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12/20/93 JERRY D. MASSIE v. DISTRICT COLUMBIA

DISTRICT OF COLUMBIA COURT OF APPEALS


December 20, 1993

JERRY D. MASSIE, ET UX, APPELLANTS
v.
DISTRICT OF COLUMBIA, APPELLEE

Appeal from the Superior Court of the District of Columbia; (Hon. John F. Doyle, Trial Judge)

Before Ferren, Steadman, and Sullivan, Associate Judges.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge: This appeal involves a title dispute between two parties, both of whom claim their property rights from tax sales of the residential property at issue. The Massies, appellants, purchased at the tax sale later in time. They contend that, at the latest, when they turned in the tax certificate after the redemption period expired, they extinguished any claim by the District to the property arising from the bid off of the property in the name of the District at prior tax sales. We agree. Accordingly, we reverse the trial court's order entering summary judgment in favor of the District of Columbia, and order the entry of summary judgment in favor of the Massies.

A.

The property at issue was residential property. It had been auctioned each year from 1982 to 1988 for unpaid real property taxes. As required by law, the property was bid off in the name of the District each year between 1982 and 1987 when no bids were received on the property. *fn1 On January 27, 1988, the Massies successfully bid for the property at an auction held following the nonpayment by the owner of a nuisance assessment against the property. The Massies paid the full amount of their bid within five days as required by D.C. Code § 47-1304 and received a tax certificate.

Prior thereto, the District in August 1987 had begun to consider the property for inclusion in the recently-enacted Homestead Housing Preservation Program (the Homestead Program), D.C. Code § 45-2701 to -2711 (1990). *fn2 "Around September 1987" the District requested title reports for 125 properties bid off to the District at the 1984 tax sale. In April 1988, the District received a title report on the property in connection with the Homestead Program. On July 28, 1988, the day after the six-month redemption period for the nuisance assessment expired, the Massies turned in their tax certificate for a deed in accordance with section 47-1304. *fn3 No such deed was issued. Instead, in September 1988, record owners Lionel and Pamela Foreman and lienholders Stephen Troese, and Franklin Investment Co., Inc. were given a thirty-day notice, pursuant to D.C. Code § 45-2711, -2704(c)(2) (1990) and 14 D.C.M.R. 2902.3(b) (1991), of the District's intent to include the property in the Homestead Program. *fn4 The property was not redeemed and a deed was issued to the District for the Homestead Program on December 23, 1988, based on its bid off of the property at the January 1984 tax sale.

Thereafter, the District brought an action to quiet title in which the Massies intervened. The trial court denied the Massies' motion for summary judgment and granted the District's cross motion for summary judgment against the Massies, giving the District title to the property under a first-in-time principle.

B.

The Massies are correct that the District does not have a superior right to the tax deed merely because it purchased the property at the earlier 1984 tax sale. As held in Gray Properties, Inc. v. Tobriner, 123 U.S. App. D.C. 150, 357 F.2d 829 (D.C. Cir. 1966), the second purchaser at a tax sale may obtain priority over a previous tax sale purchaser. *fn5 Therefore, to fully protect its right to obtain a tax deed, the prior tax sale purchaser must "make certain that the property not again the subject of a tax sale" by paying the taxes as they come due. Gray Properties, 123 U.S. App. D.C. at 151, 357 F.2d at 830. Because the District must resell the property each year, see note 1, (supra) , it cannot protect its interests as a private tax sale purchaser could. However, the District's statute does protect the revenue interests of the District by providing that "no deed shall be issued [to the tax sale purchaser] until all taxes and assessments appearing upon the tax books against the property are paid, with penalties, interests, and costs, including taxes far the years far which the District purchased the property at tax sale." D.C. Code § 47-1304 (emphasis added). *fn6 This provision indicates that a later tax sale purchaser would generally prevail over a prior bid off of the property to the District, as long as the District was paid for those prior taxes as well. This is in accord with the general rule that a municipality to which property is bid off at a tax sale acquires no greater rights than a private purchaser at such a sale. 72 Am. Jur. 2d State and Local Taxation § 957 (1974); Annotation, Respective Rights and Estates of Persons Claiming Real Property Through Sales from Different Agencies to Enforce Taxes or Assessments, as Between Which There is Parity of Lien, 167 A.L.R. 1001, 1004 (1947).

The District argues, however, that the provision which allows the District to take title for itself to property bid off in the name of the District for unpaid taxes gives the District priority here. If property which has been bid off in the name of the District of Columbia has not been redeemed within two years,

the Mayor of the District may enforce the lien of the District for taxes or other assessments on such real property by ordering that a deed in fee simple to such property be issued by the Mayor of the District of Columbia to the District of Columbia, and up to the time of the issuance of the deed such property may be redeemed by the owner or other person having an interest therein. . . .

D.C. Code § 47-847 (1990). *fn7 The District argues that it should prevail because "bureaucratic delay" prevented it from receiving title before December 1988, although it did everything it could to get the deed for the District by requesting the deed from the Department of Finance and Revenue in September, 1987. *fn8 However, the affidavit on which the District relies says that the manager-administrator for the Homestead Program requested a title report for this property around September 1987. A request for a title report is not the equivalent of "ordering that a deed in fee simple be issued," much less issuing the deed itself, which is the critical event under the statute.

This Conclusion is fortified by the express provision in the statute that the owner "or other interested party" has the right to redeem from the District at any time until a deed actually is issued. D.C. Code § 47-847. According to the legislative history of the Homestead Program, "the impact of this provision [section 47-847] is that a property owner is not finally divested of title to property bid off in the name of the District until a deed to the District issues, notwithstanding that the two year redemption period has already passed." Council of the District of Columbia, Report on Bill No. 6-168, D.C. Law 6-135 (1986). Title does not automatically vest in the District once the property has been bid off to the District but instead the Mayor must order the issuance of a deed. Id. Thus, the structure of the provision itself evidences that the ordering of and issuance of the deed to the District is the step that is intended to vest the District's rights vis-a-vis other claimants. Here, that did not occur until some five months after the Massies turned in their tax certificate for a deed. Property rights and their relative priority are best served by clear evidentiary rules and not some imprecise indications of possible interest.

When the Massies surrendered their tax certificate before the District issued itself the deed, they were entitled to a deed pursuant to the statute applicable to private purchasers. D.C. Code § 45-1304. If a bid is received from a purchaser other than the District,

upon payment of the purchase money, the said Collector of Taxes shall issue to the purchaser a certificate of sale, and if the property shall not be redeemed by the owner or owners thereof within 2 years from the last day of sale, by payment to the Collector of Taxes . . . a deed shall be given by the Mayor of the District, or his successors in office, to the purchaser at such tax sale, . . . .

D.C. Code § 47-1304 (emphasis added). Although a tax certificate does not operate to transfer title because the redemption period must run before such a transfer occurs, District of Columbia v. Mayhew, 601 A.2d 37, 40 (D.C. 1991), the Massies were entitled to receive a deed upon the expiration of their redemption period, which occurred before the District's title had vested, *fn9 and upon their making application for a deed. *fn10 The Massies had fulfilled all the legal requirements to receive a tax deed and, undisputed by the District, had done everything in their power to get the deed. The District here seeks to obtain title to property where absent its own delay in issuing the Massies' deed, the District would have no sound basis for a superior claim on the property. *fn11 This it cannot do.

The summary judgment in favor of the District is vacated and the case remanded with instructions to enter judgment for the Massies.

So ordered.


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