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Court of Appeals affirms judgment in tax lien case preserving client’s mineral rights

In a recent case decided by the Colorado Court of Appeals, and argued by Fred Skillern, the court affirmed the trial judge’s ruling in our client’s favor that a tax deed issued to a surface owner of land for which our client owned a portion of the underlying mineral rights was both voidable and void for failure to give proper notice to all owners of the mineral rights in question. The opinion of the court in Sandstrom v. Solen et al., 2016 COA 29, attempts to explain and to clarify the difference between tax deeds that are void, under the definition of set out in a recent Colorado Supreme Court case, and tax deeds that are merely voidable. It holds that a tax deed issued despite the failure of the County Treasurer to give notice to all known owners of the property being sold, or to make diligent inquiry to identify and locate all such owners, is only voidable, but can be held to be void (i.e. invalid) in an appropriate case brought within the statute of limitations. In such a case the Treasurer is acting in its proper capacity and has “jurisdiction,” which is the factor that makes a tax deed “void,” but exercises its jurisdiction improperly, allowing a court to rule that the “voidable” deed is invalid. Bottom line – when all tenants in common to the mineral rights in question do not get notice of the pending issuance of a tax deed, the deed is invalid if a timely claim is made, and redemption by any cotenant is a redemption on behalf of all. As a practice point – if the deed is arguably “voidable,” the legal action must be brought within the applicable five-year statute of limitations. If the deed is void because the Treasurer had no jurisdiction, by contrast, the five-year statute does not apply.

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