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TAX DEED AUCTION SALE vs FORECLOSURE AUCTION - WHAT YOU NEED TO KNOW

By
Real Estate Attorney with THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY

 

Several times a week I get calls from people that have purchased or want to purchase at a Tax Deed Auction or a Foreclosure Auction.  Often they ask which is better.  The answer itself is not all that difficult, but the issues behind the answer are very complex.  Agents and Brokers should understand these two property acquisition methods as well. 

Which Is Right For You? 

Tax Deed Sales -  

The first thing to consider is how much money do you have to invest in the purchase.  Tax Deed Sales typically sell for a fraction of the value of the property.  However in Florida (about which this article is written - check with local counsel if you are in another state), if the property being sold is registered on the tax rolls as “homestead property” then the minimum bid is the higher of the unpaid taxes or the tax assessed value of the property.  Compare this to non-homestead property which carries a minimum bid of the unpaid taxes regardless of the tax assessor’s value on the property. 

Foreclosure Deed Sales -  

Mortgage Foreclosure Sales carry no minimum bid, except you are bidding against the foreclosure judgment holder.  The foreclosure judgment holder can bid up to the amount of the foreclosure judgment without actually having to pay that amount to the Clerk of Court if they win the bid by being the highest bidder.  The result is that many foreclosure sales end up with the foreclosure judgment holder being the highest bidder.  However, if the value of the property as perceived by the public bidder is higher than the foreclosure judgment amount, there is likely to be competitive bidding by the public above the judgment amount. 

The Big Difference - 

The biggest difference between a tax deed sale and the foreclosure sale has to do with due diligence by the buyer.  I like to say that “a tax deed is first in priority except for God and code enforcement liens”.  It is a generalized statement but pretty accurate none the less.  If the property burns down or is hit with a natural disaster, you just cannot prepare for that.  Further, code enforcement liens (in Florida) stay with the property and must be paid and the violations cured by the tax deed buyer.  The buyer is also liable for homeowner or condominium association fees after the tax deed is issued by the Clerk of Court.

Foreclosure deeds however may be subject to senior (superior) mortgages.  This is often seen when a homeowner or condominium association lien is foreclosed.  The novice buyer in those circumstances is then stuck with paying off the mortgage to keep the property.  However, a code enforcement lien in a foreclosure action can in many cases be eliminated at least up to the date of the issuance of the Certificate of Title by the Clerk of Court to the winning bidder. 

Due Diligence!!!!!!!!!!!! -

In each case, whether Foreclosure Deed or Tax Deed, it is absolutely important for the potential buyer to gather real information about not only the property, but the court or administrative proceeding so that knowledge of other liens, mortgages, judgments, code violations, building permits and such local issues as a good real estate attorney may know of for that locale.  If you are not experienced in doing these purchases, seek professional help from someone that has that knowledge.

A Horrible But Typical Story -

I received a call yesterday from someone that if they were my client before they bid at the foreclosure sale, would have invested under $1,000 with me and ended up saving over $100,000!  They bought a property by getting the winning bid on an association lien foreclosure.  Their bid was under $40,000.  They did not know about the mold in the house ($50,000 to repair).  Fair enough – due diligence probably would not have shown that as a problem.   So in addition to the repairs, they put in another $30,000 in upgrades since the previous owner stripped out the house.  Then a year later they found out that the house has been in foreclosure on the first mortgage for about 5 years and the foreclosure sale is going to occur in a few weeks.  So they have to lose their investment and move.  This was all preventable.  The caller said that they had the wool pulled over their eyes and it was not right.  In reality they had their eyes closed as all the information they really needed was obtainable by the public – if they bothered to look.  Of course if they did not know how to look they could have hired a knowledgeable Realtor or attorney.

What Kind Of Title? -  Marketable or Unmarketable Title – Who Cares?

