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Volume 2 - Opinions of Counsel SBEA No. 112

Opinions of Counsel index

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

Where a mother, first acquired title to her home from her deceased daughter, who had held title for twenty years, no exemption would be granted pursuant to this section due to a failure to satisfy its five-year freehold possession requirement, despite the fact that the mother had contributed funds to the purchase of the property in the first instance.

We have received an inquiry concerning the ownership requirement of section 467 of the Real Property Tax Law which authorizes a partial tax exemption on real property owned by certain aged persons.

The situation is that two years ago a mother acquired sole title to her home from her deceased daughter who possessed sole title until her death. This property had been acquired some twenty years ago through the contributions of the mother, son and daughter. However, title initially had been held jointly by the son and daughter, and the son later deeded his interest in the property to the daughter. The question is whether the mother may qualify for exemption where she has owned the property only two years.

Section 467 provides that real property owned by one or more persons, each of whom is sixty-five years of age or over, who meet the qualifications of that section, shall be exempt from taxation by any municipality in which it is located, to the extent of fifty percent of the assessed valuation of the real property, provided that the municipality in which the property is located adopts a local law, ordinance, or resolution after holding a public hearing on the subject granting the exemption. One of the requirements of section 467 is that no exemption shall be granted unless title to the property shall have been vested in the owner or all of the owners of the property for at least sixty (60) consecutive months prior to the date of making application for the exemption (Real Property Tax Law, § 467(3)).

Under section 467 an otherwise qualified applicant may claim an exemption on property in which he possesses, for the statutory five-year period, a freehold estate, that is, an estate in fee simple or a life estate. Interests which are less than a life estate do not qualify. Therefore, if the applicant was not a fee owner as a joint tenant or possessed a life estate in the property, she will not meet the length of ownership requirement of section 467 until such time as she has owned the property under the present title for five years.

Exemption statutes relieve certain classes of persons or property from paying a proportionate share of the total tax burden. Therefore, courts have held that exemption statutes must be strictly construed (Herkimer County v. Village of Herkimer, 251 App. Div. 126, 295 N.Y.S. 629). This means that a property owner or owners must comply with all the terms and conditions of an exemption statute in order to qualify thereunder for exemption.

In the administration of this statute, hardship situations have arisen. Several such hardship situations have been alleviated by the Legislature through amendment of the statute. For example, in the past the exemption had to be denied to an otherwise qualified surviving spouse who acquired title from a deceased spouse who had been sole owner. Subdivision 3(b) of section 467 was amended by Chapter 752 of the Laws of 1967 to provide that where title to property was vested solely in the name of a deceased husband or wife, and then becomes vested solely in the surviving spouse by will or operation of law, the period of ownership of the deceased spouse shall be counted for purposes of the 60 month ownership requirement. This amendment applies solely to husband and wife, not to a daughter or son and mother. Therefore, to grant the exemption in the above described situation would require a further amendatory act of the legislature.

December 4, 1972