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Volume 1 - Opinions of Counsel SBEA No. 110

Opinions of Counsel index

Aged exemption (joint ownership) (residence) (income) - Real Property Tax Law, § 467:

The aged exemption may not be granted on property jointly owned by two brothers and a sister unless the property is occupied by all three joint owners as their legal residence and unless their combined income does not exceed the limit set by the granting municipality.

Our opinion has been requested as to whether a home jointly owned by two brothers and a sister for some twenty years, and which is the legal residence of, and is occupied by, one brother and the sister, would qualify for the aged exemption provided by section 467 of the Real Property Tax Law. All three joint owners are over seventy-five years of age.

Section 467 of the Real Property Tax Law authorizes any municipality to grant an exemption to the extent of 50 percent of the assessed valuation of real property which is owned by certain elderly persons. Pursuant to the provisions of section 467, the property on which the exemption is claimed must be owned by a person sixty-five years of age or over or, if the property is jointly owned, all of the owners must be sixty-five years of age or over (except when jointly owned by a married couple). The income of the owner or, where the property is jointly owned, of all of the owners, cannot exceed the figure set by the municipality granting the exemption. A municipality granting the exemption has the option of setting the income limitation at any figure between $3,000 and $5,000. Title to the property must have been vested in the owner or owners for a period of sixty consecutive months prior to making an application for exemption. Moreover, such property must be used for residential purposes exclusively, must be the legal residence of the owner or all of the joint owners, and must be occupied in whole or in part by the owner or all of the joint owners.

With respect to the subject property, it is noted that all of the joint owners meet the age and length of ownership requirements of the exemption statute. However, in determining eligibility for this exemption the remaining requirements of section 467 must also be satisfied. Therefore, the combined income of all three joint owners must be within the limitation set by the granting municipality, and, in addition, all three joint owners must occupy the property as their legal residence. Since one of the joint owners does not occupy the property an exemption may not be allowed.

In the event that the nonresident brother should transfer his interest in the property to his sister and brother, the exemption could not be allowed until five years had expired from the time of such transfer. Such transfer would effect a break in the chain of title and for purposes of section 467 the required five-year period of ownership would begin running anew. The obvious legislative intent for the length of ownership requirement is to prevent transfers of real property made solely to benefit from this exemption statute.

Statutes granting exemptions from taxation must be strictly construed (Herkimer County v. Village of Herkimer, 251 App. Div. 126, 295 N.Y.S. 629) and a property owner or owners must comply with all the terms and conditions of the statute in order to qualify for exemption. An assessor may not legally grant an exemption in cases where the statutory conditions are not satisfied.

April 17, 1972

NOTE:  Superseded by Opinion 12-35.