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Volume 2 - Opinions of Counsel SBEA No. 14

Opinions of Counsel index

Aged exemption (residence) (farmland) - Real Property Tax Law, § 467:

Where real property is bisected by the boundary between two towns and it consists of a dwelling in one town and forty acres of inoperative farmland in the other town, the aged exemption may be allowed by the town in which the dwelling is located (assuming it is used exclusively for residential purposes and it is owned by an otherwise qualified taxpayer). The exemption must be denied, however, by the town in which the vacant farmland is located.

We have received an inquiry from a taxpayer with respect to the partial exemption on real property owned by aged persons authorized by section 467 of the Real Property Tax Law.

In the situation presented, the property is bisected by the boundary line between two towns. The taxpayer was allowed the exemption on the dwelling wholly located in one town but was denied the exemption on the property in the other town which consisted of some 40 acres of vacant inoperative farmland.

The intention of the Legislature in enacting section 467 was to benefit aged persons with limited incomes and apparently it was not intended that otherwise qualified persons who choose to reside on farms be discriminated against by depriving them of this exemption. However, in order to qualify for the exemption such persons must meet the qualifications enumerated within the exemption statute.

The residential and occupancy requirements of section 467 require that the property be the legal residence of the applicant, that it be used exclusively for residential purposes, and that the property be occupied in whole or in part by the applicant or applicants (subdivision 3(c) and (d)). Thus, in order that an otherwise qualified person be eligible for the exemption, the property which is the subject matter of the exemption must be used exclusively for residential purposes.

A farm under cultivation for profit is obviously not being exclusively used for residential purposes and an exemption may not be allowed on such property. The same would hold true for a nonoperative farm since the entire property is not exclusively residential. However, a dwelling situated on such property surrounded by an amount of land within the general classification of “residential” may meet the residency requirements of section 467. In such case the dwelling and the land used for residential purposes which it occupies must be capable of being separately assessed, and the assessor must be willing to make the assessment. While separate assessments are not prohibited, there is no statutory provision requiring them to be made.

Accordingly, it appears that the real property consisting of an inoperative farm with no residence located thereon, does not satisfy the statutory qualification requiring that property which is the subject of exemption be exclusively used for residential purposes, and an exemption may not be allowed on such property under section 467. However, an exemption would properly be allowable on the residence located in a different town, assuming such property is exclusively used for residential purposes, and the remaining requirements of section 467 are satisfied.

May 10, 1972