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Volume 4 - Opinions of Counsel SBEA No. 43

Opinions of Counsel index

Aged exemption (residence and occupancy requirement) (separation) - Real Property Tax Law, § 467:

No exemption pursuant to section 467 of the Real Property Tax Law may be granted where a married couple jointly owning real property are separated and living apart because the statutory requirement that the property be the legal residence of all the owners is not met.

We have received an inquiry concerning the partial exemption for elderly persons authorized by section 467 of the Real Property Tax Law. The inquiry concerns eligibility of property held jointly by a married couple, who are separated and living apart.

Section 467 of the Real Property Tax Law enables a municipality to grant a partial exemption on the residence of persons who meet the age, residence, occupancy, income and length of ownership requirements set forth in that statute. The statute requires that the owner, or, if the property is owned by more than one person, all of the owners, must be sixty-five years of age or over on the date the application is filed. The statute further provides that when property is owned jointly by a husband and wife, only one spouse is required to be sixty-five years of age or over. With regard to residence and occupancy there are three statutory requirements. These are (1) the property must be the “legal residence” of the owner or owners; (2) the property must be “used exclusively for residential purposes”; (3) the property must be “occupied in whole or in part” by the owner or owners in the case of jointly held property. The statute also requires that title to the property must be vested in the owner for a period of sixty consecutive months (reduced to twenty-four months effective January 1, 1975 as a result of Chapter 1004 of the Laws of 1974). Where there has been a transfer of property between a married couple, the statute permits combining the period of prior and present ownership for purposes of satisfying the length of ownership requirement. As to income, the statute provides that no exemption shall be granted, if, for the income tax year immediately preceding the date of making application for exemption, the income of the owner or the combined income of the joint owners exceeds the sum set by the granting municipality within the statutory prescribed limit, and that, where title to the property is vested in either the husband or the wife, their combined income may not exceed such sum.

Since the property in question is jointly owned, and the couple are separated and living apart, they do not meet the residence and occupancy requirement and, therefore, no exemption should be allowed.

November 15, 1974

NOTE: Construes law prior to L.1992, c.145.