The next difference is the type of title you get from the Clerk of Court in each sale.  In a foreclosure sale the Clerk of Court issues a Certificate of Title based upon a Court issued Final Judgment.  This is a judicial deed.  In a tax deed sale the Clerk of Court issues a Tax Deed based on administrative procedures.   Because this is not a judicially directed deed, the title to the property issued by way of a tax deed is not “marketable” and you cannot get title insurance issued without special exceptions.  A tax deed title can be attacked by parties that may have been interested but were not noticed of the unpaid taxes or of the tax deed sale for up to 4 years.  The good news is that while a tax deed purchaser has this unmarketable voidable title, they can still use or rent the property.  The bad news is the property could be lost by an attack by someone challenging the sale up to 4 years out.  Understand that if you cannot get marketable title, you cannot borrow against the property and you usually cannot sell the property to anyone except someone like in the example above.

The Tax Deed Quiet Title Lawsuit -

The solution to this unmarketable title can be just wait and hope for the 4 years that no person comes forward to redeem the property from the unpaid taxes based on non-notice, or file a lawsuit called a “tax deed quiet title action” that has the Court issue a final judgment saying all the things that should have been done administratively by the tax collector and Clerk of Court were indeed done correctly, and everyone that should have received notice did indeed receive notice of the unpaid taxes and tax deed sale date.

Although this may seem simple – it isn’t.  The United States Supreme Court a few years ago determined that basic due diligence by the Clerk of Court to provide notice to the necessary parties to a foreclosure action is not enough under a broad range of circumstances.  So in a tax deed quiet title action the attorney must examine how the Clerk provided notice to whom, what responses the Clerk of Court got and if the Clerk of Court reacted in accordance with the Supreme Court determination of what is real due diligence for a tax deed matter.  Further the investigation and title search done by the Clerk of Court must be confirmed as accurate.  Lastly the people determined by the Clerk of Court and then the quiet title attorney must all be served with a summons and quiet title complaint for the opportunity to respond and object to the judge quieting title in the name of the tax deed purchaser.  If there are any persons with interests that should have gotten notice and they are dead, then their heirs may have to be found and a guardian ad litem or attorney ad litem must be appointed to look after their potential interests regarding the quiet title action. 

Obtaining a tax deed quiet title judgment should be handled by a competent attorney. Legal fees will vary, but expect legal fees to vary from $1,500 to $3,000 or more, depending on the experience of the attorney as well as the complexity of the particular factual issues.  And don’t forget court costs and expenses which can run from a few hundred to a few thousand dollars, depending on a myriad of rules, state court fee schedules and discovery issues.  Find an attorney that does this work (many will do it statewide, so he or she does not have to be local to you) and they should be able to give you a some cost guidelines for your particular case.

Looks Easy – From A Distance! -

This is all much more complicated than most people would assume (usually I get a statement from a potential client – “all you need to do is file the suit and go and get the judge to say the tax deed is ok”).  Once all the preparation work for filing the suit is done and then served upon all the defendants, if no one responds then it is indeed simple to get the judge to do just that.  It looks simple from a distance but up close there are a lot of gears that have to be made to mesh just right.

So go and have fun – make money!  But be prudent and most of all be smart and make informed decisions.  Jumping in before finding out how deep the water is can be a very hurting experience!

See my other articles related to this topic at FORECLOSURE BUYERS GET INTO BIG TROUBLE!

© 2014 Richard P Zaretsky, Esq.

 Be sure to contact your own attorney for your state laws, and always consult your own attorney on any legal decision you need to make. This article is for information purposes and is not specific advice to any one reader.

Richard Zaretsky, Esq., ZARETSKY LAW GROUP, 1615 FORUM PLACE, SUITE 3A, WEST PALM BEACH, FLORIDA 33401, PHONE 561 689 6660 RPZ99@Florida-Counsel.com - FLORIDA BAR BOARD CERTIFIED IN REAL ESTATE LAW - We assist Brokers, Owners and Sellers with Quiet Title Actions, Short Sales and Traditional Transactions Statewide contact@Florida-Counsel.com  Website www.Florida-Counsel.com. 

