Substitute Senate Bill No. 1007

Public Act No. 99-238

An Act Concerning Validating Provisions.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. (NEW) (a) An assessment list in any town, city or borough is not invalid as to the taxpayers of the taxing district as a whole because the assessor committed any one or more of the errors or omissions listed in subdivisions (1) through (15) of this subsection unless an action contesting the validity of the assessment list is brought within four months after the assessment date and the plaintiff establishes that the assessor's error or omission will produce a substantial injustice to the taxpayers as a whole:

(1) The assessor failed to give the legal notice required by section 12-40 of the general statutes that all persons liable to pay taxes in the taxing district must, when required by law, bring in written or printed lists of the taxable property belonging to them;

(2) The assessor received a list that is either not sworn to or not signed by the person giving that list as required by section 12-49 of the general statutes;

(3) The assessor received a list after the deadline specified by section 12-42 of the general statutes but neglected to fill out a list of the property described and add to the assessment the penalty set by section 12-42 of the general statutes for failing to file before the deadline;

(4) The assessor failed to give the notice required by subsection (c) of section 12-53 of the general statutes after adding property to the list of any person or corporation making a sworn list;

(5) The assessor failed to give the notice required by subsection (c) of section 12-53 of the general statutes after making out a list for a person or corporation that was liable to pay taxes and failed to give a required list;

(6) The assessor failed to assess and set house lots separately in lists as land as required by section 12-42 of the general statutes;

(7) The assessor failed to sign any assessment list, or did not sign the assessment list of a town, city or borough collectively but signed the assessment list individually for districts in the town, city or borough;

(8) The assessor failed, as required by subsection (a) of section 12-55 of the general statutes, to arrange an assessment list in alphabetical order, or to lodge the list in the required office on or before the day designated by law, or at all;

(9) The assessor decreased valuations after the day on which the assessment list was lodged or was required by law to be lodged in the required office, but before the date on which the abstract of such list was transmitted or was required to be transmitted to the Secretary of the Office of Policy and Management;

(10) The assessor failed, as required by section 12-42 of the general statutes, to fill out a list for any person or corporation that failed to return a required list;

(11) The assessor incorrectly made an assessment list abstract required by subsection (a) of section 12-55 of the general statutes;

(12) The assessor failed to compare, sign, return, date or make oath to an abstract of an assessment list of his or her town, as required by law, or omitted from an abstract any part of the list of any person;

(13) The assessor did not take the oath required by law;

(14) The assessor failed to return to a district clerk an assessment list of the district assessment; or

(15) The assessor omitted from the assessment list the taxable property of any person or corporation liable to pay taxes.

(b) An assessment list in any town, city or borough is not invalid as to the taxpayers of the taxing district as a whole because the board of assessment appeals or a member or members of the board committed any one or more of the errors or omissions listed in subdivisions (1) to (6), inclusive, of this subsection unless an action contesting the validity of the assessment list is brought within four months after the assessment date and the plaintiff establishes that the error or omission will produce a substantial injustice to the taxpayers as a whole:

(1) A member or members of the board of assessment appeals did not take the oath required by law;

(2) The board of assessment appeals failed to give notice of the times and places of the meetings as required by section 12-110 of the general statutes;

(3) The board of assessment appeals held its first meeting on some day other than the day provided by section 12-110 of the general statutes;

(4) The board of assessment appeals added to the list of any person or corporation any item of taxable property actually owned by the person or corporation without giving the notice required by section 12-111 or 12-115 of the general statutes;

(5) The board of assessment appeals increased the list of any person or corporation, or added to the assessment list the name of any person or corporation, without giving such person or corporation the notice required by section 12-111 or 12-115 of the general statutes, and the amount of such list is not excessive or unjust; or

(6) Any assessment list or abstract thereof is not signed by a member acting on behalf of the board of assessment appeals after having been examined and corrected by the board of assessment appeals.

