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HomeMy WebLinkAboutORD 1988-074 1988-1992COUNTY OF HAWAII .STATE OF HAWAII Bill No, szl (Draft 2) ORDINANCE NO. 88 ~~ AN ORDINANCE AMENDING CHAPTER 19, ARTICLE 5, SECTIONS 19-37, 19-42, AND 19-45, OF THE HAWAII COUNTY CODE 1983, RELATING TO REAL PROPERTY TAX LIENS, FORECLOSURE. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Chapter 19, article 5, section 19-37, Hawaii County Code 1983, is amended to read as follows: "Section 19-37. Tax liens; co-owners' rights; foreclosure; limitation. Every tax due upon real property, as defined by section 19-2, shall be a paramount lien upon the property assessed, which lien shall attach as of July 1 in each tax year and shall continue for six years. If proceedings for the enforcement or foreclosure of the lien are brought within the applicable period hereinabove designated, the lien shall continue until the termination of said proceedings or the completion of such sale. In case of cotenancy, if one cotenant pays, within the period of the aforesaid government lien, all of the real property taxes, interest, penalties, and other additions to the tax, due and delinquent at the time of payment, he shall have, pro tanto, a lien on the interest of any noncontributing cotenant upon recording in the bureau of conveyances, within ninety days after the payment so made by the cotenant, a sworn notice setting forth the amount claimed, a brief description of the land affected by tax key or otherwise, sufficient to identify it, the tax year or years, and the name of the cotenant upon whose interest such lien is asserted. When a notice of such tax lien is recorded by a cotenant, the registrar shall forthwith cause the same to be indexed in the general indexes of the bureau of conveyances. In case the land affected is registered in the land court, the notice shall also contain a reference to the number of the certificate of title of such land and shall be filed and registerec in the office of the assistant registrar of the land court, and the registrar, in his capacity as assistant registrar of the land court, shall make a notation of the filing thereof on each land court certificate of title so specified. The cotenant's lien shall have the same priority as the lien or liens of the government for the taxes paid by him, and may be enforced by an action in the nature of suit in equity. The lien shall continue for three years after recording or registering, or until termination of the proceedings for enforcement thereof if such proceedings are begun, and notice of the pendency thereof is recorded or filed and registered as provided by law, within the period. The director or his subordinate, in case of a government lien, and the creditor cotenant, in a case of a cotenant's lien, shall, at the expense of the debtor, upon payment of the amount of the lien, -2- execute and deliver to the debtor a sworn satisfaction thereof, including a reference to the name of the person assessed or cotenant affected as shown in the original notice, the date of filing of the original notice, a description of the land involved, and the number of the certificate of title of such land if registered in the land court, which, when recorded in the bureau of conveyances or filed and registered in the office of the assistai:t registrar of the land court, shall, in the case of a cotenant's lien, which contains the reference to the book and page of the original lien, be entered in the general indexes of the bureau of conveyances, and if a notation of the original notice was made on any land court certificate of title the filing of such satisfaction shall also be noted on the certificate. This section as to cotenancy shall apply, as well, in any case of ownership by more than one assessable person. Upon enforcement or foreclosure by the government in any manner whatsoever, of any such real property tax lien, all taxes of whatsoever .nature and howsoever accruing due at the time of the foreclosure sale from the taxpayer against whose property such tax lien is so enforced or foreclosed shall be satisfied as far as possible out of the proceeds of the sale remaining after payment of (1) the costs and expenses of the enforcement and foreclosure including a title search, if any, (2) the amount of subsisting real -3- property tax liens, and (3) the amount of any recorded liens against the property, in the order of their priority[.],provided a claim for the surplus has been filed with the director within one year from the date of the sale. The liens may be enforced by action of the director in the circuit court of the third circuit, and the proceedings had before the circuit court shall be conducted in the same manner and form as ordinary foreclosure proceedings as provided for in chapter 634, HRS. If the owners or claimants of the property against which a lien is sought to be foreclosed are at the time out of the County or cannot be served within the County, or if the owners are unknown, and the fact shall be made to appear by affidavit to the satisfaction of the court, and it shall in like manner appear prima facie that a cause of action exists against such owners or claimants or against the property described in the complaint, or that such owners or claimants are necessary or proper parties to the action, the director may request the court that service be made in the manner provided by sections 634-23 to 634-29, HRS. In any such case, it shall not be necessary to obtain judgment and have execution issued and returned unsatisfied, before proceeding to foreclose the lien for taxes in the manner herein provided." SECTION 2. Chapter 19, article 5, section 19-42, Hawaii County -4- Code 1983, is amended to read as follows: "Section 19-42. Same; tax deed; redemption. The director or his subordinate shall, on payment of the purchase price, make, execute, and deliver all proper conveyances necessary in the premises and the delivery of the conveyances shall vest in the purchaser the title in fee thereto, and such title shall be free and clear of any lien, claim, or encumbrance