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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough-northern judicial district
No. 2019-0339
RICHARD POLONSKY
v.
TOWN OF BEDFORD
Argued: February 13, 2020
Opinion Issued: April 24, 2020
Alfano Law Office, PLLC, of Concord (John F. Hayes on the brief and
orally), for the plaintiff.
Upton & Hatfield, LLP, of Concord (Barton L. Mayer and Michael P.
Courtney on the brief, and Mr. Mayer orally), for the defendant.
Beaumont & Campbell, Prof. Ass’n, of Salem (Bernard H. Campbell on
the brief), for New Hampshire Tax Collectors’ Association, as amicus curiae.
Stephen C. Buckley, of Concord, for New Hampshire Municipal
Association, by brief, as amicus curiae.
New Hampshire Legal Assistance (Ruth Heintz and Steven Tower on the
brief), as amicus curiae.
Pacific Legal Foundation, of Palm Beach Gardens, Florida (Christina
Martin on the brief) and Bernstein, Shur, Sawyer & Nelson, P.A., of Concord
(Ovide M. Lamontagne on the brief), for Pacific Legal Foundation, as amicus
curiae.
DONOVAN, J. The defendant, the Town of Bedford, appeals an order of
the Superior Court (Nicolosi, J.): (1) ruling that the statutory scheme governing
a municipality’s obligations to compensate a former owner of property that the
municipality has acquired by the execution of a tax deed violates Part I, Article
12 of the New Hampshire Constitution; and (2) awarding the plaintiff, Richard
Polonsky, equitable relief. See RSA 80:88-:91 (2012 & Supp. 2019). We affirm
because the termination of a municipality’s duty to provide excess proceeds
from a sale of property acquired by tax deed to a former owner three years after
the recording date of the deed, see RSA 80:89, VII, allows the municipality to
acquire property by tax deed without compensating the former owner for the
value of the property that exceeds the amount owed to the municipality.
I. Factual and Procedural Background
The relevant factual and procedural background follows. In 2008, the
plaintiff inherited property in Bedford, which, according to the 2008 tax bill,
was assessed at a value of $309,900. The plaintiff failed to pay his real estate
taxes in 2008, 2009, and 2010. Consequently, tax liens were imposed on the
property for each of those years. See RSA 80:59 (2012). When the plaintiff
failed to redeem the property by paying the amount of the liens and interest,
see RSA 80:69 (2012), the town tax collector issued a tax deed conveying the
property to the Town on May 31, 2011. See RSA 80:76, I (2012). The Town
recorded the deed on June 8, 2011.
The Town did not take any action regarding the property until April 4,
2013, when it contacted the plaintiff by telephone to advise him of the amount
of back taxes, interest, costs, and penalties required to repurchase the property
and of the Town’s intention to sell the property by auction if he chose not to
repurchase it. On June 12, the plaintiff offered to pay back taxes but requested
that the Town waive the additional charges, citing ongoing medical problems
that began in 2009. The Town requested financial and medical corroboration
as it considered his request but received only his medical information. On July
17, the Town Council voted to reject the plaintiff’s offer and begin the sale
process.
2
Six months later, the Town formally noticed the plaintiff of its intent to
sell the property. See RSA 80:89, I (Supp. 2019). The notice informed the
plaintiff of his right to repurchase the property by paying back taxes, interest,
costs, and penalties totaling $90,442.42. It further informed him that, if he
decided to exercise this right, he had 30 days to provide written notice of his
intent to repurchase the property, with payment due 15 days thereafter.1 The
plaintiff received the notice in January 2014.
Although the plaintiff did not respond to the notice, the Town did not sell
the property. In April 2015, the plaintiff received another notice of the Town’s
intent to sell the property, informing him that he had a right to repurchase the
property by payment of back taxes, interest, costs, and penalties, now in the
amount of $94,271.93. The plaintiff thereafter offered to pay the amount of
back taxes and interest, but requested that the Town waive the penalties. The
Town rejected the offer. The plaintiff, through counsel, twice requested the
Town to reconsider its decision. By letter, the Town informed plaintiff’s counsel
of its decision not to reconsider, and further stated, “More than three years has
passed since the property was deeded to the Town in May of 2011.