(c) A tax laid and imposed in any town, city or borough is not invalid as to the taxpayers of the taxing district as a whole because of any one or more of the errors or omissions listed in subdivisions (1) to (5), inclusive, of this subsection unless an action contesting the validity of the tax is brought within four months after the tax is imposed and the plaintiff establishes that the error or omission will produce a substantial injustice to the taxpayers as a whole:

(1) The abstract of an assessment list was not transmitted to the Secretary of the Office of Policy and Management when required;

(2) The proper authorities voted to levy a tax, but failed to fix the time when such tax should become due, and the tax collector has given notice that the taxes were to become due at a certain time;

(3) A rate bill or a bill for taxes for the collection of any tax was not made under the hands of the proper authority according to law;

(4) The selectmen of any town made their rate bill from an assessment list made and corrected by the assessor and board of assessment appeals and lodged in the town clerk's office and disregarded any illegal alteration in the list made after the list and abstract were completed and lodged in the town clerk's office; or

(5) A mistake, irregularity or omission occurred in any of the steps preparatory to the issuance of a rate bill or bill for taxes for any tax, or in the preparation or issuance of such a rate bill or bill for taxes, or in the warrant for collection thereof, provided such mistake, irregularity or omission is not shown by the taxpayer to have made his or her tax materially greater and that notice of the bill has been given to the taxpayer.

Sec. 2. Section 12-173 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) The collector of each municipality, by pursuing the method authorized by either section 12-174 or 12-175, may continue any tax lien existing against any item of real estate to secure the payment of the tax assessed by such municipality thereon or of any obligation to make a payment in lieu of any such tax, as defined in section 12-171, as such tax has been increased by legal interest, fees and charges, by making out and filing, within the time limited by section 12-174 or 12-175, in the office of the town clerk of the town wherein such real estate is situated, a certificate containing the following information: (1) The name of the person against whom such tax appears in the rate bill; (2) a description of such real estate; (3) the principal of such tax due thereon, the amount of which, with interest, if any, and fees and other charges, is secured by such lien; (4) the date or dates when the principal of such tax became due; and (5) a statement giving notice of his intention to file a lien pursuant to sections 12-172 and 49-73a to 49-73i, inclusive, against the proceeds of any policy of insurance providing coverage for loss or damage caused by fire, if a loss or damage has occurred. The town clerk shall record such certificate in the land records. Any tax lien so continued, when the tax has been paid with interest, fees and charges as provided by law, shall be discharged by a certificate of the then collector of taxes. Such certificate of release shall be delivered by such collector to the town clerk, who shall record it in the land records.

(b) A certificate continuing a tax lien under this section, filed in a timely manner, provides valid notice of the continuance of the lien to a subsequent purchaser or encumbrancer if the recorded certificate is sufficient to place a subsequent purchaser or encumbrancer on notice of the existence and extent of that lien, notwithstanding any error, irregularity or omission in that certificate. A certificate that erroneously states the amount due provides valid notice to a subsequent purchaser or encumbrancer up to the amount stated or the amount actually due, whichever is less.

Sec. 3. Section 47-222 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) All provisions of the declaration and bylaws are severable.

(b) The rule against perpetuities does not apply to defeat any provision of the declaration or of the bylaws, rules or regulations adopted pursuant to subdivision (1) of subsection (a) of section 47-244.

(c) In the event of a conflict between the provisions of the declaration and the bylaws, the declaration prevails except to the extent the declaration is inconsistent with this chapter.

(d) Title to a unit and common elements is not rendered unmarketable or otherwise affected by reason of an insubstantial failure of the declaration to comply with this chapter. Whether a substantial failure impairs marketability is not affected by this chapter.

(e) In any case in which the surveys or plans required pursuant to section 47-228, as identified in the declaration, are not recorded simultaneously with the remainder of the declaration but are recorded thereafter, the failure to record the survey or plans simultaneously with the remainder of the declaration is an insubstantial failure of the declaration to comply with this chapter.

Sec. 4. (NEW) (a) Conveyancing defects. Any deed, mortgage, lease, power of attorney, release, assignment or other instrument made for the purpose of conveying, leasing, mortgaging or affecting any interest in real property in this state recorded after January 1, 1997, which instrument contains any one or more of the following defects or omissions is as valid as if it had been executed without the defect or omission unless an action challenging the validity of that instrument is commenced and a notice of lis pendens is recorded in the land records of the town or towns where the instrument is recorded within two years after the instrument is recorded:

(1) The instrument contains a defective acknowledgment or no acknowledgment;

(2) The instrument is attested by one witness only or by no witnesses;

(3) In the case of a conveyance by a corporation, limited liability company, partnership, limited partnership, or limited liability partnership, or by any other entity authorized to hold and convey title to real property within this state, the instrument designated such entity as the grantor but was signed or acknowledged by an individual in the individual capacity of such person;

(4) The instrument was made to any grantee not recognized by law to have the capacity to take or hold an interest in real property. Validation of an instrument under this subdivision confirms the conveyance to the grantee and any subsequent transfers of the interest by the grantee to any subsequent transferees, their heirs, successors and assigns.

