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Volume 1 - Opinions of Counsel SBEA No. 9

Opinions of Counsel index

Aged exemption (children in school) (ownership requirement) - Real Property Tax Law, § 467:

Where a taxpayer cares for “welfare children” in his home and the children attend public school, the property is not entitled to exemption from school taxes under section 467 of the Real Property Tax Law but is entitled to an exemption from town and county taxes.

Where a taxpayer resides five or more years on property devised to him by the will of the deceased owner, the ownership requirement of section 467 is satisfied despite the fact that the will has not been probated, because title to real property vests at the date of the decedent’s death and not at the date of probate.

Three questions have been presented concerning the partial exemption from real property taxation available to certain senior citizens under section 467 of the Real Property Tax Law.

1. If a taxpayer cares for “welfare children” in his home, and those children attend public school, is the property entitled to the aged exemption under section 467 of the Real Property Tax Law?

Subdivision 2 of section 467 of the Real Property Tax Law provides that the “exemption from taxation for school purposes shall not be granted in the case of real property where a child resides if such child attends a public school of elementary or secondary education.” This subdivision makes no distinction as to the relationship of the children to the parents (i.e., natural, adopted, or boarders), and, in fact, no such distinctions were intended to be applicable. The purpose of subdivision 2 is to insure that school district taxes are paid in full when a child resides on the real property in question and receives a benefit from the schools which derive their revenue from real property taxation.

2. In the same case as question 1, does the exemption still apply as to county and town taxes?

Subdivision 2 is concerned only with school district taxes, and section 467 contains no further modifications resulting from the presence of children on the real property. A qualified aged person is entitled to a reduction in the assessed value of his property for purposes of town and county taxes despite the fact that children reside on his real property and attend public school.

3. May an exemption be granted to property devised by the will of the deceased owner to an aged person who has lived in the home for five or more years, where the will has not been probated?

The rule of law in New York State is that the will itself and not the probate vests title to real property in the devisee. “Such title vests at the instant of the testator’s death in the devisee named in the will. Waxon Realty Corporation v. Rothchild, 255 N.Y. 332, 336, 174 N.E. 700, 701; Corley v. McElmeel, 149 N.Y. 228, 235, 43 N.E. 628, 630.” (Application of American Museum of Natural History, 17 Misc.2d 855, 187 N.Y.S.2d 390).

March 17, 1971