Consequently, your client’s right of repurchase has terminated. The notice of
intent to sell and right of repurchase, dated April 10, 2015, was sent in error,
and is no longer operative.” See RSA 80:89, VII (Supp. 2019).
The plaintiff filed suit against the Town, alleging, in part, that the Town’s
intent to keep excess proceeds from an eventual sale of the property violates
his “right to the equity in the subject property” under Part I, Article 12 of the
New Hampshire Constitution. The Trial Court (Abramson, J.) issued a
preliminary injunction, enjoining the Town from selling the property until the
resolution of the litigation. The parties thereafter filed cross-motions for
summary judgment. The Town argued, in relevant part, that its duty to provide
the plaintiff with excess proceeds terminated upon three years from the
recording date of the tax deed, pursuant to RSA 80:89, VII. The Town
characterized this three-year period as a statute of limitations, within which a
former owner must assert his or her right to receive excess proceeds. The
plaintiff countered that, even if RSA 80:89, VII removed the Town’s affirmative
obligation to provide excess proceeds to him, the statute does not bar him from
bringing a claim to recover the excess proceeds. Alternatively, he argued that, if
RSA 80:89, VII does bar his claim, it violates Part I, Article 12 of the State
Constitution by allowing the Town to take his property without just
1
The current version of RSA 80:89, II (Supp. 2019) provides 30 days to a former owner to pay
back taxes, interest, costs, and penalties following the former owner’s notice to the municipality
of the intent to repurchase the property. At the time of the Town’s notice, RSA 80:89, II provided
only 15 days to make the payment. See RSA 80:89, II (2012) (amended 2016).
3
compensation. The Trial Court (Ruoff, J.) concluded that the statute did not
preclude the plaintiff from recovering the excess proceeds from an eventual sale
after three years, and, in light of this determination, did not address the
plaintiff’s constitutional argument.
The parties cross-appealed the trial court’s decision to this court. See
Polonsky v. Town of Bedford, 171 N.H. 89, 90-91 (2018). We determined, in
relevant part, that the trial court’s statutory interpretation conflicted with the
plain language of RSA 80:89, VII, which does not allow a former owner to
recover excess proceeds from a municipality after the three-year period has
elapsed. Id. at 95-96. We concluded, therefore, that the trial court erred in
finding that the statute did not bar the plaintiff’s claim. Id. We remanded the
plaintiff’s takings argument and the Town’s affirmative defenses for the trial
court to address in the first instance. Id. at 98.
On remand, following a hearing, the Trial Court (Nicolosi, J.) first found
that the Town executed a taking of the plaintiff’s property, without
compensation, when the tax collector issued the tax deed for the property to
the Town. The trial court further observed that the application of the three-
year period under RSA 80:89, VII would result in the “plaintiff being deprived of
a $300,000 property for a $90,442.42 tax lien.” The Town argued that RSA
80:89 provided a remedy for this otherwise unconstitutional taking, by giving
the former owner three years to repurchase the property or file an action in
court to compel the municipality to sell the property and pay the former owner
the excess proceeds, which the plaintiff failed to do. The trial court concluded
that this interpretation was inconsistent with the statutory provisions and
concluded that “the statute violates the takings clause of the New Hampshire
Constitution.” The trial court also rejected the Town’s argument that the
plaintiff’s claim is barred by the doctrine of unclean hands, and ruled that he is
entitled to the excess proceeds of the eventual sale of the property. The Town
appeals the trial court’s decision.
II. Standard of Review
Because this appeal presents a question of constitutional law and
statutory interpretation, our review is de novo. State v. Marshall, 162 N.H.
