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).