See our easy to find articles at TABLE OF CONTENTS - SHORT SALE AND LOAN MODIFICATION ARTICLES

 

Pamela Seley
West Coast Realty Division - Murrieta, CA
Residential Real Estate Agent serving SW RivCo CA

I had planned on helping an investor buy foreclosure homes at the courthouse steps, but couldn't find a title company who would insure title. That was too much of a risk for me to recommend my home buyer buy foreclosures at trustee sale without owner's title insurance. It's so true there are many downfalls that could be disastrous mistakes for real estate investors buying certain types of sales. They should contact someone first, like you who knows. 

Jul 26, 2014 11:09 AM
Bill Reddington
Re/max By The Sea - Destin, FL
Destin Florida Real Estate

I never suggest foreclosure sales or even tax deed sales. As you mentioned there is a lot more to the story then just waving a paddle.

Jul 26, 2014 11:40 AM
Dr. Paula McDonald
Beam & Branch Realty - Granbury, TX
Granbury, TX 936-203-0279

Excellent information.  So sad that so many people will not turn to a professionals for their guidance. 

Jul 26, 2014 11:57 AM
Jordon Wheeler
The Jordon Wheeler Group - Fairburn, GA
J W Group Real Estate Sales and Service

Hey Richard,

This is great information.  You really take the fluff out of the process which is similar in Georgia and give us the guts of these two types of sales.

Besr of GREAT success to you in 2014!

Jul 26, 2014 12:40 PM
Joan Whitebook
BHG The Masiello Group - Nashua, NH
Consumer Focused Real Estate Services

Richard - this is an informative post.  Buyers need to do their due diligence.

Jul 26, 2014 01:00 PM
Richard Zaretsky
THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY - West Palm Beach, FL
Florida Real Estate Attorney

Thanks for the appreciation for the post - it was gnawing at me that people were not really understanding the need for marketable title and confusing the tax deed sale with the foreclosure sale.  So I wrote the article.

Jul 26, 2014 01:04 PM
Laura Cerrano
Feng Shui Manhattan Long Island - Locust Valley, NY
Certified Feng Shui Expert, Speaker & Researcher

Thanks for posting. Tax deed me la is something I can work on.

Jul 26, 2014 04:11 PM
Annette Thor
Connecticut Homes and Commercial Fairfield Cty,CT reinct.com - Westport, CT
Residential & Commercial Real Estate Broker in CT

Very well written post Richard. I'd love to reblog it.  Retaining legal counsel for buying a foreclosure is so critically important.  In Connecticut all real estate closings involve an attorneys.  

 

For foreclosure seekers they need to get their attorney involved in the home selection before bidding on it instead of the normal route of getting your attorney to run title after a offer is accepted.

Jul 26, 2014 08:12 PM
Nina Hollander, Broker
Coldwell Banker Realty - Charlotte, NC
Your Greater Charlotte Realtor

This is fantastic information. I'm often asked by buyers about these kinds of sales, but they are really not an area of expertise for me or for most agents.

Jul 26, 2014 09:25 PM
Gabe Sanders
Real Estate of Florida specializing in Martin County Residential Homes, Condos and Land Sales - Stuart, FL
Stuart Florida Real Estate

Thanks Richard.  This is an excellent overview of the risks involved in these purchases.  Especially without the proper representation.  

 

Jul 26, 2014 09:27 PM
Gary L. Waters Broker Associate, Bucci Realty
Bucci Realty, Inc. - Melbourne, FL
Eighteen Years Experience in Brevard County

Interesting information. I was not aware of the difference in homesteaded property regarding tax deed bids. Seeking advice from a competent professional is critical when dealing with this.

