----- Message from "David Erickson" <Dave.Erickson@lawiowa.com> on Mon, 1 May 2006 06:26:24 -0600 -----

To:	<realestate@iabar.org>
Subject:	Jones vs. Flowers

Dean Arthur Gaudio spoke at the Drake Law School Real Estate Seminar in
March of 2006 regarding the Jones v. Flowers case.  I asked him to
comment on the decision rendered last week and attached are his
comments.  Thanks David Erickson

Some of the concerns that I raised when I gave the talk in Des Moines
on the then-not-yet-decided Jones v. Flowers case have come about.
However, the decision did not go as far as my worst case scenario.  The
Court did not require phone book and internet searches with a mailing to
all of the potential owners who have the same name as the landowner.
       Basically the Court requires that when a tax sale notice is
returned unclaimed the state must take additional steps, when
reasonable, to provide notice to the owner of the land.  Although the
Court did go on to describe specific notices that the state could
provide, those notices were really by way of example under the facts of
the case.  The state's obligation is not limited to them; the Court's
standard is quite open ended and can vary with the facts.
       What it required (suggested) in the specific case, which should
be noted in all real estate tax sales, is that after (and only after) a
certified letter is returned unclaimed, then the further steps might
include notice by regular mail (so that a signature is not required),
notice posted on the property itself, or notice mailed to the
"occupant."  
       As to the Iowa tax sale statutes, there are two (actually three)
provisions.  The first deals with the notice by the taxing authority
prior to the tax sale and that notice need only be sent by regular mail
and published (446.9).  The second deals with notice of the termination
of the right of redemption and that notice must be sent by certified
mail and regular mail by the purchaser at the tax sale (447.9)
       I could go on at length (but won't) to discuss whether the first
notice and not the latter involves state action (since the purchaser
usually is not governmental).  My concern is that one could argue that
the taxing authority must give the full notice, at least that is the
context in which the Court is speaking.  Nevertheless, the combination
of notices required in both sections is substantially what the Supreme
Court listed.  (I'll point out again that there may also be notice from
possession, as now provided in 448.15 &.16.)  Just to cover all possible
issues, it would be a further good step to post the notice of sale on
the property itself prior to the time of the tax sale.
       What concerns me, as I said, is the open-ended nature of the new
standard - reasonable additional steps.  No statute can lay that out for
all cases.  The tax sale official must use her or his good judgment and
think about whether there is any additional step that should be taken
such as checking the phone book for a name that is unique (but not a
common one like Jones, as in the case), or looking for other real estate
owned by the same person in the county, etc.
       As to whether it applies to probate notices and landlord tenant
notices, I think that the safe approach is to so treat it.  Again, there
may be questions about whether those involve state action, but I
wouldn't rely on it unless I had to do so.  However, I would comment
that the new notification requirement is more of a problem in mass
notifications such as tax sales, where the time and cost is potentially
huge!  Landlord tenant situations seem to me to have a very good answer
- post on the door (the tenant is very likely to see it) as well as
perform any other notice required by statute.  The probate situation
could be a difficult one, after all that's more or less what Mullane v.
Central Hanover Bank was about.  But I guess I would follow the same
procedure - if the notice is returned unclaimed, then send by regular
mail, send to occupant, post on the property (may not be helpful), and
use good judgment for other possible notices.
Art

***********************************
Arthur R. Gaudio
Dean & Professor of Law
Western New England College
School of Law
agaudio@law.wnec.edu
***********************************

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----- Message from "MARK HANSON" <hanson@whitfieldlaw.com> on Thu, 27 Apr 2006 12:42:14 -0600 -----

To:	<JRobison@allenvernon.com>, <realestate@iabar.org>
Subject:	Re: Constitutional Case regarding mailed notice, Jones v.Flowers, No. 04-1477 (U.S.S.C. April 26, 2006)

My initial reading of the introduction is that the court was concerned in the instance because of the state being the actor, and taking the individual's home.  The state had a heightened requirement when it received information the certified mail was returned unclaimed.  Action required once the state received that information would depend on the nature of the information.  The court noted approval for first class mail, and posting, and rejected requirement to do a search for the individual.  

Mark Hanson

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