Bailey, J.
Case Summary
David L. Jenner and Vickie Jenner (“the Jenners”) appeal the trial court’s judgment in favor of Crown Castle South, LLC (“Crown Castle”), which declared the Jenners’ tax deed to certain real property void. The Jenners raise three issues for our review, which we consolidate and restate as whether the trial court abused its discretion when it granted Crown Castle’s motion for relief from judgment under Trial Rule 60(B) and found the Jenners’ tax deed void for lack of statutory compliance.
We affirm.
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Here, Crown Castle sought relief from judgment—namely, the trial court’s order granting the Jenners a tax deed—on the basis that it had not been served with notice of the Jenners’ request for the tax deed as required by our tax sale statutes. The trial court concluded that the Jenners’ notices were not in substantial compliance with the statute because no notice of the Jenners’ petition for a tax deed had been given to Crown Castle. The court found that Crown Castle’s interest in the property had been recorded and was available for inspection, and that Crown Castle’s interest in the leasehold was further made clear through the placement of signs on the property. Thus, the court reasoned, the tax deed was void because the Jenners did not comply with the requirements of Indiana Code section 6-1.1-25-4.5 for notice prior to the issuance of a tax deed. The court also concluded that the Jenners had been placed on additional notice of the existence of Crown Castle’s interest because of language on a sign that Crown Castle had placed on a fence on the property. The sign requested that parties with inquiries regarding leases or other matters contact Crown Castle, and provided contact information.
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Thus, a tax-sale purchaser is not only not a bona fide purchaser for value, the tax-sale purchaser has not acquired any kind of title at all by paying the redemption amount due at the tax sale. Rather, the right obtained through a tax sale is to engage in legal proceedings that might result in obtaining a tax deed to the land. Those proceedings might also result in a full or partial refund of the money paid at the tax sale if a competing interest holder redeems the property. I.C. §§ 6-1.1-25-4.6(h) & (i). Or, if the notice requirements of the statute are not satisfied, the proceedings may result in the tax-sale purchaser losing both the opportunity to obtain a tax deed and the money paid at the tax-sale. I.C. § 6-1.1-25-4.6(j) (providing that “the court shall not order the return of the purchase price or any part of the purchase price if: (1) the purchaser of the certificate of sale … has failed to provide notice or has provided insufficient notice as required by section 4.5 of this chapter” where the sale is otherwise valid).
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The plain language of the notice provisions of the tax-sale statutes is dispositive here. The notice provisions make clear that the Jenners were required to provide notice to Crown Castle: notice must be provided to any person who holds a substantial interest of public record. See I.C. § 6-1.1-25-4.5(a). The statute makes no provision for bona fide purchaser treatment of a tax deed petitioner, and makes no allowance for the failure of a tax-sale purchaser to find a recorded interest that lies outside the chain of title. Nor does the statute contemplate a hierarchy of recorded interests, such that some property interests are somehow “more” or “really” recorded and thus deserving of notice, whereas others are not. See I.C. § 6-1.1-24-1.9.
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Yet the General Assembly did not use “chain of title” in the tax-sale statute. The Legislature crafted the statute to require that tax sale purchasers provide notice to any person with a substantial, publicly recorded interest as that is defined in Section 6-1.1-24-1.9. This requirement reflects the very different status of a tax-sale purchaser vis-à-vis a bona fide purchaser for value, is consonant with the speculative nature of the market created by the tax-sale statutory scheme, and comports with Indiana law holding forfeiture in disfavor.
