The recent Alabama Supreme Court case on tax sale redemption, payment for improvements, and entitlement to possession is currently in front of the Court again on a Motion for Rehearing. I hope the Court reverses itself.
In their original decision, they held that a redeeming owner was entitled to possession as soon as he/she received the Certificate of Redemption. This is despite the fact that the Probate Judge does not collect any amounts for insurance premiums or improvements, but only the taxes due or paid, plus surplus funds, plus interest.
As an aside, the Alabama Supreme Court affirmed a trial court finding that the tax sale investor, Mr. Ross, was guilty of wanton misconduct when he refused to surrender possession upon being presented with a redemption certificate, but without payment to him for the insurance and improvements. “Mr. Ross should have known that his actions were illegal, so his refusal amounted to wanton misconduct,” is the gist of what the Supreme Court said. Yet, on the same date as the Supreme Court decision, in another case involving Mr. Ross, the Alabama Court of Civil Appeals held that a tax sale investor DOES NOT have to surrender possession when presented with only a redemption certificate! That’s right, the Alabama Court of Civil Appeals said redemption was not complete until the investor received payment for the additional charges. How could Mr. Ross have known his conduct was wrongful if another appellate court basically said they would have done the same thing as him if they faced with the same circumstances?
How is the tax sale investor supposed to obtain their money for the other charges? The Alabama Supreme Court glibly recommended use of one of the “extraordinary writs” such as mandamus, prohibition or certiorari. I’m no legal scholar, but I’ve checked into these writs, and none of them seem to be appropriate! In fact, if a tax sale investor filed a petition for mandamus, or prohibition, or statutory certiorari, or common law certiorari, he/she would probably be kicked out of court on technicalities! And, as I mentioned in an earlier post, an appeal is not the correct remedy either.
For you lawyers who like reading this stuff: Statutory certiorari under 12-17-28 extends only to District and Municipal courts. The case of Jefferson County v. Berkshire Development, 277 Ala. 170, 168 So.2d 13 (1964) says statutory certiorari is not available for Probate Court matters. Common law certiorari is intended only to obtain a record from a lower court, and then review the record to see if the higher court would reach a different decision. But, there is no “record” when an owner pays the probate court and obtains a redemption certificate. Mandamus is available to order an official to take an action they are otherwise required to do, but failed to do. The probate judge is under no statutory obligation to make any inquiries as to additional charges and, in fact, must issue the redemption certificate as soon as the owner pays the past taxes plus interest. Prohibition is very similar, but orders an official not to take actions, in the future, for which they have no authority. In the case of tax sales, the probate judge has specific statutory authority to issue the redemption certificate. Quo Warranto, the fourth extraordinary writ, questions someone’s authority to hold a particular office, and clearly does not apply. The last of the five traditional extraordinary writs, habeas corpus, commands someone to “deliver the body” of somebody being wrongfully held in custody. Clearly it does not apply. So, I would ask the Alabama Supreme Court: Exactly what extraordinary writ do you recommend?
To recap, according to the Alabama Supreme Court, tax sale investors are entitled to the additional charges, but it turns out they have no absolutely no remedy to collect those charges! Back when I was in law school, we all learned Ubi jus ibi remedium–there can be no right without a remedy.
It’s been suggested to me that the tax sale investor file an original suit in Circuit Court invoking equity jurisdiction for an order staying the right of possession and then a determination of addition charges. This would be insanity–hiring lawyers and filing lawsuits every time there’s a demand for additional redemption charges. Besides, there is a perfectly good statutory mechanism for determining and contesting those additional charges. All we are lacking is the part in the middle–the statutes are silent about when redemption takes place. The closest they come is saying that the “proposed redemption” must also pay the additional charges. As Rush Limbaugh famously said in one of his books, “Words mean things.” If the PROPOSED redemptioner must pay additional charges, then he/she is not YET a redemptioner, and not entitled to possession!
If you are faced with this issue and don’t know what to do, join the club. We are all waiting with the proverbial “bated breath” for the Alabama Supreme Court to clarify its ruling or reverse its decision.