MCL 211.1 et seq.

In plaintiffs’ complaint, Rafaeli alleges that a tax deficiency remained on the property despite certification from Meisner that all taxes were paid on the property from the previous five years. This led to a tax delinquency of $496.52 plus $39.72 in penalties, fees, and interest.

According to Ohanessian, he moved to California sometime in 2011. He alleges that he filled out an electronic change-of-address form on defendants’ website but that he stopped receiving his tax bills when he moved. He states that he used a mailbox at a UPS store in Eastpointe to receive his property-tax bills. Defendants claim that they used this address, as well as Ohanessian's former residence in Livonia, to send Ohanessian notice of the tax delinquency in June 2013, December 2013, and February 2014. Defendants claim that they received no response to these notices.

Prior to filing this action, Rafaeli and a nonparty to this case filed a putative class action against the counties of Wayne and Oakland in federal court, asserting, among other things, an unconstitutional-takings claim. The case was dismissed for lack of subject-matter jurisdiction. Rafaeli, LLC v. Wayne Co. , unpublished opinion of the United States District Court for the Eastern District of Michigan, issued June 4, 2015 (Case No. 14-13958), 2015 WL 3833159.

Rafaeli, LLC v. Oakland Co. , unpublished opinion and order of the Oakland Circuit Court, issued October 8, 2015 (Docket No. 15-147429-CZ), p. 3, 2015 WL 13859576.

Plaintiffs moved for reconsideration and also moved to amend their complaint to add claims of substantive due-process violations, violations of the Eighth Amendment's prohibition against excessive fines, and unjust enrichment. The circuit court denied reconsideration and denied plaintiffs’ proposed amendment as futile.

Rafaeli, LLC v. Oakland Co. , unpublished per curiam opinion of the Court of Appeals, issued October 24, 2017 (Docket No. 330696), p. 5, 2017 WL 4803570.

Id. , citing Bennis v. Michigan , 516 U.S. 442, 452, 116 S. Ct. 994, 134 L. Ed. 2d 68 (1996). Judge Shapiro concurred with the majority's conclusion that plaintiffs failed to state a compensable takings claim but disagreed with the majority's reliance on principles of civil-asset forfeiture. Instead, Judge Shapiro relied on different authority from the United States Supreme Court, which he concluded had rejected a similar claim to recover the surplus proceeds from a tax-foreclosure sale. Rafaeli ( Shapiro , J., concurring), unpub. op. at 1-2, citing Nelson v. City of New York , 352 U.S. 103, 111, 77 S. Ct. 195, 1 L. Ed. 2d 171 (1956).

Rafaeli, LLC v. Oakland Co. , 503 Mich. 909, 919 N.W.2d 401 (2018).

Before 1999, delinquent-tax liens were offered at annual tax-lien sales in which anyone could purchase the tax liens. See Smith, Foreclosure of Real Property Tax Liens Under Michigan's New Foreclosure Process , 29 Mich. Real Prop. Rev. 51, 51 (2002); see also Alexander, Tax Liens, Tax Sales, and Due Process , 75 Ind. L. J. 747, 760 (2000) ("This transfer of the lien is distinct from the sale of the underlying property which occurs at a tax foreclosure sale. Instead, what is transferred is the lien itself, vesting in the purchaser the right to enforce the lien in accordance with statutory procedures."). The tax-lien sale was followed by a one-year redemption period. If the property was not timely redeemed, the tax-lien purchaser, or the state if there was no tax-lien purchaser, would be deeded the property and was responsible for the final foreclosure of the property. The former foreclosure process could extend many years, causing properties to deteriorate and become clouded with poor title, which often led to title-insurance companies refusing to insure these properties. As a result, the Legislature overhauled the GPTA in 1999. See 1999 PA 123. The current scheme expedites the foreclosure process, thereby reducing the amount of abandoned, tax-delinquent properties within the state. Given that the sole issue in this appeal is whether a "taking" occurred, many of the GPTA's procedures regarding the notice and hearing requirements, which are relevant to due-process jurisprudence, are either described briefly or omitted entirely from this general overview. For a complete discussion of the current foreclosure process, see Michigan's New Foreclosure Process , 29 Mich. Real Prop. Rev. at 51. And for a comprehensive overview of the prior foreclosure process, see Smith, Foreclosure of Real Property Tax Liens , 75 Mich. B. J. 953 (1996).

MCL 211.78(8)(a). Seventy-five of Michigan's 83 counties elect to act as the foreclosing governmental unit. See Michigan Department of Treasury, New Law Tax Foreclosure Archive < https://www.michigan.gov/taxes/0,4676,7-238-43535_55601_55605-235134--,00.html> (accessed May 12, 2020) [https://perma.cc/L9V2-BC35].

MCL 211.44 ; MCL 211.45 ; see also OAG, 2014, No. 7,279 (June 11, 2014) ("[Real property taxes] are assessed and, in the first instance, collected by the city, township, or village treasurer.").

MCL 211.55.

MCL 211.87b. Local municipalities rely heavily on real-property taxes for revenue streams. Thus, counties use the delinquent tax revolving fund to advance municipalities’ funds that would otherwise come from the unpaid real-property taxes. This advance allows local municipalities to continue with their day-to-day operations without having to wait for payment of the delinquent property taxes.

Any taxes, interest, penalties, and fees subsequently collected by the county treasurer are deposited into the delinquent tax revolving fund. If delinquent property taxes are not collected, properties are foreclosed and typically sold at a public auction known as a tax-foreclosure sale. In disbursing the proceeds from the tax-foreclosure sale, the first priority is to reimburse the delinquent tax revolving fund for "all taxes, interest, and fees on all of the property ...." MCL 211.78m(8)(a). If the county is ultimately unable to collect the entire amount it advanced to the municipalities, either by tax collection or foreclosure sales, then the county can charge the municipalities back the uncollected amount. MCL 211.87b(1). When a surplus exists, the county board of commissioners may transfer the surplus into the county's general fund. MCL 211.78m(8)(h).

MCL 211.78a(2).

See MCL 211.78a through MCL 211.78c ; MCL 211.78f.

MCL 211.78g(1).

MCL 211.78(8)(b) (" ‘Forfeited’ or ‘forfeiture’ means a foreclosing governmental unit may seek a judgment of foreclosure under [MCL 211.78k ] if the property is not redeemed as provided under [the GPTA], but does not acquire a right to possession or any other interest in the property.").

MCL 211.78g(2).

MCL 211.78g(3)(a). This subsection details additional taxes, interest, and fees that must be paid to the county treasurer in order to successfully redeem the property. MCL 211.78g(3)(b) through (d).

MCL 211.78h(1).

Id. Forfeited properties listed in the petition may be redeemed after the petition for foreclosure is filed, in which case the properties are removed from the petition for foreclosure. MCL 211.78h(2).

MCL 211.78h(5). In the meantime, the GPTA provides for various notices and hearings that must be given before foreclosure is finalized. These include various notices by mail, publication, recordation, and even a personal visit to the property, see MCL 211.78h through MCL 211.78i, as well as a show cause hearing within seven days of the judicial foreclosure hearing, see MCL 211.78j.

MCL 211.78k(5). The final redemption date is March 31. Id.

MCL 211.78k(5) and (6).

MCL 211.78k(6).

MCL 211.78m(2). All property not sold on or before December 30 immediately succeeding entry of the judgment of foreclosure is transferred to the city, village, or township where the property is located unless the city, village, or township objects to the transfer. MCL 211.78m(6). If the property remains unsold and is not transferred to the city, village, or township, the foreclosing governmental unit retains the property. Id.

MCL 211.78m(8). Notably, this account is a subsidiary account within the delinquent tax revolving fund. The delinquent tax revolving fund is segregated into separate accounts for each year's delinquent taxes. Those accounts continue to exist until all the delinquent taxes for that tax year have been collected. See generally Michigan Department of Treasury, 2001-5 Delinquent Tax Revolving Funds Revisions To Accounting After Public Act 123 of 1999 (February 8, 2001), available at < https://www.michigan.gov/treasury/0,4679,7-121-1751_2194-6024--,00.html> (accessed May 13, 2020) [https://perma.cc/395WFWHC].

Money and property within the delinquent tax revolving fund, however, remain separate from any other money, property, or assets in the custody of the county treasurer. MCL 211.87b(1).

MCL 211.78m(8)(a). In fact, the GPTA requires the delinquent tax revolving fund to be reimbursed regardless of "whether or not all of the property was sold." Id.

MCL 211.78m(8)(b) and (c).

MCL 211.78m(8)(e), (f)(ii ), and (f)(iii ).

MCL 211.78m(8)(b) through (d) ; MCL 211.78m(8)(f)(i ).

MCL 211.78m(8)(h). In cases in which the state is the foreclosing governmental unit, "any remaining balance shall be transferred to the land reutilization fund created under [MCL 211.78n ]." MCL 211.78m(8)(g).

Comment, State Theft In Real Property Tax Foreclosure Procedures , 54 Real Prop. Tr. & Est. L. J. 93, 101-102 & n. 56 (2019) (explaining that Alabama, Arizona, Illinois, Indiana, Michigan, Minnesota, Mississippi, Montana, and Oregon all require the foreclosing governmental unit "to do something with the foreclosure sale surplus other than return it to the original owner").
Recent legislation has been proposed requiring the foreclosing governmental unit, in instances in which sale of the property exceeds the minimum bid at auction, to "remit an amount equal to that excess" to the former property owner if the property was owned and occupied as a principal residence before the judgment of foreclosure was entered. See 2019 HB 4219.

Sidun v. Wayne Co. Treasurer , 481 Mich. 503, 508, 751 N.W.2d 453 (2008).

MCL 211.78(8)(b).

Bennis , 516 U.S. at 451-453, 116 S.Ct. 994 (quotation marks and citation omitted).

MCL 211.78(1) ("The legislature finds that there exists in this state a continuing need to strengthen and revitalize the economy of this state and its municipalities by encouraging the efficient and expeditious return to productive use of property returned for delinquent taxes. Therefore, the powers granted in this act relating to the return of property for delinquent taxes constitute the performance by this state or a political subdivision of this state of essential public purposes and functions.").

Bennis , 516 U.S. at 452, 116 S.Ct. 994 ("[F]orfeiture ... serves a deterrent purpose distinct from any punitive purpose. Forfeiture of property prevents illegal uses both by preventing further illicit use of the property and by imposing an economic penalty, thereby rendering illegal behavior unprofitable.") (quotation marks, brackets, and citation omitted).

Id.

Id. at 453, 116 S.Ct. 994 (explaining that the forfeiture of the petitioner's car used in her husband's criminal activity was consistent with longstanding punitive, deterrent, and remedial goals underlying civil-asset forfeiture); id. at 455, 116 S.Ct. 994 (Thomas, J., concurring) (holding that the forfeiture was permissible because the car was used as an instrumentality of crime and the petitioner did not argue otherwise); id. at 458, 116 S.Ct. 994 (Ginsburg, J., concurring) ("Michigan has decided to deter johns from using cars they own (or co-own) to contribute to neighborhood blight, and that abatement endeavor hardly warrants this Court's disapprobation.").

