Dishin' Dirt on "Are you committing professional malpractice? Probably so". TAX SALES/TAX DEEDS

TAX DEEDS/TAX SALES. When real estate is hot, investors turn to purchasing property at tax sale. However, selling property that was purchased from a tax sale is very difficult. If you represent a seller or buyer of tax property you may be committing professional malpractice in the manner you handle the transaction. Erica Lybrand of Blair Cato Pickren Casterline joins me today to discuss tax sales, tax deeds, issues facing real estate agents in their representation of a tax deed sellers and buyers and how to correct tax deed matters.  

Also, Taylor Oxendine, Co-Executive Officer of the Central Carolina REALTORs Association joins me to discuss how the Association is helping real estate agents. Of course we will end the show with a great episode of Gary's Good News Only!

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* Gary serves on the South Carolina Real Estate Commission as a Commissioner. The opinions expressed herein are his opinions and are not necessarily the opinions of the SC Real Estate Commission. This podcast is not to be considered legal advice. Please consult an attorney in your jurisdiction for applicable legal advice germane to your issue.

Transcript

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This is deshon dirt with Gary pequin South Carolina's only podcast dedicated to the real estate agents craft. Hey guys, welcome back to another episode edition dirt. I am your highly trained host Gary picker. Good Thursday morning to you and a very Merry Christmas as we are now sitting just a week away from Christmas Eve. Hopefully this will be our last holiday that gets majorly screwed by COVID. Now this will be my last show of 2020 next to Thursdays are Christmas Eve and New Year's Eve. My next podcast will come out on January 7. Now that does not mean that you can't catch up on our earlier podcast episodes such as the escalation clause wholesaling, knowing when it's time to get help to grow your business and things of that nature. I think this is our 10th ninth or 10th episode. So that gives you several hours why you are bored, hanging out with your family, listen to the same old stories, want to throw on some headphones and listen to our podcast. So hope you have some time over the holiday season to do that. Now on this week's show. We are going to examine how real estate agents should be handling a salary purchase of a piece of property when there is a tax deed involved. So we're going to be looking at tax sales do's and don'ts. My guests will be Blair Cato is attorney in charge of our title department, Erica Lybrand. So she'll be joining us in just a few minutes. And we'll have a new monthly segment called around the block with realtors. And this is where Taylor Oxendine of the Central Carolina realtors Association will be joining me to talk about what realtors association is doing to protect you the agent. And of course, Gary's good news only. And this one is so chock full of vaccine information because we've got lots of good information about what's going on with the vaccine. Now if you'd like our show, I'd ask you to please share us and subscribe to us. Most importantly, please for this to as many real estate agents in South Carolina as you can, so that we can continue to offer you guys great content. Now my first segment today is all about tax deeds. And because real estate is booming in South Carolina, right now, investors are out in droves, trying to do wholesaling, and buying tax sale properties and foreclosure properties and so forth. Now, my very first podcast I ever deal did dealt with wholesaling, and all of the issues that you need to be aware of as a real estate agent. What today's problem, what we're going to talk about is going to be tax sale properties. Now, almost universally, real estate agents, in my opinion, are committing professional malpractice when they represent investors selling property that has tax deeds involved. And the reason I say that is because in the many years and I've been doing this for 26 years, I can't even remember a single contract being drafted properly with a real estate agent. When the property was being sold that had been received from a tax sale, there are a lot of things that need to be changed in that contract. If the seller of the property only has a tax deed. Now if you are committing malpractice in this nature, you could subject yourself to lawsuits LLR grievances, as well as realtor ethics claims. The law does state that you may not practice real estate and competently. And I believe that this does set you up for a claim of incompetence. Because I can tell you these contracts are not being handled properly. guest today, as I said is Erica law brand. Erica is in charge of our title department. She has extensive experience in tax sales and quieting title. And so she's going to share that with us here today. So welcome to dition dirt with Gary picker and Erica. Thanks for having me, Gary. It's been a while. Alright, well, let's go ahead and jump in. Before we set this. I want to set the stage before we go over problems that real estate agents are encountering in the drafting of the contract, which I do think is a problem for them. Once you go and explain to everyone what a tax deed is and how a tax sale comes about and what the tax process is. Sure. So the tax deed is a procedure that was created through statute in South Carolina and what it results from his a failure to pay the real estate taxes on the