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AGO 1959 No. 49 - June 25, 1959
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John J. O'Connell | 1957-1968 | Attorney General of Washington

TAXATION - LIABILITY OF PROPERTY ESCHEATING TO THE STATE FOR REAL PROPERTY TAXES AND DRAINAGE DISTRICT ASSESSMENTS.

(1) Property taxes on real property escheated to the state should be canceled by the county board of equalization.  (2) Drainage district assessments levied against property escheated to the state must be paid by the state.

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                                                                   June 25, 1959

Tax Commission
State of Washington
General Administration Building
Olympia, Washington                                                                                               Cite as:  AGO 59-60 No. 49

Gentlemen:

            This will acknowledge a request for an opinion of this office arising out of the following factual situation:

            The owner of real property dies intestate and without heirs in February 1957.  The property was escheated to the state of Washington, the decree being entered in September of 1958.  Real property taxes were assessed and levied for 1957 and 1958 and remain unpaid.  Drainage district assessments for the same years are also unpaid.  You specifically request answers to the following questions: (1) Must the state pay the property taxes or the drainage district assessments; and (2) if not, may they be canceled?

            The answer to the first question is in the negative as to the real property taxes and in the affirmative as to the drainage district assessments.  In answer to the second question the real property taxes may be canceled but the drainage district assessments may not.

                                                                     ANALYSIS

            The general rule, as set forth in Halvorsen v. Pacific County, 22 Wn. (2d) 532, 156 P. (2d) 907, is as follows:

            ". . . when property is acquired by the state, county or city, existing tax liens are discharged or merged in the title acquired by the public body.  We think this rule is supported by the better  [[Orig. Op. Page 2]] reasoning and now hold that the lien of the taxes levied upon this land prior to reversion [to the state] became merged in the title acquired by the state and such taxes are not a lien thereon."

            This has been the position of this office since 1904, when we issued such an opinion to the prosecuting attorney of Douglas county (Ops. Atty. Gen. for 1904 at page 262) [[1904 OAG 262)]].

            There would be no need to discuss this rule further except that the supreme court inIn re Graley's Estate, 183 Wash. 268, 48 P. (2d) 634, held that title to escheat property did not vest in the state until the entry of a decree of escheat.  Therefore, until the entry of the decree, the property was subject to taxes and the lien could be enforced, at least as a claim against the assets of the estate.  It was common practice for the administrator to pay all taxes levied against the property prior to the decree.  This office has issued several opinions to the effect that taxes levied prior to the date of the decree of escheat should be paid before entering the decree.  See opinions to you dated July 2, 1945 [[1945-46 OAG 247)]], and March 22, 1948 [[1947-48 OAG 90d)]]; and the opinion to the prosecuting attorney of King county dated August 22, 1949 [[Opinion No. 49-51-110)]].

            However, it is no longer necessary to have a decree of escheat entered to vest the title in the state to escheat property of those dying after June 8, 1955.  RCW 11.08.150 (§ 3, chapter 254, Laws of 1955), reads as follows:

            "Title to escheat property, which shall include any intangible personalty, shall vest in the state at the death of the owner thereof."

            Since title to escheat property now vests in the state at the death of the owner thereof, the lien of all real property taxes levied but unpaid at the date of death merges in the title escheated to the state, and is discharged so that not even a dormant lien remains.  Escheat property is defined as property of a person who dies "without being survived by any person entitled to the same under the laws of this state."  RCW 11.08.140.  Although, by statute, title to such property vests in the state at the death of the owner, it will not be known that it so vested until the decree of escheat is entered.  Heirs may appear before that time and claim the property.  If this happens it is obvious that title did not vest in the state at the date of death because if the decedent was survived by persons entitled to the property, there was no escheat property.  Therefore, to pay or cancel taxes before the decree of escheat is entered would be premature.  While the decree does not create a title it does declare who acquired it.  In re Graley's Estate, supra.  It follows that property being  [[Orig. Op. Page 3]] probated as escheat property should be assessed and taxes levied after the date of death and up to the entry of a decree of escheat after which time the taxes may be canceled as hereinafter explained.

            Upon the death of the owner of the real property here involved, the property escheated to the state and the real property taxes for 1957 merged in the title.  The 1958 real property taxes having been assessed but not levied at the date of death were never perfected and did not become a lien on the property.  State v. Snohomish County, 71 Wash. 320, 128 Pac. 667.

            This change in the law may result in some practical problems.  Cases will occur where the property has escheated to the state, but taxes will be assessed and levied since the assessor will not know of the death or the fact that there are no heirs until entry of the decree.  Many situations such as the instant one will occur where it will be necessary for the county board of equalization to cancel such unpaid taxes.  The board is given this power in RCW 84.56.400, which reads in part as follows:

            ". . . the board shall cancel all unpaid taxes upon property which belongs exclusively to the state, any county or municipal corporation. . . ."

            In this regard, see our opinion to the prosecuting attorney of Clallam county dated April 6, 1955 (AGO 55-57 No. 55), a copy of which is enclosed.

            Should a county mistakenly attempt to sell escheated property at a tax sale, the purchaser would receive nothing, even though it might be several years before the state claimed it as escheated property.  SeeHalvorsen v. Pacific County, supra.

            In arriving at this conclusion, we have not overlooked RCW 84.60.050, which provides that when real property is acquired by the state through "purchase or condemnation," the property continues to be subject to the lien of any tax levied by any public body which is collectible by the county treasurer.  The taxes are to be paid by being withheld from the purchase price or condemnation award by the public body taking title.  An escheat is neither a purchase nor a condemnation.  It is a reversion of property to the state in consequence of a want of any individual competent to inherit.  Black's Law Dictionary (4th ed.) 640.  Both purchase and condemnation involve the giving of something of value in exchange for the land.  It is clear that RCW 84.60.050 was not intended to include property escheated.

            Turning to drainage district assessments, a different result follows because of chapter 79.44 RCW and RCW 85.04.110.  The latter  [[Orig. Op. Page 4]] statute provides that state lands within a drainage district shall be assessed for improvements benefiting such lands which assessments are to be paid by the proper authorities.  RCW 79.44.020 reads:

            "In all local improvement assessment districts in any incorporated city, town, diking, drainage or port district in this state, property in such district, held or owned by the state shall be assessed and charged for its proportion of the cost of such local improvements in the same manner as other property in such district,it being the intention of this act that the state shall bear its just and equitable proportion of the cost of local improvements specially benefiting state lands: . . ." (Emphasis supplied.)

            While the interest of the state may not be sold to satisfy the lien of such assessments (RCW 79.44.010), the assessments are to be paid by legislative appropriation.  RCW 79.44.050.  These statutes refer to assessments made at the time the property is in state ownership but there appears to be no reason why they should not be paid even though assessed before the state acquired title.  The intent expressed in the act is that the state shall bear its just proportion of the cost of the improvements which benefit the lands.

            We therefore conclude that local improvement district assessments levied against privately owned property within a drainage district which remain unpaid when the state acquired title by escheat, must be paid by the state.  It follows that such assessments may not be canceled.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

HENRY W. WAGER
Assistant Attorney General

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