a ainst such pro erty except the lien for real pro erty taxes subsequent to that for which the property was sold, [to the property sold; provided, that the deed to the premises shall be recorded within sixty days after the sale;], subject only to any mineral rights of the State and any easements in favor of any governmental entity; provided, [further,] that the taxpayer may redeem the property sold by payment to the purchaser at the sale, within one year from the date [thereof,] cf the sale, [or if the deed shall not have been recorded within sixty days after the sale, then within one year from the date of recording of the deed,] of the amount paid by the purchaser, together with all costs and expenses which the purchaser was required to pay, including the fee for recording the deed, and in addition thereto, interest on such amount at the rate of twelve percent a year[, but in a case of redemption more than one year after the date of sale by reason of extension of the redemption period on account of late recording of the tax deed, interest shall not be added for the -5- extended redemption period]." SECTION 3. Chapter 19, article 5, section 19-45, Hawaii County Code 1983, is amended to read as follows: "Section 19-45. Disposition of surplus moneys. The director shall pay from the surplus all taxes, including interest and penalties, of whatsoever nature and howsoever accruing, as provided in section 19-37 and further he may pay from the surplus the cost of a search of any records where such search is deemed advisable by him to ascertain the person or persons entitled to the surplus; provided, nothing herein contained shall be construed to require the director to make or cause any such search to be made. All proceeds remaining after payment of the costs and expenses of the enforcement and foreclosure of the tax lien, includin a title search, and the amount of subsistin real ro erty taxes, shall be distributed to lienholders of record in the order of their priority who have filed claims for the surplus with the director within one year from the date of sale. Any lien, claim or encumbrance against the property remaining unsatisfied after the distribution of the surplus moneys shall be extinguished and unenforceable against the property and the purchaser to whom the property is conveyed by the director. If, in order to ascertain the person or persons entitled to the surplus, the director deems it advisable to conduct a search of any records, he may pay from the -6- surplus the cost of such search; provided, nothing herein contained shall be construed to require the director to make or cause any search to be made. Any lienholder failin to file a claim for the surplus within one year from the date of the sale shall have no right to the surplus. The director shall pay from any surplus remaining after distribution to record lienholders who have filed claims, all taxes, including interest and penalties, of whatsoever nature and howsoever accruing due at the time of the foreclosure sale from the taxpayer against whose property such tax lien is so enforced or foreclosed. If after payment of all taxes surplus funds remain, the director shall pay the sur lus to the taxpayer a ainst whose property the tax lien was foreclosed, provided that the taxpayer has filed a claim for the surplus with the director within one year from the date of sale. Any surplus remaining after payment to all those entitled as herein set forth shall be deposited into the County General Fund. If the director is in doubt as to the person or persons entitled to the balance of the fund, he may refuse to distribute the surplus and any claimant may sue the director in the third circuit court. The director may require the claimants to interplead, in which event he shall state the names of all claimants [known to him,] and shall cause them to be made parties to the action. [If in his opinion there may be other claimants who are unknown,] If there are persons -7- entitled to the fund who have not filed a claim, or if in the director's opinion there may be other persons entitled to the fund who are unknown, the director may apply for an order or orders joining [all] these persons [unknown having or claiming to have any legal or equitable right, title, or interest in the moneys or any part thereof or any lien or other claim with respect thereto]. Any order of the court or summons in the matter may be served as provided by law or the rules of the court, and all persons having any interest in the moneys who are known, including the guardians of such of them as are under legal age or under any other legal disability (and if any one or more of them is under legal age or under other legal disability and without a guardian, the court shall appoint a guardian ad litem to represent them therein) shall have notice of the action by personal service upon them. All persons having any interest in the moneys whose names are [unkown] unknown or who if known do not reside within the State or for any reason cannot be served with process within the State shall have notice of the action as provided by sections 634-23 to 634-29, HRS, except that any publication of summons shall be in at least one newspaper of general circulation published in the State and having a general circulation in the County, and the form of notice to be published shall provide a brief description of the property which was sold. All expenses incurred by the director shall be met out of the -$- surplus moneys realized from the sale." SECTION 4. Material to be repealed is bracketed. New material is underscored. In printing this ordinance, the brackets, bracketed material, and underscoring need not be included. SECTION 5. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end, the provisions of this ordinance are declared to be severable. SECTION 6. This ordinance shall take effect upon its approval. INTRODUCED BY~ COUNCIL MEMBER, COUNTY OF HAWAII Hilo, Hawaii Date of Introduction: May 18, 1988 Date of 1st Reading: May 18, 1988 Date of 2nd Reading: June 1, 1988 Effective Date: June 15, 1988 -9-