Topic:
LAW ENFORCEMENT OFFICERS; LITIGATION; LIENS; PROPERTY TAX; STATE MARSHALS; REAL ESTATE; FORECLOSURE;
Location:
MUNICIPAL FINANCE; STATE MARSHALS; TAXES - PROPERTY;

OLR Research Report


September 10, 2008

 

2008-R-0518

STATE MARSHALS AND SELLING RESIDENTIAL REAL ESTATE FOR DELINQUENT TAXES

By: Christopher Reinhart, Senior Attorney

You asked how a municipality can sell residential real estate for delinquent taxes, how state marshals are involved, and what fees state marshals receive. You also asked about constables and whether they can perform the same role as state marshals in this process.

SUMMARY

Municipal tax collectors have a number of options to collect delinquent taxes on residential real property that could result in selling the property to collect the taxes. These include (1) liens, which can be foreclosed; (2) selling the tax delinquent property at a tax sale; and (3) issuing a tax warrant or alias tax warrant, which allows sale of the property at a tax sale. Under the statutes, tax collectors also have the option of collecting delinquent taxes by assigning liens or initiating a lawsuit.

When an alias tax warrant is issued to a state marshal, the state marshal is entitled to 15% of the taxes collected under the warrant and other expenses as allowed by law. The amount a taxpayer owes under the warrant is not just the amount due on the tax but includes interest on the delinquent portion of the principal due at a rate of 18% per year from the time the tax is due until it is paid (CGS 12-146). The state marshal's 15% fee is calculated on the entire amount the taxpayer owes.

When a lien is foreclosed or a tax collector conducts a tax sale, a state marshal may be involved in serving papers (such as notices on the property owner and other interested parties) or performing other functions but the state marshal does not collect a 15% fee as with an alias tax warrant.

Constables could perform the same functions and receive the same fees as state marshals in these proceedings. Constables are elected or appointed municipal officials. Elected constables are usually responsible for serving civil process and tax warrants and carrying out other civil duties (similar to state marshals) while appointed constables have law enforcement functions. Constables have the power in their town to serve and execute all lawful process legally directed to them and are liable for any neglect or unfaithfulness in their office (CGS 7-89). The alias tax warrant statute specifically authorizes constables to serve these warrants.

ALIAS TAX WARRANTS

After making a demand for unpaid taxes, a tax collector can issue an alias tax warrant to a state marshal or constable. The alias tax warrant commands the officer to collect the tax, interest, penalty, and charges from the taxpayer. The officer can garnish the taxpayer's wages or collect funds from a bank account or the taxpayer's goods or real estate (CGS 12-162). If the officer levies on real estate, the property is sold under the procedures for a tax sale (see below, CGS 12-157).

The tax collector's fee for issuing an alias tax warrant is $6 (CGS 12-140). An officer serving an alias tax warrant is entitled to collect the fees allowed by law for serving executions issued by a court. A state marshal or constable who executes a warrant and collects delinquent municipal taxes receives, in addition to expenses otherwise allowed, 15% of the taxes collected under the warrant or a $30 minimum (CGS 12-162, 52-261).

The amount a taxpayer owes is not just the amount due on the tax but includes interest on the delinquent portion of the principal of any tax due at a rate of 18% per year from the time it is due until it is paid (CGS 12-146). This is the amount put into the alias tax warrant and the state marshal's 15% is calculated on this amount.

If a state marshal performs some other functions, such as publishing advertisements or conducting title searches, he or she could also be separately reimbursed for costs.

TAX SALE

A tax collector who levies a tax warrant on real estate must provide a number of notices including posting a notice, filing a notice with the town clerk, and sending notice by certified mail return receipt requested to the taxpayer and others with a recorded interest in the property that would be affected. This must occur between nine and 12 weeks before the sale and constitutes a legal levy of the warrant on the real estate. The collector must publish notice in a newspaper (the law provides the timing and details of the notice). The collector must also send at least two additional notices by certified mail return receipt requested to the same people as listed above: the first between five and eight weeks before the sale and the second between two and four weeks before the sale.

