A delinquent tax sale must be set aside where the statutory notice was not posted in a “conspicuous” place as required by Subsection 12-51-40(c), the South Carolina Supreme Court has ruled, declaring the sale invalid.
Alvetta Massenberg inherited a 2.54-acre tract of undeveloped land near the rural community of Alcolu in Clarendon County in 1997. The densely forested property is shaped like a triangle, with two sides relevant to the case.
The first side faces a two-lane paved secondary road known as Plowden Mill Road, with lanes marked by a double-yellow center line and shoulders wide and clear of vegetation. A one-lane dirt road known as Robert Rees Durant Road faces the second side, with little shoulder area and surrounding vegetation that crowds the one lane of travel.
Massenberg paid taxes related to the property through 2015 but failed to pay for 2016.
The Clarendon County treasurer issued a “tax execution” directing that the delinquent tax collector collect $221.27 in delinquent taxes and nonpayment penalties.
To satisfy Section 12-51-40 of the state code, the tax collector sent a “notice of delinquent property taxes” by regular mail to Massenberg’s permanent address in Charlotte, North Carolina, and a second notice by certified mail when the taxes remained unpaid 30 days later.
The tax collector then turned to 12-51-40(c), which requires the tax collector to “take exclusive physical possession of the property … by posting a notice at one or more conspicuous places on the premises.”
The tax collector hired a private contractor — Palmetto Posting Inc. — but provided no guidance, information or instruction about the posting requirement.
A representative of Palmetto stapled a single “Notice of Levy” to a tree facing the one-lane dirt road.
When the taxes remained unpaid, the property was advertised for sale at public auction and sold to Blacktop Ventures LLC, which paid all outstanding taxes. A tax deed conveyed the property to Blacktop.
Massenberg learned that her property had been sold and filed an action to set aside the tax sale, alleging the tax collector failed to post the Notice of Levy in a conspicuous place as required by Subsection 12-51-40(c).
The master-in-equity held a hearing and denied the motion to set aside the tax sale. The Court of Appeals affirmed, and Massenberg filed a petition for a writ of certiorari.
In an opinion authored by Justice John Cannon Few, the state’s highest court reversed.
The purpose of 12-51-40 is for the protection of the taxpayer against surprise or the sacrifice of his property, the court said, emphasizing that tax sales must be conducted in strict compliance with statutory requirements and that the failure to give required notice is a fundamental defect which renders the proceedings absolutely void.
No question existed as to whether the Notice of Levy was posted on Massenberg’s property, so the court focused on the narrow issue of whether it was posted in a “conspicuous” place.
The court began with an observation that whether the notice was posted in a “conspicuous” place is inherently context dependent, which “turns on the nature and location of the property, the condition of the surrounding areas, and, of course, the placement of the notice.”
“Thus, the question before us is not whether we would have posted the notice in a different place, nor whether some other place would have been better, but rather only whether the tax collector posted the notice in a place that was conspicuous,” the court explained.
In the case at hand, it was “critical” that the Clarendon County tax collector “exercised no judgment whatsoever,” the court said. “Rather, she entrusted the responsibility set forth in subsection 12-51-40(c) to a private contractor, giving that contractor no information, instruction, or guidance before the contractor carried out his work, and no review of his work after he carried it out. There is, in fact, not a shred of evidence that the contractor even knew of the ‘conspicuous place’ requirement.”
The Notice of Levy — a single printer-sized sheet of paper — was posted to a tree facing the significantly less-traveled dirt road on a tree “indistinguishable from the surrounding woods,” the court said, with the sides of the dirt road crowded by unmaintained foliage and shrubbery that restricted a passerby’s ability to see the posting at an angle and “nothing … done to draw attention to the area where the notice was posted — or to the notice itself.”
“When analyzing the location of the Notice of Levy in the context of the general layout of Massenberg’s property, it becomes clear that the notice was not posted in a conspicuous place,” the court concluded. “The contractor — with no explanation — chose to post the Notice of Levy to a tree facing the dirt road on the back side, as if the person was trying to make the posting inconspicuous.”
As the tax collector failed to post the notice in a conspicuous place as required by Subsection 12-51-40(c), she failed to take exclusive physical possession of the property, and the tax sale was invalid.
Chief Justice John W. Kittredge filed a separate opinion, concurring in the result.
Neither Charleston attorney John M. Bleeker, Jr., who represented Massenberg, nor William H. Johnson of Johnson DuRant in Manning, who represented Clarendon County and the related entities, responded to a request for comment.
The case is Massenberg v. Clarendon County Treasurer, No. 2023-000098.