As the Supreme Court of Appeals of Virginia in Martin v. Snowden , 59 Va. (18 Gratt.) 100, 142-143 (1868), aff'd sub nom. Bennett v. Hunter , 76 U.S. (9 Wall.) 326, 19 L.Ed. 672 (1869), stated:

This forfeiture cannot be sustained as a forfeiture for crime .... In such cases, the thing forfeited is the instrument by which the offence was committed, or was the fruit of the offence, and is treated as being itself, in some sort, the offender. But the land of a delinquent tax-payer cannot be brought within the principle of this class of cases; it is neither the instrument nor the fruit of any offence. Nor can we suppose that Congress intended to make it a criminal, or even a quasi criminal offence, for a man not to pay his taxes ....

U.S. Const., Am. V ("[N]or shall private property be taken for public use, without just compensation."); Const. 1963, art. 1, § 17 ("No person shall ... be deprived of life, liberty or property, without due process of law.").

MCL 211.78(2).

See Jones v. Flowers , 547 U.S. 220, 234, 126 S. Ct. 1708, 164 L. Ed. 2d 415 (2006) ("People must pay their taxes, and the government may hold citizens accountable for tax delinquency by taking their property. But before forcing a citizen to satisfy his debt by forfeiting his property, due process requires the government to provide adequate notice of the impending taking."); Sidun , 481 Mich. at 509, 751 N.W.2d 453 ("Proceedings that seek to take property from its owner must comport with due process.").

Compare Const. 1963, art. 10, § 2 (Michigan's Takings Clause) with Const. 1963, art. 1, § 17 (Michigan's Due Process Clause); see also Peñalver & Strahilevitz, Judicial Takings or Due Process? , 97 Cornell L. Rev. 305, 317-318 (2012) (stating that the Takings Clause and the Due Process Clause of the Fifth Amendment "have frequently been muddled together by courts and commentators alike," but "grammatically they operate independently of one another and the Supreme Court understands them to protect owners against different kinds of government harms") (citation omitted).

Lingle v. Chevron U.S.A. Inc. , 544 U.S. 528, 543, 125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005) (quotation marks, citation, and emphasis omitted).

Id. ; see also Judicial Takings , 97 Cornell L. Rev. at 320 ("Distinguishing between the Takings and Due Process Clauses is consistent with the text of the Constitution, but it also provides a richer conceptual vocabulary for evaluating constitutional property claims ...."). The GPTA, at one point, limited property owners to a damages action under MCL 211.78l whenever "he or she did not receive any notice required under [the GPTA] ...." Once the judgment of foreclosure was entered and the former property owner's interest in the property was extinguished, the former owner could not bring an action for possession. But, in In re Petition By Treasurer of Wayne Co. for Foreclosure , 478 Mich. 1, 732 N.W.2d 458 (2007), this Court held that limitation unconstitutional. Thus, property owners can now file a motion to set aside their judgment of foreclosure if the foreclosing governmental unit failed to comply with due process when providing notice to owners.

U.S. Const., Am. V ; U.S. Const., Am. XIV ; see AFT Mich. v. Michigan , 497 Mich. 197, 217, 866 N.W.2d 782 (2015) ("The Fifth Amendment is applied to the states through the Fourteenth Amendment."), citing Chicago, B. & Q. R. Co. v. Chicago , 166 U.S. 226, 241, 17 S. Ct. 581, 41 L. Ed. 979 (1897).

Const. 1963, art. 10, § 2.

Compare Kelo v. New London, Conn. , 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005) (holding that the government's condemnation and transfer of private property to a private entity to facilitate economic development was a permissible "public use" under the Fifth Amendment's Takings Clause), with Wayne Co. v. Hathcock , 471 Mich. 445, 684 N.W.2d 765 (2004) (holding that a similar condemnation and transfer was not a permissible "public use" under Michigan's Takings Clause).

United States v. Clarke , 445 U.S. 253, 257, 100 S. Ct. 1127, 63 L. Ed. 2d 373 (1980) (explaining that the property owner's right to bring an inverse-condemnation action is derived from "the self-executing character of the constitutional provision with respect to compensation") (quotation marks and citation omitted).

Hart v. Detroit , 416 Mich. 488, 494, 331 N.W.2d 438 (1982) (discussing inverse-condemnation actions under Michigan law).

Horne v. Dep't of Agriculture , 576 U.S. 350, 135 S. Ct. 2419, 2425-2426, 192 L. Ed. 2d 388 (2015) (explaining that a "classic" or per se taking occurs when the government directly appropriates private property for its own use).

AFT Mich. , 497 Mich. at 218, 866 N.W.2d 782 ("The term ‘taking’ can encompass governmental interference with rights to both tangible and intangible property."), citing Ruckelshaus v. Monsanto Co. , 467 U.S. 986, 1003, 104 S. Ct. 2862, 81 L. Ed. 2d 815 (1984) ("[I]ntangible property rights protected by state law are deserving of the protection of the Taking Clause...."); see also 1 Cooley, General Principles of Constitutional Law in the United States (1880), p. 336 (explaining that the federal Takings Clause protects "anything of value which the law recognizes as such, and in respect to which the owner is entitled to a remedy against any one who may disturb him in its enjoyment," regardless of "whether the property be tangible or intangible").

In re Certified Question , 447 Mich. 765, 788, 527 N.W.2d 468 (1994) (Fun 'N Sun R.V., Inc. v. Michigan ).

Phillips v. Washington Legal Foundation , 524 U.S. 156, 164, 118 S. Ct. 1925, 141 L. Ed. 2d 174 (1998) (quotation marks and citation omitted).

Hathcock , 471 Mich. at 468, 684 N.W.2d 765.

Id. at 471, 684 N.W.2d 765.

Id.

People ex rel. Seaman v. Hammond , 1 Doug. 276 (Mich., 1844).

Id. at 279-280.

United States v. Taylor , 104 U.S. 216, 217-218, 26 L. Ed. 721 (1881). Although we decide this case based on our state Constitution, we can look for guidance in the decisions of the United States Supreme Court regarding surplus proceeds and the federal Takings Clause.

United States v. Lawton , 110 U.S. 146, 3 S. Ct. 545, 28 L. Ed. 100 (1884).

Id. at 149-150, 3 S.Ct. 545 (emphasis added).

Nelson v. City of New York , 352 U.S. 103, 77 S. Ct. 195, 1 L. Ed. 2d 171 (1956).

The water charges for the first parcel amounted to $65. The first parcel's property value was assessed at $6,000, and it ultimately sold for $7,000. The water charges for the second parcel amounted to $814.50. The second parcel's property value was assessed at $46,000, but the city acquired title to that parcel and retained it. Id. at 105-106, 77 S.Ct. 195.

Id. at 108-109, 77 S.Ct. 195 ("We conclude ... that the City having taken steps to notify appellants of the arrearages and the foreclosure proceedings and their agent having received such notices, its application of the statute did not deprive appellants of procedural due process."). The Court also rejected the plaintiffs’ equal-protection challenge. Id. at 109, 77 S.Ct. 195.

Id. at 110 & n. 10, 77 S.Ct. 195.

Id. at 110, 77 S.Ct. 195 (emphasis added).

And even if those cases had directly addressed the issue presented here, they would provide only helpful guidance; our decision interpreting Michigan's Constitution would not be bound by them.

Coleman v. Dist. of Columbia , 70 F. Supp. 3d 58, 80 (D. D.C., 2014), citing Lawton , 110 U.S. at 149, 3 S.Ct. 545 ; see also Clifford, Massachusetts Has A Problem: The Unconstitutionality of the Tax Deed , 13 U. Mass L. Rev. 274, 287 (2018) ("In summary, the Coleman court recognized that once a state recognizes a property interest in the taxpayer, it cannot summarily remove that interest.").

See MCL 211.78m(8)(h) (directing that any surplus proceeds from the tax-foreclosure sale be transferred into the county's general fund).

2 Cooley, Constitutional Limitations (8th ed.), p. 745 (quotation marks and citation omitted).

Cooley, General Principles, p. 315 (quotation marks and citation omitted).

Cooley, Constitutional Limitations, pp. 733-734, citing 4 Blackstone, Commentaries on the Laws of England, p. *424.

See Magna Carta, Grant 39 (1215) ("No freeman shall be ... disseised ... unless by the lawful judgment of his peers, or by the law of the land."); see also Horne , 135 S. Ct. at 2426 (discussing the history of the federal Takings Clause going as far back as the Magna Carta and making no distinction between real or personal private property); Silver Creek Drain Dist. v. Extrusions Div., Inc. , 468 Mich. 367, 373, 374 & n. 6, 663 N.W.2d 436 (2003) (explaining that the sovereign's power of eminent domain and its "ancient provenance" dates back to the Magna Carta); Peterman v. Dep't of Natural Resources , 446 Mich. 177, 186-187 & 187 n. 14, 521 N.W.2d 499 (1994) (discussing the history of eminent domain in America).

See Const. 1835, art. 1, § 19 ; Const. 1850, art. 18, § 14; Const. 1908, art. 13, § 1; Const. 1963, art. 10, § 2.

People v. Woolfolk , 497 Mich. 23, 25, 857 N.W.2d 524 (2014) (citations omitted).

See Johnson, The Ancient Magna Carta and the Modern Rule of Law: 1215 to 2015 , 47 St. Mary's L. J. 1, 47 (2015), citing McKechnie, Magna Carta: A Commentary on the Great Charter of King John (Glasgow: James Maclehose & Sons, 2d ed., 1914), p. 322. Johnson explains that when a man died, officers would seek collection of the deceased's debts. Ancient Magna Carta , 47 St. Mary's L. J. at 47. However, these officials would often seize everything, sell the decedent's property for an amount far in excess of the debt, and refuse to disgorge the surplus to the decedent's heirs. Id. As a protection against such abuse practices, Clause 26 of the Magna Carta required that "the value of the goods seized had to approximate the value of the debt[,] and the process had to be superintended by worthy men whose function it was to form a check on the actions of the sheriff's officers." Id. (quotation marks and citation omitted); see also Martin , 59 Va. at 136 ("The summary methods employed in England in early times for the collection of debts to the Crown seem to have been turned to purposes of oppression, and ... [the] Magna Charta provided for their restraint.").

Martin , 59 Va. at 136-137 (explaining that while land was typically only taken to satisfy tax debts when personal property was insufficient to satisfy the debt, any surplus resulting from the sale of the property taken, real or personal, would be paid back to the owner).

2 Blackstone, Commentaries on the Laws of England, p. *452.

Cooley, Law of Taxation (3d ed.), p. 952.

Id. As support for this first method, Justice Cooley cites the Supreme Court's decision in Lawton for the notion that if land was sold to the United States for unpaid federal taxes, the United States remained liable to the former owner for any surplus. Id. at 952 & n. 1, citing Lawton , 110 U.S. 146, 3 S.Ct. 545, 28 L.Ed. 100.

Seaman , 1 Doug. at 281.

Cooley, Law of Taxation, pp. 590-591 ("If the line which the legislature has established be once passed, we know of no boundary to the discretion of the assessors.") (quotation marks and citation omitted).

Case v. Dean , 16 Mich. 12, 19 (1867).

Cooley, Law of Taxation, p. 953 ("A sale of the whole when less would pay the tax would be such a fraud on the law as to render the sale voidable at the option of the landowner ....").

Id. at 952-958. Indeed, this was another method discussed by Justice Cooley to ensure that any "surplus moneys" remained with the landowner after the property was sold. Id. at 952-953. The other method was to require that a lien be placed on the land holding the purchaser accountable to pay the excess back to the original owner. Id. at 952.

