Tax-Acquired Property: Eviction Not Necessary

Training for: Legal Notes

(Reprinted from the March 2009 Maine Townsman Legal Notes.)

Question: Are we legally required to evict the occupants of tax-acquired property before we sell it?

Answer: No. In fact, we generally advise against initiating forcible entry and detainer (eviction) proceedings unless the occupants are committing “waste” (damage) or the property is to be retained and converted to municipal use. There is simply no reason, legal or otherwise, in most cases to forcibly vacate the premises. If the property is to be sold, it should be sold “as is,” with the burden of dealing with the occupants falling to the buyer.

There are in fact some good reasons not to forcibly vacate tax-acquired property. For one, a municipality can be held liable for a tax-acquired building vacated by its former occupants after 60 days (see “Municipal Liability for Tax-Acquired Property,” Maine Townsman, Legal Notes, August-September 2008). As long as the building remains occupied, however, the municipality cannot be held liable.

For another, occupants of tax-acquired property may (not surprisingly) have insufficient resources to relocate, so if evicted, they may be entitled to municipal general assistance (GA). Unless they apply and are GA-eligible, though, a municipality has no obligation to relocate or otherwise assist them.

While we do not recommend eviction in most cases, we also do not recommend that a municipality try to collect rent or exercise custody or control over the premises while occupied. Such actions would likely be construed as establishing a landlord-tenant relationship, with all the attendant liabilities falling to the municipality. Instead, we advise that occupants of tax-acquired property be allowed to remain “at sufferance” (tolerated, but without express consent) unless, again, they are committing waste or the property is to be converted to municipal use.

For much more on tax-acquired property, see our “Information Packet” on the subject at www.memun.org. (By R.P.F.)

(Reprinted from the March 2009 Maine Townsman Legal Notes.)

Question: Are we legally required to evict the occupants of tax-acquired property before we sell it?

Answer: No. In fact, we generally advise against initiating forcible entry and detainer (eviction) proceedings unless the occupants are committing “waste” (damage) or the property is to be retained and converted to municipal use. There is simply no reason, legal or otherwise, in most cases to forcibly vacate the premises. If the property is to be sold, it should be sold “as is,” with the burden of dealing with the occupants falling to the buyer.

There are in fact some good reasons not to forcibly vacate tax-acquired property. For one, a municipality can be held liable for a tax-acquired building vacated by its former occupants after 60 days (see “Municipal Liability for Tax-Acquired Property,” Maine Townsman, Legal Notes, August-September 2008). As long as the building remains occupied, however, the municipality cannot be held liable.

For another, occupants of tax-acquired property may (not surprisingly) have insufficient resources to relocate, so if evicted, they may be entitled to municipal general assistance (GA). Unless they apply and are GA-eligible, though, a municipality has no obligation to relocate or otherwise assist them.

While we do not recommend eviction in most cases, we also do not recommend that a municipality try to collect rent or exercise custody or control over the premises while occupied. Such actions would likely be construed as establishing a landlord-tenant relationship, with all the attendant liabilities falling to the municipality. Instead, we advise that occupants of tax-acquired property be allowed to remain “at sufferance” (tolerated, but without express consent) unless, again, they are committing waste or the property is to be converted to municipal use.

For much more on tax-acquired property, see our “Information Packet” on the subject at www.memun.org. (By R.P.F.)