657, 661 (2011). In matters of statutory interpretation, we are the final arbiter
of the intent of the legislature as expressed in the words of the statute
considered as a whole. Petition of Carrier, 165 N.H. 719, 721 (2013). We first
look to the language of the statute itself, and, if possible, construe that
language according to its plain and ordinary meaning. Id. We interpret
legislative intent from the statute as written and will not consider what the
legislature might have said or add language that the legislature did not see fit
to include. Id. We construe all parts of a statute together to effectuate its
overall purpose and avoid an absurd or unjust result. Id. Moreover, we do not
consider words and phrases in isolation, but rather within the context of the
4
statute as a whole. Id. This construction enables us to better discern the
legislature’s intent and to interpret statutory language in light of the policy or
purpose sought to be advanced by the statutory scheme. Id.
Further, in reviewing a statute, we presume it to be constitutional and
will not declare it invalid except upon inescapable grounds. New Hampshire
Health Care Assoc. v. Governor, 161 N.H. 378, 385 (2011). Accordingly, we will
not hold a statute to be unconstitutional unless a clear and substantial conflict
exists between it and the constitution. Id. When doubts exist as to the
constitutionality of a statute, those doubts must be resolved in favor of its
constitutionality. Id. The party challenging a statute’s constitutionality bears
the burden of proof. Id.
III. Analysis
The Town contends that the trial court erred in concluding that the
statutory scheme is unconstitutional, asserting that the court failed to
interpret the statutes in a way that would preserve their constitutionality. The
Town also argues that the trial court erred in awarding the plaintiff equitable
relief because he failed to take steps to avoid the taking of his property.
To address the Town’s arguments, we must first set forth the relevant
statutory provisions. We note at the outset, however, that we do not construe
the trial court’s order as concluding that the entire statutory scheme governing
tax deed procedures is unconstitutional. We recognize that the trial court
interpreted numerous provisions of the statutory scheme, see RSA 80:88-:91,
and did not expressly identify which statute “violates the takings clause of the
New Hampshire Constitution.” However, the trial court analyzed these
statutory provisions for the purpose of addressing whether the application of
the three-year period in RSA 80:89, VII, which terminates a municipality’s duty
to provide compensation to a former owner, results in an unconstitutional
taking of the former owner’s property. We therefore limit our analysis to this
narrow inquiry.
A. The Statutory Scheme
RSA chapter 80 (2012 & Supp. 2019) sets forth the procedures a
municipality must follow to collect property taxes. Under these provisions,
when a property owner fails to pay property taxes for a given year, a
municipality may impose a real estate tax lien upon the property for the
amount of outstanding taxes. See RSA 80:20-a, :59, :61 (2012). The property
owner may thereafter redeem the property by paying the municipality the
amount of the lien. See RSA 80:69 (Supp. 2019). If, however, “after 2 years
from the execution of the real estate tax lien,” the owner has not redeemed the
property, the tax collector “shall execute” a deed of the property to the
municipality, known as a tax deed. RSA 80:76, I. Following the execution of
5
the tax deed, the municipality may act “in all respects as the fee owner” of the
property, and may lease or encumber any portion, or all, of the property. RSA
80:91 (2012). To that end, the municipality may convey the property if
authorized “by majority vote at the annual meeting, or city council by vote.”
RSA 80:80, I. The municipality may then sell the property by public auction or
advertised sealed bids. RSA 80:80, II (Supp. 2019). However, the municipality
also “may retain and hold [the property] for public uses . . . upon vote of the
town meeting or city council.” RSA 80:80, V (Supp. 2019).
