Md. high court upholds sheriffs’ mover, weather policies in tax sales

Sheriffs may continue to require buyers of homes at tax sales to pay for a mover to transport the personal property of those whose houses they bought, though no law or rule expressly gives sheriffs that authority, Maryland’s top court unanimously ruled Tuesday.

The Court of Appeals also held that sheriffs have the discretion not to serve writs of possession – essentially eviction notices in tax sales – on bad-weather days, despite their lack of express statutory or regulatory authority to withhold service.

In its 7-0 decision, the high court said the sheriffs’ authority to require movers and not serve during foul weather is “fairly implied” in their statutory and regulatory duty to inform tax-delinquent property owners to vacate the property in keeping with a judicial order and sale.

The mover policy helps ensure the safekeeping of personal property not subject to the tax sale, and the weather policy prevents the soon-to-be-houseless person from having to move in inclement weather, the court added.

The two policies “are neither unreasonable, arbitrary nor capricious,” Judge Shirley M. Watts wrote for the court. “In addition, notwithstanding that they have fallen behind on their property taxes, the former property owners are people and deserve to be treated humanely and, at the very least, with a basic level of dignity.”

The Court of Appeals decision was a defeat for Thornton Mellon LLC, a major tax sale buyer that challenged the mover and weather policies as beyond the sheriffs’ authority.

Thornton Mellon argued through counsel that the sheriffs’ requirement that tax sale buyers pay for a mover discourages the tax-delinquent properties from being purchased, which in turn denies local governments needed property-tax revenue.

But the high court said the company’s argument was belied by its own record of tax sale purchases.

“Put simply, we are not convinced that Thornton Mellon has been deterred from participation in the tax sale business because of costs associated (with) the mover policy,” Watts wrote.

“In any event, regardless of whether the mover policy is costly or acts as a deterrent on some level to Thornton Mellon’s participation in the tax sale business (which we do not believe it does), the question is whether the sheriffs had the authority to adopt the policy,” Watts added. “The adoption of the mover policy promotes identifiably desirable and reasonable goals and cannot be said to be an arbitrary or capricious exercise of implied authority.”

The court also rejected the company’s argument that sheriffs’ have no discretion to delay serving writs of possession regardless of the weather because their function is to carry out their assigned duty.

“If we adopted Thornton Mellon’s position, residents in tax sale foreclosure cases could be evicted during extreme weather conditions, which, to put it mildly, could include potentially hazardous cold temperatures and snowstorms,” Watts wrote.

“If we adopted Thornton Mellon’s position, sheriffs would be required to put citizens at risk who would be evicted in extreme weather conditions and the officers working with them at risk by forcing them to serve writs of possession during adverse weather conditions,” Watts added. “The sheriffs’ weather policy, which is designed to avoid these outcomes, is neither arbitrary nor capricious but rather furthers the reasonable purpose of ensuring the safety of the public as well as government officials.”

Thornton Mellon’s attorney voiced disappointment Thursday with the high court’s decision.

“My client’s position has always been that these policy matters should be handled by the legislature or the court, not that there should be no policies at all,” stated N. Tucker Meneely, of Council, Baradel, Kosmerl & Nolan PA in Annapolis.

“Also, no one wants someone to be removed from a home during times of extreme weather, but the decision to halt the service of writs should be made by a central authority like the Administrative Judge of the Circuit Court,” Meneely added. “In addition to being costly to people in my client’s shoes, the sheriffs’ policies are also not very favorable or humane to the occupants of the property, who have their personal belongings placed out on the street without any protection. Hopefully, this decision will inspire the legislature to review how writs of possession are served and, more broadly, how evictions are conducted in Maryland.”

The Maryland Attorney General’s Office, which represented the sheriffs’ in the appeal, declined to comment on the high court’s decision.

Thornton Mellon or other tax sale purchasers initially challenged the mover and weather policies in the circuit courts of Anne Arundel, Frederick, Howard and Baltimore counties, losing in all four. The Court of Special Appeals consolidated the cases and upheld the decisions, prompting Thornton Mellon to seek review by the Court of Appeals.

The high court rendered its decision in Thornton Mellon LLC et al. v. Frederick County Sheriff et al., No. 51, September Term 2021.