Kansas Attorney General Opinion 2012-028

November 13, 2012
ATTORNEY GENERAL OPINION NO. 2012-28
Richard E. James
Clay County Attorney
712 5th St., Suite 202
Clay Center, KS 67432
Re: 	Taxation—Sale of Real Estate for Taxes—Listing of Real Estate Subject
to Sale; Notice of Sale; Time of Sale; County Treasurer to Bid Off in Name
of County
Taxation—Redemption of Real Estate and Remission, Compromise or
Respread of Real Estate Taxes—Redemption of Real Estate Bid Off by
County; Period of Redemption
Taxation—Judicial Foreclosure and Sale of Real Estate by County—
Action to Enforce Lien for Unredeemed Real Estate Bid In by County;
Procedure for Bidding In Behalf of County
Synopsis: 	A county is not required to bid in the county’s interest on real property at a
tax 	foreclosure 	sale 	held 	pursuant 	to 	a 	court 	order. 	The 	delinquent
taxpayer continues to own property for which a foreclosure judgment has
been rendered until such property is sold to the successful bidder at a
public auction and the successful bidder is issued a deed therefor, or
when the property is sold or transferred in accordance with K.S.A. 2011
Supp. 79-2803a(b). The redemption period for delinquent property begins
to run from the date the county bids off the property in the name of the
county pursuant to K.S.A. 79-2306. Cited herein: K.S.A. 2011 Supp. 79-
1803; 79-1945; K.S.A. 79-2001; K.S.A. 2011 Supp. 79-2004; 79-2301;
K.S.A. 79-2302; 79-2303; 79-2306; K.S.A. 2011 Supp. 79-2401a; 79-
2801; K.S.A. 79-2803; K.S.A. 2011 Supp. 79-2804.
* 	* 	*

Richard E. James
Page 2
Dear Mr. James:
As County Attorney for Clay County, you ask for our opinion regarding the following:
1. 	Is a county required to bid in the county’s interest on real property at a delinquent
tax sale?
2. 	If the answer to question no. 1 is no, and if there are no bids on the delinquent
property at a delinquent tax sale, who owns the delinquent property?
3. 	When does the redemption period for delinquent property begin?
We will answer each of your questions in order.
Background
The board of county commissioners is “authorized and empowered to levy taxes in each
year for the general fund and other county purposes.” 1 On or before November 1 of
each year, the county clerk finalizes the tax levy rate for each piece of real property and
delivers the final tax roll to the county treasurer.2 “Each year after receipt of the tax roll
from the county clerk and before December 15, the county treasurer shall mail to each
taxpayer, as shown by the rolls, a tax statement. . . .” 3 A taxpayer may pay his entire
county tax bill by December 20 of each year, or may choose to pay half of the taxes by
December 20 and the other half of the taxes by the following May 10. 4 If a taxpayer
does not pay his county taxes in full by the following May 10, the taxes become
delinquent and the real estate for which such taxes are owed may be sold by the
county. 5
The process of selling real estate for delinquent taxes begins in early July when the
county treasurer compiles a list of properties for which taxes are delinquent. 6 The
county treasurer is required to publish the list of delinquent properties once each week
for three consecutive weeks in the official county newspaper or in a newspaper of
general circulation in the county. 7 The county treasurer must also publish a notice
stating that “the county treasurer will sell the real estate described in the list to the
county for the amount of the delinquent taxes . . . and that the sale will be on or after the
first Tuesday of September following publication of the notice. . . .”8
K.S.A. 79-2306 describes the process of this “sale” as follows:
1 K.S.A. 2011 Supp. 79-1945.
2 K.S.A. 2011 Supp. 79-1803.
3 K.S.A. 79-2001(b).
4 K.S.A. 2011 Supp. 79-2004(a).
5 K.S.A. 2011 Supp. 79-2301.
6 K.S.A. 79-2302.
7 K.S.A. 79-2303.
8 K.S.A. 79-2302 (emphasis added).