The municipality’s ownership rights to property acquired by tax deed are
limited in two respects. First, at any time within 3 years after the date of
recording of the tax deed, the former owner may repurchase the property by
notifying the municipality of his or her intent and, within 30 days of the notice,
tendering payment of back taxes, interest, costs, and penalties. RSA 80:89, II
(Supp. 2019). Alternatively, if the municipality intends to sell the property, at
least 90 days prior to offering the property for sale, the municipality must
notify the former owner of the impending sale and provide him or her with the
right to repurchase the property for the amount of back taxes, interest, costs,
and penalties. RSA 80:89, I. If the former owner notifies the municipality of
his or her intent to repurchase the property within 30 days, and then tenders
payment of the back taxes, interest, costs, and penalties within 30 days of
providing notice, the municipality must convey the property back to the former
owner. RSA 80:89, II. Upon repurchase, the former owner’s title would be
subject to any leases, easements, or other encumbrances placed on the
property by the municipality. RSA 80:89, IV (Supp. 2019). However, the
former owner’s right to repurchase the property and the municipality’s duty to
notify the former owner of an impending sale “terminate 3 years after the date
of recording of the deed.” RSA 80:89, VII. Other than a former owner’s right to
repurchase the property, “[n]othing in [RSA chapter 80] . . . obligate[s] a
municipality to dispose of property acquired by tax deed.” RSA 80:91.
Second, when a municipality sells property it has acquired by tax deed,
“the municipality’s recovery of proceeds from the sale” is limited “to back taxes,
interest, costs and penalty.” RSA 80:88, I (2012), :91. When a sale results in
“excess proceeds over and above” the amount of back taxes, interest, costs, and
penalties, the municipality must pay the excess proceeds to the former owner
or record lienholders and follow specific statutory procedures to tender that
payment. See RSA 80:88, II-III (2012). However, similar to the former owner’s
right to repurchase and the municipality’s notice requirements, the
municipality’s duty to provide excess proceeds to the former owner
“terminate[s] 3 years after the date of recording of the deed.” RSA 80:89, VII.
The statutory scheme contains no requirement that the municipality sell the
property within the three-year period or otherwise provide compensation to the
former owner. See generally RSA 80:88-:91.
6
B. The Takings Clause
Part I, Article 12 of the New Hampshire Constitution provides that “no
part of a man’s property shall be taken from him, or applied to public uses,
without his own consent, or that of the representative body of the people.” This
provision requires just compensation in the event of a taking. Thomas Tool
Servs. v. Town of Croydon, 145 N.H. 218, 218-20 (2001). Because the right to
property is a fundamental right in New Hampshire, all subsequent grants of
power, including the taxing power, are limited by the extent to which they
adversely affect property rights. Id.
We have considered the constitutionality of prior versions of the statutes
governing tax liens and deeds. See id.; First NH Bank v. Town of Windham,
138 N.H. 319, 327-28 (1994); see also First NH Bank, 138 N.H. at 331-32
(Horton, J., concurring). Those versions, however, did not include the
procedures that now apply after a tax collector has issued the tax deed to the
municipality, and therefore allowed municipalities to acquire property by tax
deed without compensating the former owner for any equity that exceeded the
amount owed. See Thomas Tool, 145 N.H. at 220; First NH Bank, 138 N.H. at
331-32; Laws 1998, 238:2 (enacting RSA 80:88-:91). Nevertheless, these cases
are instructive to our decision here.
In First NH Bank, a municipality executed tax liens on several properties,
and, after the property owner failed to redeem the properties from the liens, the
tax collector issued deeds for the properties to the municipality. First NH
Bank, 138 N.H. at 320. A bank, which held mortgages on the properties,
challenged the municipality’s acquisitions. Id. The bank argued, in part, that
the municipality violated due process by failing to provide the bank with
adequate notice and engaged in an unconstitutional taking by retaining the
value of the real estate in excess of the unpaid taxes and costs. Id. at 320-21.
The majority resolved the issue in favor of the bank on due process grounds.
Id. at 327-28.