Cooley, Constitutional Limitations, p. 1147.

See Peterman , 446 Mich. at 201, 202 n. 36, 521 N.W.2d 499 ("As an unnecessary taking of property, defendant's actions violated the strict dictates of the constitutional guarantee that private property may be taken only when necessary for public purposes."); Livonia Twp. Sch. Dist. v. Wilson , 339 Mich. 454, 460, 64 N.W.2d 563 (1954) ("It is a general principle that the legislature cannot authorize the taking of property in excess of that required for public use."); Cleveland v. Detroit , 322 Mich. 172, 179, 33 N.W.2d 747 (1948) ("In acquiring property for public use it is not permissible for the city to take additional property not necessary for that public use for private purposes."); Berrien Springs Water Power Co. v. Berrien Circuit Judge , 133 Mich. 48, 53, 94 N.W. 379 (1903) ("[O]nly so much [land] can be taken as is necessary to the public use."); Bd. of Health of Portage Twp. v. Van Hoesen , 87 Mich. 533, 537, 49 N.W. 894 (1891) ("It can never be just to take property, under pretence of public benefit, which is not needed by the public ...."), citing Paul v. Detroit , 32 Mich. 108, 114 (1875) (explaining that the 1850 Michigan Constitution added a provision requiring juries to determine the necessity of a taking of private property for public use, as well as the compensation owed for that taking, because there was "a well founded belief, founded on experience, that private property was often taken improperly and without any necessity").

Detroit v. Walker , 445 Mich. 682, 701-704, 520 N.W.2d 135 (1994) (explaining that citizens have a duty to pay their taxes and that the Legislature may enact procedural schemes "to secure taxes owed"); Peterman , 446 Mich. at 184, 521 N.W.2d 499 (" ‘[I]t can never be lawful to compel any man to give up his property, when it is not needed, or to lose it, whether needed or not, without being made whole.’ "), quoting Paul , 32 Mich. at 119 ; see also Fidlin v. Collison , 9 Mich. App. 157, 167, 156 N.W.2d 53 (1967) (holding that under the GPTA's provision allowing seizure of personal property to satisfy unpaid taxes, the city treasurer's seizure of the plaintiffs’ personal property valued at $629.32 to satisfy a $10,500 tax debt was "an excessive distraint" on their property, given that " ‘[t ]he amount of property distrained must not be excessive and, if it is, the seizure is illegal ’ "), quoting 84 CJS, Taxation, § 694, p. 1371.

Dean v. Dep't of Natural Resources , 399 Mich. 84, 247 N.W.2d 876 (1976).

Notice of the hearing was published in the newspaper as required under the former version of the GPTA. Id. at 88, 247 N.W.2d 876, citing MCL 211.66, repealed by 1999 PA 123.

Dean , 399 Mich. at 94-95, 247 N.W.2d 876.

Tkachik v. Mandeville , 487 Mich. 38, 47-48, 790 N.W.2d 260 (2010) ("Unjust enrichment is defined as the unjust retention of money or benefits which in justice and equity belong to another. No person is unjustly enriched unless the retention of the benefit would be unjust.") (quotation marks and citations omitted).

While Dean stands for the proposition that a claim for the surplus proceeds may be asserted through unjust enrichment, the Court of Appeals concluded that plaintiffs abandoned their claim of unjust enrichment by failing to develop it in their briefing below. See Mitcham v. Detroit , 355 Mich. 182, 203, 94 N.W.2d 388 (1959) (explaining that a party's failure to adequately brief an issue on appeal constitutes abandonment).

Fun 'N Sun , 447 Mich. at 788, 527 N.W.2d 468 (quotation marks and citation omitted); Cooley, General Principles, p. 320 ("The test of unlawful interference with property is that vested rights are abridged or taken away.") (emphasis added).

An often-used metaphor in property law further illustrates this point. Property rights are commonly referred to as a "bundle of sticks," with each stick representing a distinct right defined by state law. United States v. Craft , 535 U.S. 274, 278, 122 S. Ct. 1414, 152 L. Ed. 2d 437 (2002) ("A common idiom describes property as a ‘bundle of sticks’—a collection of individual rights which, in certain combinations, constitute property. State law determines only which sticks are in a person's bundle.") (citation omitted). These sticks range from a property owner's right to use or enjoy the property, the right to eject others from the property, and the right to dispose of the property altogether. See Adams v. Cleveland-Cliffs Iron Co. , 237 Mich. App. 51, 57, 602 N.W.2d 215 (1999) ("The general concept of ‘property’ comprises various rights—a ‘bundle of sticks,’ as it is often called—which is usually understood to include ‘[t]he exclusive right of possessing, enjoying, and disposing of a thing.’ "), quoting Black's Law Dictionary (6th ed.), p. 1216. Unlawful governmental interference with even one stick in that bundle constitutes a taking requiring just compensation. Our holding today recognizes that the right to collect any surplus proceeds that result from the sale of a person's property for unpaid taxes is one stick in the owner's bundle of rights, entitled to as much protection as any other stick in that bundle.

Hathcock , 471 Mich. at 471, 684 N.W.2d 765.

While the bulk of the revisions to the GPTA took place in 1999, the provision allowing counties to transfer any surplus proceeds to their general funds, MCL 211.78m(8)(h), was not added until 2006. See 2006 PA 498.

Price v. High Pointe Oil Co., Inc. , 493 Mich. 238, 242, 828 N.W.2d 660 (2013) (quotation marks and citation omitted).

Beech Grove Investment Co. v. Civil Rights Comm. , 380 Mich. 405, 430, 157 N.W.2d 213 (1968) ("The common law does not consist of definite rules which are absolute, fixed, and immutable like the statute law ....") (quotation marks and citation omitted).

Price , 493 Mich. at 243, 828 N.W.2d 660 ("The common law is always a work in progress and typically develops incrementally, i.e., gradually evolving as individual disputes are decided and existing common-law rules are considered and sometimes adapted to current needs in light of changing times and circumstances.").

Const. 1963, art. 3, § 7 (emphasis added).

Nothing in our holding today prevents the Legislature from enacting legislation that would require former property owners to avail themselves of certain procedural avenues to recover the surplus proceeds. See, e.g., Nelson , 352 U.S. at 110 & n. 10, 77 S.Ct. 195. We only hold that the Legislature may not write this constitutionally protected vested property right out of existence. See Munn v. Illinois , 94 U.S. 113, 134, 24 L. Ed. 77 (1876) ("A person has no property, no vested interest, in any rule of the common law.... Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations. ") (emphasis added); see also Mackin v. Detroit-Timkin Axle Co. , 187 Mich. 8, 13, 153 N.W. 49 (1915) ("Except as to vested rights , the legislative power exists to change or abolish existing statutory and common-law remedies.") (emphasis added). Further, because this common-law property right existed well before 1963, it cannot be said that our Constitution created this property right; rather, this right was, and still is, commonly understood to be protected by Michigan's Takings Clause. See Phillips , 524 U.S. at 164, 118 S.Ct. 1925 ("[T]he Constitution protects rather than creates property interests ....").

Krench v. Michigan , 277 Mich. 168, 179, 269 N.W. 131 (1936) (holding that a tax-foreclosure sale divests the former owner of title and vests title with the state in fee simple with a new chain of title being formed); James A. Welch Co., Inc. v. State Land Office Bd. , 295 Mich. 85, 93-95, 294 N.W. 377 (1940) (holding that after the state received absolute title to land that was sold for delinquent property taxes, the former owner held no greater interest in title to the land than any other stranger); Meltzer v. State Land Office Bd. , 301 Mich. 541, 545, 3 N.W.2d 875 (1942) (affirming Krench and Welch and concluding that once absolute title to a tax-foreclosed property vests with the state, the former owners hold "no interest in the land at the time of the tax sale").

Welch , 295 Mich. at 92, 294 N.W. 377 (quotation marks and citation omitted; emphasis added).

Armstrong v. United States , 364 U.S. 40, 48, 80 S. Ct. 1563, 4 L. Ed. 2d 1554 (1960) (holding that the government's "total destruction" of the value of a lienholder's lien against government-held property was an unconstitutional taking).

See Lawton , 110 U.S. at 150, 3 S.Ct. 545 ("[S]o far as such owner is concerned, the surplus money is set aside as his as fully as if it had come from a third person .... It can make no difference that the United States acquired the property by bidding one dollar more."); Armstrong , 364 U.S. at 48, 80 S.Ct. 1563 ("[T]he Government for its own advantage destroyed the value of the liens, something that the Government could do because its property was not subject to suit, but which no private purchaser could have done."); see also Bank of America, NA v. First American Title Ins. Co. , 499 Mich. 74, 91, 878 N.W.2d 816 (2016) ("No one disputes that the mortgagee is entitled to recover only his debt. Any surplus value belongs to others, namely, the mortgagor or subsequent lienors.") (quotation marks and citation omitted).

See Webb's Fabulous Pharmacies, Inc. v. Beckwith , 449 U.S. 155, 164, 101 S. Ct. 446, 66 L. Ed. 2d 358 (1980) ("[A] State, by ipse dixit , may not transform private property into public property without compensation ....").

Id. at 162, 101 S.Ct. 446 (explaining that creditors of a deposit account, whose statutory right to collect a portion of the account's interest did not accrue until distribution of the account was ordered, had a cognizable property right despite that right not being immediately compensable).

See, e.g., Ritter v. Ross , 207 Wis. 2d 476, 484-485, 558 N.W.2d 909 (1996) (analyzing the former property owners’ claim for the surplus proceeds under the federal Takings Clause and holding that no taking under that clause occurred), cert. den. 522 U.S. 995, 118 S.Ct. 559, 139 L.Ed.2d 400 (1997) ; Auburn v. Mandarelli , 320 A.2d 22, 25 (Me., 1974) (same).

See AFT Mich. , 497 Mich. at 217 & n. 9, 866 N.W.2d 782 ("Although the courts of this state have applied the state and federal Takings Clauses coextensively in many situations, this Court has found that [Michigan's Takings Clause] offers broader protection than [the federal Takings Clause].") (citation omitted), comparing Kelo , 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439, with Hathcock , 471 Mich. 445, 684 N.W.2d 765.

See, e.g., Kelly v. Boston , 348 Mass. 385, 388, 204 N.E.2d 123 (1965) ("We think it is clear from the above history of the tax statutes that the Legislature intended the surplus from a sale of land taken for nonpayment of taxes, on which the right of redemption has been foreclosed in the Land Court, to belong to the municipality."); Automatic Art., LLC v. Maricopa Co. , unpublished opinion of the United States District Court for the District of Arizona, issued March 18, 2010 (Case No. CV 08-1484-PHX-SRB), pp. 5-7, 2010 WL 11515708 (holding that, under Arizona's statutory scheme governing tax foreclosures, the government's retention of the surplus proceeds is not an unconstitutional taking because "Arizona law does not provide for the recovery of any funds by a previous owner after a tax sale"); Reinmiller v. Marion Co. , unpublished opinion of the United States District Court for the District of Oregon, issued October 16, 2006 (Case No. CV 05-1926-PK), pp. 2-4, 2006 WL 2987707 (holding the same under Oregon law).

