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Volume 3 - Opinions of Counsel SBEA No. 82

Opinions of Counsel index

Assessment roll (designation of owner) ; Assessment (review) - Real Property Tax Law, § 502, Article 7:

Real property may be assessed in the name of a purchaser under an executory contract of sale, and such person may seek administrative and judicial review if dissatisfied with his assessment.

Our opinion has been requested as to whether a purchaser of real property pursuant to an executory contract of sale may: (1) be listed as owner thereof on the assessment roll, and (2) seek administrative and judicial review of the assessor’s determination if dissatisfied with his assessment.

The executory contract of sale specifically provides that the purchasers shall be entitled to possession upon the execution of the agreement, and further provides that the purchasers agree to pay any and all taxes that may become liens on the property described in the agreement.

The law is well settled that a purchaser in possession under an executory contract of sale (title being retained in the seller notwithstanding) is deemed to be the owner for purposes of taxation (People ex rel. Donner-Union Coke v. Burke, 204 App. Div. 557, 198 N.Y.S. 601,aff’d, 236 N.Y. 650, 142 N.E. 320; Wilson and Company v. City of New York, 73 N.Y.S.2d 206, aff’d, 276 App. Div. 755, 92 N.Y.S.2d 918; 1 Op.Counsel SBEA Nos. 52, 88).

Therefore, it is the opinion of this office that the assessor may, upon the filing with him of a copy of the executed contract of sale, assess the property to the purchasers. The assessor may note either on the assessment roll itself or on his property record card that the purchasers are in possession under an executory contract of sale.

In this example, the assessor stated that property must be assessed to the owner of record. This is inaccurate; indeed, there is no requirement that a deed be recorded. Therefore, if A is the owner of record, but B exhibits to the assessor a properly executed deed of real property from A to B, and B states that he does not intend to record the deed, the assessor may assess the property to B. Of course, the assessor may inquire of A as to whether he executed the deed and upon any denial thereof, the determination of ownership for assessment purposes would be solely for the assessor to make.

It appears in this instance that the assessor hesitates to change the name of the owner on an assessment roll absent some documentation as to a change in ownership. Perhaps the assessor would feel more comfortable in changing ownership for tax purposes if the applicant also filed an authorization from the contract vendors authorizing the assessor to make the necessary change and to forward future tax statements to the contract vendee in possession.

           The assessor was also incorrect in his statement that only the record owner of real property has standing to seek review of his assessment. The courts have held that any person who has an equitable interest in real estate may obtain a review of the assessment of such real estate (Board of Education of Central School District No. 1 of Towns of Ontario v. Parsons, 61 Misc.2d 838, 306 N.Y.S.2d 833). In fact, it has been held that a lessee obliged to pay all taxes during the term of his lease was a “person aggrieved” and may obtain administrative and judicial review of the assessment of the real property leased by him (McLean’s Department Stores, Inc. v. Commissioner of Assessment of the City of Binghamton, 2 App. Div.2d 98, 153 N.Y.S.2d 342).

Therefore, if the purchaser is dissatisfied with his assessment he may obtain administrative review by filing a written, verified complaint on or before grievance day and if the board of assessment review upholds the determination of the assessor, the applicant may obtain judicial review in the manner described in Article 7 of the Real Property Tax Law.

May 3, 1973