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Volume 3 - Opinions of Counsel SBEA No. 38

Opinions of Counsel index

Aged exemption (ownership requirement) (property devised to a sister) - Real Property Tax Law, § 467:

A sister who is the devisee of a residence formerly owned solely by a deceased brother does not qualify for partial real property tax exemption for aged persons pursuant to section 467 until she has owned such property for sixty consecutive months. Such period commences on the date of death of the testator.

We have received an inquiry 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.

A brother, who was sole owner of a residential real property parcel until his death in February, 1972, left his property to his sister by will. The sister had resided with her brother for the past eight years and met the age and income requirements of the exemption statute. Her eligibility for exemption rests upon her fulfillment of the length of ownership requirement.

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)). Since the sister became owner of the property upon the death of her brother in February, 1972 she does not satisfy the length of ownership requirement of section 467. She will satisfy the ownership requirement after she has owned the property for five years.

Exemption statutes relieve certain classes of persons or property from paying a full 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, aff’d, 279 N.Y. 560, 18 N.E.2d 854). 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 amendment 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. However, this amendment applies solely to husband and wife and not to a brother and sister.

January 22, 1973

NOTE:  Chapter 1004, Laws of 1974 reduced the period of ownership requirement of section 467 to twenty-four months.