Town of Pownal v. Anderson
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 70
Docket:	Cum-98-644
Argued:	April 5, 1999
Decided:	April 29, 1999


Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.

TOWN OF POWNAL

v.

GEORGE ANDERSON et al.

SAUFLEY, J.

	[¶1]  George and Janice Anderson appeal from an order of the
Superior Court (Cumberland County, Brennan, J.) vacating a judgment of the
District Court (Portland, Beaudoin, J.) and remanding the matter for entry of
judgment in favor of the Town of Pownal in its forcible entry and detainer
action against the Andersons.  On appeal, the Andersons argue that the
Town is not entitled to possession of the properties at issue because it failed
to follow the required procedure for establishing and foreclosing on tax liens
on those properties, and therefore that the Town cannot eject them through
a forcible entry and detainer action.  We affirm in part and vacate in part.

I.  BACKGROUND

	[¶2]  The Town of Pownal filed this forcible entry and detainer action
to eject George and Janice Anderson from properties designated as Lots 44
and 45 on map nine in the Town's tax assessment plans.  The Town claimed
that it had previously established and foreclosed on tax liens on those
properties due to the Andersons' failure to pay the assessed property taxes
in 1992.  In response, the Andersons asserted that the Town had contracted
with the Andersons to reconvey the property to them in exchange for
payment of certain sums.  Alternatively, the Andersons alleged that the
Town made several mistakes in the process of establishing and foreclosing
on its 1992 tax liens and that those mistakes prevented the Town from
acquiring title to the properties, thereby defeating the Town's forcible entry
and detainer action.
	[¶3]  The District Court found that the Andersons failed to prove their
contract claim.  It found in favor of the Andersons, however, on their
allegations regarding defects in the establishment and foreclosure of the tax
liens.  It therefore concluded that the Town was not entitled to immediate
possession of the properties, and it entered judgment in favor of the
Andersons in the Town's forcible entry and detainer action.
	[¶4]  After the District Court denied the Town's ensuing motion to
amend the judgment, the Town appealed to the Superior Court.  The
Superior Court entered an order vacating the judgment of the District Court
and remanding the matter for entry of judgment in favor of the Town.  The
Andersons appeal that judgment to this Court.  They do not challenge the
District Court's finding that no contract existed between the parties
requiring the Town to reconvey the properties to the Andersons.  They ask
us, rather, to vacate the Superior Court's judgment, which set aside the
District Court's determination that the Town did not properly perfect or
foreclose on its tax liens.  Because the Superior Court acted as an
intermediate appellate court, we directly review the decision of the District
Court.  See In re Thomas B., 1998 ME 236, ¶ 2, 719 A.2d 529.  

II.  DISCUSSION

	[¶5]  A forcible entry and detainer action is "'a summary proceeding to
decide who is entitled to the immediate possession of land.'"  Tozier v.
Tozier, 437 A.2d 645, 647 (Me. 1981) (quoting Bicknell Mfg. Co. v. Bennett,
417 A.2d 414, 421 (Me. 1980)).  In this matter, the determination of title is
dispositive of the right to immediate possession.  If the Town failed to
perfect its title through the tax lien process, the Andersons remain entitled
to immediate possession of the property.  If, on the other hand, the Town
properly obtained title through the lien process, the Town is entitled to
immediate possession of the property.
	[¶6]  We will not overturn the District Court's findings of fact unless
they are clearly erroneous.  See White v. Zela, 1997 ME 8, ¶ 3, 687 A.2d
645.  The construction of the tax lien statutes on which the Town bases its
claim of title, however, is a question of law that we review de novo.  See
Coker v. City of Lewiston, 1998 ME 93, ¶ 6, 710 A.2d 909; Franklin
Property Trust v. Foresite, Inc., 438 A.2d 218, 221 (Me. 1981).