The tax collector can (1) sell the real property to the highest bidder at public auction to pay the taxes, interest, fees, and charges allowed by law (including the tax collector's fees listed below) or (2) sell the real property to the municipality if there is no bidder or the bid does not pay the amount due.

If the tax collector uses an auctioneer, clerks, or others to assist in conducting the sale, the cost of their services is added to the taxes due.

After the sale, there is a redemption period during which the property can be redeemed before all interests in the property are extinguished.

A municipality that receives money above taxes, interest, fees, and costs, must deposit it in court (the law sets the procedure for parties to claim the money) (CGS 12-157).

Tax Collector's Fees

The tax collector's fees for a levy and sale are:

1. for real property, 20 cents;

2. for each notice posted, filed, published, or mailed as required by law, 25 cents;

3. for each mile of travel from the collector's residence to the farthest point where he or she is legally required to take a notice (and return once), 20 cents;

4. for sale of real property, $4;

5. for each deed or bill of sale, $2; and

6. all other reasonable and necessary costs or expenses for necessary advertising; postage on notices; and reasonable sums paid town clerks or others for examining records to ascertain encumbrances on property, preparing notices, drafting collector's deeds, attorney's fees, costs incurred by the municipality in defending a civil action resulting from a tax sale or an alias tax warrant or seeking to enjoin or declare one unlawful, auctioneer services, clerks, others retained to assist in conducting the tax sale, and any other fees and expenses incurred.

All fees and additions must be paid by the delinquent taxpayer or as provided in the tax sale statute (CGS 12-140).

FORECLOSING MUNICIPAL TAX LIENS

A person's interest in real estate is subject to a lien for taxes due on that property and the lien can by increased by interest, fees, and charges. The lien can be enforced by levy and sale of real estate. Sale of real estate for taxes or foreclosure of a lien does not divest the estate sold of any existing lien for other taxes (CGS 12-172). The law includes provisions on continuing the lien and deferring collection.

The tax collector can bring a suit to foreclose a tax lien (CGS 12-181). The law provides specific details on the petition to file with the court clerk, court appointed appraisers, publication and notice, and the right of redemption (CGS 12-183 to -189). The law also provides for a summary foreclosure procedure when the tax collector judges that the property's fair market value is less than the total amount due on the tax liens and other encumbrances on the property and is no more than $100,000 (CGS 12-182).

In addition to the tax due, interest, fees, and other charges, the municipality can collect court costs, reasonable appraiser's fees, and reasonable attorney's fees from the person with title to the property being foreclosed and the municipality can collect these once the foreclosure action is brought (CGS 12-193).

Assignment of Liens

The law permits towns, cities, and boroughs to assign their tax liens to third parties. The municipality's legislative body must exercise this authority by resolution and may do so for any and all liens. Payment for the assignment is a matter of negotiation between the municipality and the assignee. The assignee has the same powers and rights as the municipality and its tax collector with regard to the lien's priority interest and collection fees. The assignee also has the same rights to enforce the lien on any private lienholder (CGS 12-195h).

COLLECTION BY LAWSUIT

Taxes are a debt due from the person or corporation against whom they are assessed and can be recovered in a lawsuit in the name of the community, in addition to other remedies provided by law (CGS 12-161).

SERVICE OF PROCESS FEES BY STATE MARSHALS AND CONSTABLES (CGS 52-261)

A state marshal or constable who serves process or a summons or attachment receives a fee of up to $30 for each process served and an additional $30 for second and subsequent service of the process, except the fee is $10 for each subsequent service at the same address. The officer also receives mileage at the rate set by the Department of Administrative Services for state employees for each mile of travel from the place where the officer received the process to the place of service and to the place of return (service of multiple process on the same person at the same time is charged as only one service).

