First Bank & Trust Co. v. City of Providence

FLANDERS, J.,

dissenting.

A statute, G.L.1956 § 44-9-l(b), provides that, three years after a municipality assesses a tax on property for a given tax year, the municipal tax lien created by the assessment “shall terminate” upon the recorded alienation of the real estate subject to the lien. Nevertheless, by their decision in this case, two members of this Court have carved out a judicial exception to the statute by holding that a recorded alienation of the real estate will not terminate the tax lien if the municipality has begun the process of putting the property up for tax sale when the recorded alienation occurs. Because I believe that the plain meaning of § 44-9-l(b) precludes such an interpretation of the statute, I respectfully dissent.

In § 44-9-l(b), the Legislature has specified that tax hens on real estate “shall terminate at the expiration of three (3) years thereafter if the estate has in the meantime been alienated and the instrument alienating the estate has been recorded; otherwise, it shall continue until a recorded alienation of the estate.” (Emphases added.) This unambiguous language conspicuously omits any provision limiting or preventing tax-lien terminations when alienation occurs after a municipal lienholder has initiated but not completed the tax-sale process. Rather, by its terms, the statute affords municipalities three years from the date of the property-tax assessment to initiate tax-sale proceedings as a superior lienholder. If a city or town proceeds to a tax sale within this period, then it does so without incurring any risk that an intervening alienation of the property will subvert its lien-enforcement attempt. But all that changes upon the expiration of three years from the assessment date. After three years, § 44-9-1 allows the lien to continue on the property but only “until a recorded alienation of the estate.” Thus, once such an alienation occurs, then the statute mandates that the lien “shall terminate” — regardless of whether, in the meantime, the municipality has initiated efforts to sell the property at a later tax sale.

As we often have noted, “when a statute expresses a clear and unambiguous meaning, the task of interpretation is at an end and this [Cjourt will apply the plain and ordinary meaning of the words set forth in the statute.” State v. Bryant, 670 A.2d 776, 779 (R.I.1996). “ ‘If the language is clear on its face, then the plain meaning of the statute must be given effect’ and this Court should not look elsewhere to discern the legislative intent.” Henderson v. Henderson, 818 A.2d 669, 673 (R.I.2003) (per curiam) (quoting Fleet National Bank v. Clark, 714 A.2d 1172, 1177 (R.I.1998)). When “a statutory provision is unambigu- *614, ous, there is no room for statutory construction and we must apply the statute as written.” In re Denisewich, 643 A.2d 1194, 1197 (R.I.1994). In interpreting an unambiguous statute, we presume that each word was expressly intended by the Legislature, and we are under a duty to “give effect to every word, clause, or sentence.” Bryant, 670 A.2d at 779.

In addition, we have emphasized that, in the context of a municipal tax sale, “[t]he authority for the sale, of real estate for delinquent taxes must be found in the statutes and such statutes will not be enlarged by judicial construction but will be strictly construed in favor of the owner.” Parker v. MacCue, 54 R.I. 270, 272, 172 A. 725, 726 (1934). (Emphasis added.) Treatises on the subject also have recognized the need for strict adherence to the letter of tax-sale statutes when courts interpret these provisions:

“Statutes governing the procedures whereby an owner may be divested of his or her property for the nonpayment of taxes will be strictly construed against the taxing authority. Careful adherence to the requirements in such laws, and to orders made pursuant tó them, are required. In order to divest an individual of his or her property against his or her consent, every substantial requirement of the law must be complied with.” 16 Eugene McQuillin, The Law of Municipal Corporations, § 44.152 at 612 (3d ed.1994).

Here, Elmgrove Associates (Elmgrove), the record owner, failed to pay the taxes assessed for its Hartford and Glenbridge Avenue parcels for the years 1995 through 1999. In March 2000, the city notified Elmgrove that these parcels were to be sold at a tax sale for unpaid taxes due and owing. During that same month the city also notified First Bank and Trust (First Bank), the mortgagee for these same parcels, of the impending tax sale, on May 18, 2000; the city also proceeded to advertise the tax sale according to the provisions described in § 44-9-9. But before the tax sale could occur, Elmgrove alienated the property on May 17, 2000, by executing a quitclaim deed to First Bank; it then recorded that alienation in the city’s land-evidence records. As a matter of law (per § 44 — 9—1(b)), this event terminated any municipal tax liens on the parcels for taxes that had been assessed more than three years before the date of the recorded alienation (namely, the taxes for 1995 through 1997).

