35, which required the District to notify property owners of record of the impending expiration of the redemption period. *fn5 Regulation 74-35 provides:

Not less than thirty (30) days prior to the expiration date of the two year redemption period, the record owner shall be notified, by certified or registered mail, of the ...


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