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Volume 12 - Opinions of Counsel SBRPTS No. 35

Opinions of Counsel index

Aged exemption (ownership requirement) - Real Property Tax Law, § 467(3)(b):

Where an otherwise qualified property owner held the property as a joint tenant with another (not her spouse), and the property is transferred to the qualified applicant as sole owner, the period of joint tenancy is tacked on to the period of sole ownership to determine whether the twelve-month ownership requirement has been met. [The following Opinions are superseded: 1 Op. Counsel SBEA No. 110, 1 Op. Counsel SBEA No.111, 2 Op. Counsel SBEA No. 44, 2 Op. Counsel SBEA No. 55, 2 Op. Counsel SBEA No. 59, 2 Op. Counsel SBEA No. 83, 3 Op. Counsel SBEA No. 81, 4 Op. Counsel SBEA No. 98, 5 Op. Counsel SBEA No. 33].

Our opinion has been asked on the following situation. {1}  A parcel is conveyed to a mother and daughter in July, 2002. Mother and daughter convey the parcel to the mother on January 15, 2010, prior to the taxable status date for the 2010 assessment roll (March 1, 2010). The mother in turn applies for the “senior citizen” exemption provided by section 467 of the Real Property Tax Law. She satisfies all the requirements of the exemption, but the exemption is not granted because she did not own the property for twelve months prior to taxable status date. This denial was based upon section 467(3)(b), which reads in pertinent part, “No exemption shall be granted . . . unless the title of the property shall have been vested in the owner or one of the owners of the property for at least twelve consecutive months prior to the date of making application for exemption . . ." This determination was based upon the analysis and conclusion contained in 2 Op. Counsel SBEA No. 55. The headnote of that Opinion summarizes the conclusion.

Where an otherwise qualified property owner creates a joint tenancy in himself and another (not his spouse), and the property is later transferred back to the original owner as sole owner, no exemption under this section may be granted until the expiration of five years from the change whereby the original owner again became sole owner.

In other words, the conclusion in the Opinion requires that, in this situation, the mother must have sole title to the property for the twelve month holding period (the holding period was five years at the time of the Opinion) before the exemption can be granted. We believe that this is not an accurate reading of either the former or the current statute, and that the conclusion in 2 Op. Counsel SBEA No. 55 is incorrect, as are the conclusions in several other Opinions.

In the instant situation the mother and daughter held the property as joint tenants. Joint tenancy is one of four interests in property that can be held by more than one person in New York.

Estates as to the number of persons owning an interest therein are classified as follows:

(1) In severalty.

(2) Joint tenancy.

(3) Tenancy in common.

(4) Only as to real property . . . tenancy by the entirety. Estates, Powers and Trusts Law, § 6-2.2.

Each of these tenancies provides that more than one individual can have an interest in any property, except for the restriction of tenancy by the entirety to real property. In the instant situation, the 2002 deed conferred on mother and daughter fee ownership in the residence.

A joint tenancy is an estate held by two or more persons jointly, with equal rights to share in its enjoyment during their lives and creating in each joint tenant a right of survivorship. Joint tenancy is one of the estates in which a number of persons can own an interest. A joint tenancy has characteristics of both a tenancy in common and a tenancy by the entirety. As in a tenancy in common, each joint tenant has the right, during the lifetime of both tenants, to alienate his or her own one-half interest; as in a tenancy by the entirety, each tenant also has an inchoate right of survivorship with respect to the other tenant’s share. 24 NY Jur 2d Cotenancy and Partition § 16 (footnotes omitted).

Thus mother and daughter owned the property from July, 2002 to January, 2010. It would appear that the mother clearly satisfies the length of ownership requirement, as did the applicant in the earlier Opinion. The rationale given for reaching a different conclusion in the Opinion is as follows:

Where a sole owner of a real property parcel adds additional names to a deed, a new title or interest is created. Likewise, as in the example, when a name of a near relative is removed from the deed and only the name of the aged person remains, a new title or interest is created. The transfer of title in 1971 to A (i.e., the transfer to the applicant, here parallel to the January 2010 transfer from mother and daughter to mother) caused a break in the chain of title and created a new title or interest whereby A became a sole owner.

First it should be noted that in this, and several other Opinions {2}, the phrase “break in the chain of title” is misused.  “Title means full, independent and fee ownership. The fee includes title, the right of possession, and the right to use for any purpose that might be lawful.” Warren’s Weed New York Property, Chapter 136, “Title”, § 136.01 (5th Ed.). Chain of title is the “ownership history of a piece of land from its first owner to the present one.” Black’s Law Dictionary, p. 244, “Chain of Title” (8th Ed.). Here the relevant part of the chain of title runs from grantor to mother and daughter to mother. There is no break, just as there was no break in the situation described in 2 id. 55. The two transfers from joint tenancies to the applicants are, to continue the metaphor, links in the chain of title, not breaks. The mother had title to the property since 2002, which satisfies the twelve-month requirement. Section 467(3)(b) does not contain a requirement that the twelve-month ownership must be exclusive, and it did not contain such a requirement when the previous Opinion was issued.

Accordingly, the following Opinions are superseded: 1 Op. Counsel SBEA No. 110, 1 Op. Counsel SBEA No. 111, 2 Op. Counsel SBEA No. 44, 2 Op. Counsel SBEA No. 55, 2 Op. Counsel SBEA No. 59, 2 Op. Counsel SBEA No. 83, 3 Op. Counsel SBEA No. 81, 4 Op. Counsel SBEA No. 98, 5 Op. Counsel SBEA No. 33.

September 14, 2010

{1}  The facts have been simplified for publication.

{2}  See: e.g., 1 Op. Counsel SBEA No. 110, 2 id. 83, 3 id. 81.