Barment notice can contain “variable” deadline to redeem

 A typical problem in barring the right to redeem a tax deed is how to set the Deadline.  The tax deed holder sets the Deadline in advance when the notice is drafted and sent to be published.  But the tax deed holder cannot guarantee that all interested parties will receive the barment notice before the deadline.

A conservative reading of the statutes also implied that there could be only one deadline date for redemption.  O.C.G.A. 48-4-45 refers to “the redemption deadline date specified in the notice” which implies a singular actual date.  The form of the notice in O.C.G.A. 48-4-46(a) provides blanks for a singular date, providing: “…will expire and be forever foreclosed and barred on and after the ___day of ___, _______.”  The tax deed holder was required in O.C.G.A. 48-4-46(b) to send the notice to the Sheriff at least “45 days before the date set in each notice”

However, in practice, this creates a problem because a given person or entity entitled to notice might not receive their notice in sufficient time before the deadline.  Therefore, some law firms tried to solve this problem with a “savings clause” that would give a party additional time after the hard-and-fast deadline, if they didn’t receive the notice in time.  However, this method was not expressly countenanced by the notice statute or prior case law, and indeed was arguably counter to the notice requirement of having a single “the date” specified.

The Georgia Supreme Court, however, has now approved of this ‘variable deadline’ method.  The Court reviewed a challenge to a barment procedure in which “the notices allowed an interested party to redeem the subject property by July 1, 2015 or forty-five days after legal service of the notice, whichever was later.” Mancuso v. TDGA, LLC, ___ Ga. ___, 802 S.E.2d 248, 250–51 (Ga. 2017).  In Mancuso, the tax deed holder re-sent notice to the challenger in August of 2015, which was after the barment date of July 1, 2015.  But the Court held that the tax deed holder “complied with the required notice procedure” because the challenger “still had forty-five days to exercise his right of redemption after receiving the notice TDGA re-sent in August 2015.”

Thus, there is no reason to ‘start from scratch’ with all new notices and a new advertisement, just because one recipient does not get served in time.  Notices may be sent which include this ‘variable’ deadline in them to account for the risk that not all notices are received in a timely manner.

Also note that a party only has the right to complain about the notice of a tax sale given to them, and has no standing to complain about the notice of a tax sale (or lack thereof) to a different party. See GE Capital Mortg. Servs., Inc. v. Clack, 271 Ga. 82, 83, 515 S.E.2d 619, 621 (1999).