Smith v. Cliffs on the Bay Condominium Ass'n

573 N.W.2d 296, 226 Mich. App. 245
CourtMichigan Court of Appeals
DecidedOctober 31, 1997
DocketDocket No. 199498
StatusPublished
Cited by4 cases

This text of 573 N.W.2d 296 (Smith v. Cliffs on the Bay Condominium Ass'n) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Cliffs on the Bay Condominium Ass'n, 573 N.W.2d 296, 226 Mich. App. 245 (Mich. Ct. App. 1997).

Opinion

O’Connell, J.

Plaintiffs and defendant each claimed ownership of a particular piece of property. Plaintiffs filed suit to quiet title, seeking a declaration that they were the sole owners of the property. Defendant counterclaimed, seeking a declaration that it was the sole owner of the property. The circuit court granted plaintiffs’ motion for summary disposition with respect to the complaint and simultaneously dismissed defendant’s counterclaim. Defendant now appeals as of right. With respect to the complaint, we reverse the order of the court granting summary disposition in favor of plaintiffs and, pursuant to MCR 2.116(I)(2), grant summary disposition in favor of defendant. With respect to the counterclaim, we vacate the dismissal.

In July 1972, defendant recorded a deed for a large parcel of land that is now the site of defendant’s condominium project. In October 1973, defendant received by quitclaim deed a smaller, adjacent parcel of land, this parcel being the object of the present controversy.

[248]*248Defendant, apparently, dutifully paid the property taxes assessed with respect to the large parcel. However, defendant maintained below that it was not aware of the conveyance of the small parcel until many years later, believing this property to be part of the overall condominium project. Accordingly, defendant presumed that taxes paid on the large parcel also covered the small parcel. Although separate taxes had been assessed against the small parcel, defendant had received no separate tax notices and admittedly submitted no separate payment with respect to the taxes assessed against this distinct parcel. Consequently, the small parcel was deeded to the state in 1981 pursuant to § 67a of the General Property Tax Act, MCL 211.67a; MSA 7.112(1).

Defendant raised no objection to the proceedings that resulted in the state taking title or to the proceedings that followed that resulted in the plaintiffs taking title because defendant had never been notified that any proceeding had been initiated. In March 1982, the Michigan Department of Treasury attempted to notify defendant by certified mail that a hearing concerning the small parcel would be conducted in the near future. The Department of Treasury sent this notice of hearing to its last known address of record. However, defendant, a corporation, had changed addresses several times during the intervening years, submitting its new address on each occasion to the Corporation and Securities Bureau. The notice of hearing was returned by the post office as “Not Deliverable as Addressed.” The Department of Treasury took no further measure in attempting to contact defendant, but did record the notice with the Washte-naw County Register of Deeds.

[249]*249In 1987, the state conveyed the small parcel to plaintiffs. By 1991, defendant had become aware of the confusion surrounding the small parcel, and soon filed an affidavit of interest in the small parcel. In 1996, plaintiffs commenced the present action, seeking a declaration that they were the true owners of the small parcel. Defendant counterclaimed, seeking an identical declaration in its own favor. Upon plaintiffs’ motion for summary disposition, the circuit court concluded that the statutory notice requirements had been satisfied because the notice of hearing had been sent by certified mail to defendant’s last known address and had been recorded with the register of deeds. Accordingly, the court granted summary disposition in favor of plaintiffs pursuant to MCR 2.116(C)(10) and dismissed defendant’s counterclaim. Defendant now appeals as of right. Our review is de novo. Pinckney Community Schools v Continental Casualty Co, 213 Mich App 521, 525; 540 NW2d 748 (1996).

Defendant argues that the trial court erred in granting summary disposition in favor of plaintiffs where defendant had no actual notice of taxes due and where the notice of hearing regarding the disposition of defendant’s property was sent to an outdated address.

The Due Process Clause, US Const, Am XTV; Const 1963, art 1, § 17, requires that an owner of a significant interest in property be given “proper notice” and an opportunity for a hearing before the state may take the property for nonpayment of taxes. Dow v Michigan, 396 Mich 192, 196; 240 NW2d 450 (1976). Defendant, as legal titleholder to the property, undoubtedly had a significant interest in the property [250]*250within the meaning of the Due Process Clause. As such, defendant was entitled to receive proper notice of the sale of the property in question.

The notice requirements for tax lien foreclosures in Michigan are set forth in the General Property Tax Act. MCL 211.1 et seq., MSA 7.1 et seq. 1 Proceedings to foreclose a tax lien are commenced when a petition is filed with the circuit court for the county in which the delinquent tax land is situated. MCL 211.61; MSA 7.105. Notice must be sent to each person who, according to the county treasurer of each county in which a petition is filed, has an interest in the land. MCL 211.61a(l); MSA 7.106(1). The county treasurer shall mail the notice “by first-class mail, address correction requested, to each person, directed to his or her last known post office address with postage fully prepaid,” at least thirty days prior to the sale. MCL 211.61a(2); MSA 7.106(2). If the notice is forwarded or returned as undeliverable, the county treasurer must send to the street address of the parcel of property a notice indicating that the property will be sold. MCL 211.61b(3)(b); MSA 7.106(l)(3)(b). While failure of actual notice does not necessarily invalidate tax sale proceedings, MCL 211.61a(5); MSA 7.106(5), the state must exert reasonable efforts to provide notice. Dow, supra at 211.

Notice of delinquent taxes and notice by publication are not sufficient to satisfy due process requirements. Mennonite Bd of Missions v Adams, 462 US [251]*251791, 799-800; 103 S Ct 2706; 77 L Ed 2d 180 (1983). Instead, notice by mail “or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party ... if its name and address are reasonably ascertainable.” Id. at 800. In Dow, supra at 205-206, quoting Mullane v Central Hanover Bank & Trust Co, 339 US 306, 314; 70 S Ct 652; 94 L Ed 2d 865 (1950), the Court held that “ ‘[a]n elementary and fundamental requirement of due process in the proceeding which is to be accorded finality is notice reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” The Court determined that notice by mail is adequate if “directed at an address reasonably calculated to reach the person entitled to notice.” Dow, supra at 211. The Court noted: “Such would be the efforts one desirous of actually informing another might reasonably employ. If the state exerts reasonable efforts, then failure to effectuate actual notice would not preclude foreclosure of the statutory lien and indefeasible vesting of title on expiration of the redemption period.” Id.

In the present case, defendant did not receive notice sufficient to satisfy due process concerns. Plaintiffs do not contend that defendant received actual notice, but assert that the attempts to notify defendant of the pending proceedings were sufficient.

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Related

Smith v. Cliffs on the Bay Condominium Ass'n
626 N.W.2d 905 (Michigan Court of Appeals, 2001)
Smith v. Cliffs on the Bay Condominium Ass'n
617 N.W.2d 536 (Michigan Supreme Court, 2000)
Smith v. CLIFFS CONDO. ASS'N.
573 N.W.2d 296 (Michigan Court of Appeals, 1998)

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Bluebook (online)
573 N.W.2d 296, 226 Mich. App. 245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-cliffs-on-the-bay-condominium-assn-michctapp-1997.