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Volume 2 - Opinions of Counsel SBEA No. 83

Opinions of Counsel index

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

Where one of the joint owners (not husband and wife) is under the age of sixty-five, no exemption will be allowed. If the ineligible party is removed from the deed, the “new” title or interest must exist for five years before the exemption can be granted.

We have received an inquiry concerning the age and ownership requirements for the partial tax exemption on, real property owned by aged persons as authorized by section 467 of the Real Property Tax Law. The inquiry is made by an otherwise qualified taxpayer whose son’s name is on the deed to her property. Her specific question is whether the exemption would be allowed on the property should the name of her son be removed from the deed.

Recognizing the real property tax burden imposed on many of our senior citizens, in 1966 section 467 of the Real Property Tax Law was enacted providing that real property owned by persons sixty-five years of age and over shall be exempt from taxation to the extent of fifty percent of the assessed valuation, provided that the municipality in which the property is located (i.e., county, city, town, village, or school district) adopts a local law, ordinance or resolution after holding a public hearing on the subject granting the exemption.

Paragraph b of subdivision 3 of section 467 of the Real Property Tax Law provides, in part, that no exemption shall be granted “unless the title of 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 exemption . . . .” Thus, where one of the joint owners is under the age of sixty-five, the exemption may not be allowed because all of the owners of the property do not meet the statutory age requirement. To remove her son’s name from the deed would effect a break in the chain of title and create a new title or interest in the property. To satisfy the length of ownership requirement of section 467 this new title or interest in the property would have to exist for five years. Therefore, under present statutory requirements, the exemption could not be immediately allowed following such transfer.

Apparently, the deed to this residence was so executed as a matter of convenience to obviate the necessity of a probate proceeding in the event of the mother’s death. However, statutes granting exemptions from taxation must be strictly construed (Herkimer County v. Village of Herkimer, 251 App. Div. 126, 295 N.Y.S. 629) which means that a property owner must comply with all the terms and conditions of the statute in order to qualify for exemption. An assessor may not legally grant an exemption in cases where the statutory conditions are not satisfied.

Section 467 represents a major step forward in alleviating the real property tax burden on many of our senior citizens. It is a relatively new statute, and in its administration many so-called “hardship” situations have arisen. In the opinion of the Legislature, one such hardship situation occurred when there was a transfer of real property between spouses. Accordingly, in 1971 the Legislature amended section 467 (Laws of 1971, Chapter 800) to permit the combining of the time of ownership of property by one spouse, where all or part of title to real property is transferred to the other spouse, with the time of such new ownership for the purpose of computing the five-year period of ownership. The exemption provided by this amendment is limited to transfers between husband and wife and therefore does not apply to a transfer between parents and their children.

June 29, 1972

NOTE: This Opinion superseded by Opinion 12-35.