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Volume 2 - Opinions of Counsel SBEA No. 24

Opinions of Counsel index

Real property, definition of (greenhouse) - Real Property Tax Law, § 102; Farm structures and buildings exemption (greenhouse) - Real Property Tax Law, § 483:

A polyethylene greenhouse, the supporting poles of which are driven into the ground rather than being imbedded in concrete, is taxable real property. Such greenhouse is eligible for the exemption granted to newly constructed or reconstructed agricultural or horticultural structures as provided by section 483 of the Real Property Tax Law.

Our opinion has been requested as to the taxable status of a so-called polyethylene greenhouse, the supporting poles of which are simply driven into the ground rather than being imbedded in concrete.

Whether or not the greenhouse is taxable real property is governed by the standard set up in subdivision 12 of section 102 of the Real Property Tax Law. In order to be real property, it must fall within the provisions of paragraph (b) of this subdivision which includes in the definition of real property “buildings and other articles and structures, substructures and superstructures erected upon, under or above the land, or affixed thereto . . .”

We believe that a greenhouse is a “building”. Certainly it falls within the following definition: “‘In its broadest sense it can mean only an erection intended for use or occupation as a habitation, or for some purposes of trade, manufacture, ornament, or use, constituting a fabric or an edifice, such as a house, a store, a church, a shed.’” (Rouse v. Catskill & N.Y. Steamboat Co., 59 Hun 80, 13 N.Y.S. 126, 127). A building, structure or article can nonetheless be considered real property even if it is affixed to the land only by its own weight (Snedeker v. Warring, 12 N.Y. 170) or if it is removable intact (People ex rel. Herzog v. Miller, 170 Misc. 1063, 11 N.Y.S.2d 572, aff’d 258 App. Div. 724, 15 N.Y.S.2d 141). It seems to us that the crucial issue with respect to a building which does not have a foundation is whether or not it is intended to be permanently installed. We take the position that it should be presumed that a building is intended to be permanently installed and that it is incumbent upon the taxpayer to prove by objective criteria that such intention does not exist. Such proof might consist of the fact that the greenhouse has been moved from time to time when its owner has moved, or that the owner of the greenhouse has installed it on rented land.

We have also been asked whether this property is eligible for the partial exemption for certain agricultural property. The exemption authorized by section 483 of the Real Property Tax Law provides in part, as follows:

“1. Structures and buildings essential to the operation of lands actively devoted to agricultural or horticultural use and actually used and occupied to carry out such operation which are constructed or reconstructed subsequent to January first, nineteen hundred sixty-nine and prior to January first, nineteen hundred seventy-nine shall be exempt from taxation to the extent of any increase in value thereof by reason of such construction or reconstruction for a period of five years.

“2. Such exemption shall be applicable only to structures and buildings necessary to the operation of lands which have been actively devoted to bona fide agricultural and horticultural production for a period of not less than two consecutive years prior to the date of application.”

The nursery business is, in our opinion, an agricultural use which is within the scope of the exemption statute. If the construction has taken place within the time period delineated by section 483 and if the structure is essential to the operation of at least five acres of land which have been used for nursery purposes for at least two years prior to the application, then the applicant is entitled to the exemption.

June 21, 1972

NOTE:  But see RPTL, § 483-c.