2021 Colorado Code
Title 39 - Taxation
Article 11 - Sale of Tax Liens
§ 39-11-128. Condition Precedent to Deed - Notice

1. Before any purchaser, or assignee of such purchaser, of a tax lien on any land, town or city lot, or mining claim sold for taxes or special assessments due either to the state or any county or incorporated town or city within the same at any sale of tax liens for delinquent taxes levied or assessments authorized by law is entitled to a deed for the land, lot, or claim so purchased, he shall make request upon the treasurer, who shall then comply with the following:
   1. The treasurer shall serve or cause to be served, by personal service or by either registered or certified mail, a notice of such purchase on every person in actual possession or occupancy of such land, lot, or claim, and also on the person in whose name the same was taxed or specially assessed if, upon diligent inquiry, such person can be found in the county or if his residence outside the county is known, and upon all persons having an interest or title of record in or to the same if, upon diligent inquiry, the residence of such persons can be determined, not more than five months nor less than three months before the time of issuance of such deed. In such notice the treasurer shall state when the applicant or his assignor purchased the tax lien on such land, lot, or claim, in whose name such property was taxed, the description of the land, lot, or claim for which a tax lien was purchased, for what year taxed or specially assessed, and when the time of redemption will expire or when the tax deed shall be issued.
   2. In all cases or instances where the valuation for assessment of the property is five hundred dollars or more, the treasurer shall publish such notice, three times, at intervals of one week, in some daily, weekly, or semiweekly newspaper published in such county, not more than five months nor less than three months before the time at which the tax deed may issue, and he shall send by registered or certified mail a copy of such notice to each person not found to be served whose address is known or can be determined upon diligent inquiry. If no such newspaper is published in the county, then said notice shall be published in the newspaper that is published in Colorado nearest the county seat of the county in which such land, lot, or claim is situated. The purchaser or assignee, at the time of making such request for notification on the treasurer, shall pay to the treasurer a fee, as provided in section 30-1-102, C.R.S. The treasurer shall make and carefully preserve among the files of his office a record of all things done in compliance with this section and shall certify to the same.

2. When request is made for a tax deed to lands situated wholly within the exterior boundary lines of an irrigation district, the holder of tax sale certificates of purchase to such lands may include in one request or demand for a tax deed all contiguous tracts for which he holds such certificates of purchase. When all of such lands for which a tax deed is so requested or demanded are unoccupied and no taxes have been paid thereon, or upon any parcel of such lands embraced in such request or demand, for five consecutive years prior to the making of such request or demand, the only notice which the treasurer shall be required to give of the fact that a request or demand for tax deed has been made upon him shall be a notice of publication as provided in this section, in which as many tracts or parcels of land shall be described as are embraced in any one demand or request for deed.

History. Source: L. 64: R&RE, p. 731, § 1. C.R.S. 1963: § 137-11-28. L. 71: P. 329, § 11. L. 85: IP(1) and (1)(a) amended, p. 1240, § 19, effective July 1. L. 96: (1)(b) amended, p. 116, § 5, effective March 25. History. Source: L. 64: R&RE, p. 731, § 1. C.R.S. 1963: § 137-11-28. L. 71: P. 329, § 11. L. 85: IP(1) and (1)(a) amended, p. 1240, § 19, effective July 1. L. 96: (1)(b) amended, p. 116, § 5, effective March 25.

For publication of legal notices generally, see part 1 of article 70 of title 24.

Analysis

• I. GENERAL CONSIDERATION.
• II. NOTICE.
  • A. In General.
  • B. Service.

Law reviews. For article, “Inadequacy of Notice Provision for Obtaining Treasurers' Deeds”, see 25 Dicta 144 (1948). For article, “Property Law”, see 32 Dicta 420 (1955). For comment on Mitchell v. Espinosa appearing below, see 25 Rocky Mt. L. Rev. 101 (1952). For article, “Delinquent Oil and Gas Ad Valorem Taxes: Protecting Property Interests”, see 16 Colo. Law. 798 (1987).