However, in his seminal concurring opinion, Justice Horton addressed
the plaintiff’s takings argument. Id. at 331-32 (Horton, J., concurring). He
stated that he would have found the tax deed procedure “constitutional only if
it [were] read to provide for taking of the taxable property only to the extent of
the lien.” Id. at 332. He further explained that he would permit a former
owner or other parties who have rights in the property taken by tax deed to,
within a reasonable amount of time, “petition in equity for an accounting by
the taxing authority and for the return, in priority and as equitable, of a sum
equal to the excess of the land value, at the time of taking, over the amount of
the taxes and charges accrued at taking.” Id. In Justice Horton’s view, “[s]uch
a construction, combined with the supplementary procedure, would permit the
statutory procedure to withstand constitutional challenge.” Id.
7
Following our decision in First NH Bank, we were confronted with the
same question in Thomas Tool: whether the tax deed procedures violated the
takings clause of the New Hampshire Constitution by allowing a municipality
to acquire a delinquent taxpayer’s property by tax deed without compensating
the former owner for the equity in the property that exceeded the amount owed.
Thomas Tool, 145 N.H. at 220. There, a municipality acquired property that
the plaintiff had purchased for at least $65,000 to satisfy a tax delinquency of
$370.26, without providing any compensation to the plaintiff. Id. at 219. The
trial court granted summary judgment for the plaintiff, ruling that the tax deed
procedure is “constitutional only if . . . read to limit the taking of taxable
property to the extent necessary to satisfy” the tax debt, interest, costs, and
penalty. Id. (quotation omitted). We affirmed the trial court’s decision and
held that the tax deed procedure was unconstitutional. Id. at 220. We did not
comment on the merits of Justice Horton’s concurrence in First NH Bank, but
observed that, under the facts of the case, the tax deed procedure allowed the
municipality to “realize[] an enormous surplus,” which, we concluded,
“result[ed] in an unduly harsh penalty.” Id. We noted that the legislature had
amended these procedures in 1998, but we expressed no opinion as to the
constitutionality of the amended process. Id.
C. Constitutionality of RSA 80:89, VII
We now are confronted with a challenge to the constitutionality of a
provision within the amended process — specifically, the termination of a
municipality’s duty to pay excess proceeds from a sale of property acquired by
tax deed to the former owner. See RSA 80:89, VII. Upon our review of RSA
80:89, VII, viewed in the context of the statutory scheme, we conclude that a
clear and substantial conflict exists between the termination of the
municipality’s duty to pay excess proceeds to the former owner and Part I,
Article 12 of the New Hampshire Constitution. See New Hampshire Health
Care Assoc., 161 N.H. at 385.
As an initial matter, the trial court found, and the parties do not dispute,
that a taking of property occurs when the tax collector executes a tax deed to
the municipality. See RSA 80:76, I. Accordingly, we will assume without
deciding that a taking occurred when the tax deed was executed. For the
purposes of this opinion, when the tax collector issues the municipality a tax
deed, see RSA 80:76, I, the municipality has executed a taking of the property,
requiring that it provide just compensation to the former owner when, as here,
the equity in the property exceeds the amount owed. See Thomas Tool, 145
N.H. at 220; First NH Bank, 138 N.H. at 331-32.
The Town argues that the procedures set forth in RSA 80:88 and :89
provide “remedies” for this taking by “permit[ting] a former owner to repurchase
the property or receive the proceeds from the sale of the property in excess of
the taxes, interest, fees, costs, and any penalty.” However, when a former
8
owner does not exercise the option to repurchase the property within three
years, the statutes do not guarantee that a former owner will receive excess
proceeds from the municipality. Although RSA 80:88 and :89, VII, when read
together, require the municipality to pay a former owner excess proceeds if the
municipality sells the property within the three-year period, none of the
statutory provisions require the municipality to sell the property. In fact, the
statutory provisions expressly permit the municipality to keep the property, see
RSA 80:80, V, :91, except when a former owner seeks to repurchase it within
the three-year period, see RSA 80:89, II, :91. The obligation to pay the former
owner excess proceeds, therefore, only arises if the municipality chooses to
conduct a sale of the property within the three-year period. Accordingly,
whenever a municipality has not sold property acquired by tax deed within the
three-year period, the outcome is no different than that in Thomas Tool — the
municipality acquires the property free of any obligation to provide
compensation to the former owner, regardless of the equity in the property that
exceeds the amount owed. See Thomas Tool, 145 N.H. at 220; First NH Bank,
138 N.H. at 331-32. The termination of the municipality’s duty to provide
excess proceeds under RSA 80:89, VII, therefore, conflicts with the takings
clause of the New Hampshire Constitution.