(b) Insubstantial defects. Any deed, mortgage, lease, power of attorney, release, assignment or other instrument made for the purpose of conveying, leasing, mortgaging or affecting any interest in real property in this state recorded after January 1, 1997, which instrument contains any one or more of the following defects or omissions is as valid as if it had been executed without the defect or omission:

(1) The instrument contains an incorrect statement of the date of execution or omits the date of execution;

(2) The instrument contains an execution date or other date that is later than the date of recording;

(3) The instrument transfers an interest in land by reference to a filed map or subdivision plan and the map or plan does not comply with any statutory requirement as to preparation, form, certification, approval or filing;

(4) The instrument conveys an interest in a lot or parcel of land in a subdivision that was not submitted for approval or that was submitted for approval but was not approved;

(5) The record does not disclose the date of recording;

(6) The instrument does not disclose any statutorily required signature of the town clerk;

(7) The instrument does not contain a statement of consideration;

(8) In the case of a conveyance by a corporation, limited liability company, partnership, limited partnership or limited liability partnership, or by any other entity authorized to hold and convey title to real property within this state, the instrument designated such entity as the grantor but fails to disclose the authority of the individual who executes and acknowledges the instrument;

(9) In the case of a committee deed, the judge's approval of the sale incorrectly states or fails to state the date of approval of the sale.

(c) Defect with respect to a power of attorney. Any deed, mortgage, lease, power of attorney, release, assignment or other instrument made for the purpose of conveying, leasing, mortgaging or affecting any interest in real property in this state recorded after January 1, 1997, which instrument is executed pursuant to a recorded power of attorney and contains any one or more of the following defects, is as valid as if it had been executed without the defect unless an action challenging the validity of that instrument is commenced and a notice of lis pendens is recorded in the land records of the town or towns where the instrument is recorded within two years after the instrument is recorded:

(1) The instrument was executed by an attorney-in-fact but was signed or acknowledged by the attorney-in-fact without reference to his or her capacity;

(2) The instrument was executed by an attorney-in-fact but does not reference the power of attorney;

(3) The power of attorney was effective at the time the instrument was executed but is recorded after the instrument is recorded.

(d) Defect where fiduciary conveyed to self. Any deed, mortgage, lease, release, assignment or other instrument made for the purpose of conveying, leasing, mortgaging or affecting any interest in real property in this state recorded after January 1, 1997, which instrument is executed by a fiduciary, but which instrument is voidable because the fiduciary is the grantee, mortgagee, leasee, releasee or assignee designated in such instrument, is as valid as if it had been executed without the defect unless an action is commenced to avoid and set aside such instrument and a notice of lis pendens is recorded in the land records of the town or towns where the instrument is recorded within ten years from the date of recording of such instrument.

(e) Defect with respect to conveyance by fiduciary. Any deed, mortgage, lease, power of attorney, release, assignment or other instrument made for the purpose of conveying, leasing, mortgaging or affecting any interest in real property in this state recorded after January 1, 1997, which instrument was executed by an executor, administrator, guardian, trustee, conservator or other fiduciary pursuant to an order or authorization of the court of probate and which contains any one or more of the following defects, is as valid as if it had been executed without the defect:

(1) The fiduciary failed to post a bond required by the court for the faithful administration and distribution of the proceeds of the sale, provided either (A) the fiduciary has accounted for the proceeds of the sale in an administration account that has been approved and accepted by the court after notice and hearing, and from which order of approval and acceptance no appeal has been taken, or (B) no action challenging the validity of that instrument is commenced and no notice of lis pendens is recorded in the land records of the town or towns where the instrument is recorded within two years after the instrument is recorded;

(2) Required notice of the probate court hearing on the application for an order of sale was not given, provided either (A) the fiduciary has accounted for the proceeds of the sale in an administration account that has been approved and accepted by the court after notice and hearing, and from which order of approval and acceptance no appeal has been taken, or (B) no action challenging the validity of the instrument is commenced and no notice of lis pendens is recorded in the land records of the town or towns where the instrument is recorded within two years after the instrument is recorded;