On that same day (May 17, 2000), First Bank also delivered five checks to the city tax collector’s office, representing payment of the property taxes due on all the parcels in question for the outstanding tax years of 1998 and 1999. With these checks, First Bank sent a letter to the city tax collector informing her of the recorded alienation and of the payments it had made to the city for the outstanding 1998 and 1999 taxes. The letter indicated the following:

“Enclosed is a copy of a deed that was recorded on May 17, 2000 at 2:07 p.m. and 5 checks representing the 1998 and 1999 taxes plus interest on the above lots. In view of this ‘alienation’ (R.I.G.L. 44-9-1) and the enclosed payment, you are directed to remove the above parcels from the tax sale scheduled for May 18, 2000.”11

*615Despite receiving notice of the recorded alienation of the subject properties and First Bank’s payment of the 1998 and 1999 property taxes, the city still proceeded with the tax sale on May 18, 2000, selling the property to Bears Brothers Realty and to the other codefendants for the remaining taxes allegedly due on the property.

When the city first noticed and advertised the impending tax sale in March 2000, each hen for the 1995 through 1997 taxes already was more than three years old. Pursuant to § 44-9-1, these hens accrued on the date of assessment, and, after three years, they continued in force thereafter only until “a recorded ahenation of the estate.” In my opinion, by the plain, unambiguous terms of the statute, the city’s hens on the subject parcels for the tax years 1995 through 1997 terminated when Elmgrove executed a valid quitclaim deed to First Bank on May 17 and caused that deed to be properly recorded on the same day.12 Beyond any shadow of a doubt, this event constituted “a recorded ahenation of the estate,” as that phrase is used in § 44 — 9—1(b). Thus, according to the statute, it terminated ah municipal tax hens on the property for the years 1995 through 1997 because, for those years, the hens had existed for a period longer than three years. Nevertheless, because three years had not elapsed since the city assessed the taxes for 1998 and 1999, the tax hens for these years remained intact after the ahenation. First Bank, therefore, promptly tendered payment to the city tax collector’s office for these unpaid taxes, thereby discharging these remaining tax hens before the tax sale. It then properly notified the city that the property no longer was subject to the tax sale on May 18, 2000. Thus, in my opinion, the city no longer held any enforceable tax hens on the real estate as of May 18, 2000. Therefore, it did not have the ability to subject the property to a tax sale on that date, and its purported sale of the properties was null and void. Consequently, I would affirm the trial justice’s ruling that after Elmgrove transferred the property to First Bank and caused that deed to be properly recorded, the city’s outstanding tax hens for 1995 through 1997 terminated, leaving the city with nothing more than “an unsecured tax obligation” with respect to the unpaid taxes for those years. See Fitzpatrick v. Tri-Mar Industries, Inc., 723 A.2d 285, 286 (R.I.1999) (per curiam).

The majority rehes on dicta from Parker, 54 R.I. at 274, 172 A. at 727; Kettelle v. MacCue, 54 R.I. 276, 277, 172 A. 728, 728 (1934); Rathbun v. Allen, 63 R.I. 109, 114-15, 7 A.2d 273, 276 (1939), and Fitzpatrick, 723 A.2d at 286, for the proposition that a conveyance of property after the city has taken steps to initiate tax-hen enforcement procedures “does not operate as a termination of the city’s tax hens” on the property as provided in § 44-9-1. None of these cases, however, so holds. On the contrary, in each of them the lan*616guage referring to the initiation of tax-sale enforcement procedures was immaterial to the holding of those cases. Thus, unlike-the majority’s ruling in this case, these previous cases did not judicially create a limitation on the lien-termination provisions of § 44 — 9—1(b) that the Legislature did not expressly provide for in the statute. Moreover, these cases are all distinguishable from the facts of this case, and they do not assume, as the majority concludes, that once the city begins the tax-sale-enforcement procedures, no recorded alienation can terminate any tax hens. Rather, in dicta, they merely support the proposition that if the city begins certain tax-sale enforcement procedures during the statutory safe-harbor period before any recorded alienation of the property has caused the hen to terminate, then, if the tax sale had been scheduled to occur within the statutory safe-harbor period, the tax-sale date and the municipality’s hen may be extended beyond that period — but only for a reasonable time.