The Jenners note that a requirement of notice to any person with a substantial interest in the property of public record places a significant burden upon tax-sale purchasers: if notice must be provided to any person with a substantial property interest of public record whether the person’s interest lies inside or outside the chain of title, then tax-sale purchasers must search every document in the recorder’s office to be sure that they had provided notice to every person with a recorded interest. Yet a tax-sale purchase is a gamble, and, given the ante i.e. the low purchase price at a tax sale—often just pennies on the dollar relative to the fair market value of a subject property—the Legislature balanced the tax-sale purchaser’s investment against the risk of a forfeiture by the existing interest holders. The Legislature thus intended to impose a greater burden upon tax-sale purchasers, thereby safeguarding to a significant degree existing property owners’ rights to their land. Requiring a tax-sale purchaser to search outside the chain of title—even if it means searching thousands of records in the county recorder’s office—is one of the safeguards created by the statute.
Accordingly, there was no abuse of discretion in the trial court’s conclusion that the statute required the Jenners’ tax deed be declared void, and thus there was no error in the trial court’s decision to grant Crown Castle’s motion to set aside the judgment.
The plain language of the tax-sale statute is sufficient on its own to resolve this appeal. But because the trial court also held that the Jenners were on inquiry notice of Crown Castle’s interest, a matter that seems likely to recur in future litigation, this facet of the trial court’s order will also be addressed.
The Jenners contend that the trial court abused its discretion when it found that they were on inquiry notice, by virtue of a sign posted on a fence surrounding the cellular tower on the property, of Crown Castle’s recorded interest in the property. The trial court erred on this point, because holding that the Jenners were somehow required to make a personal, visual inspection of the land runs counter to the provisions of the tax-sale statute.
Conclusion
Because Crown Castle satisfied the statutory definition of a person with a substantial interest of public record in the property, it was entitled to notice under our tax-sale statutes, and the trial court did not err when it concluded that the Jenners’ failure to provide notice of their tax-deed petition required that the tax deed be declared void. There is, however, no requirement for inspection inherent in the statute, and thus the trial court erred when it concluded that the Jenners were on inquiry notice of Crown Castle’s interest. The trial court did not abuse its discretion when it granted Crown Castle’s motion for relief from judgment with respect to the issuance of the Jenners’ tax deed.
Affirmed. Vaidik, C.J., concurring in result with separate opinion.
Robb, J., dissenting with separate opinion.
Vaidik, Chief Judge, concurring in result.
I join Judge Bailey in voting to affirm the trial court’s decision, but I respectfully disagree with his interpretation of Indiana Code sections 6-1.1-25- 4.5 and -4.6.
Those statutes require a tax-sale purchaser seeking a tax deed to provide notice to “the owner of record at the time of the sale and any person with a substantial property interest of public record in the tract or item of real property.” Judge Bailey reads this language to require notice to any person who has recorded an interest in the subject property, even if the interest is recorded “outside the chain of title” and the only way for the tax-sale purchaser to discover the interest at the recorder’s office is to “search every document” in the office. Slip op. at 15 (emphasis added). He concludes that this is a “safeguard” for existing property owners, intentionally created by the General Assembly. Id. I cannot agree.
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Robb, Judge, dissenting.
I agree with Judge Bailey that the sign posted on the property did not put the Jenners on inquiry notice of Crown Castle’s interest and therefore I agree the Jenners’ tax deed is not void on this basis.3 See slip op. at ¶ 35. For this reason, it is necessary for me to consider whether the Jenners gave the appropriate notice of their tax sale purchase, and on that point, I disagree with Judge Bailey that the Jenners’ failure to uncover Crown Castle’s interest and provide it notice defeats their tax deed.
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There will likely be some time in the future when the records in every county will be on equal footing and even documents recorded outside the chain of title will reliably and easily be available to tax sale purchasers. Until such time, however, I do not believe the Legislature intended what Judge Bailey’s opinion says – that even when a title company does not find a recorded interest, an average citizen is nonetheless expected to in order to procure a tax deed. Therefore, I disagree with the ultimate conclusion of the majority—reached through different means, but nonetheless agreeing on the outcome—that the trial court should be affirmed and the tax deed set aside.
I would reverse the trial court’s judgment granting Crown Castle’s motion for relief from judgment.