See, e.g., Balthazar v. Mari Ltd. , 301 F. Supp. 103, 105 n. 6 (N.D. Ill., 1969) ("Rather than taking private property for a public purpose, Illinois is here collecting taxes which are admittedly overdue."), aff'd 396 U.S. 114, 90 S.Ct. 397, 24 L.Ed.2d 307 (1969) ; Sheehan v. Suffolk Co. , 67 N.Y.2d 52, 60, 490 N.E.2d 523, 499 N.Y.S.2d 656 (1986) ("There is no constitutional prohibition against such a full forfeiture."); Miner v. Clinton Co. , 541 F.3d 464, 475 (C.A. 2, 2008) ("The retention of any surplus from a tax auction is constitutional because there was no violation of plaintiffs’ right to due process related to the notices of foreclosure.").

See Bogie v. Barnet , 129 Vt. 46, 55, 270 A.2d 898 (1970) ("No justification for the withholding of this excess from the plaintiff, derived as it was from the compelled sale of his land, has been demonstrated. Its retention by the town amounts to an unlawful taking for public use without compensation, contrary to ... the Vermont Constitution."); Polonsky v. Bedford , 173 N.H. 226, 239, 238 A.3d 1102 (2020) (holding that, under New Hampshire's Takings Clause, "the taking of property without just compensation is unconstitutional, even when the municipality has taken the property by tax deed due to the former owner's failure to pay taxes," and that the municipality's failure to return any excess proceeds to the former owner is an unconstitutional taking), citing Thomas Tool Servs., Inc. v. Croydon , 145 N.H. 218, 220, 761 A.2d 439 (2000).

Defendants’ Brief on Appeal (April 3, 2019) at 14.

Const. 1963, art. 9, § 1 ("The legislature shall impose taxes sufficient with other resources to pay the expenses of state government."); Const. 1963, art. 7, § 21 ("Each city and village is granted power to levy other taxes for public purposes, subject to limitations and prohibitions provided by this constitution or by law.").

Walker , 445 Mich. at 702, 520 N.W.2d 135 ("Traditionally, the property tax—and in particular, the tax on real property—has been the mainstay of municipal revenue-gathering—the largest single source of municipal revenue.") (quotation marks and citation omitted); see also Tax Liens , 75 Ind. L. J. at 756 (explaining that property taxes are the primary source of revenue for local governments and that "[t]he failure to collect even a small portion of property taxes can have a dramatic impact on local governments").

Koontz v. St. Johns River Water Mgt. Dist. , 570 U.S. 595, 617, 133 S. Ct. 2586, 186 L. Ed. 2d 697 (2013) (quotation marks and citation omitted).

Cooley, General Principles, pp. 333-334.

See Penn Central Transp. Co. v. City of New York , 438 U.S. 104, 124, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978) ; see also AFT Mich. , 497 Mich. at 218, 866 N.W.2d 782 ("[G]overnmental action creating general burdens or liabilities, i.e., merely requiring citizens to expend monies for valid public purposes and expenditures, typically will not form the basis for a cognizable taking claim.").

Webb's Fabulous Pharmacies , 449 U.S. at 163, 101 S.Ct. 446, quoting Armstrong , 364 U.S. at 49, 80 S.Ct. 1563.

Bott v. Natural Resources Comm. , 415 Mich. 45, 81 n. 43, 327 N.W.2d 838 (1982), quoting Pearsall v. Eaton Co. Bd. of Supervisors , 74 Mich. 558, 561, 42 N.W. 77 (1889).

See Acker v. Comm'r of Internal Revenue , 258 F.2d 568, 574 (C.A. 6, 1958) ("[D]espite the breadth of the taxing power conferred by the Constitution, there might arise ‘a case where, although there was a seeming exercise of the taxing power, the act complained of was so arbitrary as to constrain to the conclusion that it was not the exertion of taxation but a confiscation of property; that is, a taking of the same in violation of the 5th Amendment[.]’ "), quoting Brushaber v. Union Pacific R. Co. , 240 U.S. 1, 24-25, 36 S. Ct. 236, 60 L. Ed. 493 (1916).

Hart , 416 Mich. at 494, 331 N.W.2d 438.

See State Theft , 54 Real Prop. Tr. & Est. L. J. at 124 & nn. 219-220 ("In the case of property tax foreclosure, there is some compensation provided to the owner because the proceeds from the property sale are used to satisfy the amount that the property owner owes the government in taxes, interest, and fees. This is a form of compensation because after the property is sold the former owner's debt is canceled."), citing Comment, Tax Foreclosure: A Drag On Community Vitality Or A Tool For Economic Growth? , 81 U. Cin. L. Rev. 1615, 1617 (2013) (explaining that the collection of unpaid real-property taxes involves, among other things, "liquidation of the property by public sale in order to satisfy the debt owed").

Plaintiffs’ Supplemental Brief on Appeal (December 13, 2019) at 4 n. 1, citing United States v. Miller , 317 U.S. 369, 373, 63 S. Ct. 276, 87 L. Ed. 336 (1943) (stating that just compensation for a takings claim requires that the property owner "be put in as good position pecuniarily as he would have occupied if his property had not been taken").

This distinction also explains why the Michigan Takings Clause's 125% requirement does not apply. That provision is triggered only when the property taken consists of an individual's principal residence. That is not the case here.

In re State Hwy. Comm'r , 249 Mich. 530, 535, 229 N.W. 500 (1930) ("Just compensation should neither enrich the individual at the expense of the public nor the public at the expense of the individual.").

Plaintiffs suggest that they are entitled to the equity they held in their properties before foreclosure, but throughout their briefing they conflate equity with surplus proceeds, suggesting that they are one in the same. See Plaintiffs’ Brief on Appeal (February 13, 2019) at 12 ("Equity is realized when property is sold. Thus, logically, common law and statutory law have traditionally treated the surplus proceeds from the sale of foreclosed property as representing the former owner's equity."). Similarly, the concurring opinion asserts that the property right taken is the equity a former property owner held in his or her property prior to foreclosure. The concurring opinion supports this assertion with scant caselaw, relying primarily on the "equity of redemption" as representing an owner's equity interest in property. Yet the concurring opinion acknowledges that equity of redemption and equity are distinct concepts, with the former serving to protect the latter. Further, we are unaware of any authority affirming a vested property right to equity held in property generally. Nor is it necessary for us to do so here. The question presented is whether a former property owner retains the ability to collect any surplus proceeds that might result after the government seizes title to real property for failure to pay taxes and then sells that property for more than the tax delinquency. The earlier discussion reaffirms a former property owner's vested common-law property right to the surplus proceeds resulting from a tax-foreclosure sale that is protected by our state's Takings Clause. Thus, plaintiffs have a compensable takings claim for the surplus proceeds, i.e., the value of the property taken.

I concur in all parts except Parts IV(C), V(A), V(C), and VI.

Phillips v. Washington Legal Foundation , 524 U.S. 156, 164, 118 S. Ct. 1925, 141 L. Ed. 2d 174 (1998) (quotation marks and citation omitted).

Wayne Co. v. Hathcock , 471 Mich. 445, 468, 684 N.W.2d 765 (2004).

The Takings Clause reads, in pertinent part: "Private property shall not be taken for public use without just compensation therefore being first made or secured in a manner prescribed by law." Const. 1963, art. 10, § 2.

Ante at 460.

Hathcock , 471 Mich. at 468, 684 N.W.2d 765.

Cf. McGinnis & Rappaport, Original Interpretive Principles as the Core of Originalism , 24 Const. Comment 371, 378 (2008) ("The original meaning of the words would not normally be defined by the expected applications, but instead by the meaning that people at the time would understand the words to have.").

Cooley, Constitutional Limitations (5th ed.), p. 49 (explaining that the purpose of interpretation is to "find[ ] out the true sense of any form of words").

United States v. Gen. Motors Corp. , 323 U.S. 373, 378, 65 S. Ct. 357, 89 L. Ed. 311 (1945).

"Res" is Latin for "thing; event, business; fact; cause; property[.]" University of Notre Dame, William Whitaker's Words < http://archives.nd.edu/cgi-bin/wordz.pl?keyword=res> (accessed June 26, 2020) [https://perma.cc/5HEJ-RHSD]. Black's Law Dictionary (11th ed.) now defines it as "n. [Latin ‘thing’] (17c) 1. An object, interest, or status, as opposed to a person ...."

See McConnell, The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin's "Moral Reading" of the Constitution , 65 Fordham L. Rev. 1269, 1284 (1997) ("Mainstream originalists recognize that the Framers’ analysis of particular applications could be wrong, or that circumstances could have changed and made them wrong .... [T]hey believe that ‘[w]e are governed by what our lawmakers said—by the principles they laid down—not by any information we might have about how they themselves would have interpreted those principles or applied them in concrete cases.’ ") (citation omitted); Balkin, Living Originalism (Cambridge: The Belknap Press of Harvard University Press, 2011), p. 13 ("Fidelity to original meaning as original semantic content does not require that we must apply [for example] the equal protection clause the same way that people at the time of enactment would have expected it would be applied."); Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Lawrence: University Press of Kansas, 1999), p. 178 ("An expectation, in and of itself, is derived from the text and as a prediction about its effects in the future is only contingently related to the text .... [T]he author has no special authority relative to expectations about effects."); Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton: Princeton University Press, 1997), p. 144 ("I agree with the distinction ... between ... ‘semantic intention’ and the concrete expectations of lawgivers. It is indeed the former rather than the latter that I follow."); Rosenthal, Originalism in Practice , 87 Ind. L. J. 1183, 1209 (2012) ("Most originalists draw a distinction between the original meaning of constitutional text and its originally intended applications, arguing that only the former is interpretively binding.") (collecting sources); Barnett, An Originalism for Nonoriginalists , 45 Loy. L. Rev. 611, 622 (1999) ("While some originalists still search for how the relevant generation of ratifiers expected or intended their textual handiwork would be applied to specific cases, original meaning originalists need not concern themselves with this, except as circumstantial evidence of what the more technical words and phrases in the text might have meant to a reasonable listener.").
The majority's emphasis on expected applications rather than the semantic content of the text itself fundamentally misperceives the object of interpretation as the ratifiers’ intentions rather than the original public meaning of the text. As Robert Bork described the larger interpretive principle, the search for the "understanding of the ratifiers ... is actually a shorthand formulation" for what courts must interpret "because what the ratifiers understood themselves to be enacting must be taken to be what the public of that time would have understood the words to mean. It is important to be clear about this. The search is not for a subjective intention." Bork, The Tempting of America: The Political Seduction of the Law (New York: Simon & Schuster Inc., 1990), p. 144. See also Calabresi & Fine, Two Cheers for Professor Balkin's Originalism , 103 N.W. U. L. Rev. 663, 669 (2009) ("What judges must be faithful to is the enacted law, not the expectations of the parties who wrote the law .... The enactment into law of these texts was an open democratic process, and every citizen was entitled to think that the words in the texts that were enacted meant what a good dictionary in use at the time said they meant.").
Contemporaneous expectations about how the constitutional text applied in a case are useful only to the extent they shed light on the original public meaning. Whittington, Originalism: A Critical Introduction , 82 Fordham L. Rev. 375, 385 (2013) ("[E]xpected applications might be helpful to later interpreters in clarifying the substantive content of the embodied constitutional rule. The Founders could be mistaken or disingenuous about the implications of adopting a proposed rule, but the rule itself must be publicly understandable. If examples of likely applications of the rule are regularly offered and there is widespread agreement on such applications, then they may be reflective of the content of the rule in question."); Original Interpretive Principles , 24 Const. Comment at 378 (noting that expected applications are not tantamount to original meaning but can provide evidence of that meaning).