Each officer or person who serves process also receives the money actually paid for town clerk fees on the service of process.

CONSTABLES

Unless a special act or charter provides otherwise, towns can (1) elect constables or (2) appoint constables under an ordinance authorizing the town's chief executive authority to make the appointments (CGS 9-185). Unless another law provides otherwise, towns can elect up to seven constables, except for Groton which can elect 14 constables (CGS 9-200).

Elected constables are usually responsible for serving civil process and tax warrants and carrying out other civil duties (similar to state marshals) while appointed constables have law enforcement functions. The statutes specifically provide that elected constables are not peace officers under the warrantless arrest statute unless the town in which the constable holds office passes an ordinance providing that constables are peace officers for these purposes (CGS 54-1f). Constables who perform criminal law enforcement duties are considered “peace officers” for purposes of the penal code (CGS 53a-3(9)). Appointed constables who perform criminal law enforcement duties are considered police officers for purposes of the municipal police training laws (CGS 7-294a).

Several laws specify duties that constables may perform. Some of these do not specify whether they apply to elected or appointed constables. But it seems likely that some would only apply to law enforcement constables. Table 1 lists laws authorizing constables to perform certain duties and identifies the other specified officials who can also perform them.

Table 1: Laws Specifying Duties That Can Be Performed By Constables or Other Specified Officials

Duty

Statute Section

Other Officials Authorized to Perform Duty

Service of process

52-50

State marshals, other proper officers authorized by statute, or “indifferent persons”

Mechanics liens

49-35a

State marshals

Prejudgment remedies

52-278c

State marshals

Attachments

52-325a

State marshals

Post judgment procedures

52-350(a)(12)

State marshals and any investigator employed by the social services commissioner

Redevelopment agency compensation notices

8-129

State marshals or indifferent persons

Appeals from certain probate court rulings: service on a conserved person or someone who is subject to a petition for conservatorship

45a-116

State marshals or indifferent persons

Service on respondent of notice of application for a temporary conservator

45a-654

State marshals or indifferent persons

Implement probate court orders to take possession of decedents estates

45a-316

State marshals

Probate court notices to respondents in sterilization cases

45a-693

State marshals or indifferent persons

Probate court notices for conservatorship or guardianship hearings for people with mental retardation

45a-649 and -671

State marshals or indifferent persons

Tax collection

12-135 and -162

Other officers authorized to serve civil process

Distrait (seizure) orders against property of delinquent lottery sales agents

12-569

State marshals or collection agents

Table 1: -Continued-

Duty

Statute Section

Other Officials Authorized to Perform Duty

Cooperation with federal Agricultural Department for eradication of specific animal diseases

22-286 and -326b

Law enforcement officials

Attending Superior Court transactions

51-30

Judicial marshals or chief court administrator messengers

Notices of special or reconvened General Assembly sessions

2-7

State marshals, state police, or indifferent persons

Preventing elections disorders

9-230

Police chiefs

Prohibiting specific activities at elections

9-236

Police officers

Assisting judges investigating campaign finance violations

9-346b

State and local police officers

Dealing with abandoned motor vehicles

14-151

State marshals

Enforcing motor vehicle theft and recovery laws

14-152 and -197

Police officers

Enforcing other motor vehicle laws

14-224, -225, and -226

Police officers

Enforcing snowmobile and all terrain vehicle laws

14-386

State and local police, state park and forest police, and forest rangers

Taking custody of abandoned aircraft

15-76

Transportation department employees and state and local police

Taking custody of delinquent children

17a-8

Department of Children and Families officers and any officer authorize to serve criminal process

Regulating highway and water nuisances

19a-335 and -340

No other officials authorized

Carrying out hazardous waste vehicle forfeiture

22a-250a

State or local police, state marshals, or person designated by the environmental protection commissioner

Enforcing various dog and animal control laws

22-367

State, regional, and local animal control officers

Taking custody of military court witness who refuses to appear

27-189

State marshals

CR:ts