If the redemption period has expired, aside from negotiating a redemption payoff directly with the tax sale purchaser, a tax debtor’s best remedy is to file a lawsuit to annul the tax sale. A template for a petition to annul a tax sale is located in Section 9 of this chapter.

To be successful, claimants must first establish they are a “tax sale party”, which means that they had a recorded interest in the mortgage or conveyance records entitled them to tax sale notice.1  This requirement mainly affects heirs or legatees, who often have no recorded interest. However, while heirs or legatees may not bring a nullity action in their own right, an heir to an unopened succession can assert a nullity action based on the claims of the decedent.2

• 1La. R.S. 47:2122(19) (“‘Tax sale party’ means the tax notice party, the owner of property, including the owner of record at the time of a tax sale, as shown in the conveyance records of the appropriate parish, and any other person holding an interest, such as a mortgage, privilege, or other encumbrance on the property, including a tax sale purchaser, as shown in the mortgage and conveyance records of the appropriate parish.”).
• 2Woodard v. Upp, 2013-0999, pp. 5–7 (La. App. 1 Cir. 2/18/14), 142 So. 3d 14, 18–19.

With the 2008 revisions, the Legislature eliminated absolute nullity as a tax sale defense.1  Under current law, “[n]o tax sale shall be set aside except for a payment nullity, redemption nullity, or a nullity under R.S. 47:2162, all of which are relative nullities.”2  It is well settled that “the language in effect at the time of the tax sale . . . applies . . . .”3  Consequently, any tax sale occurring in 2009 or later can only be nullified on one of these grounds.

A redemption nullity is “the right of a person to annul a tax sale in accordance with R.S. 47:2286 because he was not duly notified at least six months before the termination of the redemptive period.”4  After 2008, a nullity no longer occurs because the tax debtor was not notified before the tax sale. Instead, the nullity occurs if the party was not “duly notified” before the expiration of the redemptive period. With the revisions, the exhaustive list of “duly notifying” statutes found in La. R.S. 47:2122(4) intentionally does not contain the pre-sale noticing statute, La. R.S. 47:2153. The result is that a client cannot claim that the tax sale is a nullity for failure of pre-sale notice. Instead, nullity must be based on a failure of notice sufficiently in advance of the end of the redemptive period.

A payment nullity is invoked when the tax debtor can demonstrate that he actually paid the taxes for the delinquent year in question.5  A nullity under La. R.S. 47:2162 is a prohibited purchaser nullity, as happens when, for example, the tax sale purchaser is an employee of the tax collector or tax assessor. These two nullities are rare.

• 1See Adair Asset Mgmt., LLC v. Turney, 50,574 (La. App. 2 Cir. 05/04/16), 195 So. 3d 501, 513; Alpha Cap. US Bank v. White, 2018-0827 (La. App. 1 Cir. 12/21/18), 268 So. 3d 1124, 1129; Stow-Serge v. Side by Side Redevelopment, Inc., 2020-0015 (La. App. 4 Cir. 6/10/20), 302 So. 3d 71, 76. But see Deichmann v. Moeller, 2018-0358 (La. App. 4 Cir. 12/28/18), 318 So. 3d 833, 835 (holding that a tax sale can still be declared an absolute nullity when all sides plead as such and one side files a motion for judgment on the pleadings).
• 2La. R.S. 47:2286.
• 3Cent. Props. v. Fairway Gardenhomes, LLC, 2016-1855 (La. 6/27/17), 225 So. 3d 441, 448.
• 4La. R.S. 47:2122(10).
• 5La. R.S. 47:2122(8).

In order for a tax title to convert to ownership, all parties must be “duly notified”:1

“Duly notified” means, with respect to a particular person, that an effort meeting the requirements of due process of law has been made to identify and to provide that person with a notice that meets the requirements of R.S. 47:2156, 2157, 2206, 2236, or 2275, or with service of a petition and citation in accordance with R.S. 47:2266, regardless of any of the following:

• Whether the effort resulted in actual notice to the person.
• Whether the one who made the effort was a public official or a private party.
• When, after the tax sale, the effort was made.2

Failure to provide notice of the date on which the tax sale will convert to ownership creates a redemption nullity.3  However, failure to provide notice under one statute can be cured by sending notice under a different statute enumerated in La. R.S. 47:2122(4). Furthermore, the Louisiana Supreme Court has specifically held that a tax sale purchaser may send curative tax sale noticing.4

The most common due process violations are failure to provide notice to a reasonably ascertainable address and failing to send additional notice if the original notice is returned undeliverable. The U.S. Supreme Court has spoken to both situations.

As regards addresses, notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable.5  Failure to provide notice a reasonably ascertainable address often occurs when there have been multiple tax sales. Assessors assess properties in the name of the latest tax sale purchaser.6  Forgetting that the assessed address belongs to the latest tax sale purchaser, municipalities often mail tax sale notices in the name of the tax debtor to the assessed address.

Tax collectors must take an additional noticing step if all of the tax sale noticing efforts were returned to sender: “[W]hen mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so.”7  If any of the tax sale noticing was returned to the tax collector, be sure that any follow-up notice was sent to a separate address. Tax collectors have been known to send a second round of notice to the same insufficient address.