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

The evident purpose of this section and § 39-5-104 is to forbid the issuance of a deed where the property is of substantial value, without giving notice to those interested, and particularly to one having the right of redemption. Bogue v. Miles, 107 Colo. 320 , 111 P.2d 1055 (1941); Swofford v. Colo. Nat'l Bank, 628 P.2d 184 (Colo. App. 1981).

The purpose of this section is to afford record owners an opportunity to redeem their property before it is lost through a treasurer's deed. Parkison v. Burley, 667 P.2d 780 (Colo. App. 1983); Cordell v. Klingsheim, 2014 COA 133 , 412 P.3d 629, rev'd on other grounds, 2016 CO 18, 379 P.3d 270.

Due process does not require that a property owner receive actual notice before the government may take his or her property. Rather, due process requires the government to provide notice that is reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action at issue and to afford them an opportunity to present their objections. Klingsheim v. Cordell, 2016 CO 18, 379 P.3d 270.

Due process satisfied for several reasons. First, the treasurer sent tax deed notices by certified mail as required by subsection (1). Second, the notices were sent to the address listed in the tax rolls as the property owners' current address, which was an address they had used for the previous five years at their express request. Third, the notices were not returned as undelivered or undeliverable, but rather were received and signed for by a person with the same last name as the intended recipients and who lived at an adjacent address. Finally, the notices were actually received by the person whom the record property owners anticipated would receive such notices on their behalf. Klingsheim v. Cordell, 2016 CO 18, 379 P.3d 270.

Due process does not require that each record owner residing at the same address be mailed a separate notice of a pending tax sale. County treasurer made “diligent inquiry” as required by subsection (1)(a) when mailing notices to both record owners, a married couple residing at the same address, in one envelope to the same address. Cordell v. Klingsheim, 2018 COA 80 , 434 P.3d 741.

The requirements of this section are jurisdictional. Sheesley v. Voorhees, 24 Colo. App. 428, 134 P. 1008 (1913); Brown v. Davis, 103 Colo. 110 , 83 P.2d 326 (1938); Siler v. Inv. Sec. Co., 125 Colo. 438 , 244 P.2d 877 (1952); Concord Corp. v. Huff, 144 Colo. 72 , 355 P.2d 73 (1960); Turkey Creek, LLC v. Rosania, 953 P.2d 1306 (Colo. App. 1998).

There must be full compliance with statutory requirements relating to notice of application for issuance of a treasurer's deed, and, if a noncompliance with any such statutory direction is shown, the treasurer's deed will be adjudged invalid. Siler v. Inv. Sec. Co., 125 Colo. 438 , 244 P.2d 877 (1952); Concord Corp. v. Huff, 144 Colo. 72 , 355 P.2d 73 (1960).

Tax deed is invalid absent full compliance of statutory requirements relating to the issuance of the deed. Siddoway v. Ainge, 34 Colo. App. 210, 526 P.2d 669 (1974), aff'd, 189 Colo. 173 , 538 P.2d 110 (1975).

Satisfaction of requirements question of fact. The determination of whether each requirement of this section relating to issuance of tax deeds by county treasurers has been sufficiently satisfied is a question for the trier of fact. Siddoway v. Ainge, 189 Colo. 173 , 538 P.2d 110 (1975); Turkey Creek, LLC v. Rosania, 953 P.2d 1306 (Colo. App. 1998); Wells Fargo v. Olivas, 2017 COA 158 , 410 P.3d 1284.

Deed, although proper, is not evidence of acts necessary. Even though the deed be conceded to be fair on its face so as to make it prima facie evidence of facts occurring before or at the time of the sale, it constitutes no evidence of the acts which the cash purchaser is required to perform, or the treasurer for him, after the sale and before a deed can be lawfully executed. Sheesley v. Voorhees, 24 Colo. App. 428, 134 P. 1008 (1913).

Written request for unsigned tax deed immaterial. It is immaterial that a written request for a tax deed is unsigned where demand for the deed was actually made on the treasurer. Sanderford v. Walker Inv. Co., 84 Colo. 203 , 269 P. 14 (1928).

