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Legal Memorandum: Defects in a Tax Sale and Prescription Period

Issue: Under Louisiana law, if a tax sale is nullified, are defects, such as non-payment of taxes, cured by the prescription period?

Area of Law: Real Estate Law, Tax Law
Keywords: Defects in a tax sale; Prescription period; Non-payment of taxes
Jurisdiction: Louisiana
Cited Cases: 252 So. 2d 521; 374 So. 2d 1226; 268 So. 2d 92; 142 So. 279; 307 So. 2d 157
Cited Statutes: None
Date: 05/01/2009

Generally, a purported nullity of a tax sale based on lack of notice is cured by the prescription period.*FN1  Crain v. C.W. Vanderdoes Estate, 307 So. 2d 157, 158 (La. Ct. App. 1974).  However, there may be defects in a tax sale that are not cured by the prescription period, including payment of taxes, lack of assessment, inadequate description of the property, and fraud.  Id.  In such cases, the tax sale is rendered absolutely null.  Id.  See Warner v. Garrett, 268 So. 2d 92, 96 (La. Ct. App. 1972) (stating “the well settled rule that prescription does not apply to an absolutely null judgment”).  See also Lemoine v. Dupuis, 2 La. App. 726 (1925) (holding that where the notice of the date of recording of the tax deed was insufficient, the prescription period did not start running and the defendant owner had available to it any ground on which to claim nullity of the tax deed). 

“If the tax debtor continues in the actual possession of the property sold at tax sale, the possession is a continuous assertion of his title and protest against the sale; the pre-emption does not accrue and the tax title cannot be perfected.”  Cook v. Morgan, 142 So. 279, 281 (La. Ct. App. 1932).  Put differently, the preemptive period does not even begin to run against the tax debtor and to protect the tax purchaser if the property sold at the tax sale was subject to open, […]

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