A.  Lot 45

	[¶7]  At trial, it was undisputed that George Anderson was the sole
owner of Lot 45.  Janice Anderson did not claim to have any rights of
ownership, recorded or not, to that lot.  The Town filed a tax lien certificate
claiming a lien on Lot 45, which listed George Anderson as the owner of that
property.  George Anderson received the required notice and did not pay
the overdue taxes on the property within the period of redemption.  See 36
M.R.S.A. § 943 (1990).
	[¶8]  Nonetheless, the District Court held that the lien on Lot 45 was
void because the tax lien certificate did not sufficiently identify the property
that was the subject of the lien.{1}  We disagree.  We have adopted a functional
test for determining the sufficiency of property descriptions in recorded
lien certificates.  See Aucella v. Town of Winslow, 564 A.2d 68, 69 (Me.
1989).  Generally, "'the lands must be so described that they can be
identified with reasonable certainty and the descriptions must be certain or
refer to something which can be made certain.'"  Nadeau v. Town of
Oakfield, 572 A.2d 491, 492 (Me. 1990) (quoting Oceanic Hotel Co. v.
Angell, 143 Me. 160, 162 (1948)); see 36 M.R.S.A. § 552 (1990).  
	[¶9]  The lien certificate purporting to establish a tax lien on Lot 45
provided the following description of the property:

MAP 9, PARCEL 45 OF THE ASSESSMENT PLANS, POWNAL,
MAINE, DATED APRIL 1, 1974.  REVISED TO APRIL 1, 1992
DRAWN BY JOHN E. O'DONNELL & ASSOC., AUBURN, MAINE
AND ON FILE AT THE TOWN OFFICE.
DEED RECORDED AND COUNTY REGISTRY OF DEEDS, BOOK
__ PAGE __.

This description sufficiently identified the property at issue.  We have found
similar descriptions sufficient in the past to identify properties with
reasonable certainty.  See Hamm v. Town of Medway, 644 A.2d 1388,
1389­p;90 (Me. 1994); Aucella, 564 A.2d at 68; Davis v. City of Ellsworth, 281
A.2d 138, 139 (Me. 1971).  
	[¶10]  Moreover, neither Janice nor George effectively raised the
sufficiency of the description as a defect in the Town's process.  Indeed, the
parties stipulated to the entry of the Town's tax map into evidence and
agreed that Lots 44 and 45 represented the lots at issue.  The only serious
challenge to the description arose when Janice became confused in her
testimony regarding the properties that the Town's identification of the lots
was challenged.  Janice testified that she left all of the matters pertaining to
the Andersons' real estate holdings in the hands of her husband George. 
Her personal confusion about the deeds and tax map did not render the
Town's description of the property insufficient.  Because the property was
described in a manner that allowed its identification with reasonable
certainty, the Town has complied with its responsibilities. 
	[¶11]  Thus, the description of Lot 45 was sufficient to satisfy the
functional test.  Because the Town complied with the statutory procedure
for establishing and foreclosing on the lien on Lot 45, and therefore
acquired title and an immediate right to possess that property, the Town
was entitled to judgment in its favor in its forcible entry and detainer action
with respect to Lot 45.

B.  Lot 44

	[¶12]  On appeal before the Superior Court, the Town, for the first
time, raised the argument that Janice Anderson was not a record owner of
Lot 44.  The Town now contends that the deed naming George and Janice
Anderson as joint tenants of Lot 44 had not been recorded in the Registry of
Deeds.  The Town, however, failed to make this argument before the District
Court, where neither party disputed that Janice Anderson was a joint owner
of Lot 44.  In fact, in its complaint commencing this action, the Town
actually relied upon the deed it now challenges, and the same deed was
admitted into evidence pursuant to a stipulation, with no question as to
whether it had been properly recorded.  The District Court's finding that
Janice Anderson was a record owner of Lot 44 is, therefore, amply
supported by the record, and we do not disturb that finding on appeal.
	[¶13]  The Andersons assert that the Town failed to comply with
statutory requirements regarding Lot 44 in at least three respects:  First,
they argue that the Town failed to notify Janice Anderson of the filing of the
tax lien; second, they argue that Janice Anderson was not named on the lien
certificate as a joint owner; and third, they again argue that the description
of the property on the tax lien certificate was insufficient to allow the
property to be identified with reasonable certainty.{2}
	[¶14]  This area of law requires careful attention to statutory
requirements by both the Town and the taxpayer.  Just as the taxpayer may
lose her property if she fails to be vigilant in complying with the
requirements, see Fitzgerald v. City of Bangor, 1999 ME 50, ¶ 17, __ A.2d
__, so must the Town strictly adhere to its requirements.  See Dubois v. City
of Saco, 645 A.2d 1125, 1127 (Me. 1994); Blaney v. Inhabitants of
Shapleigh, 455 A.2d 1381, 1387 (Me. 1983); Arsenault v. Inhabitants of
Roxbury, 275 A.2d 598, 599-600 (Me. 1971).  Only if departure from the
statutory requirements is explicitly allowed by statute will such departure be
tolerated.  See Avco Delta Fin. Corp. v. Town of Whitefield, 295 A.2d 921,
924 (Me. 1972).  
	[¶15]  Here the District Court held that the purported lien was void
because the Town failed to mail Janice Anderson a copy of the lien
certificate on Lot 44, as required by 36 M.R.S.A. § 942.  The Town responds
that it was not required to provide Janice Anderson with a true copy of the
lien certificate on Lot 44, citing 36 M.R.S.A. § 555, which provides:

