Attorney General Opinion No.

Kansas Attorney General Reports·Decided June 18, 1996·Published

Opinion

Alan F. Alderson Special Counsel for Haskell County 2101 S.W. 21st Street Topeka, Kansas 66604-3174

Dear Mr. Alderson:

On behalf of the Haskell county treasurer, you request our opinion regarding the effect of the 1995 amendments to K.S.A. 79-2401a on the county treasurer's ability to accept partial payment of delinquent real estate taxes after the county has bid off the property pursuant to K.S.A. 79-2306.

K.S.A. 1995 Supp. 79-2401a states in part:

"(a)(1) Except as provided by paragraph (2) and subsection (b), real estate bid off by the county for both delinquent taxes and special assessments, as defined by subsection (c), shall be held by the county until the expiration of two years from the date of the sale, subject only to the right of redemption as provided by this section. Any owner or holder of the record title, the owner's or holder's heirs, devisees, executors, administrators, assigns or any mortgagee or the owner's or holder's assigns may redeem the real estate sold in the sale at any time within two years after the sale by paying to the county treasurer the amount for which the real estate was sold plus the interest accrued, all delinquent taxes and special assessments and interest thereon that have accrued after the date of such sale which remain unpaid as of the date of redemption and costs and expenses of the sale and redemption, including but not limited to, abstracting costs incurred in anticipation of a tax sale." (Emphasis denotes 1995 amendment, L. 1995, ch. 254, § 7.)

The same amendment was made in paragraph (2) of subsection (a) dealing with abandoned buildings or structures and the land accommodating such buildings or structures. Subsection (b) provides a different redemption period for homestead property and allows for partial redemption of such property.

K.S.A. 1995 Supp. 79-2024 specifically authorizes county treasurers to accept partial payment of delinquent real estate taxes in accordance with payment guidelines established by the county treasurer, "[n]otwithstanding any other provision to the contrary." This statute was not amended or repealed by the 1995 legislature.

Attorney General Opinion No. 94-122 concluded that K.S.A. 1995 Supp.79-2024 could be read consistently with the redemption and foreclosure provisions of K.S.A. 79-2801 et seq. and that, therefore, K.S.A. 1995 Supp. 79-2024 did not repeal the provisions of K.S.A. 79-2801 et seq. by implication.

"In our opinion, effect may be given both K.S.A. 79-2803 and new section 2 [now K.S.A. 1995 Supp. 79-2024] so that there is no implied repeal. Section 2 authorizes acceptance of partial payment of taxes at any time after they become delinquent. However, while partial payment may be accepted even after the filing of the petition, the acceptance of that payment will not operate to delay the sale; payment of the taxes, interest, penalties and costs must be made in full in order to stay further proceedings. There is no language in new section 2 to demand a contrary result. Further, while partial payment may be accepted after the county bids off the property pursuant to K.S.A. 1993 Supp. 79-2401a, acceptance of such payments would not operate to extend the redemption period except as specifically provided by subsection (b) of that statute." Attorney General Opinion No. 94-122 at 2.

The 1995 amendments to K.S.A. 79-2401a do not appear to alter this conclusion, and based on the analysis used in Opinion No. 94-122, do not repeal the provisions of K.S.A. 1995 Supp. 79-2024 by implication. Thus, county treasurers may accept partial payment of delinquent real estate taxes, but redemption must be made in full prior to the day of the judicial foreclosure sale in order to stay such proceedings.

You note that new paragraph (2) of subsection (b) of K.S.A. 1995 Supp.79-2401a may cause the statute to be non-uniform and thus subject to county home rule under K.S.A. 19-101b. However, the provisions of K.S.A. 1995 Supp. 79-2801 and K.S.A. 79-2803, dealing with the time and procedure for foreclosure absent full redemption, are uniform. Chartering out of K.S.A. 1995 Supp. 79-2401a alone would not be sufficient to allow the county to avoid the judicial foreclosure provisions.

In conclusion, K.S.A. 1995 Supp. 79-2401a(a)(1) does not preclude acceptance of partial payment on delinquent real estate taxes by the county treasurer, however, such taxes must be paid in full prior to the time for foreclosure established in K.S.A. 79-2801 et seq. to stay further proceedings under that act.

Very truly yours,

CARLA J. STOVALL Attorney General of Kansas

Julene L. Miller Deputy Attorney General

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Alan F. Alderson Special Counsel for Haskell County 2101 S.W. 21st Street Topeka, Kansas 66604-3174

Dear Mr. Alderson:

K.S.A. 1995 Supp. 79-2401a states in part:

"(a)(1) Except as provided by paragraph (2) and subsection (b), real estate bid off by the county for both delinquent taxes and special assessments, as defined by subsection (c), shall be held by the county until the expiration of two years from the date of the sale, subject only to the right of redemption as provided by this section. Any owner or holder of the record title, the owner's or holder's heirs, devisees, executors, administrators, assigns or any mortgagee or the owner's or holder's assigns may redeem the real estate sold in the sale at any time within two years after the sale by paying to the county treasurer the amount for which the real estate was sold plus the interest accrued, all delinquent taxes and special assessments and interest thereon that have accrued after the date of such sale which remain unpaid as of the date of redemption and costs and expenses of the sale and redemption, including but not limited to, abstracting costs incurred in anticipation of a tax sale." (Emphasis denotes 1995 amendment, L. 1995, ch. 254, § 7.)

"In our opinion, effect may be given both K.S.A. 79-2803 and new section 2 [now K.S.A. 1995 Supp. 79-2024] so that there is no implied repeal. Section 2 authorizes acceptance of partial payment of taxes at any time after they become delinquent. However, while partial payment may be accepted even after the filing of the petition, the acceptance of that payment will not operate to delay the sale; payment of the taxes, interest, penalties and costs must be made in full in order to stay further proceedings. There is no language in new section 2 to demand a contrary result. Further, while partial payment may be accepted after the county bids off the property pursuant to K.S.A. 1993 Supp. 79-2401a, acceptance of such payments would not operate to extend the redemption period except as specifically provided by subsection (b) of that statute." Attorney General Opinion No. 94-122 at 2.