UMass Law UMass Law: Clifford Submits an Amicus Brief to the U.S. Supreme Court on Real Estate Tax Foreclosure Systems

Professor Ralph Clifford submitted an amicus brief to the U.S. Supreme Court that argues that real estate tax foreclosure systems are unconstitutional.

UMass Law Professor Ralph Clifford submitted an amicus brief to the U.S. Supreme Court in Tyler v. Hennepin County, No. 22-166, which argued that real estate tax foreclosure systems such as the one Massachusetts uses are unconstitutional. Clifford made the argument that real estate tax foreclosure systems deprive the property owner of the excess value the property has over the tax debt.

When a homeowner whose overdue utility bills and other taxes lead to foreclosure, the government entity that seizes the property keeps the excess proceeds from the sale. This puts the elderly and disabled particularly at risk when financial management becomes difficult due to cognitive disorders or dementia. In his amicus brief, Clifford wrote,

“It is extreme also for other individuals subject to tax foreclosures in states that refuse to return excess equity to the taxpayer resulting in a loss nationally of tens to hundreds of millions of dollars every year. The Due Process Takings Clause prevents a government taxing authority from appropriating more of a defaulted taxpayer’s property than is necessary to pay the debt with reasonable expenses of collection. The government must return any excess collected to the taxpayer.”

Clifford submitted the amicus brief with the recommendation that the Court should reverse the dismissal of this case by the Eighth Circuit and trial court and remand it for trial. The Court should render a decision by the end of its term in June.

Professor Clifford has taught Real Property Law for more than thirty years and has studied the economic impact of tax foreclosures empirically. He has written multiple articles and briefs addressing the issue of the constitutionality of the government keeping any surplus equity upon a tax foreclosure. In his latest published article, Massachusetts Has a Problem—The Unconstitutionality of the Tax Deed, he explored the failure of the tax deed procedure and the due process to taxpayers.