	A tenant in common or a joint tenant may be considered
sole owner for the purposes of taxation, unless he notifies the
assessors what his interest is.

36 M.R.S.A. § 555 (1990).  The Town contends that it was permitted by
section 555 to consider only one joint tenant--George Anderson--as sole
owner of the property for purposes of establishing and foreclosing on its
claimed tax lien.  This argument, however, mistakes the import of section
555, which merely permits a municipality, in certain circumstances, to
assess property taxes to one joint tenant and to hold him solely responsible
for the payment of those taxes.  It does not speak to the procedure for
enforcing a lien on the property when taxes are delinquent.  Section 555
therefore cannot be used as support for the proposition that a municipality
may ignore the rights of an owner of record when it establishes or forecloses
on a tax lien on the property.
	[¶16]  On the contrary, if a municipality has not assessed property
taxes to a joint tenant who is a record owner, 36 M.R.S.A. § 942 plainly
requires the Town to inform that joint tenant that a tax lien is claimed on
her property.  That statute, which sets forth the requirements for
establishing a valid tax lien, provides:

If the real estate has not been assessed to its record owner, the
tax collector shall send by certified mail, return receipt
requested, a true copy of the tax lien certificate to the record
owner.

36 M.R.S.A. § 942 (Supp. 1998).  Because Lot 44 had not been assessed to
Janice Anderson by the Town, the Town had an obligation under section
942 to mail her a copy of the lien certificate before a valid lien on Lot 44
could be established.  See Blaney, 455 A.2d at 1387.  The District Court
therefore correctly held that section 942 applied to the Town.
	[¶17]  The Town's failure to fulfill this obligation, however, was not
necessarily fatal to the establishment of its claimed tax lien.  When a
municipality has failed to provide a record owner with the required lien
certificate, but the record owner has actual knowledge of the claimed lien,
the following statutory provision applies:

	After the expiration of the 18-month period for
redemption, [which follows the filing of the lien certificate,] . . . 
the owner of record if the said real estate has not been assessed
to him . . . shall, in the event the notice provided for . . . said
owner has not been given as provided in section 942, have the
right to redeem the said real estate within 3 months after
receiving actual knowledge of the recording of the tax lien
certificate by payment or tender of the amount of the tax lien
mortgage, together with interest and costs.