property. You can also have a tax sale on a mobile home if the mobile home has not been D titled so if the taxes weren't paid on the mobile home that could also result in a tax sale. And basically what happens is if the taxes are unpaid by about April, most tax bills are due about January 15 of the year. If they're unpaid by April, the tax collector will start the process for a tax sale and we'll send the taxpayer multiple notices to let them know that if they don't pay within a certain period of time, they'll then have their property sold at a tax sale after about six to eight months. If the taxes remain unpaid. The tax collector will then sell the property at the tax sale. The purchaser will be given a bill of sale essentially but not a deed at that time. They have to wait about a year so the taxpayer who did not pay their taxes has a year to redeem their property from that tax sale so they'd have to pay the total amount of Taxes plus interest and other fees. And then if they do not redeem their property within a year, then the tax collector will issue a deed to the winning bidder from the tax sale the year prior. So it's about a year's process, more almost two years process from the time that the tax bill is owed from the point in which the deed is issued by the tax collector. And then there's another full year after that before what we call the statute of limitations expires on a tax sale. So that means that people who just want to come in and challenge the tax sale wouldn't be able to do that after that statute of limitations expired. And what are some reasons they challenge, they would challenge it for things like they didn't get proper notice or notice was sent to the wrong people or the taxes were in fact paid and weren't properly assessed against the property, things of that nature. So what I've seen in these tax sales is that there's five different notifications throughout the process of the tax sale that they have to provide to the tax payer. And the statute is very clear that those have to be provided. And not only do they have to be provided to the property, they have to be provided to the actual Individual Taxpayer. So if the county does not do the tax notices correctly, then the tax defaulting defaulting taxpayer can come back and say, I didn't receive notice number three, so therefore your tax sales invalid and set the whole thing aside, and they have to start over. Correct, correct. Yeah. And so that's actually what we call a jurisdictional issue, which may even survive the statute of limitations, meaning that even after the statute limitations passes, if the county did not do what they were supposed to do, and providing the required notices to either to the defaulting taxpayer or to a mortgagee or a lien holder on the mobile home, there's a potential for that tax sale to be set aside, even after that two year period. So let's now talk about when real estate agents represent a seller where the seller just got the property through a tax deed. I think a lot of agents from my years of experience of looking at these contracts are committing professional malpractice. So tell us what are the issues that the agents are doing wrong that could put them in risk of being sued or have a grievance filed against them? Sure, sure. So the first thing you need to know is that the county when it issues the deed, the tax deed, they do not provide any implied or affirmative covenants with respect to title quantity, the encumbrances, anything like that, which means that your person, your seller, cannot give a warranty deed and cannot provide marketable title. And so when your contract that you put together for your seller says will provide marketable title or will provide a mark and warranty deed, then you're going to be essentially committing professional malpractice by having your seller sign that contract, right. And so the ccra, as well as the state contract call for the seller to provide marketable title. And all of them say that the seller will provide a general warranty deed. So if you're using the realtor form contracts, and you are not changing general warranty deed, or you're not changing marketable title, you've committed your seller to something they cannot do without filing a lawsuit, essentially, to fix. And so when these things fall through, oftentimes the buyer has no knowledge of the tax sale. And when the closing attorney finds out, hey, this property came from a tax sale, they don't have good title. I've seen where the buyer says we'll sell or you've agreed to fix it, because you've agreed to give me marketable title. And you've agreed to give me general warranty deed. And of course, the investor who's bought the property from tax sale has no intention of doing any of that. And so now they've signed contracts, that the real estate agent has presented them. And I think that becomes a big issue for sure. So what other issues are we looking at when somebody is trying to sell property through a tax deed. And so in order to sell property, with marketable title, and or with a warranty deed, the seller will actually have to take some affirmative steps in curing that tax sale, essentially, in the chain of title. So what we're getting at here is that because I own the property through a tax deed, and I'm trying to sell it to you, any liens, judgments, mortgages that are outstanding, any other unpaid taxes, whether it's federal taxes or whatever, those are liens against the property, and the tax sale, in that process didn't clear any of that. Well, in some cases it would. So if