The Town asserts, however, that RSA 80:89, VII is not unconstitutional if
we interpret the statutory scheme to allow the former owner to petition a court
in equity to compel the municipality to sell the property. It argues that we
“would be acting well within [our] authority to rule that” the former owner’s
right to excess proceeds is “subject to vindication by [the] former owner, who
may petition in equity to compel the sale of a property . . . , so long as suit is
brought within the three years” provided in RSA 80:89, VII. In other words, the
Town asserts that we should interpret the statutes as requiring the former
owner to bring an action to compel the municipality to sell the property, and
hold that, if he fails to do so within the three-year period, he forfeits his right to
receive the excess proceeds.
Yet, nothing within the statutory scheme allows for such an
interpretation. The statutes place no obligation upon the former owner to take
any action to receive excess proceeds, let alone file a lawsuit against the
municipality to compel the sale of property that it now owns. In fact, the
Town’s interpretation contradicts the statutory scheme’s express language.
RSA 80:91 provides that “[n]othing” in RSA chapter 80 shall require a
municipality to dispose of property acquired by tax deed, except as provided in
RSA 80:89. Under RSA 80:89, a municipality is only obligated to sell the
property when the former owner seeks to repurchase the property within the
requisite time period. See RSA 80:89, II. Thus, requiring the former owner to
bring an action to compel the municipality to sell the property would be
contrary to the express language of RSA 80:91.
9
Furthermore, other statutory provisions evince the legislature’s intent to
grant the municipality, not the former owner or the courts, the authority to
decide the appropriate disposition of the property. See RSA 80:80, I (requiring
authorization by vote at the annual meeting or vote of the city council to sell
property acquired by tax deed), V (allowing a municipality to keep property
acquired by tax deed for public uses), :91 (explaining that the municipality may
act as the fee owner of the property and may encumber the property without
regard to the former owner). Thus, not only does the Town’s interpretation
require that we depart from a canon of statutory interpretation — we will not
add language to the statute that the legislature did not see fit to include, see
Carrier, 165 N.H. at 721 — it expressly contradicts the plain meaning of the
existing statutory language. See Polonsky, 171 N.H. at 96 (explaining that the
canon of constitutional doubt, in which we resolve the interpretation of a
statute in favor of its constitutionality, is “useful when the language is
ambiguous and a [constitutional] construction of the statute is fairly possible”
(quotation omitted)); Miller v. French, 530 U.S. 327, 341 (2000) (“We cannot
press statutory construction to the point of disingenuous evasion even to avoid
a constitutional question.” (quotation omitted)).
The Town argues that, by enacting the three-year period in RSA 80:89,
VII, the legislature intended to “specifically limit the time period within which
the former owner could either repurchase the property or recover excess
proceeds from its sale.” The Town contends that such a limitations period is
reasonable. Regardless of whether the limitations period is reasonable, RSA
80:89, VII places no obligation upon the former owner to bring an action to
compel the sale of property as a prerequisite to receiving the excess proceeds.