Richard E. James
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On the day designated in the notice of sale the county treasurer shall sell
the real estate on which the taxes and legal charges have not been paid,
and it shall be the duty of the county treasurer of such county, to bid off in
the name of the county all real estate advertised for sale for delinquent
taxes for the amount of the delinquent taxes and the legal charges due
thereon, including the costs of advertising and the fees for selling, and no
bid shall be received by said county treasurer from any other person for
the real estate so sold.
By the plain language of the statute, only the county may bid at this “sale.” The purpose
of this “sale” is to perfect the county’s tax lien and begin the redemption period (see
below). 9
After the county treasurer bids off the delinquent property in the name of the county
pursuant to K.S.A. 79-2306, the county must hold the property for a specified period of
time before disposing of the property by foreclosure. Abandoned property must be held
for one year from the date of the sale; 10 property that is a homestead must be held for
three years from the date of the sale; 11 all other real property must be held for two years
from the date of the sale. 12
The period of time during which the county must hold a delinquent property before
selling it is the redemption period. During the redemption period, a taxpayer may
“redeem” delinquent property by paying all taxes, interest and other fees owing on the
property.13 If the taxpayer does not redeem the property by the close of the redemption
period, “the real estate shall be disposed of by foreclosure and sale in the manner
provided by K.S.A. 79-2801 et seq.”14
When a taxpayer fails to redeem delinquent property within the redemption period, the
county 	may 	petition 	the 	district 	court 	to 	enforce 	the 	county’s 	tax 	lien 	through 	a
foreclosure action. 15 After the foreclosure judgment is rendered, the clerk of the district
court issues an order of sale to the county sheriff, directing the sheriff to advertise and
sell the delinquent property. 16 A taxpayer has a final opportunity to redeem the property
by filing an “application to redeem” with the court no later than the day prior to the
sale. 17 A taxpayer has no right to redeem the property after that time.18
9 Heim, Kansas Local Government Law, § 9.21, League of Kansas Municipalities (4 th Ed. 2009).
10 K.S.A. 2011 Supp. 79-2401a(a)(2).
11 K.S.A. 2011 Supp. 79-2401a(b).
12 K.S.A. 2011 Supp. 79-2401a(a)(1).
13 K.S.A. 2011 Supp. 79-2401a. This statute also allows for partial redemption of homestead property.
Upon payment of one or more years of delinquent taxes for a homestead, the redemption period is
extended by the number of years for which delinquent taxes are paid.
14 K.S.A. 2011 Supp. 79-2401a(d).
15 K.S.A. 2011 Supp. 79-2801.
16 Id.
17 K.S.A. 79-2803.
18 Sumner County Comm’rs v. Avis, 163 Kan. 388, 393 (1947).

Richard E. James
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At the tax sale, the delinquent property “shall be sold at public auction for the highest
and best bid obtainable therefor.”19 The sheriff, if directed by the county commissioners,
“may bid at such sale in the name of the county,” but “[n]o bid in behalf of such county
may be accepted in excess of the amount of the judgment lien and interest thereon, . . .
plus the costs, charges and expenses of the proceedings and sale. . . .” 20 After the
delinquent tax sale is confirmed by the court, the court directs the sheriff to issue a
“good and sufficient deed” to the successful bidder. 21
Under the Kansas delinquent tax sale system, property may not be sold at public
auction until the redemption period passes, and the successful bidder takes fee simple
title to the property.22
1. 	Is a county required to bid in the county’s interest on real property at a delinquent
tax sale?
The answer to this question is no. It is important to distinguish between the “sale” that
occurs pursuant to K.S.A. 79-2306 and the delinquent tax sale that occurs after the
district court has rendered a judgment in the foreclosure action. By the plain language of
K.S.A. 79-2306, the county treasurer must bid off the delinquent property in the name of
the county, and only the county may “bid” on the property. Thus, at this stage of the
delinquent tax sale process, the county must bid in the county’s interest. As previously
noted, the purpose of this sale is to perfect the county’s tax lien.
After foreclosure, the sheriff auctions the delinquent property to the highest bidder
pursuant to K.S.A. 2011 Supp. 79-2804. This statute is clear that the county may – but
is not required to – bid on a property at the public auction: “The sheriff or such other
person as may be authorized by the board of county commissioners, if directed by the
county commissioners, may bid at such sale in the name of the county such amount as
the county commissioners authorize.” 23
Furthermore, K.S.A. 2011 Supp. 79-2803a(b) allows a county, without a court order, to
sell or transfer delinquent property “which did not sell at the previous public auction.”
This statute assumes that a delinquent property may not receive any bids at the public
auction. If the county is required to bid at delinquent tax sales, there would always be a
successful bidder and this statute would be unnecessary. “There is a presumption that
the legislature does not intend to enact useless or meaningless legislation.” 24
Some states with delinquent tax sale statutes similar to Kansas expressly require the
county to bid on a property at a delinquent tax sale when there are no other bidders. 25
Prior to 1941, Kansas law included a similar provision, but that provision has been
19 K.S.A. 2011 Supp. 79-2804.
20 Id.
21 Id.
22 Id.
23 Id. (emphasis added).
24 See, e.g., In re M.R., 272 Kan. 1335, 1342 (2002).
25 See, e.g., 68 Okla. Stat. § 3129; V.T.C.A., Tax Code § 34.01(p) (2003).

