2005 Idaho Code - 37-2808 — REAL PROPERTY -- RIGHTS OF THIRD PARTIES

                                  TITLE  37
                             FOOD, DRUGS, AND OIL
                                  CHAPTER 28
                             CRIMINAL FORFEITURES
    37-2808.  REAL PROPERTY -- RIGHTS OF THIRD PARTIES. (1) Real property
subject to forfeiture under the provisions of this chapter may be seized by
the attorney general or appropriate prosecuting attorney upon determining that
a parcel of property is subject to forfeiture, by filing a notice of seizure
with the recorder of the county in which the property or any part thereof is
situated. The notice must contain a legal description of the property sought
to be forfeited; provided however, that in the event the property sought to be
forfeited is part of a greater parcel, the attorney general or appropriate
prosecuting attorney may, for the purposes of this notice, use the legal
description of the greater parcel. The attorney general or appropriate
prosecuting attorney shall also send by certified mail a copy of the notice of
seizure to any persons holding a recorded interest or of whose interest the
attorney general or appropriate prosecuting attorney has actual knowledge. The
attorney general or appropriate prosecuting attorney shall post a similar copy
of the notice conspicuously upon the property and publish a copy thereof once
a week for three (3) consecutive weeks immediately following the seizure in a
newspaper published in the county. The co-owner or party in lawful possession
of the property sought to be forfeited may retain possession and use thereof
and may collect and keep income from the property while the forfeiture
proceedings are pending.
    (2)  In the event of a seizure pursuant to subsection (1) of this section,
a request for forfeiture shall be filed with the trial court within the time
limit imposed by section 37-2804, Idaho Code. The request shall be served in
the same manner as complaints subject to the Idaho rules of civil procedure on
all persons having an interest in the real property sought to be forfeited.
    (3)  Notwithstanding any other provision of this section, upon being
satisfied that the interest of a co-owner or claimant should not be subject to
forfeiture because they neither knew nor should have known that the real
property was being used or had been used for the purposes alleged, or that due
to preexisting security interests in such property there is no equity which
may be forfeited, the attorney general or appropriate prosecuting attorney may
release the property to the co-owner, holder of the security interest, or
other claimant.
    (4)  Within twenty (20) days of the mailing of the notice, the co-owner or
party in interest may file a verified answer and claim to the property
described in the notice.
    (5)  If a verified answer is filed within twenty (20) days after mailing
of the notice, the forfeiture proceeding against all co-owners and parties in
interest who have filed verified answers shall be set for hearing before the
court without a jury on a day not less than sixty (60) days after the mailing
of the notice; and the proceeding shall have priority over other civil cases.
    (a)  A co-owner, or claimant of any right, title or interest in the real
    property sought to be forfeited may prove that his right, title or
    interest, whether under a lien, mortgage, deed of trust or otherwise, was
    created without any knowledge or reason to believe that the real property
    was being used or had been used for the purposes alleged;
    (b)  Any co-owner who has a verified answer on file may show by competent
    evidence that his interest in the property sought to be forfeited is not
    subject to forfeiture because he could not have known in the exercise of
    reasonable diligence that the real property was being used, or had been
    used in any manner in violation of the provisions of section 37-2801,
    Idaho Code.
    (6)  In the event of such proof, the court shall order the release of the
interest of the co-owner, purchaser, lienholder, mortgagee or beneficiary.
    (a)  If the amount due to such person is less than the value of the real
    property, the real property may be sold in a commercially reasonable
    manner by the attorney general or appropriate prosecuting attorney. The
    proceeds from such sale shall be distributed as follows in the order
    indicated:
         (i)  To the innocent co-owner, purchaser, mortgagee or beneficiary of
         the real property, if any, up to the value of his interest in the
         real property.
         (ii) The balance, if any, in the following order:
              1.  To the attorney general or appropriate prosecuting attorney
              for all expenditures made or incurred in connection with the
              sale, including expenditure for any necessary repairs or
              maintenance of the real property, and for all expenditures made
              or incurred in connection with the forfeiture proceedings
              including, but not limited to, expenditures for witnesses' fees,
              reporters' fees, transcripts, printing, travel, investigation,
              title company fees and insurance premiums.
              2.  The remainder, if any, to the director of the Idaho state
              police for credit to the drug enforcement donation fund created
              in section 57-816, Idaho Code.
    (b)  In any case, the attorney general or appropriate prosecuting attorney
    may, within thirty (30) days after the order of forfeiture, pay the
    balance due to the innocent co-owner, purchaser, lienholder, mortgagee or
    beneficiary and thereby purchase the real property for use in the
    enforcement of this chapter.