Treasurer may issue a correction deed. Where there was some mistake of the county treasurer which made a former deed irregular or defective, a correction deed should be issued. White Cap Mining Co. v. Resurrection Mining Co., 115 Colo. 396 , 174 P.2d 727 (1946).

Applied in Johnson v. Cork, 106 Colo. 72 , 102 P.2d 471 (1940); Lake Canal Reservoir Co. v. Beethe, 227 P.3d 882 (Colo. 2010).

No tax deed may be issued until notice is given. Notice to all persons having an interest or title of record to land sold for taxes is a prerequisite to the issuance of a tax deed therefor. French v. Golston, 105 Colo. 578 , 100 P.2d 581 (1940).

Parties claiming tax title must prove notice. It is incumbent upon the parties claiming title under a tax deed to prove either that the statutory notice was given or that the assessed valuation rendered it unnecessary to give such notice before the deed would be admissible in evidence. Jackson v. Larson, 24 Colo. App. 548, 136 P. 81 (1913).

Title void. Under this section, proof of notice is necessary, and the notice must state the truth, failing in which, the deed will be void. Young v. Rohan, 77 Colo. 70 , 234 P. 694 (1925); Staples v. Todd, 108 Colo. 386 , 117 P.2d 1005 (1941); Tewell v. Galbraith, 119 Colo. 412 , 205 P.2d 229 (1949).

A plaintiff attacking the validity of a tax deed on the ground of defective notice has the burden of presenting evidence of the defect. Wells Fargo v. Olivas, 2017 COA 158 , 410 P.3d 1284.

Tax deed not void for issuance after date in notice. A tax deed is not void for the reason that it is executed and issued after the date fixed by the notice for issuance of the treasurer's deed. Mitchell v. Espinosa, 125 Colo. 267 , 243 P.2d 412 (1952).

For when notice is false and defective, see Bottom v. Young, 52 Colo. 533 , 125 P. 500 (1912); Flader v. Campbell, 120 Colo. 66 , 207 P.2d 1188 (1949).

Where party contesting issuance of tax deed had actual notice and the opportunity to redeem the tax certificates prior to the tax deeds being issued and did not avail himself of such opportunity, such party has not demonstrated any injury to his right to notice under this section. Turkey Creek, LLC v. Rosania, 953 P.2d 1306 (Colo. App. 1998).

Despite alleged defects and the failure to follow strictly the publication requirements, party contesting the issuance of tax deeds lacks standing to contest the validity of the tax deeds under either paragraph (a) or (b) of subsection (1). Turkey Creek, LLC v. Rosania, 953 P.2d 1306 (Colo. App. 1998).

Treasurer's duty to serve notice. This section makes it the duty of the treasurer to serve the notice or cause it to be served. Richardson v. Halbekann, 97 Colo. 175 , 48 P.2d 1014 (1935).

This section contemplates that service is complete when the county treasurer registers and deposits in the United States mails the statutory notice directed to the proper postoffice address of the party to be notified. Ford v. Genereux, 104 Colo. 17 , 87 P.2d 749 (1939).

Publication required only when actual notice not possible. The evident intent of the general assembly was to require publication only in the event that actual notice cannot be given to the owner and to persons having an interest of record in the land. Henrie v. Greenlees, 71 Colo. 528 , 208 P. 468 (1922).

Notice by publication was sufficient where the record interest holder's correct address was not available in the county records. Schmidt v. Langel, 874 P.2d 447 (Colo. App. 1993).

This section creates a window in which the treasurer must publish the notice: sometime between five and three months before the deed is issued, the treasurer must publish three notices, once each week. Red Flower, Inc. v. McKown, 2016 COA 160 , 411 P.3d 1094.

Service on general partner imputes notice to the limited partners. Because the general partner had authority to act for the limited partnership and received appropriate notice of the sale and application for deed, the general partner's notice and knowledge are imputed to each limited partner. BMS P'ship v. Winter Park Devil's Thumb Inv. Co., 910 P.2d 61 (Colo. App. 1995), aff'd on other grounds, 926 P.2d 1253 (Colo. 1996).

