Op. Atty. Gen 425c-11 ( 2013 )

    tax-forfeited land by the State of Minnesota to a Township for public park purposes does not
    supersede a prior Declaration on the property restricting the use of the property to private,
    residential purposes and therefore, use of the property as a public park is prohibited. Minn. Stat.
    § 282.01, subd. 6 (2012).
                                              April 18, 2013
    Mr. Robert T. Ruppe
    Couri & Ruppe, P.L.L.P.
    705 Central Avenue East
    P.O. Box 369
    St. Michael, MN 55376
           Re:     Request for Opinion/Survival of a Declaration after Tax Forfeiture
    Dear Mr. Ruppe:
            I thank you for your correspondence received February 28, 2013, requesting an opinion
    of the Attorney General’s Office regarding the survival of a declaration after property has been
    forfeited to the State of Minnesota for non-payment of property taxes.
             You state that Credit River Township has been informed by Scott County that a property
    in the Township has been forfeited for failure to pay taxes, and that the Township could acquire
    the property provided it puts the property to public use under Minn. Stat. § 282.01, subd. 1a. The
    Township desires to acquire the property for public park purposes and has notified the County
    that it intends on acquiring the property for public park purposes, which is an authorized public
    use under Minn. Stat. § 282.01, subd. 1a. The property is platted property and is subject to the
    Cress View Estates Declaration (“Declaration”). The Declaration is recorded in the County
    Recorder’s office and is less than 30 years old. Residents of the Plat of Cress View have
    informed the Township that they object to the use of the property as public park as the
    Declaration states that no lot shall be used except for private, residential purposes. The
    Township recognizes that any conveyance of tax-forfeited property from the State is subject to
    “easements” and “restrictions of record” at the date of the tax judgment sale pursuant to Minn.
    Stat. § 282.01, subd. 6.
            Based upon the foregoing facts, you ask if the conveyance to Credit River Township of
    the tax-forfeited parcel located within the Plat of Cress View Estates for public park purposes is
    subject to the restriction on use contained in the Cress View Estates Declaration.
    Mr. Robert T. Ruppe
    April 18, 2013
    Page 2
                                            LAW AND ANALYSIS
             Minn. Stat. § 282. 01, subd. 6 (2012), states that conveyance of tax-forfeited land by the
    Commissioner of Revenue “shall have the full force and effect of a patent from the State subject
    to easements and restrictions of record at the date of the tax judgment sale”. Based upon the
    facts in your letter, it is undisputed that the Declaration was of record and that the property was
    subject to the Declaration prior to the forfeiture of the property to the State for non-payment of
    property taxes. Thus, the question essentially is whether the Declaration is an “easement or
    restriction of record” within the meaning of Minn. Stat. § 282. 01, subd. 6, and if so, whether the
    property is subject to the restrictions found in the Declaration.
            We are not aware of any case that has determined that the State’s conveyance of tax-
    forfeited land for a specific public purpose supersedes an existing easement or restriction of
    record on the property. The Declaration states it “constitutes covenants to run with the Property,
    and further declares that the Property … shall be owned, used, occupied and conveyed subject to
    the covenants, restrictions, easements, charges and liens set forth in this Declaration….”
    Because the Declaration is an easement and restriction of record within the plain meaning of
    Minn. Stat. § 282.01, subd. 6, the tax-forfeited property remains subject to the Declaration upon
    conveyance by the State. A restrictive covenant will be given its obvious meaning where the
    language used is clear and unambiguous. LaValle v. Kulkay, 
    277 N.W.2d 400
    , 403 (Minn.
    1979). The plain language of the Declaration limits the use of the lots to private, residential
           It is our opinion that use of the property for public park purposes is prohibited by the
                                                     SAMANTHA K. JUNEAU
                                                     Assistant Attorney General
                                                     (651) 757-1474 (Voice)
                                                     (651) 297-1235 (Fax)

Document Info

Filed Date: 4/18/2013

Modified Date: 2/2/2017