Law Office of James Kaklamanos

374 Main St. Nashua, NH 03060

What Happens to Title after a
Foreclosure Sale for Back Taxes?

Real property taxes are secured by an automatic statutory lien against the property, but they are not the personal obligation of the property owner. This means that the government can sell the property if the taxes are not paid, but cannot personally sue the owner. Anyone purchasing tax certificates from the government stands in the same position -- after a specified period of time, the purchaser of the tax certificate can foreclose on the property and collect from the proceeds of sale.

Tax liens take precedence over all other liens and encumbrances, regardless of when they were recorded. If the property is sold for back taxes, all existing mortgages are wiped out and the purchaser at the tax sale takes free and clear. Conversely, if a private mortgage is foreclosed, it has no effect on the lien for taxes, because the tax lien is senior to all others. Whoever purchases the property at the tax sale will have to pay the back taxes.

Other items affecting title, such as judgment, mechanics’, and materialmen's liens, claims of homestead, and homeowner's association dues and assessments, are also wiped out. The purpose of this rule, or course, is to insure that the government is in first place and that property taxes are always paid.

If this theory were taken to its logical conclusion, everything affecting title to the property would be terminated by a tax sale. Experience has shown that such a rule would be harsh and unwise. As a result, three exceptions have developed.

The first exception is for public roadways, easements, and right-of-way. It is the universal rule that public roads and easements are not affected by a tax sale, regardless of the seniority of the tax lien. This makes sense and avoids the obvious problems that would be created if public rights-of-way were terminated every time there is a tax sale.

The second exception is for private easements. This exception exists in most (but not all) states. Some states, like Arizona, have a specific statute that provides that private easements survive a tax sale. In some other states the courts recognize this exception as a matter of common law. It is a very useful and beneficial rule that preserves access to property and utility line easements after a tax sale, much like the exception for public rights-of-way. A few states, including Florida, Maryland, and New Jersey, do not recognize this exception, and in these states private easements are terminated by a tax sale.

The third exception is for restrictive covenants, sometimes called deed restrictions. This exception has been recognized in a number of states but expressly rejected in others. Some states, like Arizona, have not yet addressed the issue. States that recognize this exception believe it would be unfair and destructive of property values to have restrictive covenants that become voided after a tax sale. In a leading case, the court held that deed restrictions prohibiting the sale of alcohol on all lots in a subdivision should survive the tax sale of one lot in that subdivision. The contrary rule, of course, would free one lot from the restriction while all the others would continue to be bound by it, an obviously unfair situation that could harm the value of the remaining lots.

Tax liens are senior to all other liens and encumbrances, and upon a tax sale all such junior liens and encumbrances are terminated. Some states provide that private easements and restrictive covenants will survive a tax sale.

If you hold a deed of trust or mortgage against real property, it is a good idea to periodically check to make sure that the taxes are current. If you have a foreclosure, you will be responsible for all back taxes. And if a tax sale occurs, your lien could be wiped out.

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