(3) The fiduciary failed to recite in the instrument the basis of the authority by which the fiduciary acted, provided either (A) an affidavit that complies with section 47-12a of the general statutes, that references the volume, page, and date of the instrument, and that recites the authority pursuant to which the fiduciary executed that instrument is recorded in the land records of the town or towns in which the instrument is recorded, or (B) no action challenging the validity of the instrument is commenced and no notice of lis pendens is recorded in the land records of the town or towns where the instrument is recorded within two years after the instrument is recorded.

(f) Release or assignment of mortgage by out-of-state fiduciary. A release or assignment of a mortgage interest held by a nonresident or deceased nonresident in real property in this state executed by an out-of-state fiduciary shall have the same effect as if executed by a fiduciary of this state notwithstanding that the certificate of appointment and qualification required by section 49-12 of the general statutes has not been filed unless an action contesting the release or assignment is commenced and a notice of lis pendens has been recorded in the land records of the town or towns where such release or assignment is recorded within two years after the instrument is recorded.

Sec. 5. Section 8-8 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) As used in this section:

(1) "Aggrieved person" means a person aggrieved by a decision of a board and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board. In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, "aggrieved person" includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.

(2) "Board" means a municipal zoning commission, planning commission, combined planning and zoning commission, zoning board of appeals or other board or commission the decision of which may be appealed pursuant to this section, or the chief elected official of a municipality, or his designee, in a hearing held pursuant to section 22a-250, whose decision may be appealed.

(b) Except as provided in subsections (c), [and] (d) and (r) of this section and sections 7-147 and 7-147i, any person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsections (e) and (f) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court.

(c) In those situations where the approval of a planning commission must be inferred because of the failure of the commission to act on an application, any aggrieved person may appeal under this section. The appeal shall be taken within twenty days after the expiration of the period prescribed in section 8-26d for action by the commission.

(d) Any person affected by an action of a planning commission taken under section 8-29 may appeal under this section. The appeal shall be taken within thirty days after notice to him of the adoption of a survey, map or plan or the assessment of benefits or damages.

(e) Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality. Service on the chairman or clerk of the board and on the clerk of the municipality shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the chairman or clerk of the board or the clerk of the municipality a necessary party to the appeal.

(f) Service of process shall also be made on each person who petitioned the board in the proceeding, provided his legal rights, duties or privileges were determined therein. However, failure to make service within fifteen days on parties other than the board shall not deprive the court of jurisdiction over the appeal. If service is not made within fifteen days on a party in the proceeding before the board, the court, on motion of the party or the appellant, shall make such orders of notice of the appeal as are reasonably calculated to notify the party not yet served. If the failure to make service causes prejudice to the board or any party, the court, after hearing, may dismiss the appeal or may make such other orders as are necessary to protect the party prejudiced.

(g) The appeal shall state the reasons on which it has been predicated and shall not stay proceedings on the decision appealed from. However, the court to which the appeal is returnable may grant a restraining order, on application, and after notice to the board and cause shown.

(h) The authority issuing a citation in the appeal shall take from the appellant, unless the appellant is an official of the municipality, a bond or recognizance to the board, with surety to prosecute the appeal to effect and comply with the orders and decrees of the court.

(i) Within thirty days after the return date to court, or within any further time the court allows, the board shall transmit the record to the court. The record shall include, without limitation, (1) the original papers acted on by the board and appealed from, or certified copies thereof, (2) a copy of the transcript of the stenographic or sound recording prepared in accordance with section 8-7a, and (3) the written decision of the board including the reasons therefor and a statement of any conditions imposed. By stipulation of all parties to the appeal, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for additional costs. The court may require or permit subsequent corrections or additions to the record.

(j) Any defendant may, at any time after the return date of the appeal, make a motion to dismiss the appeal. If the basis of the motion is a claim that the appellant lacks standing to appeal, the appellant shall have the burden of proving his standing. The court may, on the record, grant or deny the motion. The court's order on the motion may be appealed in the manner provided in subsection (o) of this section.