See Slocum, Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation (Chicago: University of Chicago Press, 2015), p. 222.

Justice Thomas Cooley recognized, for example, that the same text bearing the same meaning could, over time, come to take on a different significance because changing circumstances (e.g., technology) could change the objects that fell within the unchanged textual meaning: "The bounds of [constitutional] power remain the same, but the new creations that come within its compass give it an importance which those who devised it never dreamed of." Cooley, The Comparative Merits of Written and Prescriptive Constitutions , 2 Harv. L. Rev. 341, 355 (1889) ; see also Dist. of Columbia v. Heller , 554 U.S. 570, 582, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008) ("Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, ... and the Fourth Amendment applies to modern forms of search, ... the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."); Scalia & Garner, Reading Law: The Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), p. 86 ("The meaning of rules is constant. Only their application to new situations presents a novelty .... Broad language can encompass the onward march of science and technology[.]").

See Black's Law Dictionary (11th ed.) (defining "property" as, "[c]ollectively, the rights in a valued resource such as land, chattel, or an intangible" or "[a]ny external thing over which the rights of possession, use, and enjoyment are exercised").

Webster's Seventh New Collegiate Dictionary (1963); see also The American Heritage Dictionary of the English Language (1969) ("1 . Ownership. 2 . A possession, or possessions collectively. 3 . Something tangible or intangible to which its owner has legal title."); 8 Oxford English Dictionary (1933) ("That which one owns; a thing or things belonging to or owned by some person or persons; ... [a] piece of land owned[.]").

Cf. PruneYard Shopping Ctr. v. Robins , 447 U.S. 74, 93, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980) (Marshall, J., concurring) ("Such an approach would freeze the common law as it has been constructed by the courts, perhaps at its 19th-century state of development. It would allow no room for change in response to changes in circumstance.").

The breadth of the opinion stems, in part, from the majority's misunderstanding about what it means for a right to be "vested." The majority suggests that the right to surplus proceeds is "vested" because "the right to collect these proceeds was beyond a mere expectancy or claim of entitlement," apparently because the proceeds can be owned. Ante at 459. In other words, the right is somehow vested irrespective of any individual circumstances—it is vested in the ether. But that is not how it works. "To constitute a vested right, the interest must be something more than such a mere expectation as may be based upon an anticipated continuance of the present general laws; it must have become a title, legal or equitable, to the present or future enjoyment of property ...." In re Certified Question , 447 Mich. 765, 788, 527 N.W.2d 468 (1994) (quotation marks and citation omitted). "Vested" means "[h]aving become a completed, consummated right for present or future enjoyment; not contingent; unconditional; absolute ...." Black's Law Dictionary (11th ed.). This requires a real person or entity and a real property right, not simply a property right in the abstract. See Wylie v. City Comm. of Grand Rapids , 293 Mich. 571, 586, 292 N.W. 668 (1940) (noting, in the related context of due process, that " ‘[r]ights are "vested" when the right of enjoyment, present or prospective, has become the property of some particular person or persons as a present interest’ ") (citation omitted); Cooley, Constitutional Limitations, p. 438 (describing vested rights in the context of an individual's rights and interests); 5 Smith & Philbin, Michigan Civil Jurisprudence, Constitutional Law (May 2020 update), § 300 (noting this definition).
For instance, I do not have a vested property right in a wild fox simply because, if I captured one, the law would recognize my ownership of it. Cf. Pierson v. Post , 3 Cai. R. 175, 2 Am. Dec. 264 (1805). If, before I even don my hunting cap, the Legislature proscribes or limits ownership of foxes, no one would say I have been deprived of a vested property right in the fox I never owned or caught. At best, I had an expectation or hope. In the same way, someone who does not now own a home but would like to own one in the future does not have any vested property right in a home. As Justice Cooley stated, "[A] mere expectation of property in the future is not considered a vested right ...." Cooley, Constitutional Limitations, p. 440. And as discussed below, there is no vested right in a mere common-law rule. See post at nn. 20-21 and accompanying text. Thus, although the majority purports to cabin its opinion to vested rights, its misconception of those rights leads to a wider application that encompasses nonvested rights as well.

See Cobleigh v. State Land Office Bd. , 305 Mich. 434, 436-437, 9 N.W.2d 665 (1943).

Buckeye Union Fire Ins. Co. v. Michigan , 383 Mich. 630, 639, 178 N.W.2d 476 (1970) (discussing Baker v. State Land Office Bd. , 294 Mich. 587, 293 N.W. 763 (1940) ); see also Dumphey v. Hilton , 121 Mich. 315, 317, 80 N.W. 1 (1899) ("It was held by the United States Supreme Court that the right of redemption from tax sales, although it is to be regarded favorably, does not exist, except as permitted by statute .... ‘While it may well be doubted whether the legislature could enact an immediate bar to any existing right, yet it is clearly settled that to prescribe the period within which any right may be enforced is within their power.’ ") (citations omitted). We had earlier said that "the equity of redemption"—which was the redemption right at common law—"appertains to and goes with the title to the real estate, and is in law the property of the owner of the fee. It is an interest in land ...." Case v. Ranney , 174 Mich. 673, 681, 140 N.W. 943 (1913).

The New York Court of Appeals held, for example, that the legislature could "extinguish [a] property right by the simple expedient of repealing the provision which gives rise to it," but only prospectively and not as to property already vested. Alliance of American Insurers v. Chu , 77 N.Y.2d 573, 585-586, 571 N.E.2d 672, 569 N.Y.S.2d 364 (1991) ; id. at 589, 571 N.E.2d 672, 569 N.Y.S.2d 364 ("Nothing in our decision prevents the State from changing the law as it affects future contributions."); 29A CJS, Eminent Domain (June 2020 update), § 72 ("It has also been held that, just as a state legislature has the power to statutorily create property interests, so too may it legislatively alter or take away those same property interests, though its power to alter the rights and obligations that attach to completed transactions is not as broad as its power to regulate future transactions."). It is true that these sources refer to statutorily created property rights rather than those that arose from the common law. But this distinction is immaterial because, as explained below, the Legislature can abrogate the common law.

Const. 1963, art. 3, § 7 ("The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.").

Munn v. Illinois , 94 U.S. 113, 134, 24 L. Ed. 77 (1876) (discussing due process).

Cf. Bank Markazi v. Peterson , 578 U.S. ––––, ––––, 136 S. Ct. 1310, 1324, 194 L. Ed. 2d 463 (2016) ("The Fifth Amendment's Takings Clause prevents the Legislature (and other government actors) from depriving private persons of vested property rights except for a ‘public use’ and upon payment of ‘just compensation.’ ") (quotation marks and citation omitted); In re Certified Question , 447 Mich. at 787-788, 527 N.W.2d 468 ("One who asserts an uncompensated taking claim must first establish that a vested property right is affected.") (emphasis added).

See Cooley, Constitutional Limitations, p. 440 ("Acts of the legislature ... cannot be regarded as opposed to fundamental axioms of legislation, ‘unless they impair rights which are vested; because most civil rights are derived from public laws; and if, before the rights become vested in particular individuals, the convenience of the State procures amendments or repeals of those laws, those individuals have no cause of complaint.’ ") (citation omitted).

There is no need to decide in this case whether other constitutional provisions may limit the Legislature's ability to define property. My point is only that no such limitation may be found in the Takings Clause.

Bowen v. Gilliard , 483 U.S. 587, 607, 107 S. Ct. 3008, 97 L. Ed. 2d 485 (1987) ; see also Peterson, The Taking Clause: In Search of Underlying Principles Part I—A Critique of Current Takings Clause Doctrine , 77 Calif. L. Rev. 1299, 1313 (1989) ("In a number of other takings cases, the Court has said that unless a right created by positive law is a ‘vested right,’ it is not property within the meaning of the takings clause. The Court's reasoning is that when the government grants A a legal right, it normally retains the power to change the law to promote the general welfare, and thus no taking occurs when the government exercises its retained power, even though the change in the law eliminates A's rights under the prior law. As the Court expresses it, A has not lost any ‘vested rights.’ ").

Phillips , 524 U.S. at 164, 118 S.Ct. 1925 (quotation marks and citation omitted; emphasis added).

Id. See also Kafka v. Montana Dep't of Fish, Wildlife & Parks , 348 Mont. 80, 93, 2008 MT 460, 201 P.3d 8 (2008) ("Property interests themselves are not defined by the [federal] Takings Clause, or for that matter by [the state's taking clause]" but by " ‘ "background principles" and "rules and understandings" [that] focus on the nature of the citizen's relationship to the alleged property, such as whether the citizen had the rights to exclude, use, transfer, or dispose of the property.’ ") (citations omitted); Cheatham v. Pohle , 789 N.E.2d 467, 473 (Ind., 2003) ("The plaintiff has no property to be taken except to the extent state law creates a property right."); Mayor & City Council of Baltimore v. Bregenzer , 125 Md. 78, 93 A. 425, 426 (1915) ("The section of the Constitution quoted does not define property, nor does it declare what shall be a taking. It leaves those questions to the determination of the courts upon the facts of each particular case.").

Coleman v. Dist. of Columbia , 70 F. Supp. 3d 58, 80 (D. D.C., 2014).

This result goes well beyond what the United States Supreme Court has done. Even with regard to vested property rights, the United States Supreme Court has recognized that "the property owner necessarily expects the uses of his property to be restricted, from time to time, by various measures newly enacted by the State in legitimate exercise of its police powers; ‘[a]s long recognized, some values are enjoyed under an implied limitation and must yield to the police power.’ " Lucas v. South Carolina Coastal Council , 505 U.S. 1003, 1027, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992), quoting Pennsylvania Coal Co. v. Mahon , 260 U.S. 393, 413, 43 S. Ct. 158, 67 L. Ed. 322 (1922). "And in the case of personal property, by reason of the State's traditionally high degree of control over commercial dealings, [the property owner] ought to be aware of the possibility that new regulation might even render his property economically worthless (at least if the property's only economically productive use is sale or manufacture for sale)." Lucas , 505 U.S. at 1027-1028, 112 S.Ct. 2886. Elaborating on these points in his Lucas dissent, Justice Stevens observed that "[a]rresting the development of the common law" would be "a departure from our prior decisions[.]" Id. at 1069, 112 S. Ct. 2886 (Stevens, J., dissenting). Legislatures, he explained, "often revise the definition of property and the rights of property owners. Thus, when the Nation came to understand that slavery was morally wrong and mandated the emancipation of all slaves, it, in effect, redefined ‘property.’ " Id. All of this—in both the majority and dissent—referred to the legislature's expansive power over property a person already owned. In this case, the majority goes in the opposite direction and ties the Legislature's hands in regulating property that does not yet exist and that no one yet owns.

Const. 1963, art. 4, § 1.

E.g., Hoerstman Gen. Contracting, Inc. v. Hahn , 474 Mich. 66, 74, 711 N.W.2d 340 (2006) ("The Legislature has the authority to abrogate the common law.").

Emphasis added.

E.g., Rusinek v. Schultz, Snyder & Steele Lumber Co. , 411 Mich. 502, 508, 309 N.W.2d 163 (1981) ("[S]tatutes in derogation of the common law must be strictly construed ....").