Thus, in Parker, the City of Warwick possessed a tax lien on real estate for unpaid taxes assessed in 1929. On December 30, 1930, within the then-applicable two-year-statutory period for selling the property at tax sale subject to the city’s tax hen, the city tax cohector made an entry in the town’s levy book signaling his determination to seh the property at a tax sale at an unspecified future date. Parker, 54 R.I. at 271, 172 A. at 726. However, the city issued no notice or advertisement of this levy or the impending tax sale until March 1933, more than two years after the statutory safe-harbor period — then two years from the date of assessment — had expired.13 Id. In the meantime, Parker, the plaintiff, had received title to the real estate “by mortgagee’s deeds.” Id. at 270, 172 A. at 726. Parker brought suit, arguing that the city’s tax hen should have terminated once the statutory lien period of two years had expired and the previous owner had alienated the property in the meantime. Id. at 272, 172 A. at 726. The city tax cohector argued that because the statutes in force at the time required the collector to make an entry in the town’s levy book as the initial step in the town’s attempt to enforce outstanding tax hens, such an entry should be viewed as the initiation of the tax-sale process by the town, thereby precluding any lien-free ahenation of the property, even after the statutory safe-harbor period expired.14 Id.

While noting that the word “levy” was not used consistently in the statutes, and that “[i]t [was] significant that the statute nowhere states, either directly or by implication, that any commencement of proceedings to sell, be it levy, notice or advertising by pubhcation, or by posting notices, shah extend the hen which is limited by statute to two years,” Parker, 54 R.I. at 274, 172 A. at 727, the Court opined that a tax sale itself, once initiated by the city, could be “reasonably continued * * * from time to time beyond the period of two *617years without losing the lien, provided the sale was first duly advertised to be held on a date within said [two year] period.” Id. (Emphasis added.) The Court went on to state the following:

“For the determination of this case it is immaterial whether the collector is required, as the first step toward selling, to make an entry in a public record book of his mental act of determination to sell. Assuming that it is his duty to so commence his proceeding to sell, and that such act extends the lien, the statute does not fix the time for which the hen is extended. It cannot be that the hen is extended indefinitely. We are by necessity driven to the old rule that when no time is fixed a reasonable time is intended. The record made by the collector of his determination to sell was made [on] December 30, 1930. By the terms of the statute the hen, without the so-called levy, continued unconditionally in force until June 15, 1931. No steps were taken before said date to hold a sale, and for a period of considerably more than two years after the so-called levy no move was made preparatory to holding a sale. Bearing in mind that the statute provided for a hen for only two years in cases where the property was aliened, it could not have been intended that a hen limited by statute to two years could by any inference be extended nearly two years by the mere act of making an entry in a public record book of the collector’s determination to sell * * Id. at 274-75, 172 A. at 727. (Emphases added.)

Thus, the Court went on to hold in Parker that the mere entry in a levy book of the city tax cohector’s intention to seh the property at a tax sale — even when the levy occurred within the statutory two-year safe-harbor period for the lien — was insufficient to warrant extending the city’s hen beyond that period. See id.; see also Kettelle, 54 R.I. at 277, 172 A. at 728 (recognizing Parker’s holding that a timely made levy evidenced by a book entry was insufficient to extend a tax hen .beyond the statutory period and that, under the circumstances in that case, “the hen had expired”). Therefore, under the circumstances in that case, the hen had expired and the party recording the alienation of the property took title to it free and clear of the tax hen. See id.