Richard E. James
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repealed. 26 Under current law, a county is not required to bid on delinquent property at
the public auction. Instead, if there are no bidders on a property at a delinquent tax sale,
the county may offer the property for sale again pursuant to K.S.A. 2011 Supp. 79-
2803a.
2. 	If a county is not required to bid in the county’s interest at a delinquent tax sale,
and if there are no bids on the delinquent property, who owns the delinquent
property?
This question relates to the effect of a foreclosure judgment rendered pursuant to K.S.A.
79-2801 et seq., namely, whether the delinquent taxpayer loses all right, title and
interest in the delinquent property upon judicial foreclosure. The answer is no.
“[T]he methods prescribed for the recovery of delinquent taxes are wholly statutory, no
methods exist apart from the statute, and whatever procedures, whatever remedies are
available are to be found in the tax statutes.” 27 The judgment of the district court in a tax
foreclosure action is described in relevant part as follows:
[I]t shall be the duty of such district court . . . to investigate and to decide
what taxes, charges, interest, and penalty thereon, to the date of the filing
of the petition, shall have been legally assessed and charged on such
tract, lot, or piece of real estate, and to render judgment therefor . . . and
including in such judgment any taxes, interest charges and penalties
which became a lien on such tract, lot, or piece of real estate after the
filing of the petition . . . and to charge the same as a first and prior lien on
said tract, lot, or piece of real estate . . . and to order the sale of the said
real estate for the payment of such taxes, charges, interest and penalty
and the costs, and expense of such proceedings and sale; which sale
shall be made and conducted as hereinafter provided. 28
To summarize, the court renders judgment for the county for all outstanding taxes owing
at the time the county petitions for foreclosure, charges all taxes that have accrued
since the county filed its petition as a first and prior lien on the property, and orders the
sale of the property for payment of the taxes. K.S.A. 79-2801 et seq. do not direct the
court to transfer the right, title, and interest in the delinquent property to the county at
the time of judicial foreclosure.
Accordingly, we conclude that a tax foreclosure judgment does not transfer ownership
of the delinquent property to the county initiating the foreclosure action. Rather, “[w]here
a lienholder forecloses its lien and obtains a foreclosure judgment against the property
26 R.S. 1923, 79-2311 (“If any parcel of land cannot be sold for the amount of taxes and charges thereon,
it shall be bid off by the county treasurer in the name of the county for such amount”); Repealed, L. 1941,
Ch. 375, § 35.
27 Sherman County Comm’rs v. Alden, 158 Kan. 487, 512 (1944).
28 K.S.A. 79-2803 (emphasis added).

Richard E. James
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owner, the lien merges into that judgment and the lienholder becomes a judgment
creditor.”29
The deed to a delinquent property does not change hands until the property is sold at a
public auction or, if there are no bidders at the public auction, when the property is sold
or transferred in accordance with K.S.A. 2011 Supp. 79-2803a(b). 30 “If a lien is enforced
by a foreclosure action, the defendant's interest and title in the property that is subject to
the lien can be divested only by a foreclosure sale.” 31 “A valid tax deed totally destroys
the antecedent estate of the former owner, cuts off all the former owner's rights, and
vests all the former owner's right, title, and interest in the grantee named in the deed.” 32
We opine that after a tax foreclosure judgment has been rendered, the delinquent
taxpayer continues to be the owner of the subject property until such property is sold to
the successful bidder at a public auction or until the property is sold or transferred in
accordance with K.S.A. 2011 Supp. 79-2803a(b).
3. 	When does the redemption period for delinquent property begin?
Pursuant to K.S.A. 2011 Supp. 79-2401a, the county is required to hold real estate bid
off by the county for a certain number of years “from the date of the sale.” The “date of
the sale” refers to the date on which the county treasurer bids off the delinquent
property 	in 	the 	name 	of 	the 	county 	pursuant 	to 	K.S.A. 	79-2306. 	Therefore, 	the
redemption period begins when the county treasurer bids off the delinquent property in
the name of the county.
Sincerely,
Derek Schmidt
Kansas Attorney General
Sarah Fertig
Assistant Attorney General
DS:AA:SF
29 51 Am. Jur. 2d Liens § 93 (2012).
30 K.S.A. 2011 Supp. 79-2804.
31 51 Am. Jur. 2d Liens § 94 (2012).
32 72 Am. Jur. 2d State and Local Taxation § 863 (2012).