Additionally, I believe that the majority's approach has broad implications in the realm of regulatory takings. If the ratifiers’ understanding of which particular objects an individual may have property rights in is now set in stone in the Constitution, I see no reason why the ratifiers’ understanding of the scope of their property rights is also not set in stone. In other words, under the majority's approach, if the ratifiers believed that their property interest entitled them to use a res in a variety of ways, each of those ways must be read into the definition of "property" under the Takings Clause. Consequently, it would be unconstitutional for a regulation to take away any use of a res that the ratifiers would have understood their property rights to include.

Ante at 459.

Ante at 454-55. Clause 26 of the Magna Carta reads:

If at the death of a man who holds a lay ‘fee’ of the Crown, a sheriff or royal official produces royal letters patent of summons for a debt due to the Crown, it shall be lawful for them to seize and list movable goods found in the lay ‘fee’ of the dead man to the value of the debt, as assessed by worthy men. Nothing shall be removed until the whole debt is paid, when the residue shall be given over to the executors to carry out the dead man's will. If no debt is due to the Crown, all the movable goods shall be regarded as the property of the dead man, except the reasonable shares of his wife and children. [Johnson, The Ancient Magna Carta and the Modern Rule of Law: 1215 to 2015 , 47 St. Mary's L. J. 1, 47 (2015) (emphasis added).]

See Baker, An Introduction to English Legal History (Dayton: LexisNexis, 2002), p. 223 ("The most fundamental distinction in the English law of property was between real property (realty) and personal property (personalty)."). Indeed, the conception of ownership of land—real property—was only just emerging in the thirteenth century from innovations within the feudal system. Id. at 223-237; see also Turner, The Equity of Redemption: Its Nature, History and Connection with Equitable Estates Generally (Cambridge: Cambridge University Press, 1931), pp. 1-3. The majority's resort to Blackstone is similarly unavailing because Blackstone's discussion of bailments deals with goods rather than real property. See ante at 454-55, citing 2 Blackstone, Commentaries on the Laws of England, p. *452.

Ancient Magna Carta , 47 St. Mary's L. J. at 47.

Seaman , 1 Doug. at 278.

The majority also cites United States v. Lawton , 110 U.S. 146, 3 S. Ct. 545, 28 L. Ed. 100 (1884), and Nelson v. City of New York , 352 U.S. 103, 77 S. Ct. 195, 1 L. Ed. 2d 171 (1956). See ante at 453 ("Significantly, Seaman , Lawton , and Nelson all address a former property owner's statutory right to recover the surplus proceeds."). See also ante at 453 ("Lawton and Nelson establish that the Takings Clause under the United States Constitution may afford former property owners a remedy when a tax-sale statute provides the divested property owner an interest in the surplus proceeds and the government does not honor that statutory interest.").

Ante at 456.

See also Tkachik v. Mandeville , 487 Mich. 38, 47-48, 790 N.W.2d 260 (2010) ("Unjust enrichment is defined as the unjust retention of ‘ "money or benefits which in justice and equity belong to another." ’ "), quoting McCreary v. Shields , 333 Mich. 290, 294, 52 N.W.2d 853 (1952) (citation omitted).

Dean v. Dep't of Natural Resources , 399 Mich. 84, 94-95, 247 N.W.2d 876 (1976).

The majority also cites the brief discussion on surplus proceeds in Cooley, Law of Taxation (3d ed.), p. 952. See ante at 455. But Cooley never stated the right to surplus was of common-law origin. Instead, the treatise explained that "[v]arious methods are adopted in different states to save, if possible , something to the owner when his land is sold." Cooley, Law of Taxation, p. 952 (emphasis added). As the majority notes, Cooley found support in Lawton , 110 U.S. 146, 3 S.Ct. 545, 28 L.Ed. 100, but that is another case dealing with a statutory scheme rather than the common law. See ante at 455 n. 86.

Sutherland, The Assize of Novel Disseisin (Oxford: Clarendon Press, 1973), pp. 12, 138; see also Hazeltine, General Preface , in Turner, The Equity of Redemption , pp. xxiv-xxx (describing the gage as a conveyance on condition precedent); 3 Holdsworth, A History of English Law (3d ed.), pp. 128-129 (calling the interest a mortgage but differentiating it from later practices and explaining that the creditor could not dispossess the debtor if the latter had possession).

See An Introduction to English Legal History , pp. 311-312 ("[T]he mortgagor conveyed the fee to the mortgagee forthwith, on condition that he might re-enter (and regain the fee) if he paid by a certain date.... [This] gave the mortgagee a fee simple defeasible by condition subsequent (that is, payment)."); Simpson, An Introduction to the History of the Land Law (London: Oxford University Press, 1961), p. 225 ("[T]he mortgagor conveyed his lands outright in fee simple to the mortgagee, with a covenant for re-conveyance if the debt was repaid on time; this is the classical common law mortgage ...."); 3 Holdsworth, p. 129 ("It was probably due chiefly to the latter cause [i.e., the creditor's inability to recover the land from a debtor in possession] that the peculiar interest of the mortgagee ... disappeared. He ceased to take a peculiar interest as mortgagee, and took instead some one of the recognized estates or interests in the land—a fee simple, a life estate, or a term.... The debtor might convey the land to the creditor in fee, with a proviso that if the debt was paid by a fixed date the land should be reconveyed[.]"); Turner, The English Mortgage of Land as a Security , 20 Va. L. Rev. 729, 729 (1934) ("The English mortgage has developed from a form of conveyance in use in the 16th century comprising an absolute conveyance to the lender with a proviso that, on the borrower repaying the principal with interest and costs by a fixed day, the lender would reconvey the property to him."); Lloyd, Mortgages—The Genesis of the Lien Theory , 32 Yale L. J. 233, 234 (1923) ("If the debt was not paid on the day named, the estate of the creditor became absolute. After default no right of redemption was admitted.").

See Restatement Property, 3d, Mortgages, § 3.1, comment a ("The consequences of payment default were especially harsh on the mortgagor. If for any reason the payment was not made on law day, the borrower forfeited all interest in [the property]."); 5 Tiffany, Real Property (3d ed., November 2019 update), § 1518 (noting that equity intervened out of justice because "no foreclosure was necessary [under the common-law mortgage], since the mere breach of the condition vested an absolute estate in the mortgagee"); An Introduction to English Legal History , p. 313 (explaining that equity courts began granting relief in this situation because "[t]he moneylender was morally entitled only to the debt, and perhaps some reasonable profit, but ought not to profit unconscionably from a penal arrangement"); An Introduction to the History of the Land Law , pp. 226-227 ("The common law courts construed mortgage transactions strictly and unsympathetically. If the mortgage provided that the mortgagor was to lose his land through defaulting in payment upon a fixed day then that was that; it mattered nothing that he defaulted by a single day, or that the property was worth infinitely more than the debt."); 5 Holdsworth, A History of English Law (1924), pp. 330-331 (noting that equity granted relief because of the penal character of the forfeiture); Sugarman & Warrington, Land Law, Citizenship, and the Invention of "Englishness": The Strange World of the Equity of Redemption , in Early Modern Conceptions of Property (Brewer & Staves eds., 1995), p. 113 ("A single day's delay in tendering repayment could result in the borrower losing the entire property to the lender, even though the amount of the loan might be far less than the value of the land."); Burkhart, Fixing Foreclosure , 36 Yale L. & Pol'y Rev. 315, 320 (2018) (noting that this "process," as incorporated in the American colonies, "often gave lenders an especially large windfall because land values were increasing at a greater rate than had previously occurred anywhere"); Weinberger, Tools of Ignorance: An Appraisal of Deficiency Judgments , 72 Wash. & Lee L. Rev. 829, 849-850 (2015) (noting that the borrower was not entitled to any surplus and lost title and all interest in the property); Mattingly, The Shift From Power to Process: A Functional Approach to Foreclosure Law , 80 Marq. L. Rev. 77, 90 (1996) ("The pendulum of power swung towards the borrower with the intervention of the Equity Courts, which viewed the borrower's forfeiture of any interest in the property as unduly harsh."); Wechsler, Through the Looking Glass: Foreclosure by Sale as De Facto Strict Foreclosure—An Empirical Study of Mortgage Foreclosure and Subsequent Resale , 70 Cornell L. Rev. 850, 856 (1985) ("Equity soon recognized the injustice of the forfeiture inherent in this situation.").
The same points are true regarding strict foreclosures, which developed along with the changes in mortgage law described above and, as in the present case, transfers title by court decree rather than automatically by extinguishment of the condition subsequent or by foreclosure sale. In strict foreclosure, as under the common-law mortgage or the statutes at issue here, the homeowner loses his or her equity in the property. Ghent, How Do Case Law and Statute Differ? Lessons from the Evolution of Mortgage Law , 57 J. L. & Econ. 1085, 1094 (2014) ("Strict foreclosure involved the lender going to an equity court and asking it to terminate the borrower's equity of redemption; foreclosure by sale of the property was not permitted, and any equity the borrower had in the property would be lost in the foreclosure."); Tracht, Renegotiation and Secured Credit: Explaining the Equity of Redemption , 52 Vand. L. Rev. 599, 607 (1999) ("Under strict foreclosure (where foreclosure vests title in the lender), there will be a forfeiture by the borrower and a windfall to the lender if the property is worth more than the debt."); Brabner-Smith, Economic Aspects of the Deficiency Judgment , 20 Va. L. Rev. 719, 720-721 n. 2 (1934) (Strict foreclosure "is a proceeding in which the decree finds that the mortgagee debt is due and has not been paid, that title to the property therefore is absolute in the mortgagee, and that the mortgagor is entirely divested of whatever interest he had in the premises at the time of the execution of the mortgage. There is no sale and no resulting deficiency or surplus.").

See 1 Coote, A Treatise on the Law of Mortgages (2d ed.), pp. 19-20 ("[Equity courts] declared it unreasonable that [the mortgagee] should retain for his own benefit, what was intended as a mere pledge; and they adjudged that the breach of the condition was in the nature of a penalty, which ought to be relieved against, and that the mortgagor had an equity to redeem on payment of principal, interest, and costs ...."); Sugarman & Warrington, Equity of Redemption , p. 113 ("Dating from at least the turn of the seventeenth century, the courts of equity determined that the strict date for repayment was somewhat irrelevant. Accordingly, the lender's claim to the property became subject ‘to a right called the equity of redemption, which arose from the court's consideration that the real object of the transaction was the creation of a security for the debt. This entitled the [borrower] to redeem (or recover the property), even though he had failed to repay by the appointed time.’ ") (citation omitted; brackets in original); Waddilove, The "Mendacious" Common-Law Mortgage , 107 Ky. L. J. 425, 457 (2019) ("The equity of redemption ... looked to what it deemed to be underlying substance of the mortgage agreement and gave effect to that over legal interpretation.").
The mortgagor's specific right to redeem property after foreclosure has been codified in Michigan, and the foreclosure sale purchaser's deed does not vest until the redemption period ends. See MCL 600.3240(1) and (2) ; MCL 600.3236. See also People v. March , 499 Mich. 389, 416-421, 886 N.W.2d 396 (2016).

