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Volume 1 - Opinions of Counsel SBEA No. 5

Opinions of Counsel index

Aged exemption (ownership requirement - property held in joint tenancy) - Real Property Tax Law, § 467:

Where title to property held in joint tenancy by a mother and son passes to the mother upon the death of the son, the period of ownership of the mother is deemed to date back to the creation of the joint tenancy for purposes of computing the surviving mother’s period of ownership under the aged exemption statute.

In order for the exemption to be granted under section 467 of the Real Property Tax Law, the owner, or if there is more than one owner, all of the owners, must be 65 years of age or over on or before the date of making application for exemption. Pursuant to the provisions of subdivision 3(b) of section 467, no exemption may be granted unless the title to the property shall have been vested in the owner or all of the owners of the property for at least 60 consecutive months prior to the date of making application for exemption.

Where title to real property is held in joint tenancy, all the joint tenants acquire the property by the same instrument at the same time. Each joint tenant is considered to own an undivided interest in the entire parcel and the fee is indivisible for purposes of tenure and survivorship.

Upon the death of one party, his share passes to the survivor or survivors, not as the result of will, inheritance or gift, but rather by virtue of the instrument which created the joint tenancy. Such vesting of title is deemed to relate back to the time of the creation of the estate (In re Pendleton’s Estate, 206 Misc. 390, 132 N.Y.S.2d 285).

When the mother took title as a survivor of the joint tenancy, there was no break in the chain of title, and her ownership was continuous from the creation of the joint tenancy. Assuming the joint tenancy had been created at least five years prior to the date of application for exemption, the mother would meet the requirement of ownership for 60 consecutive months.

May 20, 1970