It simply terminates the duties of the municipality to pay the excess proceeds
to the former owner, to provide notice to the former owner of the municipality’s
intent to sell, and to resell the property to the former owner. See RSA 80:89,
VII. To the extent that the Town contends that RSA 80:89, VII imposes a
statute of limitations upon a former owner to bring a lawsuit, thereby implicitly
requiring a former owner to file suit to compel a sale, the statutory language
does not support such a construction. Compare RSA 80:89, VII (“The duty of
the municipality to . . . distribute proceeds pursuant to RSA 80:88 . . . shall
terminate 3 years after the date of recording the deed.”), with RSA 80:78 (2012)
(“No action, suit or other proceeding shall be brought to contest the validity
of . . . any collector’s deed . . . after 10 years from the date of record of the
collector’s deed.”) and RSA 508:4 (2010) (“[A]ll personal actions, except actions
for slander or libel, may be brought only within 3 years of the act or omission
complained of . . . .”).
Nevertheless, the Town contends that, “[o]n many occasions this Court
has interpreted the tax statutes in a manner which preserves their
constitutionality by prescribing supplementary, extra-statutory measures.” The
Town identifies three cases in which, it contends, we have done so, and
10
suggests that we do so here. See First NH Bank, 138 N.H. at 327-28; White v.
Lee, 124 N.H. 69, 74 (1983); Manchester v. Straw, 86 N.H. 390, 393 (1933).
In each of these cases, however, the rule that we announced was based
upon a specific constitutional mandate. See, e.g., First NH Bank, 138 N.H. at
327-28. For example, in First NH Bank, we concluded that the notice
requirements of the due process clause required the municipality to provide
notice of an impending tax deed to mortgagees who held mortgages on subject
properties, despite the absence of a statutory requirement. Id. We reasoned
that, without this requirement, a mortgagee who maintains a secured interest
on property subject to a tax lien would be deprived of its property interest
without the opportunity to avoid the municipality’s acquisition, in violation of
due process. See id. at 327. In so holding, however, we explained that the
bank’s “right to notice . . . is a constitutional mandate rather than an express
statutory requirement.” Id. at 328; see also White, 124 N.H. at 74 (holding that
due process requires municipalities to provide notice of a tax sale to current
owners of the subject property); Straw, 86 N.H. at 390 (preface to opinion), 393
(holding that the takings clause limited a municipality’s assessment for a
curbing improvement against an individual property owner to “the value of the
special benefit” or, if less, one-half of the expense of the improvement).
The constitutional provision at issue here — the takings clause —
prohibits a municipality from taking property without providing just
compensation. See N.H. CONST. pt. I, art. 12; Thomas Tool, 145 N.H. at 220.
As we have stated, when the municipality acquires property by tax deed that is
worth more than the amount owed, the municipality is required to provide
compensation to the former owner. See Thomas Tool, 145 N.H. at 220. The
takings clause, however, does not require a former owner to take any action to
receive that compensation, and the Town points to no other constitutional
provision that imposes such a requirement. Thus, there is no constitutional
mandate for the remedy the Town seeks. Cf. First NH Bank, 138 N.H. at 328.
Accordingly, we conclude that the termination under RSA 80:89, VII of
the municipality’s duty to provide excess proceeds three years after the date of
the recording of the tax deed violates Part I, Article 12 of the New Hampshire
Constitution. See Thomas Tool, 145 N.H. at 220. We note, however, that our
holding is narrow. This ruling does not affect the validity of the other
provisions of the statutory scheme, including the three-year limitation upon a
former owner’s right to repurchase the property and the municipality’s notice
requirements. See RSA 80:89, VII.
D. Equitable Relief
To remedy the constitutional violation, the trial court found that the
plaintiff “is entitled to the excess proceeds of the sale after payment of the
amount owed to the Town.” The Town argues that, because the plaintiff failed
11
to take steps to protect his interest in the property prior to and after his tax
delinquency — including his failure to repurchase the property or provide the
Town with the requested financial information — he is not entitled to this
equitable relief. See RSA 80:89, II; see also RSA 72:37-b, I (2012) (providing a
property tax exemption for individuals who are eligible to receive disability
benefits); RSA 76:16, I(a) (Supp. 2019) (allowing a taxpayer to seek a tax
abatement based upon the inability to pay); RSA 80:69 (allowing a delinquent
taxpayer to redeem property following the execution of the tax lien).