As described in the Restatement Property, 3d, Mortgages, § 3.1, comment a , the "concept [of equitable redemption] evolved from simply a late payment rule to connote, in addition, the mortgagor's ownership interest in the land prior to the satisfaction of the mortgage. The term ‘equity’ became and is today the pervasively used term to describe this interest." See also Case , 174 Mich. at 681, 140 N.W. 943 ("As a general proposition, the equity of redemption appertains to and goes with the title to the real estate, and is in law the property of the owner of the fee. It is an interest in land ...."); An Introduction to English Legal History , p. 314 ("The equity of redemption had thus become a right inherent in the land .... [T]he great landowner of the seventeenth, eighteenth and nineteenth centuries was commonly in possession of his land (or some of it) only as the owner of an equity of redemption. The equity could be bought and sold, settled in tail, and even mortgaged.... [I]t had become an equitable estate[.]"); An Introduction to the History of the Land Law , pp. 227-228 ("[T]he equity of redemption [was] a peculiar form of property which could be dealt with by the debtor like other forms of equitable property.... In the eighteenth century the final touches were put upon the conception; the equity of redemption is spoken of as an estate in the land, and the mortgagor is regarded as the owner in equity of the land."); Turner, The Equity of Redemption , pp. 66-67 (" ‘An equity of redemption is considered as an estate in land[.] ... The person having the equity of redemption is considered as the owner of the land .... An equity of redemption, ... unforeclosed, is the ownership of the land, or the real estate in equity[.]’ ") (citation omitted); 6 Holdsworth, A History of English Law (1924), p. 663 ("The result had been to make the mortgagor's equity to redeem a right of property. He had an equitable estate in the land; and, subject to the legal rights of the mortgagee, was, in equity, regarded as its owner."); 5 Holdsworth, p. 332 ("[I]t became clear that this equitable right to redeem was in substance an equitable estate in the land which could be conveyed or settled like any other estate."); Waddilove, Why the Equity of Redemption? , in Land and Credit: Mortgages in the Medieval and Early Modern European Countryside (Briggs & Zuiderduijn eds., 2018), § 5.1, pp. 1-2 ("According to the equity of redemption, a mortgagor remained the true owner of mortgaged property throughout a mortgage despite lacking legal title; a mortgagee's interest was mere security for a debt; and a mortgagor was thus entitled to redeem the property at any time ... until his or her equity of redemption was declared foreclosed by a court."); Sugarman & Warrington, Equity of Redemption , pp. 115-116 (noting the "shift of the equity of redemption from a ‘thing’ to an ‘estate’ in equity, that is, in conceptualizing the equity of redemption as a kind of real property rather than as a kind of chattel property," and noting further that it was "characterized ... as a title in equity" and "was proprietorial"); Mortgages , 32 Yale L. J. at 236 (noting that chancery "treats the equity of redemption not as a mere right but as an estate which the mortgagor may deal with in any way consistent with the rights of the mortgagee in his security").
Although the terms "equity" and "equity of redemption" now are "interchangeable," they were "not equivalent" at common law because the equity of redemption originally could not be sold. Sabella, When Enough is Too Much: Overcollateralization as a Fraudulent Conveyance , 9 Cardozo L. Rev. 773, 780 n. 32 (1987). Once it could be alienated, "the concept changed in meaning to one much closer to today's notion of ‘equity.’ " Id. Still, a distinction exists. In discussing the mortgagor's interest in the property, one treatise states, "[T]he term ‘equity of redemption’ which had previously and appropriately been applied to the mortgagor's right to get back his property after default was applied somewhat inappropriately to this entirely distinct equitable ownership before default." 1 Nelson, Real Estate Finance Law (6th ed.), § 1:3. Compare Black's Law Dictionary (11th ed.) (defining "equity" as "[a]n ownership interest in property"), with id. (defining "equity of redemption" as "[t]he right of a mortgagor in default to recover property before a foreclosure sale by paying the principal, interest, and other costs that are due"). Thus, perhaps it is more accurate to say a redemption right functions to protect a homeowner's equity interest. See, e.g., Note, The Big Chill: Applicability of Section 548(a)(2) of the Bankruptcy Code to Noncollusive Foreclosure Sales , 53 Fordham L. Rev. 813, 817 n. 22, 834 (1985) (observing that the equity interest was originally called the equity of redemption but noting that the "debtor can protect his equity interest in the property by paying the sale price plus costs," i.e., exercise the redemption right, and that the equity of redemption "ordinarily would serve to preserve his equity interest").

Sugarman & Warrington, Equity of Redemption , pp. 113-114; see also 2 Dunaway, Law of Distressed Real Estate (December 2019 update), § 26:29 (noting that any surplus over the foreclosing mortgagee's debt is paid to other liens and "[a]ny balance is distributed to the holder of the equity of redemption"); 5 Holdsworth, p. 331 ("About the same period therefore we get the foreclosure decree ...."); Fixing Foreclosure , 36 Yale L. & Pol'y Rev. at 319-320 (discussing the transition from strict foreclosure to foreclosure by public auction); How Do Case Law and Statute Differ , 57 J. L. & Econ. at 1094-1095 (discussing the transition from strict foreclosure to foreclosure by sale, which protected the debtor's equity); Through the Looking Glass , 70 Cornell L. Rev. at 859 ("Foreclosure by sale was viewed as a logical way of protecting the debtor's equity in the property ...."); The English Mortgage , p. 730 ("Almost as soon as the equity of redemption became established the mortgagee was given an equitable right of foreclosure[.]").

As the Missouri Court of Appeals stated:

[A] foreclosure sale surplus "retains the character of real estate for the purpose of determining who is entitled to receive it, and goes to the person to whom the real estate would have gone but for the conversion." Roy v. Roy , 233 Ala. 440, 172 So. 253, 254 (1937). Such surplus represents the owner's equity in the real estate. Dodson v. Farm & Home Sav. Ass'n , 208 Ga.App. 568, 430 S.E.2d 880, 881 (1993). It stands in place of the foreclosed property, subject to the same liens and interests that were attached to the land. Timm v. Dewsnup , 86 P.3d 699, 703 (Utah 2003). Surplus "usually arises because more land is sold ... than is necessary to satisfy the mortgage debt.... [T]he money stands for the land and the rights therein are determined as though the court were dealing with the land itself." Morris v. Glaser , 106 N.J. Eq. 585, 151 A. 766, 771 (N.J. Ch. 1930) aff'd mem. , 110 N.J. Eq. 661, 160 A. 578 (N.J. Err. & App. 1932). See also First Fed. Sav. & Loan Ass'n v. Brown , 78 A.D.2d 119, 434 N.Y.S.2d 306, 310 (1980) (foreclosure surplus "stands in place of the land for all purposes of distribution among persons having vested interests or liens upon the land"); East Atlanta Bank v. Limbert , 191 Ga. 486, 12 S.E.2d 865, 867 (1941) (quoting Morris )[.] [Grand Teton Mountain Investments, LLC v. Beach Props., LLC , 385 S.W.3d 499, 502-503 (Mo. App., 2012).]

See also Nelson, § 7:32 ("The major underlying principle is that the surplus represents the remnant of the equity of redemption and the security that the foreclosure eliminated. Consequently, the surplus stands in the place of the foreclosed real estate ...."); Tiffany, § 1529 ("Any surplus proceeds of sale remaining after the payment of the debt secured by the mortgage are paid to the mortgagor or, if there are subsequent purchasers or incumbrancers, such surplus proceeds belong to them, in the order of priority in which their rights against the land could have been asserted. In other words, the proceeds of sale are substituted for the land itself, and become subject to outstanding liens and claims to the same extent and in the same order as the land itself was subject thereto.") (citations omitted); Nelson & Whitman, Reforming Foreclosure: The Uniform Nonjudicial Foreclosure Act , 53 Duke L. J. 1399, 1483 (2004) ("Sometimes a foreclosure sale yields a surplus amount in excess of what is needed to satisfy the mortgage obligation and the expenses of sale. In essence, when a surplus results, it represents what remains of the debtor's ownership or ‘equity of redemption’ and is conceptually a substitute res.").
It is true that some courts have found that the surplus proceeds are the property owner's general funds rather than the real estate. See In re Schiphof , 192 N.C. App. 696, 702, 666 S.E.2d 497 (2008) ("This Court stated that, ‘the surplus funds ... did not constitute real estate. The surplus funds represented the general funds of the plaintiffs, the owners of the premises and the grantors in the deed of trust which was foreclosed.’ "), quoting Smith v. Clerk of Superior Court , 5 N.C. App. 67, 73-74, 168 S.E.2d 1 (1969). This does not, however, have any bearing on a homeowner's entitlement to the proceeds by virtue of his or her equity in the home. As stated, " ‘[E]quity’ is defined as ‘the value of a property * * * above the total of the liens.’ " Crane , 331 U.S. at 7, 67 S.Ct. 1047. Whether that value, realized in the surplus proceeds after a tax foreclosure, is thought of as representing the real estate or general funds, it is still a result of the right to equity.

Black's Law Dictionary (11th ed.) defines "equity" as "[a]n ownership interest in property, esp. in a business." See also Crane , 331 U.S. at 7, 67 S.Ct. 1047 (" ‘[E]quity’ is defined as ‘the value of a property * * * above the total of the liens.’ "). Of course, there might be other liens on the property such that a landowner's equity is less than the property value minus what was owed in taxes. It is also true that equity may fluctuate as market values change. But I see no reason why a fluctuation in equity would affect whether the right is vested. Though a property owner is not guaranteed that real property will sell for a particular amount, the owner's interest still comes from his title and is more than a "mere expectation." In re Certified Question , 447 Mich. at 788, 527 N.W.2d 468.

See In re Certified Question , 447 Mich. at 788, 527 N.W.2d 468 ("To constitute a vested right, the interest must be something more than such a mere expectation as may be based upon an anticipated continuance of the present general laws; it must have become a title, legal or equitable, to the present or future enjoyment of property ....") (quotation marks and citation omitted).

See note 15 of this opinion.

See, e.g., Rogner v. Rogner , 179 Mich. App. 326, 445 N.W.2d 232 (1989) (reviewing an award of equity in the marital home).

