The Use of Special Assessments to Collect Unpaid Water Bills
Kowalski is a member of the city council in Zimmerman, Minnesota, which
is a town of 5,000 persons about forty miles north of Minneapolis. Her
issue is the improper use of special assessments to force rental property
owners to pay delinquent water bills which were properly the responsibility
of tenants. Many cities and towns find it convenient to collect their
debts this way even though the law forbids it. Apparently, the Minnesota
League of Cities coaches it members on how to do it. Kowalski offers
a legal argument aimed at a bill in the Minnesota legislature.
Why are some municipalities holding landlords of separate metered units responsible for their tenants water bills when landlords are not required to contract or pay them? MINNESOTA STATUTE 504B.215 subv. 2 establishes that, "This subdivision may not be waived by contract or otherwise. This subdivision does not require a landlord to contract and pay for utility service provided to each residential unit through a separate meter which accurately measures that units use only."
appears that some municipalities are making resolutions to have the
county auditors collect delinquent water bills as other taxes are collected.
The unfortunate part is that this procedure is creating invalid special
assessments out of delinquent water bills. Delinquent water bills are
clearly not special assessments.
in Minn. Stat. Sec. 444.075 must be just and equitable. Charges must
be applied equally on similarly situated property. A charge imposed
on a person who is not the party receiving the commodity would be unjust
and inequitable by virtue of the fact that they were not the customer
in receipt of goods or services, and no contract exists without the
landlord's pledge of real property as security for another's debt. Consumers
with delinquent water bills are not similarly situated by a reasonable
classification of types of premises as to qualify as equitable, as the
amounts so certified have no nexus to the value of real property commensurate
with the charges if the water is used for personal and household purposes.
have a responsibility to the taxpayers to collect payment for the commodities
they sell from the actual consumer who consumes them. If municipalities
choose not to discontinue service for nonpayment, then this is a matter
for the taxpayers to address.
Delinquent water and sewer bills used for personal and household purposes are a private, not public, consumer debt and have no legal standing to attach to real estate by the power of taxation as a tax lien. "Likewise, if the homeowner desires to object to such charges certified 'for collection as other taxes are collected,'then his objections thereto are to comply with M.S. 1967, Chapter 278, "Real Estate Taxes; Objections; Defenses." See Attorney General Opinion dated September 8, 1969 Minn. Stat. Sec. 278.01(2004) specifically excludes objections to special assessments. "Special assessments are generally secured by a lien on the property benefited by the improvement by virtue of statute or municipal charter, and such laws are constitutional. But the municipality as such has no lien for special assessments levied upon property within its corporate limits.
Taxes are not a lien unless expressly made so by statute. Special assessments stand on the same footing. Municipal corporations have no power to create liens by ordinance or otherwise unless such power has been expressly conferred on them. The lien must be measured as to its commencement, duration, limitation, and priority by the law of its origin. The lien cannot arise by implication from the power to tax, but it must be expressly created by law. When a lien is expressly created it cannot be enlarged by construction.," Municipal Corporations, McQuillen Section 38.161.
and existence. "The remedy by lien given by statute may be modified
at any time before rights have become vested, or when such changes does
not impair the contract, or substantially deprive a party of adequate
means of enforcing his or her right." Buettner v. City of St. Cloud,
227 N.W. 2d 199, 202 (Minn. 1979) (citation omitted) Therefore, introduction
of the municipality's assessment roll generally "constitutes prima
facie proof that the assessment does not exceed special benefit."
Carlson-Lang, 307 Minn. at 370, 240 N.W. 2d at 519. But an assessment
is "void on its face" if it fails to even "approximate
a market value analysis." Continental Sales & Equip v. Town
of Stuntz, 257 N.W. 2d 546, 551 (Minn. 1977).
same is true for both a landlord of a separate metered unit and his
tenant. Once the property owner has paid all applicable properly certified
taxes and special assessments there remains only the commodity left
for a tenant to pay based on the amount he chooses to use.