In the trial court, the Town relied upon the doctrine of unclean hands in
asserting this argument. Under this doctrine, “[e]quitable relief will be denied if
one comes to the court with unclean hands.” Noddin v. Noddin, 123 N.H. 73,
76 (1983). “The party to a suit, complaining that his opponent is in court with
‘unclean hands’ because of the latter’s conduct must show that he himself has
been injured by such conduct, to justify application of the principle to the
case.” Cornwell v. Cornwell, 116 N.H. 205, 210 (1976) (quotation and ellipsis
omitted).
The trial court rejected the Town’s argument, finding that, “[u]nder the
statutory scheme, a former owner who does not pay his or her taxes and who
also chooses not to repurchase his or her property suffers the loss of the
property, but is still entitled to the excess proceeds of the municipality’s sale of
the property.” We review the trial court’s decision whether to grant equitable
relief for an unsustainable exercise of discretion. Benoit v. Cerasaro, 169 N.H.
10, 19 (2016). In doing so, we determine whether the record establishes an
objective basis to sustain the discretionary judgment made. Id. at 20. The
party asserting that a trial court order is unsustainable must demonstrate that
the ruling was unreasonable or untenable to the prejudice of his or her case.
Id.
We recognize that the plaintiff did not take steps to avoid or correct his
tax delinquency status, redeem his property after the execution of the tax lien,
or repurchase it for the full amount owed after the Town acquired the property
by tax deed. We also recognize that the plaintiff requested to repurchase the
property for less than the amount owed, but then failed to provide the Town
with requested financial information to support his request. We reiterate our
statement in Thomas Tool that we do not condone the failure to pay taxes. See
Thomas Tool, 145 N.H. at 220. Nevertheless, we have held that, under Part I,
Article 12 of the New Hampshire Constitution, the taking of property without
just compensation is unconstitutional, even when the municipality has taken
the property by tax deed due to the former owner’s failure to pay taxes. See id.
Thus, when a municipality acquires property by tax deed and the equity in the
property exceeds the amount owed, a taking has occurred, regardless of
whether the former owner took steps to correct the consequences of the tax
delinquency. See id.
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Here, as the trial court observed, the plaintiff has suffered the loss of the
equity in the property that vastly exceeded the amount he owed to the Town.2
Even though the plaintiff initiated negotiations with the Town to repurchase
the property during the three-year period, nothing in the record demonstrates
that the plaintiff’s actions prohibited the Town from selling the property before
the three-year period expired. Indeed, after the plaintiff failed to provide the
requested financial information, the Town Council voted to sell the property in
July 2013, nearly one year before the three-year period expired. Therefore, the
Town has failed to demonstrate that the ordered relief was unreasonable.
Based upon the statutory scheme and Part I, Article 12, the plaintiff was
entitled to equitable relief. Accordingly, the trial court did not unsustainably
exercise its discretion in awarding equitable relief to the plaintiff. The plaintiff
does not cross-appeal the remedy awarded by the trial court, and therefore we
express no opinion as to that issue.
IV. Conclusion
Because RSA 80:89, VII extinguishes a municipality’s duty to provide
excess proceeds to a former owner as compensation for the taking of his or her
property by tax deed after three years from the date of the recording of the
deed, without requiring that the municipality execute that duty, the statute’s
three-year limitation upon the municipality’s duty to pay excess proceeds
violates Part I, Article 12 of the New Hampshire Constitution. Because the
Town acquired the plaintiff’s property without providing compensation, the trial
court did not err in awarding equitable relief to the plaintiff.
Affirmed.
HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.
2
The record before us only reflects the property’s assessed value in 2008 of $309,900. At oral
argument, the Town represented that the property has been sold and that the proceeds are
currently being held in escrow. The Town makes no contention that, at the time of the sale, the
value of the property had significantly fallen since 2008, or that the proceeds from the sale did
not exceed the amount owed to the Town.
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