it's a mortgage, and that was on the property, and the taxing authority, being the county or whoever it was, has sent the required notices to the mortgage company as part of that tax sale, that mortgage could be considered what we would say wiped out through the tax sale. Now they're still entitled to notice to the extent you're trying to clear title so if you file Quiet title action or something of that nature, you still have to notify the mortgage company. But any other outstanding liens or judgments that were on title at the time of the tax sale that did not receive notice from the taxing authority, those would still remain on title and your person would have taken title subject to those liens. And from my experience, looking at these I rarely see that notice is provided to the judgment holders, including more rarely seen provide notice to mortgage lien holders is correct, which means it's invalid, and it doesn't wipe it out. So the other issue I've seen too, is that title insurance companies won't provide title insurance coverage over any issues with tax lien. In fact, they will take what's called an exception to anything with a tax deed saying that anything that's happened as a result of this tax deed is wrong, we have no knowledge of and we're not going to give you any title insurance. And so if you're a lender, I haven't found a lender in South Carolina, or quite frankly, the whole country that's willing to do alone, when you take an exception to a title deed, a tax deed. Not only will you not your seller, not have marketable title, but there, they will also not be able to provide insurable title. So this isn't something that we can just set aside and move on, the buyer would actually have to agree to essentially accept title without any warranties, or assurances that they'll actually be able to maintain ownership of the property. So even if the buyer says I'm fine with it, I want to go ahead with the loan, the lenders typically going to say no, right? Because there's no insurance that can be provided to the lender, the lender is not going to want to make a loan on property that they may not have an actual interest in for the collateral purposes. So when we talk about the issues that a buyer has, when they're trying to buy a property where the seller has a tax deed, the big issue is that the buyer is not going to be able to get title insurance, and the buyers not therefore going to be able to get a loan from a traditional lender and maybe find some private money that might be willing to loan them maybe a parent, but a lender, an institutional lender is not going to loan money on it. Sure. And that's true. So you're not going to have a lender who will be able to issue or give you a mortgage on property that you're buying that subject to a tax deed that hasn't been cured, you're also going to have issues associated with what happens with your use of the property as the buyer meaning Are you planning on selling it or building a house construction loan is going to have the same issues on the property? Are you going to go get a mobile home and put it on the property and intend to D title it a permanently affixed the property, you're going to have issues with that particular process. And so in whole, the thing the buyer needs to know is rather than just saying, Oh, don't worry about it, I'm good with it, I'm not worried about it, the buyer needs to be thinking long term, what am I planning on doing with this property, because it's going to be the buyers problem if they go to turn around and sell it later. So I've seen buyers like I had a church who bought some property at a tax sale because it was next to their parking lot, and they want to expand their parking lot. And they were fully aware they're paying cash for it, they were fully aware that it was a tax deed. And at some point, there may be an issue with it. But for their purposes, they were just gonna have people park in the grass lot. And so if the property got taken back, they really didn't care, they weren't going to build on it. But most of these what, what I find is that you have a buyer who is buying a piece of property they think they're getting for such a great price. And either they're going to put a new house on the property or they're going to renovate the house on it, and then sell it or either live in it. And what they don't understand is like you said, they can't get alone, an institutional lender is not gonna give a regular loan, they're not going to get a construction loan. If they renovate the house and try to sell it to another party, that party's gonna have the same problem, but there's gonna be a tax deed and that closing attorney is going to tell the new buyer, hey, we've got all these issues. And so they're really buying property from a tax sale is really not going to be a smart idea for most people, unless like save like a church where there's just going to be land that we're going to use contiguous to theirs. But what other issues let's say that we are doing a closing and our seller didn't buy it from a tax day they got it from somebody, but maybe two or three owners prior to them, we find that tax deed and what we call the chain of title and the ownership records. Yeah, and so you're probably going to have the same issue, you're probably still going to have the situation where we're not going to be able to insure the property or we're not going to be able to transfer a warranty deed. However, there are some very, very limited situations in which the tax sale happened, let's say more than 10 years