It is true that the Parker court assumed, without deciding, that the attempted commencement of a tax sale itself, during the statutory safe-harbor period, could be sufficient under certain circumstances to extend the hen beyond the then two-year period for the life of a tax hen, noting that the apphcable statutes allowed that tax sales, once begun by the city, “may be adjourned from time to time.” Parker, 54 R.I. at 274, 172 A. at 727. Later cases referred to this assumption in dicta. See Fitzpatrick, 723 A.2d at 286 (citing to the above quoted statement in Rathbun as support for the proposition that “[a] sale made after the three-year statutory period but before attempted enforcement of a tax hen serves to block the enforcement”); Rathbun, 63 R.I. at 115, 7 A.2d at 276 (noting that, in that case “ah the taxes here involved had been assessed more than two years before any attempt was made to enforce any lien upon either of these properties for any of these taxes”). (Emphasis added.) Although Parker’s assumption — that a municipal tax hen might be extended beyond the statutory safe-harbor period if the tax cohector initially attempted to schedule the tax sale within this same period — is not material to its holding, and therefore, not controlling precedent, it is, nevertheless obviously distinguishable from the facts of the case at bar.

In this case, the city did not attempt to enforce its tax hens on the real estate in *618question until after the three-year-statutory safe-harbor period expired for the taxes that the city had assessed in the years 1995 through 1997. Thus, unlike Parker or any of the other cited cases, the city has ■not argued that it initiated any tax-sale collection procedures within the three-year safe-harbor period for preserving municipal tax hens against recorded alienations of the property. Rather, the city argues that its attempt to enforce tax hens at any date — even after the statutory three-year safe-harbor period already has elapsed— suspends the landowner’s ability to terminate the hen before the tax sale through a properly recorded ahenation of the property, as provided for in § 44-9-1 (b). But such a conclusion expands Parker’s assumption way beyond not only the plain language set forth in chapter 9 of title 44, but also way beyond the factual situation in the Parker case itself. Indeed, Parker’s rationale was based solely on the power of the municipality to adjourn “from time to time” a scheduled tax sale that the city had advertised to occur within the statutory safe-harbor period. In this case, however, the city did not initiate its tax-sale notices and advertisements within the three-year statutory safe-haven when it could do so without risk that a recorded alienation would terminate its tax liens, much less did it schedule the tax sale itself to occur within this period. Thus, in my opinion, the trial justice properly held that the 1995 to 1997 tax hens terminated upon the recorded alienation of the property in question before any tax sale of the property-

The majority refers to “the chaos that would result from a contrary reading of this statutory provision,” noting that it would allow a taxpayer to defeat any tax hen more than three years old “[b]y simply conveying the property and recording the deed at any point before the gavel falls” on a noticed and advertised tax sale. In my opinion, however, that result is exactly what § 44-9-l(b) contemplates. And no more “chaos” would result from interpreting the statute as the Legislature wrote it than the usual risk that necessarily inheres in every tax sale. A municipality selling property at a tax sale only has the power to sell by virtue of the statutes granting it that authority. See Parker, 54 R.I. at 274, 172 A. at 727. The city’s ability to sell the parcels at issue — or any other tax-sale parcels — is always subject to the record owner stepping in before the gavel falls on the tax sale and paying the amount of money due for back taxes. Thus, merely issuing a notice and advertising a tax sale for a certain piece of property does not assure either the municipality or any prospective tax-sale buyers that a sale actually will occur on that day because it is always possible that someone will pay the taxes and any other money due in the meantime. See § 44-9-8 (requiring the collector to sell property at public auction for unpaid taxes only “[i]f the taxes are not paid”).

Therefore, the mere fact that the city has advertised a proposed tax sale does not mean that the sale actually will occur. After all, an interim payment of the outstanding tax obligation — or, after the three-year safe-harbor period has expired, a recorded alienation of the property — still may serve to interdict such a sale before the tax-sale gavel can fall. And even when the sale occurs, a buyer of such property necessarily assumes many risks, including the risk that the buyer can take only what title the city can give, subject not only to the doctrine of caveat emptor but also to the taxpayer’s one-year right of redemption, as provided by § 44-9-21, § 44-9-19, and § 44-9-25. As a well-known commentator on municipal law has recognized:

“A purchaser at a tax sale is a stranger to the title. ■ The purchaser takes without warranty and subject to the doc*619trine of caveat emptor. His or her rights and title depend upon the validity of the sale, and upon applicable statutory and charter provisions. Usually, property sold for taxes is subject to redemption within a prescribed time, and the purchaser’s right to the property is not absolute until the expiration of such period.” McQuillin, § 44.161 at 636.