Jul 26, 2014 10:06 PM
Richie Alan Naggar
people first...then business Ran Right Realty - Riverside, CA
agent & author

All this post really does is tell the reader who to call when this is in play. You have demonstrated a mastery of the subject matter...Someone would be overjoyed to find and hire you if navigating in these Real Estate waters....

Jul 26, 2014 11:36 PM
Marie Story
Coldwell Banker - Pinecrest (Miami) - Pinecrest, FL
Broker Associate, Pinecrest (Miami) Specialist

Richard, thank you for taking the time to write this very interesting and informative post.

Jul 27, 2014 12:53 AM
Jon Zolsky, Daytona Beach, FL
Daytona Condo Realty, 386-405-4408 - Daytona Beach, FL
Buy Daytona condos for heavenly good prices

Richard - we are buying at Tax Sale auctions, and once were caught in a wrong move. Did not bother to check the mortgage, and it turned out to be a government mortgage, a SHIP program where state gives counties funds to make loans to needing qualified families, and as such, it is a government mortgage, and is not wiped out by the Tax sale.

So, we managed to by a Mortgage, had to negotiate it with the County administration, reach a settlement, and are still dealing with the issue.

From $1,500 is great. So far we found an attorney in Tampa, who is Quieting title for us, and starting is $1,800, and we find it excellent.

Jul 27, 2014 04:58 AM
Wayne Johnson
Coldwell Banker D'Ann Harper REALTORS® - San Antonio, TX
San Antonio REALTOR, San Antonio Homes For Sale

Richard-I've heard of some marketing materials to help a consumer navigate tax deed purchases. Obviously, it is not as easy to avoid losing one's shirt as they make it out to be.

Jul 27, 2014 06:07 AM
Anonymous
David Mechanic

Thanks Richard.

A wealth of knowledge has once again been added to my quiver.


David Mechanic
CEO Modern Senior Capital

Jul 27, 2014 08:18 AM
#20
Kathy Streib
Cypress, TX
Home Stager/Redesign

Richard- You laid everything out well, and only reinforces what I would do and that is consult with an attorney!  (that would be you)  Hope you can make it to our AR Meetup. 

Jul 27, 2014 10:25 AM
Jon Zolsky, Daytona Beach, FL
Daytona Condo Realty, 386-405-4408 - Daytona Beach, FL
Buy Daytona condos for heavenly good prices

Richard - I am back. I am reading the comments and it donned upon me that agents now have a little better understanding of the differences and complexity, but not the practicality of it.

We understand that there may be troubles, but can't really protect ourselves the way it sounds right, i.e. by consulting the attorney, do the title search, etc. And there is a simple reason for that. In more active auction years we calculated, that we were buying on average one in 900 auctioned properties, which were of some interest to us. Now, in much slower times we buy approximately one in 1800. Majority are redeemed, removed due to filing bankruptcy, etc. If we would do Title Search through Attorney's Title, it would cost us way more than any profit we could make.

So, we watch the properties, and start making ripples only when there is 1-2 days left, and there is some chance they would go on the chopping block, and at this moment it is usually too late for anything meaningful. So, we are trying to do it ourselves, and we are not very good at title search.

So, yes, you have to know a lot, but risks remain, and they are quite significant for the players. And under players I mean those who do it for living. it is not for first time buyers. I have seen people bidding and winning the wrong property. After all, the clerk of the Court does not read the addresses.

Jul 27, 2014 11:04 AM
Richard Zaretsky
THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY - West Palm Beach, FL
Florida Real Estate Attorney

Kathy - its on my calendar...........

Jul 27, 2014 11:34 AM
Jody Wall
BANCROFT REALTY LLC - Grand Prairie, TX
jodywallrealtor.com

I love tax deed sells in Texas.  I build houses and it is a great way to get vacant in-fill lots cheap.  Many times the land is inherited and the heirs do not know what the land is worth or want to bother.  The land goes to auction.  I tried for a long time to find these owners and buy the property before the sale.  It is not worth the time considering how cheap you can get them.

Aug 27, 2016 02:36 AM