Limited partner not entitled to notice of time for issuance of tax deed because limited partner does not own an interest in real property owned by the limited partnership. Winter Park Devil's Thumb Inv. Co. v. BMS P'ship, 926 P.2d 1253 (Colo. 1996).

When premises are actually occupied by a person, the county treasurer may serve notice on the occupant at the property, but the treasurer is not required to conduct a “diligent inquiry” to notify actual possessors or occupants. However, when an occupant does not actually occupy the premises or is not on the premises, the county treasurer is only required to make a “diligent inquiry” to determine the person's whereabouts and then to notify him or her of the sale. Red Flower, Inc. v. McKown, 2016 COA 160 , 411 P.3d 1094.

A tenant occupying the premises must be served with notice, and service on the record owner, without service on the tenant in possession, is not a compliance with subsection (1)(a). Brown v. Davis, 103 Colo. 110 , 83 P.2d 326 (1938); Taylor v. Lutin, 106 Colo. 170 , 102 P.2d 484 (1940).

“Persons having an interest or title of record”. “Persons having an interest or title of record”, referred to in subsection (1)(a), is equivalent to “record owners”, and that language is held to exclude even holders of known but unrecorded contracts of sale. Godfrit v. Judd, 116 Colo. 489 , 182 P.2d 907 (1947).

Failure to serve notice to record owner invalidates deed. Where a diligent inquiry of the records of the clerk and recorder of the county by the treasurer or by the purchaser under a treasurer's deed would have disclosed that a bank had an interest of record in the property and, since the bank was entitled to be served with notice by the treasurer under this section, where the bank did not receive such notice, the treasurer's deed was invalid. Swofford v. Colo. Nat'l Bank, 628 P.2d 184 (Colo. App. 1981).

The original beneficiaries of a note and deed of trust secured by real property, who subsequently transferred the note and deed to a bank as security for indebtedness by an agreement purporting to assign all right, title, and interest in the deed, did not retain an interest in the real property sufficient to warrant notice of pending issuance of a treasurer's deed. Columbus Invs. v. Lewis, 48 P.3d 1222 (Colo. 2002).

Section does not contemplate service on wife. The requirement of subsection (1)(a) that the county treasurer shall serve “notice of such purchase” on every person in actual possession of the land does not necessitate service on a wife living with her husband and occupying the premises involved. Ford v. Genereux, 104 Colo. 17 , 87 P.2d 749 (1939).

This section directs the treasurer to make diligent inquiry to learn the address of the record owner and serve notice upon him at that address if it can be learned. Bald Eagle Mining & Ref. Co. v. Brunton, 165 Colo. 28 , 437 P.2d 59 (1968).

This section imposes a duty of diligent inquiry upon the county treasurer. Siddoway v. Ainge, 34 Colo. App. 210, 526 P.2d 669 (1974), aff'd, 189 Colo. 173 , 538 P.2d 110 (1975).

This statute places a duty on a treasurer before a notice is sent. Specifically, subsection (1) requires a treasurer to make diligent inquiry to learn the address of the record owner and serve notice upon him or her at that address if it can be learned. Klingsheim v. Cordell, 2016 CO 18, 379 P.3d 270.

A treasurer owes a duty of further diligent inquiry after an initial notice has been sent only when the facts known to the treasurer show that the taxpayer could not have received the notice of the pending tax sale. When the circumstances make clear that the taxpayer could not have received the notice, such as if it is returned undelivered or undeliverable, the treasurer must undertake further diligent inquiry to attempt to provide notice. When, in contrast, the facts known to the treasurer do not establish that the taxpayer could not have received the notice, then no duty of further diligent inquiry arises. Klingsheim v. Cordell, 2016 CO 18, 379 P.3d 270.

A treasurer is not obliged to ensure actual receipt of the required notice, but to make reasonably diligent attempts to deliver the notice. Subsection (1) contemplates either personal service or service by registered or certified mail, and neither of these methods requires that the notice be placed personally in the recipient's hands. Klingsheim v. Cordell, 2016 CO 18, 379 P.3d 270.

Treasurer held to have not acted with diligence in failing to determine address of record owners prior to issuing a tax deed. Parkison v. Burley, 667 P.2d 780 (Colo. App. 1983).

