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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

May 26, 2023

Supreme Court Strikes Down Taxing Authorities' Right to Retain Surplus Monies in "Strict Foreclosures"

In a decision issued on May 25, 2023, the US Supreme Court struck down a Minnesota “strict foreclosure” statute for unpaid real property taxes. The statute permits real estate taxing authorities to retain proceeds from the sale of the taxpayer’s property in excess of the tax debt, with no opportunity for the owner to recover the surplus. In Tyler v. Hennepin County, Minnesota, et al,.i the court held in a unanimous decision that this statutory scheme violates the Takings Clause of the Fifth Amendment to the US Constitution. Fourteen states, including New York, have similar statutes.

Until those statutory schemes are remedied through legislation, the decision is sure to impair the ability of the taxing authorities in those states to collect past-due real estate taxes.

It is unclear at this point whether the remedy for the taxpayer in Tyler (and for similarly situated taxpayers) will be the return of the surplus proceeds from the sale of the property or the unwinding of the tax foreclosure sale itself and the return of title. The impact on creditors holding liens junior to the tax lien is also unclear. Whether those liens will be reinstated, the excess proceeds will be paid to the lienholder, or some other remedy will be afforded remains an open question.

Barclay Damon will provide further analysis and updates as these issues develop.

The Thought Leadership Committee of Barclay Damon’s Restructuring, Bankruptcy & Creditors’ Rights Practice Area issues alerts and blogs on an ongoing basis to keep clients, colleagues, and friends up to date on important developments in the insolvency space. If you have any questions regarding the content of this alert, please contact the authors, Jeff Dove, Restructuring, Bankruptcy & Creditors’ Rights Practice Area co-chair, at, or Frank Heller, partner, at; Janice Grubin Restructuring, Bankruptcy & Creditors’ Rights Practices Area co-chair, at; or Robert Wonneberger, Thought Leadership Committee chair, at
i__ U.S. __ (No. 22-166, May 25, 2023).

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