See Dorce v. City of New York , 460 F.Supp.3d 327 (S.D.N.Y., 2020) (Docket No. 19-cv-2216 ) (discussing the plaintiffs’ loss of "equity" in their properties in the context of a takings challenge); Polonsky v. Bedford , 173 N.H. 226, 227–228, 230–231, 238 A.3d 1102 (2020) (referring to the excess "equity" owed to the taxpayer and holding that when a tax deed is issued, a taking occurs "requiring that [the government] provide just compensation to the former owner when, as here, the equity in the property exceeds the amount owed"); Automatic Art., LLC v. Maricopa Co. , unpublished opinion of the United States District Court for the District of Arizona, issued March 18, 2010 (Case No. CV 08-1484-PHX-SRB), pp. 2, 3, 6, 2010 WL 11515708 (discussing the statutes and constitutional challenges to them as affecting the property owner's equity in the real property); Thomas Tool Servs., Inc. v. Croydon , 145 N.H. 218, 220, 761 A.2d 439 (2000) ("Assuming that the property is worth substantially more than the $370.26 that the defendant paid for it, the defendant has realized an enormous surplus."); Syntax, Inc. v. Hall , 899 S.W.2d 189, 190 n. 1 (Tex., 1995) ("The claim for excess proceeds concedes the loss of ownership and simply seeks a return of the excess value that was received at the sale."); First NH Bank v. Windham , 138 N.H. 319, 327, 639 A.2d 1089 (1994) (holding that the state constitution required notice of the tax deeding because, in part, the "tax deeding irreversibly deprives the owner of any equity in the property," given that no surplus proceeds were then available); Anchorage v. Thomas , 624 P.2d 271, 273 (Alas., 1981) (finding a statutory right to surplus proceeds and noting "the basic injustice inherent in requiring delinquent taxpayers to forfeit the total value of their property far in excess of taxes due"); Auburn v. Mandarelli , 320 A.2d 22, 32 (Me., 1974) ("In the absence of contrary provision by statute or constitution, a municipality's title to property acquired under the tax-lien-mortgage-foreclosure statute is absolute, and the city or town has no power to part with, nor duty to account for, any surplus value on any" equitable theory.); Bogie v. Barnet , 129 Vt. 46, 48, 54, 270 A.2d 898 (1970) (finding a taking of the property to the extent of the difference between the tax sale bid "and the demonstrated far greater value of the property" evidenced by a later sale); Balthazar v. Mari Ltd. , 301 F. Supp. 103, 106 (N.D. Ill., 1969) ("[T]he Illinois tax delinquency statutes allow all real estate owners to recover the surplus value of their land."), aff'd 396 U.S. 114, 90 S.Ct. 397, 24 L.Ed.2d 307 (1969) ; Note, Someone to Lien On: Privatization of Delinquent Property Tax Liens and Tax Sale Surplus in Massachusetts , 61 B.C. L. Rev. 667, 670, 691-694 (2020) (noting that "[e]normously inequitable outcomes occur as a result [of Massachusetts's similar tax-foreclosure law] because property owners can lose all equity in their home" and describing caselaw as addressing whether the government must return "surplus equity" left after the foreclosure sale); Note, State Theft in Real Property Tax Foreclosure Procedures , 54 Real Prop. Tr. & Est. L. J. 93, 105 (2019) (noting that a surplus-retention system like ours "destroys property owners’ home equity and leaves them with nothing"); Bartell, Tax Foreclosures as Fraudulent Transfers—Are Auctions Really Necessary? , 93 Am. Bankr. L. J. 681, 706 (2019) (arguing that owners concerned about the price obtainable at a tax sale should pre-emptively "conduct a private sale that may generate enough proceeds to pay the taxes in full and provide the owner any extant equity"); Clifford, Massachusetts Has a Problem: The Unconstitutionality of the Tax Deed , 13 U. Mass. L. Rev. 274, 286-287 (2018) (discussing caselaw that addresses the proceeds as "surplus equity") (citation and quotation marks omitted); Kelly, Jr., Bringing Clarity to Title Clearing: Tax Foreclosure and Due Process in the Internet Age , 77 U. Cin. L. Rev. 63, 72 (2008) ("The vast majority of jurisdictions rely on a combined sale and foreclosure process to make sure both that the taxes due are paid in full and that any surplus value in the property is made available to the stakeholders whose interests have been liquidated.") (emphasis added).
Courts and parties in Takings Clause challenges to Michigan's foreclosure system have focused on the homeowner's deprivation of equity. See Rafaeli, LLC v. Wayne Co. , unpublished opinion of the United States District Court for the Eastern District of Michigan, issued June 4, 2015 (Case No. 14-13958), p. 8, 2015 WL 3833159 ("Plaintiffs also claim that the excess equity in their property was taken without just compensation, in violation of the Takings Clause of the Fifth Amendment to the United States Constitution."); Petition for Writ of Certiorari at 14, Wayside Church v. Van Buren Co. , ––– U.S. ––––, 138 S. Ct. 380, 199 L.Ed.2d 278 (2017) (No. 17-88 ) ("The property interest at issue here is privately generated and owned equity."); cf. Freed v. Thomas , unpublished opinion of the United States District Court for the Eastern District of Michigan, issued November 7, 2018 (Case No. 17-CV-13519), p. 2, 2018 WL 5831013 ("The heart of plaintiff's complaint is that this statutory scheme is unconstitutional because it provides no mechanism for the return to the delinquent taxpayer of the ‘surplus equity’ (i.e., the difference between the equity and the tax bill) or, in the event that the property is sold for less than fair market value, for the return to the delinquent taxpayer of the difference between the sale proceeds and the tax bill.").
A few cases addressing whether a statute provides for surplus to the homeowner do not mention "equity," but these cases are not deciding whether a nonstatutory basis exists for the property right in surplus proceeds; thus, they do not contradict the regnant interpretation of "surplus" as stemming from equity. See, e.g., Lake Co. Auditor v. Burks , 802 N.E.2d 896 (Ind., 2004) (finding statutory avenues for recovering surplus); Kelly v. Boston , 348 Mass. 385, 204 N.E.2d 123 (1965) (finding no statutory right to surplus). In addition, a handful of opinions rejecting constitutional challenges to tax-foreclosure statutes like the one here have not mentioned "equity," but they did not examine in any detail the potential sources of the property right at issue. See Miner v. Clinton Co. , 541 F.3d 464, 474-475 (C.A. 2, 2008) (rejecting a due-process claim because the notices were adequate and an equal-protection claim because no discrimination occurred); Reinmiller v. Marion Co. , unpublished opinion of the United States District Court for the District of Oregon, issued October 16, 2006 (Case No. CV 05-1926-PK), 2006 WL 2987707 (rejecting a takings claim and stating that Oregon law did not provide any property right entitling the homeowner to the proceeds, but only discussing the relevant tax-foreclosure statutes rather than common law). In a few cases with more detailed constitutional analyses, surplus or excess proceeds are mentioned without regard to the homeowner's equity; nonetheless, the cases do not hold that these proceeds are property without regard to equity. See Sheehan v. Suffolk Co. , 67 N.Y.2d 52, 59, 60, 490 N.E.2d 523, 499 N.Y.S.2d 656 (1986) ("There is no constitutional prohibition against such a full forfeiture" of the "surplus."); Ritter v. Ross , 207 Wis. 2d 476, 484, 558 N.W.2d 909 (App., 1996) ("We thus consider whether the Ritters had a property interest in the excess proceeds of the foreclosure sale ...."); Oosterwyk v. Milwaukee Co. , 31 Wis. 2d 513, 517, 143 N.W.2d 497 (1966) (rejecting an unjust-enrichment claim for surplus proceeds).

Plaintiffs’ brief states, "The private property interest at issue in this case is privately generated and owned equity." Plaintiffs’ Brief on Appeal (February 13, 2019) at 11. The majority dismisses this argument, saying that plaintiffs "conflate equity with surplus proceeds, suggesting that they are one in the same." Further, the majority criticizes my analysis as stating both that the equity of redemption represents an owner's equity and also acknowledging that the two are distinct. I see nothing inconsistent with noting the fact that, on one hand, the "equity of redemption" came to represent the homeowner's interest in the property, i.e., the equity, but, on the other hand, that there were and are certain distinctions between the two concepts, such as alienability, see note 50 of this opinion.
The majority goes on to say that it is unnecessary to discuss whether a property right to equity exists here because the question is whether the former property owner may collect surplus proceeds. However, it is necessary to begin the analysis with a vested right in the equity because, as explained above, there is no such thing as a vested right in surplus proceeds independent of the right to equity. Additionally, for the reasons we discuss below, even taken on its own terms, the right to surplus proceeds set forth in the majority's opinion is evanescent given that it can be so easily taken away.

Coleman , 70 F. Supp. 3d at 80 (emphasis added).

Id.

Id. at 80-81.

See, e.g., id.

Defendants have not raised the argument that the Legislature abrogated the common-law right to equity. See Mich. Gun. Owners, Inc. v. Ann Arbor Pub. Sch. , 502 Mich. 695, 709-710; 918 N.W.2d 756 (2018) (noting that parties raise the arguments in our adversary system). Under the regnant interpretive principle noted above, " ‘legislative amendment of the common law is not lightly presumed,’ " and the "Legislature ‘should speak in no uncertain terms’ when it exercises its authority to modify the common law." Dawe v. Dr. Reuven Bar-Levav & Assoc., P.C. , 485 Mich. 20, 28, 780 N.W.2d 272 (2010) (citation omitted). Like the majority's view that the Legislature cannot abrogate common-law property rights extant before 1963, this principle raises separation-of-powers concerns as well. See A Matter of Interpretation , pp. 27-28. But it is longstanding, and no party has challenged it here. Under this canon, it is reasonably apparent that the Legislature left untouched the taxpayer's common-law right to equity. Nothing in the statute clearly displaces that right. The same could not be said, however, for the majority's separate right to surplus proceeds, which the Legislature very clearly attempted to extinguish in the GPTA. In any event, the parties’ failure to address this argument means that it should not be resolved in this case.

MCL 211.78k(5). These dates are for uncontested cases. The judgment in contested cases becomes effective 10 days after the hearing, and 21 days after entry of the judgment the taxpayer loses his or her redemption rights and absolute title vests in the government. MCL 211.78k(5) and(6). In contested cases, the government obtains the right to possession 22 days after judgment enters. MCL 211.78g(1).

MCL 211.78k(5) and(6).

MCL 211.78g(1).

MCL 211.78m(16)(a).

MCL 211.78m(1).

Id.

Id.

Id.

MCL 211.78m(2).

Id.

Id.

MCL 211.78m(3).

MCL 211.78m(5).

MCL 211.78m(6) and(7).

Knick v. Scott Twp. , 588 U.S. ––––, ––––, 139 S. Ct. 2162, 2170, 204 L. Ed. 2d 558 (2019).

Of course, the majority might counter that this is a question for another day because the properties here were sold. But it is hard to imagine what the majority would do in such a case besides either denying the takings claim under the theory it adopts here or reconsidering whether it is based on the taxpayer's right to the equity in his or her property.

See Polonsky , 173 N.H. at 230–231, 238 A.3d 1102 (noting that the statutory scheme did not require the government to sell the foreclosed property but that, in those cases, the government has conflicts with the Takings Clause by failing to pay over the equity).

See note 52 of this opinion and accompanying text.

Dep't of Transp. v. Tomkins , 481 Mich. 184, 198, 749 N.W.2d 716 (2008) (citation omitted).

See note 52 of this opinion.

See State Theft , 54 Real Prop. Tr. & Est. L. J. at 126 (noting that limiting the taxpayer to the surplus might cause him or her to lose some equity but arguing that this result might be consistent with the "just compensation" requirement).

See United States v. Commodities Trading Corp. , 339 U.S. 121, 123, 70 S. Ct. 547, 94 L. Ed. 707 (1950) ("Fair market value has normally been accepted as a just standard. But when market value has been too difficult to find, or when its application would result in manifest injustice to owner or public, courts have fashioned and applied other standards.... [T]he dominant consideration always remains the same: What compensation is ‘just’ both to an owner whose property is taken and to the public that must pay the bill?") (citation omitted); In re State Hwy. Comm'r , 249 Mich. 530, 535, 229 N.W. 500 (1930) ("Just compensation should neither enrich the individual at the expense of the public nor the public at the expense of the individual.").

See Tax Foreclosures , 93 Am. Bankr. L. J. at 706-707 (arguing that courts reviewing whether foreclosure laws protect the debtor's "equity" should consider that the debtor's "right of redemption provides to the owner of the property the opportunity to realize the full fair market value of the property" less the taxes owed, and the debtor's failure to avail themselves of this relief constitutes agreement to the "price obtained by the state foreclosure process").

The majority seems untroubled by the possibility that what it might have taken away with one hand—i.e., the Legislature's authority to prospectively abrogate the supposed common-law right to surplus proceeds—it has given with the other by defining the right so that the Legislature can shrink or erase those surplus proceeds.