Deed is voidable absent diligent inquiry. Where, upon application to a county treasurer for issuance of a treasurer's deed, no “diligent inquiry”, required by subsection (1)(a), is made by that official to ascertain the address of the person in whose name the property sold for taxes was taxed, and such “diligent inquiry” would have disclosed the correct address of the owner, and where no notice of application for the tax deed was served upon or received by the owner because of the failure of the official to make “diligent inquiry”, and where no statute of limitations is involved, the treasurer's deed will be voided upon the complaint of the owner who thus was deprived of notice concerning the application for issuance of the treasurer's deed. Siler v. Inv. Sec. Co., 125 Colo. 438 , 244 P.2d 877 (1952); Wittemyer v. Cole, 689 P.2d 720 (Colo. App. 1984).

A tax deed issued without the treasurer conducting diligent inquiry pursuant to this section is voidable and subject to being set aside by a court. When such a deed is voided, a tenant in common who redeems the property does so for the benefit of all cotenants. Sandstrom v. Solen, 2016 COA 29 , 370 P.3d 669.

Tax deed was voidable because, as a matter of law, the treasurer did not exercise reasonable diligence in seeking an alternative address after a notice was returned as undeliverable. Wells Fargo v. Olivas, 2017 COA 158 , 410 P.3d 1284.

Treasurer need not check records of secretary of state to be diligent. To constitute diligent inquiry upon the part of the county treasurer, he was not obliged to go to the records in the office of the secretary of state to ascertain the address of the corporation in whose name the property was taxed or its officers. White Cap Mining Co. v. Resurrection Mining Co., 115 Colo. 396 , 174 P.2d 727 (1946).

Failure of record owner to report change of address irrelevant. Failure of the record owner to advise the county assessor's office regarding his change of address is not relevant in determining whether county treasurer complied with his duty under this statute to make a diligent inquiry. Siddoway v. Ainge, 34 Colo. App. 210, 526 P.2d 669 (1974), aff'd, 189 Colo. 173 , 538 P.2d 110 (1975).

Treasurer not required to search unrelated correspondence files for correct address, especially when treasurer had not been put on notice that the address in the subject property records was incorrect. Siddoway v. Ainge, 189 Colo. 173 , 538 P.2d 110 (1975).

Treasurer cannot blindly rely on assessor's rolls for correct address. Blind reliance on erroneous assessor's rolls, when the correct address was easily available to the treasurer, does not satisfy the diligence requirements of subsection (1)(a), nor does it permit forfeiture of property when the owner of the property does not receive notice of the impending forfeiture because of the lack of diligent inquiry on the part of the treasurer. Bald Eagle Mining & Ref. Co. v. Brunton, 165 Colo. 28 , 437 P.2d 59 (1968).

“Diligent inquiry” requires the county treasurer to inquire into information available within county records, but the county treasurer need not inquire into every possible source for the record interest holder's correct address. As a matter of law, the treasurer exercised due diligence by reexamining the county records for an alternative address when the original notice was returned. Schmidt v. Langel, 874 P.2d 447 (Colo. App. 1993).

Treasurer must use reasonable diligence to look for an alternative address when a notice is returned as undeliverable. The treasurer should re-examine the records of the subject property and, in the event that an alternative address does not emerge, conduct a reasonable search of the county's available electronic records. The treasurer was not entitled to assume that a notice sent to a different entity with a similar name effected notice to the entity from which notice was returned as undeliverable. Wells Fargo v. Olivas, 2017 COA 158 , 410 P.3d 1284.

The records a treasurer is required to search to find an alternative address after a notice is returned may vary with the treasurer's ability to search them. The treasurer was required to conduct a reasonable search of the county's available electronic records. But a full and complete search of all the county records may not be required if it is impracticable. Wells Fargo v. Olivas, 2017 COA 158 , 410 P.3d 1284.

For nonrecord owners who are not in possession, see DeCola v. Bochatey, 161 Colo. 95 , 420 P.2d 395 (1966); Ponzio v. Arapahoe Inv. Enter., 161 Colo. 102 , 420 P.2d 398 (1966).