ago. So the chances of any potential lien holders or prior owners coming back into the picture are unlikely in some of those very limited situations. Some title, insurers will agree to insure the property Now again, that's insurable title, not marketable title. So the real estate agent should be up should again be changing the contract away from a marketable title to insurable title. That's correct. Yep. And so and and we would be telling the buyers at that point, hey, We can't give you a policy without any exceptions or any issues on it. What we can do is we can ensure over these problems, are you comfortable with that the buyer still has the opportunity unless they've signed a contract in which they've already private previously agreed to accept insurable title. buyer still has the opportunity to be like, Nah, I want it taken care of. And one thing I hear a lot of agents say, well, this property is closed by other closing attorneys in the past, that's doesn't really matter. If another attorney screwed this up, it doesn't mean your closing attorney is just going to say, well, this attorney five years ago did the closing when they shouldn't, but we'll just go with that. A good attorney is still going to require it to be fixed because it affects their clients title, and they have to represent their client to their best abilities. So let's move on. Let's assume now that everybody's aware of the issue. And the parties want to move forward. How can we move for Is there a way we can correct this so that we can actually close with it when there's a tax deed in the chain of title? Sure. So the cheapest and easiest way to do it is of course, getting a deed a quitclaim deed or other deed from the defaulting taxpayer. So this would be whoever it was, that didn't pay the taxes on the property and had it sold. Getting a deed from them would generally clear the title now, you will potentially still have those liens and judgments that need to be dealt with as part of the title, but will we would find those as part of a full title search, but we would be able to move forward and ensure the transaction if you had the deed from the defaulting taxpayer. And the reason being is the only person who has the opportunity to set aside the tax sale is the defaulting tax per person party. So if they sign basically a quitclaim deed saying, I have no claims to it anymore, they essentially extinguish their right to file that claim. Yeah, and there are so the mortgage company and any lien holders on a mobile home titled do have standing to set it aside. But again, if they've received the notices they're required to through the county, then they wouldn't have that same right, or if they get paid off at your new closing, they don't really care. Right, right. And then the other way of doing it is more expensive way, right is super expensive, in most cases is the quiet title action. And this is where you see more often, a lot of times tax sales happen because people have died, and their family members didn't have the money to keep up the property. And so it got sold at a tax sale. And so it's obviously going to be very difficult to get a deed from the deceased person where you don't have family members who were very involved in maintaining the property. And so this is a situation where you'd have to file a civil action lawsuit in that county. And you would have to name all of the potential interested parties. So that would be the defaulting taxpayer or their heirs, or whoever it is, any liens or judgment, interest holders, mortgage companies, things of that nature. And you'd basically making a claim that you bought this property that it was a valid tax sale, and that you're entitled to what we say quiet title or a clean title to the property that can take anywhere from about four months to a year, depending on the county more often these days. It's more like six to nine months at a minimum. How much does that cost? I would say, you know, because the costs associated with it, you have to publish notice, a lot of times you have to get a guardian ad litem for unknown heirs who are minors or members of the military. A lot of times the costs themselves can be between 20 $503,000. And then the attorneys fees, anywhere from about 3500 to 5000. So you could be looking at a $10,000 bill to quiet title on attacks and six to nine months at a minimum. So this isn't something that after the contract signed, oh, we'll just fix it. This is something that if your seller is a did get property through a tax sale, they're going to need to try to do that well before they even list the profit. That's right. And it would be substantially cheaper to pay a defaulting taxpayer some money to sign the deed and it would be to go through the tax sale, obviously. Alright, last thing, how does a real estate agent protect themselves from inadvertently representing a seller that has a tax deed? How do they find out what's going on? Sometimes they're not told. Sure. I think the big thing there is just to be asking a lot of questions, particularly if you have an investor who's selling property, how did you get title to the property? If they say that, Oh, well, I got a tax deed. Of course, that's your big red flag. You can also do your research in the county and look up the tax bills for that particular property and look to see if that looks like anything was paid through a tax sale. Some counties will note that on their actual tax records. All right. Well, I think we've covered all the issues. Erica, appreciate you being with us today. All right. Thanks