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The Latest on Tax Takings and Owners' Right to a Return of Equity

Most towns are familiar with the tax taking process. However, the process as we know it is under scrutiny by courts and lawmakers following the Supreme Court’s 2023 decision in Tyler v. Hennepin County, Minnesota, which held that a Minnesota statute that did not provide a mechanism for the delinquent taxpayer to recover any value over what is owed to the government violated the Fifth Amendment’s Takings Clause (“nor shall private property be taken for public use, without just compensation”). 


Whether and how the Massachusetts statutory scheme for tax takings will need to change in light of this opinion is yet to be determined. The Superior Court’s recent opinion in Mills v. City of Springfield found that the Massachusetts tax taking statute (G.L. c. 60) violates the takings clauses of the Massachusetts and United States Constitutions. Specifically, the statute allows municipalities to take and hold the entire proceeds upon sale of the property on which taxes are owed, even if the taxes owed amount to a small fraction of the total value. The property owner loses the value of all his or her equity in the property to satisfy a tax bill that may be of lesser value. Therefore, the Mills Court’s held that the tax takings statute is “unconstitutional as applied in circumstances . . . where the tax debt is less than the value of the property.” 


However, the Land Court more recently issued a different opinion of Tyler v. Hennepin County’s implications for the Massachusetts tax takings scheme. In its May 2024 decision and order in Tyngsborough v. Recco, the Land Court distinguished the Massachusetts statute from the Minnesota statute overturned in Tyler. In contrast to Minnesota’s law, the Massachusetts tax taking process does not address what must be done with the proceeds of a foreclosure sale, and a Town may return to the delinquent taxpayer the surplus proceeds following a post-foreclosure sale. In fact, the Land Court noted that Tyngsborough had acknowledged its “constitutional obligation to compensate an owner following a taking of her property” (emphasis added). In addition, the property owner would have a cause of action to recover damages under M.G.L. c. 79, § 10.  


Despite these conflicting analyses of the constitutionality of G.L. c. 60, both decisions recognize the right of the delinquent taxpayer to recover excess value upon foreclosure, in the Mills case as a constitutional obligation of the municipality, and in the Tyngsborough case, as a right of recovery by the taxpayer or a condition of sale by the municipality. The Massachusetts Legislature is poised to act to bring the tax taking law into constitutional compliance; the Senate on May 23 passed an amendment that would require towns to compensate the former property owner for the balance of proceeds from the sale beyond the town’s reasonable expenses. We will alert you to any updates to this legislation. 


General Opines that the Tax


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