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Tax Foreclosure Sales: What Notice Is Due?

BY Stewart E. Sterk, Esq.
April 01, 2003

To what extent does the increasing availability of information change statutory or constitutional obligations to provide notice of tax foreclosure proceedings? In Kennedy v. Mossafa (infra, page '), decided last month, the Court of Appeals did not recognize any significant change in law, despite the greater ease with which a municipality makes efforts to locate absent property owners. Whether intervening technological advances, or the Supreme Court, will bring changes to this area of law remains to be seen.

The basic problem is simple. A landowner fails to pay taxes. The municipality seeks to foreclose. What efforts must the municipality make to apprise the owner of the foreclosure proceedings? Historically, courts treated notice by publication as adequate, because the proceeding was “in rem“. The Supreme Court's opinion in Mennonite Board of Missions v. Adams, 462 US 791, together with the Court of Appeals' opinion in McCann v. Scaduto, 71 NY2d 164, marked the end of the traditional approach. As the Court of Appeals put it in holding unconstitutional an already repealed “notice by publication” scheme, “where the interest of a property owner will be substantially affected by an act of government, and where the owner's name and address are known, due process requires that actual notice be given.” McCann v. Scaduto, 71 NY2d at 176. Actual notice, in this context, means notice “by letter.” Id. at 178.

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