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Volume 3 - Opinions of Counsel SBEA No. 95

Opinions of Counsel index

Aged exemption (ownership requirement) (residence sold and replaced) - Real Property Tax Law, § 467(3)(b):

To satisfy the length of ownership requirement of section 467 the period of ownership of a former residence voluntarily disposed of may be combined with the period of ownership of a new residence acquired in the same assessing unit within one year from the time the former property was sold. Such provision has no application where a person retains ownership of a former residence.

We have received an inquiry concerning the length of ownership requirement of section 467 of the Real Property Tax Law. The facts are that an aged individual in a community owns a parcel of real property located on A Street, where he resided from October 1960 to October 1969 when he moved from there to a newly acquired residence on B Street. He lived on B Street from October 1969 to March 1972, when he sold that residence and moved to his current residence which he presently owns and has occupied since March 1972. The question is whether this property owner meets the length of ownership requirement for the exemption authorized by section 467 on his present residence.

Section 467 provides that the owner-occupied legal residence of persons sixty-five years of age or over with low incomes shall be exempt from taxation to the extent of 50 percent of the assessed valuation thereof, provided that the title to the property shall have been vested in the owner or all of the owners for the required period prior to the date of making application therefor. Subdivision 3(b) permits the combining of the time of ownership of property recently acquired with property formerly owned and voluntarily disposed of in the same assessing unit for the purpose of computing the required period of ownership, provided that the new property was acquired within one year from the time the former property was sold (1 Op. Counsel SBEA No. 53; 2 Op.Counsel SBEA No. 64).

Statutes exempting real property from taxation must be strictly construed and no exemption will be granted by any doubtful implication. In other words, the right to the exemption must be clearly established according to the statutory provision, and if a doubt exists, then that doubt should be resolved in favor of taxation (Lawrence-Smith School Inc. v. City of New York, 280 N.Y. 805, 21 N.E.2d 693). Subdivision 3(b) of section 467 states that periods of ownership of different properties may be combined “. . . where a residence is sold and replaced with another within one year and is in the same assessment unit . . .” (emphasis added).

It is assumed that the properties in the factual situation are all located within one town (the same assessing unit). It is noted, however, that the aged individual in question never sold the first parcel (A Street property). Therefore, in light of the requirement of strict construction, his period of ownership for the first parcel could not be combined with the time he owned the second parcel (the statute clearly requiring one residence to be sold and replaced by another within a certain time). However, he did sell the second residence before moving to his present residence (within one year after that sale). Therefore, the time he owned the premises on B Street may be combined with the period of ownership of his present residence to determine his eligibility for this exemption.

It should be noted that Chapter 1004 of the Laws of 1974, effective January 1, 1975, reduces the length of ownership requirement of section 467 to twenty-four months.

May 14, 1974

NOTE:  Construes law prior to L.1977, c.148.