August 19, 2003
Dear Sir:
An alternative to using ' 13-105 of the Municipal Code to clean-up property inside the
city is to use Tennessee Code Annotated, ' 6-54-113. It is an administrative, rather than a
judicial, process that does not require an ordinance. It also authorizes the filing of a lien on
property for the city’s cost of the clean-up. That is important because it appears to be the law in
Tennessee that a government cannot file a lien on property without legislative authority.
Another advantage of using that statute is that, as a practical matter, the city is probably never
going to be able to collect a $50 a day fine against absentee property owners. A disadvantage of
the statute is that it cannot be used against owner-occupied property.
However, as I understand your letter of August 13, the city is having problems with
property owners who are difficult to serve notice; presumably, many of those property owners are
absentee owners. The above statute does not require notice by registered or certified mail, and,
as far as I can determine, there is no statutory or constitutional law requirement that notice by
registered or certified mail be given in such cases. [See the U.S. Supreme Court case of
Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983)].
But the law in Tennessee does appear to be stricter against the government and in favor of
the property owner on mail notice. With respect to the question of whether proper notice was
given of a delinquent tax sale to the plaintiffs, Warmath v. Payne, 3 S.W.3d 487 (Tenn. Ct. App.
1999), reveals the following facts in the Court’s own words:
The affidavits of Richard and Patricia Warmath state that they Adid
not have notice or knowledge whatsoever of [the] tax suit or
foreclosure sale until a detailed warrant was filed. The Tipton
County Clerk and Master’s affidavit, however, states that, at some
point prior to the tax sale and after notice via certified mail was
returned as “unclaimed,” notice was sent “not certified.” Payne
contends that this proof establishes that the Warmaths received
actual notice.... [At 492]
The Court responded that:
While it is true that a rebuttable presumption of fact that mail was
received may [the court’s emphasis] arise under Tennessee law,
Mr. Barkelew’s affidavit did not set forth the necessary and
August 19, 2003
Page 2
essential elements required to raise this presumption. See U.S. Life
Title Ins. Co. v. Department of Commerce and Ins., 770 S.W.2d
537, 542 (Tenn. App. 1988). Such a presumption arises only upon
proof that the item was duly mailed, which Arequires evidence that
the latter was properly addressed, properly stamped, and duly
deposited in the post office. [Citations omitted.] Because Ms.
Barkelew’s statement was insufficient to raise a rebuttable
presumption of receipt, the Warmaths’ contention, that they did not
receive any actual notice of the tax suit or foreclosure sale, is not
disputed by any competent proof. [At 492]
The Court also declared in Footnote 11, that “Payne asserts that ‘unclaimed’ amounts to a
refusal of delivery, but we decline to accept such a strained construction of this term.”
The affidavit of the clerk and master was defective in this case. That problem can be
avoided. But even when it is avoided, there still apparently only arises a rebuttable presumption
that the object of the notice received the notice. Still, that is better than nothing. In addition,
where the objects of notice refuse to accept delivery of registered or certified mail, there may be
no other practical alternative to notice by “plain” mail.
Let me know if I can help you further in this or any other matter.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/