for having me. And now to our new monthly series around the block with relatives. Today I am joined by Taylor Oxendine. Taylor and Kim fuller are the CO Association executives at the Central Carolina realtors association which serves the Midlands of South Carolina and Blair Cato is a proud affiliate member of the Central Carolina Association. And we were extremely honored last week when we were recognized as the affiliate of the year. It was truly an honor to be recognized. Happy to be in evolved was such a wonderful organization run by such wonderful people. So Tanner, welcome to our podcast. Thanks, Kerry for having me on, good to be on here with the 2020 ccra. affiliate of the year, what Blair Cato does for association is so helpful, you yourself are on our contract committee, and you help us with mediation. So that's just invaluable what you bring to our organization. So with our plan for that, recently, we just had our tax webinar that we did on a sweet Columbia Aboriginal county taxes, we have good attendance for that we were surprised to have, not only Councilman Daniel recommend, but also Mayor Steve Benjamin on that call to kind of go over that study, one of the big things we looked at is how Columbia has been lagging in the prime age to 28 to 45, I think it is age population in our area, even though we have a major college here. I mean, one of those reasons is because of the property tax situation in our city in our county. So there was a lot of good information brought up there about what could be done. And I will be sharing a recording of that on our social media, anybody gets a chance to look at that they can kind of see what's going on. And we're going to have future meetings on that subjects have been very good about having webinars and then posting them online, and the ability to put that on social media for for all the members of the association to get a hold of and to be able to look at it's invaluable. Really. Yeah, yeah. And I mean it and kind of going back a little bit to what you've done with the contract and the v2. I mean, we've had the you guys did a good job of kind of going through, you know, our contracts, and not only for new agents for, you know, seasoned agents kind of different aspects of that. And that stuff is on our social media, and it's on our website. So we encourage people to check that stuff out. Well, I think that's good. I think, you know, one of the things that you and Kim and I've talked about this in the past, is I think there's some members out there who may not know outside of all the great social events, and you'll have really good social events, all the things that you're doing as an association to help make sure that our jobs are easier in the real estate industry. And I thought one of the best things y'all did was was lobbying at the state level, the local level are trying to keep us open and working through this pandemic. And for that, sincere thank you for that. Because that we were real worried and march we'd all be shut down. So once you take a few minutes and tell everybody some of the things that association is doing to help make everyone's jobs better. Yeah, I mean, I mean, going back to the shutdown, you know, it seemed seems like forever, just everything that's happened. But if you I mean, if you go back to the beginning when everything was starting to shut down. So So state statewide SCR who's the South Carolina realtors Association, they created a letter and sent that to the governor, detailing why it was important to ensure that real estate remain essential statewide. You could think as a as an agent, or even just somebody that's had to go through the home buying process. If you've already sold your home and you're maybe living at a hotel for a little bit waiting for a closing to happen and everything started to shut down that could have just really up into somebody's life. So ensuring that's essential was a was a major priority, not only at the state level, but also the local level. ccra contacted Lexington County city, Columbia, Richland County and Orangeburg County, over major government groups in our area with the same information that the state had, you know, make sure that is essential. The city Columbia actually that our initial ordinance did not include and this is before anything past their initial draft and include real estate in it as essential residential or commercial. So we were able to speak to to the city of Columbia, I mean, they quickly understood that and we were able to show evidence from other cities and states that have included that in their ordinances. That's not a wild idea that's extremely important, not only for the economy, for our economy, but also for our population. So city of Columbia was the first city in South Carolina to pass an ordinance that stated real estate is essential. The City of Charleston actually passed one for Columbia, but that didn't include real estate at the time. Columbia State is in Charleston, went back immediately afterwards and then included real estate. So so that was major, you know, huge kudos to the city of Columbia. Lexington County never really came out and shut down anything essential so quickly after that the state, the state government, Governor McMaster, McMaster, he labeled everything that that wasn't exempt or something like that. But yeah, I mean, real estate was protected there. So that was major. And then nationally, the NAR the big, big achievements there, not only for realtors, but for all independent contractors. So like all of our affiliates