(k) The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if (1) the record does not contain a complete transcript of the entire proceedings before the board, including all evidence presented to it, pursuant to section 8-7a, or (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal. The court may take the evidence or may appoint a referee or committee to take such evidence as it directs and report the same to the court, with his or its findings of facts and conclusions of law. Any report of a referee or committee shall constitute a part of the proceedings on which the determination of the court shall be made.

(l) The court, after a hearing thereon, may reverse or affirm, wholly or partly, or may modify or revise the decision appealed from. If a particular board action is required by law, the court, on sustaining the appeal, may render a judgment that modifies the board decision or orders the particular board action. In an appeal from an action of a planning commission taken under section 8-29, the court may also reassess any damages or benefits awarded by the commission. Costs shall be allowed against the board if the decision appealed from is reversed, affirmed in part, modified or revised.

(m) Appeals from decisions of the board shall be privileged cases and shall be heard as soon as is practicable unless cause is shown to the contrary.

(n) No appeal taken under subsection (b) of this section shall be withdrawn and no settlement between the parties to any such appeal shall be effective unless and until a hearing has been held before the Superior Court and such court has approved such proposed withdrawal or settlement.

(o) There shall be no right to further review except to the Appellate Court by certification for review, on the vote of two judges of the Appellate Court so to certify and under such other rules as the judges of the Appellate Court establish. The procedure on appeal to the Appellate Court shall, except as otherwise provided herein, be in accordance with the procedures provided by rule or law for the appeal of judgments rendered by the Superior Court unless modified by rule of the judges of the Appellate Court.

(p) The right of a person to appeal a decision of a board to the Superior Court, and the procedure prescribed in this section, shall be liberally interpreted in any case where a strict adherence to these provisions would work surprise or injustice. The appeal shall be considered to be a civil action and, except as otherwise required by this section or the rules of the Superior Court, pleadings may be filed, amended or corrected, and parties may be summoned, substituted or otherwise joined, as provided by the general statutes.

(q) If any appeal has failed to be heard on its merits because of insufficient service or return of the legal process due to unavoidable accident or the default or neglect of the officer to whom it was committed, or the appeal has been otherwise avoided for any matter of form, the appellant shall be allowed an additional fifteen days from determination of that defect to properly take the appeal. The provisions of section 52-592 shall not apply to appeals taken under this section.

(r) In any case in which a board fails to comply with a requirement of a general or special law, ordinance or regulation governing the content, giving, mailing, publishing, filing or recording of any notice either of a hearing or of an action taken by the board, any appeal or action by an aggrieved person to set aside the decision or action taken by the board on the grounds of such noncompliance shall be taken within two years of the date of that decision or action.

Sec. 6. Section 45a-166 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) The Court of Probate in ordering a sale under the provisions of sections 45a-164 to 45a-169, inclusive, and 45a-428 shall direct whether the sale shall be public or private. If a public sale is directed, the court shall direct the notice thereof which shall be given. If a private sale is directed, the court may, if it appears to be for the best interests of the estate, determine the price and the terms of the sale, including purchase money mortgage or mortgages, as it considers reasonable and advisable.

(b) The net proceeds of the sale shall be divided or distributed in the same manner as such real property would have been divided or distributed if it had not been sold.

(c) If a court of probate fails to direct whether the sale is to be public or private as required by subsection (a) of this section and authorizes a sale to be either public or private subject to the discretion of the fiduciary, a sale conducted pursuant to that order is as valid as if the court had not failed to direct whether the sale is to be public or private.

Sec. 7. Notwithstanding any provision of the general statutes, any special act, or the charter of the city of Derby; (1) the vote cast by the electors and voters of the city of Derby at the election of municipal officers held on November 4, 1997, and at the referenda held on said date in said city relating to (A) revisions to the charter of the city of Derby, and (B) an additional appropriation of funds for the wastewater treatment plant and the sanitary sewage system and the authorization of the issuance of bonds, notes, temporary notes and other obligations to defray said appropriation, otherwise valid except for an error in the failure to post or publish notice of said election and referenda, are validated; and (2) all acts, votes and proceedings of the board of aldermen and officers and officials of the city of Derby on or after November 4, 1997, pertaining to and in reliance on such referenda and in reliance on said election of municipal officers, otherwise valid except for such error, are validated.

Sec. 8. This act shall take effect from its passage, except that sections 1 to 6, inclusive, shall take effect July 1, 2000.

Approved June 28, 1999

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