Request By:
J. U. Grow, Clerk
Simpson County
P.O. Box 268
Franklin, Kentucky 42134
Opinion
Opinion By: Steven L. Beshear, Attorney General; Charles W. Runyan, Assistant Deputy Attorney General
In April, 1980, the Sheriff's Annual Land Sales for delinquent taxes was held in Simpson County. At that sale a man, not the owner of the real property, purchased the delinquent tax bill and paid the total land sale bill to the Sheriff. The Deputy Sheriff brought the purchaser to your office and asked that a lien be placed on the property for the amount of the tax bill purchased. Your office recorded the sold tax bill with no prepared stamp in the Lis Pendens Book.
Your question: Are such purchased delinquent tax bills properly recordable in the Lis Pendens Book? The answer is "no."
The definition of "lis pendens" is simply a pending suit. The basic lis pendens statute, KRS 382.440(1), reads in part:
"No action, cross-action, counterclaim, or any other proceeding, except actions for forcible detainer or forcible entry or detainer, commenced or filed in any court of this state, in which the title to, or the possession or use of, or any lien, tax, assessment or charge on real property, or any interest therein, is in any manner affected or involved, nor any order nor judgment therein, nor any sale or other proceeding, nor any proceeding in, nor judgment or decree rendered, in a district court of the United States, shall in any manner affect the right, title or interest of any subrequent purchaser, lessee, or encumbrancer of such real property, or interest for value and without notice thereof, except from the time there is filed, in the office of the county clerk of the county in which such real property or the greater part thereof lies, a memorandum stating:
(a) The number of the action, if it is numbered, and the style of such action or proceeding and the court in which it is commenced, or is pending;
(b) The name of the person whose right, title, interest in, or claim to, real property is involved or affected; and
(c) A description of the real property in the county thereby affected."
The doctrine of lis pendens was described in Roberts v. Cardwell, 154 Ky. 483, 157 S.W. 711 (1913) 713:
"The doctrine of lis pendens as to persons and property within its operation is that the court having jurisdiction of the suit or action is entitled to proceed to the final exercise of that jurisdiction, and that it is beyond the power of any of the parties to the action to prevent its doing so by any transfer or other act made or done after the service of the writ or the happening of such other act as may be necessary to the commencement of lis pendens. If any of the parties, after the lis pendens has become operative, attempts any transfer of the subject-matter of the litigation, or to create any incumbrance or charge against it, or to enter into any contract affecting it, or to deliver possession of it to another, the action or suit may proceed without taking any notice whatever of such transier, incumbrance, or change in possession, and the final judgment or decree, when entered may be carried into effect notwithstanding the attempted dealing with the subject-matter thereof."
Thus, the lis pendens book in your office relates only to memoranca concerning pending law suits affecting the title to or use or possession of real property. The lis pendens notice, where properly composed and filed, is notice of all facts apparent on the face of the pleadings and exhibits and of all other facts or which they would put a person of ordinary prudence on inquiry. Ben Williamson & Co. v. Hall, 290 Ky. 672, 161 S.W.2d 905 (1942) 907. No action in which any lien is involved shall affect the right of subsequent creditors, bona fide or other purchasers without notice except from the time the requisite memorandum is filed pursuant to KRS 382.440. The purpose of this statute is to protect those who would be lis pendens purchasers by requiring notice of the pendency of the action to enforce the lien.
While the lis pendens filing includes any suit involving a lien, in the factual situation you mention, no legal action is involved, on a sheriff's sale for delinquent taxes.
The question, at this point, is whether the purchaser of the delinquent tax bill has a lien?
The answer is that the purchaser of a certificate of delinquensc has a lien as described in delinquence, has a lien as described KRS 124.420(1). In the latter subsection, the state and each county, city or other taxing district shall have a lien on the property assessed for taxes due them respectively for five (5) years following the date when the taxes become delinquent, and also on any real property owned by a delinquent taxpayer at the date when the sheriff offers the tax claims for sale, as provided in KRS 134.430 and 134.440. In other words, the purchaser of the certificate of delinquency in your situation fell into the shoes of the tax authorities as relates to the lien. See also KRS 134.430(2).
The next question is whether the certificate of delinquency should be filed in the lis pendens book.
Under KRS 134.490(1)(b), the owner of a certificate of delinquency may after three (3) years have elapsed after the issuance thereof, as one of three options, institute an action to enforce his lien. If he files such a suit, clearly a memorandum of such litigation may be filed in the lis pendens book, pursuant to KRS 382.440. See Barnett v. Commonwealth, Ky. App., 566 S.W.2d 794 (1978).
KRS 134.450(3) provides that: "The sherifi shall return all certificates of delinquency to the County Clerk, after he has made his settlement with the state and not later than June 2 of each year, and the Clerk shall file them." (Emphasis added.)
CONCLUSION
It is our opinion that: (1) The purchaser of a Certificate of Delinquency has a lien, as described above. (2) Where the owner of the Certificate of Delinquency files a suit to enforce his lien, a memo of the suit should be filed in the lis pendens book, pursuant to KRS 382.440. (3) Where the owner of the certificate has not brought suit on the certificate, the certificate should be filed and placed in a book called "Certificates of Delinquency, " with proper indexing. It has no place in the lis pendens book.