that that were as independent contractors, the National Association was able to lobby and and get past unemployment assistance for independent contractors. So that was the first time that may have ever happened, because that normally isn't the case. You have to be, you know, a regular atwill boy, the fall for unemployment, so and that didn't even mean that you were fired that that meant like, if you had lost income or lost business, you were still able to file for unemployment. And there were some hiccups early on with having to, you know, state government having to figure out how to work that out. But that was that was major. I know a lot of members called not only US state association, about how all that works. So I know a lot of people took advantage of that. And you had webinars on that as well. I remember, several people never do webinars to teach people how to go about claiming that unemployment, which saved a lot of our members from perhaps losing their houses and cars and other things. So that was a huge benefit. Yeah. And then, and then on top of that, ner was big with the cares act. Part of that was the the financial assistance that the government sent out as a 12 $100. Through that, so different protections, the PPP program and things like that. So those were all major contributions from the real estate from the National Association of Realtors, that our pack, people wonder what our pack is the real sort of political action committee, that's kind of a lobbying arm, if you will, to the National Association of the realtor Association as a whole. You know, that money goes towards that advocacy, being able to form members of Congress of what what the real estate community needs. So it's the only political action committee that lobbies on behalf of homeowners, homeowners, as a, as a collective group don't have any group that really advocates for their interest and the realtor Association through our Pac is the only method that we're the only outlet they have for that. So that's something you can share with homeowners to as a realtor to let them know they have an advocate. And you're that advocate. Yeah. Well, it sounds like you guys have been very busy. forward to having you back at least once a month to continue to update us on what's going on with realtors Association. Thank you for inviting me. And yeah, we definitely like to be back on and kind of talk more about what the association's doing. Thanks, Dale. Thank you. And now to Gary's good news only. What could be better news than the fact that Pfizer delivered its first ever COVID vaccine in the United States on Monday, for shots were provided to a frontline health worker nurse in New York City, and 1000s have gotten it since then. They're expecting to have more vaccinations for all of our frontline workers as we work through the rest of this year. I don't think most people understand what a monumental task This was when you sit back and think in such a short period of time what this country its scientists as researchers, as doctors have done back when the President back in October said that a vaccination would be out by the end of the year. these so called fact checkers and the doom and gloom media the NB C's the USA Today, the PolitiFact and all of these other doom and gloom ORS said that it would take a miracle for it to come out with the next 12 to 18 months. In fact, Dr. falchi even said we wouldn't see the first vaccine to April at the earliest. They rated the statements that we'd have a vaccination by the end of this year is completely false. But here we are six months after operation warp speed. And not only is the vaccine approved, millions 10s of millions of doses has already gone out and 100 million plus doses could be done in the next month or two. That's utterly amazing when you think what our scientific and medical society and organizations and doctors have been able to do and just six months time. It's utterly amazing now in South Carolina, de HEC announced that over 43,000 doses were in possession this Wednesday, and that the state's expecting another two to 300,000 by the end of the year, which is just a little over a week away. When you think about that's also a made again, we're not supposed to have any until at least April or 1218 months in here the state of South Carolina could have two to 300,000 doses. By the end of the year. It's just a week away. Once the doses are received phase one workers in South Carolina will get the vaccination first. First responders who provide medical emergency services will get together with medical staff and correctional facilities dialysis and infusion centers, as well as outpatient settings that frequently treat COVID-19 patients health home health care and hospice workers will also receive it autopsy staff and corners as well as other health care professionals that are deemed at how high risk of frequent exposure of COVID-19 that's phase one a phase one B starts getting the people that are at high risk that are not in the medical facilities. Also FDA provided information today that their emergency use authorization for the ever first ever at home COVID test that requires no prescription She'll be coming out. Well we hope you enjoyed our show today. This is our last show for 2020. As I mentioned earlier, we will be off for the next two weeks. We'll be back on January 7 with a brand new episode edition. I hope everybody has a very, very merry Christmas Please listen to some of our podcasts over the holiday break. Please like us, share us and subscribe to us. Take care