• 1La. R.S. 47:2121(C)(1).
• 2La. R.S. 47:2122(4).
• 3La. R.S. 47:2122(10), 2286.
• 4Cent. Props. v. Fairway Gardenhomes, LLC, 2016-1855 (La. 6/27/17), 225 So. 3d 441, 451 (“[W]e hold that, under the language of the applicable statutes, post-sale notice to the interested tax party may be effectuated by a tax sale purchaser . . . .”).
• 5Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800 (1983).
• 6La. R.S. 47:2161.
• 7Jones v. Flowers, 547 U.S. 220, 225 (2006).

In the rare occurrence when a tax collector fails to send any presale notice and when neither the tax collector nor the tax sale purchaser cure the pre-sale defect by sending post-sale notice, the tax debtor can file suit to have the tax sale cancelled.1  The difference between cancellation and nullification is slightly favorable economically for the tax debtor, but can be devastating for the tax sale purchaser.

When a tax sale is canceled, the taxing authority must return to the tax sale purchaser only the amount of the taxes paid. In other words, the tax sale purchaser will not receive any interest. In turn, the tax debtor is relieved of the obligation to make the 5% redemption payment and to pay 1% monthly interest. However, the tax debtor is still liable to the taxing authority for 1% per month since the tax sale.2

Because proving the elements of a cancellation claim is more difficult than proving those of a redemption nullity claim, best practice is to bring a cancellation claim in the alternative to a redemption nullity claim. Additionally, courts have also discouraged cancellation claims due to the lack of interest paid to the tax sale purchaser.3

• 1La. R.S. 47:2153(C)(1) (“In the absence of actual notice of the sale to a tax sale party, including a transferee, or the demonstration of a reasonable effort to provide notice, where the name and address of the tax sale party were reasonably ascertainable or where the transfer was recorded after the tax collector completed his pre-sale tax sale party research, the tax collector shall cancel the sale of the property and refund the tax sale purchaser the tax sale purchase price.”).
• 2La. R.S. 47:2127(B).
• 3See Klein v. Henderson, 2021-0317 (La. App. 4 Cir. 11/17/21), 332 So. 3d 764.

An action for a redemption nullity is subject to a prescriptive period of 6 months from the tax debtor being duly notified (if the tax sale certificate was recorded more than three, but less than 5 years ago) or 60 days (if the tax sale certificate was recorded more than 5 years ago).1  A client who has timely filed a nullity action only needs to prove a defect in the La. R.S. 47:2156 notice. If the nullity action is untimely, your client will likely need to survive an exception of prescription by proving a defect in whichever secondary form of notice the tax sale purchaser is claiming.

The date on which prescription begins to run and the procedure for asserting the nullity will differ depending on how the tax sale debtor was duly notified.

Quiet Title Action: If your client is served with a petition to quiet title,2  prescription runs from the date of service. Note that if the tax sale was recorded more than 5 years prior, the delay for answering the suit is only 10 days. However, this shortened period to answer does not affect the nullity prescription period.3  If the tax sale purchaser has filed a quiet title action, the nullity “action may be brought as a reconventional demand or an intervention . . . ” by the tax debtor.4  A tax debtor who files a separate action to annul the tax sale risks having the nullity action suit dismissed on an exception of lis pendens.5

Monition Action: If your client receives a monition notice, the notice should state that the prescriptive period to bring a nullity action commenced at first date of advertisement.6  The proper method to counter a monition action is by “intervention in a monition proceeding under R.S. 47:2271 through 2280.”7  Just as with a quiet title action, a separate action to nullify a tax sale could be dismissed on an exception of lis pendens.

Affidavit Procedure: If your client received a tax sale notice sent pursuant to La. R.S. 47:2157, the letter should state that the prescriptive period to file a nullity action commenced on the date of the notice. In this procedure, the tax sale purchaser shifts the burden onto the tax debtor to initiate a lawsuit by filing a nullity action in the district court of the parish in which the property is located.8

• 1La. R.S. 47:2287(A)(1).
• 2La. R.S. 47:2266.
• 3La. R.S. 47:2266(B).
• 4La. R.S. 47:2286.
• 5Dave v. Witherspoon, 2020-0239 (La. App. 4 Cir. 11/4/20), 310 So. 3d 593, 597 (“This court has recognized and held that the filing of a new suit naming new and additional parties will not defeat an exception of lis pendens. The party to the earlier filed suit is entitled to have the later filed suit dismissed as to him, and the new parties remain in the later filed suit.”).
• 6La. R.S. 47:2275.
• 7La. R.S. 47:2286.
• 8Id.

A tax sale nullity judgment has no effect until the prevailing party has paid the nullity amount to the tax collector.1  The tax debtor has one year to deliver the nullity payment or else the nullity judgment will be dismissed with prejudice. This dismissal then allows the tax sale purchaser to quiet title without opposition.2

• 1La. R.S. 47:2290.
• 2La. R.S. 47:2291 cmt e. (“Subsection C requires payment of the costs within one year of the issuance of the final judgment declaring the tax sale a nullity and setting the costs. This period is suspended while an appeal is pending. Payment of costs must be made within this time period, or else the judgment can be vacated and the case dismissed with prejudice.”).