Recently I took possession of a tax deed property in Etowah County, Alabama. The locks were changed, no trespassing signs were posted with my contact info and cleanup is underway.
The structure needs repairs to prevent further weather damage.
Denise Evans informed me to file an ejectment action to ensure my possession is legal. However, this is the advice of a local attorney:
"Thanks for your inquiry. You don't need any ejectment action if it has been empty for 5 years. Take possession and make repairs. After possession for 3 years you can do a quiet title action, which will cost about $1500, assuming nobody contests it."
How do I legally protect my investment? I hope to live there one day and must ensure any repair costs will be reimbursed if an heir redeems the property.
@Bonnie Moore , I think you received bad advice from the local attorney. You can take DIY possession only if the property is legally abandoned. I am not aware of any statute or Supreme Court decision that says property vacant for five years is considered legally abandoned.
There are horrific consequences if you engage in DIY possession and a court later determines that you entered illegally. You could lose the property, the right to be paid for improvements, the right to be paid for taxes and interest, and you could be sued. A vacant property is not an abandoned property. If you will send me the name of the attorney in a PM, I will be happy to call and talk with them and hopefully reconcile this so they see the importance of an ejectment lawsuit and can help you out. The pricing is about right, though.
@Bonnie Moore Hi. What did you find out? Thanks!
Any Attorney who actually work with and are successful with tax deeds, quite title, ejectment suites?
After speaking to another attorney, I was told to provide the name(s) of the owner or heirs to proceed with ejectment. However, there was no will filed with Probate to provide this info. I was informed adverse possession was a possible option. So, we are only keeping the vegetation cut back at this point.
@Denise Evans . re: "I think you received bad advice from the local attorney. You can take DIY possession only if the property is legally abandoned. I am not aware of any statute or Supreme Court decision that says property vacant for five years is considered legally abandoned."
Denise, thank you sincerely for the many clear and insightful posts and replies you've made about Alabama Tax Sale Certificates and Redemption Rights. It is not surprising or rare to receive bad advice from an attorney. This blog post cites an example: https://www.biggerpockets.com/member-blogs/12388/86731-abandoned-real-estate-legalities-there-are-two-sides-to-every-story
I am in WA (a tax Deed State), so Alabama's system is much different, but I follow US laws governing "legally abandoned" real property with considerable interest. I would like to read any Alabama (or other state) court rulings defining "legally abandoned" real estate. Would you be willing to send a link or reference to me regarding any court cases you are aware of or come across in the future that define or refer to definitions of real property abandonment?
The Judicial definition of owner abandonment is important to me because I've taken over nearly 1 dozen parcels of WA real estate which I personally believe have been "legally abandoned" by the owners of record. There are sure to be more in the future. The above blog of my activities has been started to relate my efforts.
My current understanding of WA law is that real property is 'legally abandoned" when the property owner expressly abandons all his/her interest, or has implicitly abandoned the property when all of the following facts can be established: the owner has made no use of the property for several years; the owner failed to pay the mortgage or liens or property taxes for several years; the owner has done no maintenance for several years; the owner has failed to maintain contact information with the mortgage holder, lien holder, county treasurer, governing jurisdiction, and the local utility providers; and the owner (or his/her heirs) can not be located through diligent efforts.
I am preparing to argue that in WA, a real property owner's abandonment is "legally implicit" when these facts can be proven by clear, cogent and convincing evidence. Unfortunately, I have not found a WA judicial decision which specifically defines abandonment of real property. My belief that implicit abandonment of Real Property can be recognized as a matter of law is untested. The concept of implicit abandonment is supported by judicial rules for interpreting statutes which require giving effect to the legislative language. The WA legislature has written real estate abandonment into several statutes. In those statutes, facts sufficient that any reasonable person would conclude the property has been abandoned
appear to be relied upon.
Any links to court cases that you become aware of will be much appreciated. Thank you.
Quinnelly v City of Prichard, 292 Ala. 178, 291 So.2d 295 (1974) regarding necessity of intent as an element of abandonment.
Tensaw Land & Timber Co. v. Rivers, 244 Ala. 657, 15 So.2d 411 (1943) was a case that expanded judicial redemption rights to include taxpayers who are only in constructive possession. It held: “A suit to oust one in constructive possession when no one is in actual possession is as necessary as a suit against one in the actual possession.”
"Abandonment is the relinquishing of a right or interest with the intention of never again claiming it." L&N Enters., LLC v Lioce Props, LLP, 51 So.3d 273 (Ala. 2010)
Abandonment implies a voluntary act. Rowland v. Landiga’s Heirs, 21 Ala. 9 (1852)
Abandonment is a jury question. Buck v. Louisville & N. R. Co., 159 Ala. 305, 48 So. 699 (1909)
Temporary failure to maintain property is not an abandonment unless coupled with intention. Hughes v. Anderson, 79 Ala. 209 (1885)
@Davido Davido , I forgot to tag you. See my response above.
Thank you Denise Evans! Those cases will be very helpful and are Much appreciated.
@Denise Evans thanks for sharing those cases on abandonment. I read a couple of the cases and still feel like I’m walking on eggshells with my recent tax certificate purchase. The city ‘declared’ the property abandoned and a nuisance and notified the bank (2nd mortgage was taken out and foreclosed) of its intent to demolish the property. Since the bank did not respond and failed to pay the taxes; could this be used as clear evidence of abandonment?
there are no doors so entering is fair game and the city agreed to remove it from their scheduled demo list with the stipulation that I pull permit and show progress of restoration within 45 days of it being inspected by the city.
As for as redeeming, since the bank took ownership due to the foreclosure does this remove all owners or heirs and place the redemption onus Solely on the bank with a 3 yr period or a 1 yr period?
I want to make sure 1) no illegal possession claim is thrown at me if I make improvements and 2) set things up properly for a quiet title suit once the tax deed is received.
@Tai Bhattad , it requires a conversation. Too much to write, too many add'l questions to ask. Call me.