36 M.R.S.A. § 943 (1990) (emphasis added).  The plain implication of this
language is that, when the record owner has actual knowledge that the
Town has claimed a tax lien by filing a lien certificate at the Registry of
Deeds, the Town's failure to mail the record owner a copy of the lien
certificate does not render the claimed lien void.  See Avco Delta, 295 A.2d
at 926-27.  Because the District Court found that Janice Anderson had actual
knowledge of the lien certificate for Lot 44 that was mailed to George
Anderson, the Town's failure to mail Janice a copy of the lien certificate was
not fatal to the establishment of the lien on Lot 44.{3}
	[¶18]  The Andersons argue, however, that even if the purported lien
on Lot 44 was not void because of the Town's failure to mail a copy of the
lien certificate to Janice Anderson, the lien was nonetheless void because
Janice Anderson was not listed as a record owner on the face of the lien
certificate itself.  We agree.
	[¶19]  In Cary v. Town of Harrington, 534 A.2d 355 (Me. 1987), we
held that, to establish a valid tax lien on real property, the tax lien
certificate must contain the name of the property's record owner.  See id. at
358 (finding this requirement implicit in 36 M.R.S.A. §§ 942 & 943).{4}  We
have therefore held a tax lien invalid where the lien certificate incorrectly
referred to the record owner of the property as "Cary Campbell" instead of
"Campbell Cary," and suggested that "[a]lthough actual knowledge on the
part of Cary, if established, might [have] satisf[ied] the requirements of
notice, it would not [have] demonstrate[d] compliance with the recording
requirements."  See id.
	[¶20]  Here, although the Town's failure to send a true copy of the tax
lien certificate to Janice Anderson did not result in the failure of the tax lien
on Lot 44, the absence of Janice Anderson's name on the lien certificate did
render the purported lien invalid.{5}  The failure to properly name a record
owner of the property on the tax lien certificate rendered the lien void even
when that unnamed owner had actual knowledge of the lien's existence. 
See id. at 358.  Although the Town argues that the lien would have been
found under George's name in a title search, the lien naming only George
would be insufficient to put a title examiner on notice that Janice
Anderson's interest in Lot 44 was encumbered by the lien.  Thus, despite
the fact that Janice Anderson had actual knowledge of the tax lien, we hold
that the purported lien on Lot 44 was void.
	[¶21]  We therefore vacate the judgment of the Superior Court with
respect to Lot 44 and affirm the judgment of the Superior Court with
respect to Lot 45.
	The entry is
	Remanded to the Superior Court for
remand to the District Court for entry of
forcible entry and detainer in favor of the
Town of Pownal as to Lot 45 and entry of
judgment in favor of George and Janice
Anderson as to Lot 44.
 Attorney for plaintiff:

John F. Shepard Jr., Esq., (orally)
Shepard & Shepard
P O Box 208
Freeport, ME 04032

Attorney for defendants:

John W. Conway, Esq., (orally)
Linnell, Choate & Webber
P O Box 190
Auburn, ME 04212

FOOTNOTES******************************** {1} . The District Court's precise holding as to Lot 45 was made clear after the entry of judgment, when the Town requested further findings of fact and conclusions of law. The court found that it was "unable to determine which portions of lots 44 & 45 on the Pownal tax maps are owned only by George Anderson and which portions are owned by George & Janice Anderson." {2} . As we did with respect to the lien certificate purporting to establish a lien on Lot 45, we hold that the description of the property contained in the lien certificate for Lot 44 was sufficient to identify the property with reasonable certainty. See Hamm, 644 A.2d at 1389-90; Aucella, 564 A.2d at 68; Davis, 281 A.2d at 139. {3} . The record does not reflect any attempt by Janice Anderson to redeem Lot 44 within the extended period of redemption allowed under 36 M.R.S.A. § 943. {4} . One reason for this requirement is that "Maine's recording system . . . indexes transfers of property, including tax lien mortgages, alphabetically by the names of the grantor and grantee." Cary, 534 A.2d at 358. See generally 33 M.R.S.A. §§ 651-670 (1999) (Records and Recording). {5} . The Town did not assert on appeal that it had separately perfected its lien against George as to Lot 44. Therefore, we do not reach the question whether a defect in the process as to only one joint owner may allow a municipality to proceed against the other owner who has been properly named and notified. See Blaney, 455 A.2d at 1387 (holding that a municipality's failure to provide one joint tenant with a true copy of a recorded lien certificate was fatal to the establishment of a tax lien on both joint tenants' interests in the property). But see Szelenyi v. Miller, 564 A.2d 768, 770 (Me. 1989) (holding that a lien created by a judgment against one joint tenant only attaches to that tenant's interest in the jointly-owned property).