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Volume 3 - Opinions of Counsel SBEA No. 124

Opinions of Counsel index

Separate assessment (building located on two lots) - Real Property Tax Law, § 502:

An assessor has no authority to include an entire building occupying two lots in the value of one of the lots. It is proper for the assessor to combine the two lots and the building located thereon into one parcel for purposes of assessment and taxation.

Our opinion has been requested as to whether, at the request of a property owner, an assessor may be compelled to separately assess two contiguous lots containing an improvement and including the value of the improvement in the value of only one lot, to accommodate two separate lending institutions holding separate mortgages. Both lots, while vacant in the past, had been separately assessed.

The question must be answered in the negative. Under the facts presented, an assessor may not be compelled to make such separate assessment and is precluded from doing so by law. Pursuant to section 502 of the Real Property Tax Law, which prescribes the form of assessment roll, provision must be made with respect to each separately assessed parcel of real property. Each such parcel must be separately described, and the assessment roll must contain a column for the entry with respect to each separately assessed parcel of the assessed valuation of the land, exclusive of any improvements, followed by a column for the entry of the total assessed valuation. Thus, with improvements, the value thereof is to be included in the value of the land upon which it is located as described on the roll. Therefore, in the above factual situation, the assessor is being requested to do that which he has no authority to do, namely, to include an entire building occupying two lots in the value of one lot.

Under certain limited circumstances, such as those contained in Real Property Tax Law section 102, subdivision 12(g) and section 564, assessors are directed to separately assess improvements apart from the land. In other cases, it would appear that an assessor has discretion in the matter. Thus, it has been held that an assessor cannot be forced to assess improvements, which are owned by one other than the landowner, separate from the land on which they are located (Doughty v. Loomis, 9 App. Div.2d 574, 189 N.Y.S.2d 413, aff’d w/o, 8 N.Y.2d 722, 167 N.E.2d 643, 201 N.Y.S.2d 100). However, noting that the real property tax is a tax on the property itself, and should the tax remain unpaid, enforcement proceedings are taken against the real property (Real Property Tax Law, § 304), separate assessment of improvements is not to be recommended. The point is that the land will always be there should enforcement proceedings become necessary while an improvement may be demolished or removed.

What constitutes a separately assessed parcel of real property is not defined in the Real Property Tax Law. However, several cases construing the statute from which section 502 is derived held that the separate assessment as one parcel of subdivided lots owned by one person was a jurisdictional defect which invalidated the assessment and the taxes levied thereon (French v. Whittlesey, 30 N.Y.S. 363; Howell v. Rowe, 85 Misc. 560, 147 N.Y.S. 482; Matter of Niagara County Treasurer, 52 State Dept. Rep. 475; see also, May v. Traphagen, 139 N.Y. 478, 34 N.E. 1064). However, in a proceeding against the Commissioners of Taxes and Assessments of the City of New York, it was indicated that a joint assessment of two or more contiguous lots would not be erroneous and would be upheld when it is found impracticable to separately assess the lots. In that case, the real estate of the petitioner was included with five other lots belonging to other owners, the six lots were assessed as a unit and valued together at one sum. The Appellate Division, in upholding the determination of the Commissioners, observed that the six lots owned by different persons were occupied entirely by one building situated on leased land, and “for that reason it is impracticable to apportion the value of said building among the various parcels upon which it stood” (People ex rel. Lazarus v. Feitner, 65 App. Div. 318, 73 N.Y.S. 97, 102, aff’d, 169 N.Y. 604, 62 N.E. 1099; see also, People ex rel. Strauss v. Purdy, 167 N.Y.S. 66).

Accordingly, on the basis of the above, the action of the assessor in combining the two lots and building located thereon into one parcel for assessment and taxation purposes was proper.

October 21, 1974