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Volume 2 - Opinions of Counsel SBEA No. 113

Opinions of Counsel index

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

Where a daughter, now past sixty-five years of age, first acquired title to her home after the death of her ninety-six year old mother two years previously, no exemption would be granted pursuant to this section due to a failure to satisfy its five year freehold possession requirement.

Our opinion has been requested 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 a mother, age ninety-six, passed away two years ago leaving sole title to her residence to her daughter. The daughter, apparently now past sixty-five years of age, cared for her mother, and is now the sole occupant of the property. The question is whether the daughter may qualify for exemption where she has owned the property for 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 consecutive months prior to the date of making application for the exemption (Real Property Tax Law, § 467(3) (b)). Therefore, the daughter will not satisfy the length of ownership requirement of section 467 until such time as she has owned the property 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 amendments 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 and 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 sixty month ownership requirement. This amendment applies solely to husband and wife and not to a mother and daughter. Therefore, to grant the exemption in the above described situation would require a further amendatory act of the Legislature.

December 4, 1972