Moreover, in this day of ubiquitous cell phones and pagers, a would-be purchaser of property at a tax sale easily can afford to have someone monitoring the registry of deeds until the tax sale is concluded to alert the potential purchaser about any last-minute sales or transfers that are recorded in the land-evidence records, thereby triggering the lien-termination provisions of § 44r-9-l(b). Because only a recorded alienation is sufficient to trigger the statute’s hen-termination provision, a potential purchaser at a tax sale readily could ascertain the tax sale’s validity by monitoring what deeds have been and are being recorded at the registry right up until the gavel falls.

In any event, such an “eleventh-hour” recorded alienation would operate only to extinguish those tax liens for which the city failed to complete its hen-enforcement process before the statutory safe-harbor period expired. When the city has failed to put the property up for tax sale during the three-year safe-harbor period prescribed by statute, then the city has placed itself at risk that its tax hen will terminate by a recorded ahenation of the property before it can sell the property at a tax sale, and buyers at tax sales necessarily take the property subject to this risk. The plain language of this unambiguous statute mandates exactly this result. Thus, if would-be buyers at a tax sale believe that this statutory scheme creates too big a risk for them to stomach, then they can and should beat a well-worn path to the General Assembly’s door and plead for an amendment to § 44-9-1 (b) that better suits their needs. But this Court should not judicially create such a gaping loophole in the law when none exists in the statute.

For these reasons, I would affirm the trial justice’s decision, deny the appeal, and remand the papers in this case to the Superior Court.

. Although First Bank directed the city to apply its payments toward the outstanding 1998 and 1999 taxes, the city ignored this direction and, instead, applied the five tax payments that First Bank tendered on May 17 toward the unpaid taxes for the years 1995 through 1997. But because First Bank specified that the funds were to be applied to the 1998 and 1999 taxes, the city, upon cashing the checks, was required to apply the funds as directed. See Albert S. Eastwood Lumber Co. v. Britto, 51 R.I. 406, 410, 155 A. 354, 356 *615(1931) ("It is well settled that the debtor may direct the application of a payment on account, but in the absence of such direction or a manifestation of intent [that] the payment shall be applied in a particular manner, the creditor may apply such payment in the order which he may consider most advantageous to himself.”). Thus, the city had no legal basis to do what it did.

. As the majority notes, the trial justice expressly found that the quitclaim deed was a valid transfer of the property, and not a "sham” or "paper” transaction as the city has argued. As the trial justice observed, "This [c]ourt has reviewed the deed, however, and can find no reason to find the deed void or deficient in any manner. The deed is signed, notarized, and, although this [cjourt is unaware of the exact deal of the transfer, it appears to contain consideration (i.e.: property in exchange for forbearance and release of the mortgage).”

. At the time that the court decided Parker v. MacCue, 54 R.I. 270, 172 A. 725 (1934), and Kettelle v. MacCue, 54 R.I. 276, 172 A. 728 (1934), the statutory tax-lien language provided that, “All taxes assessed against the owner of any real estate shall constitute a lien on such real estate in any town, for the space of two years after the assessment, and, if such real estate be not aliened, then until the same is collected.” G.L.1923, title VIII, ch. 63, § 3. Rathbun v. Allen, 63 R.I. 109, 111, 7 A.2d 273, 274 (1939), also applies this language from the 1923 version of the tax-lien statute.

. As the Court noted in Antuono v. Faraone, 106 R.I. 721, 725, 263 A.2d 111, 114 (1970), in 1946 the Legislature modified the municipal tax sale procedures, "eliminat[ing] any necessity that the tax collector make any levy on tax-delinquent property to initiate * * * tax sale proceedings * *