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Volume 4 - Opinions of Counsel SBEA No. 67

Opinions of Counsel index

Aged exemption (residence and occupancy requirement) (husband and wife living apart) - Real Property Tax Law, § 467:

Where a husband and wife are owners of property, an exemption may not be granted pursuant to section 467 if they live apart. Where a husband and wife, who are living apart, obtain a divorce, no exemption may be granted to the party retaining possession of the property if his ex-spouse retains an interest in the ownership of such parcel.

Our opinion has been requested concerning the ownership and residency requirement of section 467 of the Real Property Tax Law, the so-called “aged exemption”. The facts are that a husband (79 years of age) and his wife, who have been living apart since 1959, own a parcel of property as tenants by the entirety, on which the husband presently resides; his wife, however, resides in Arizona. The husband has an annual income of less than $3,000 but an exemption has been denied because the wife does not reside on the property. We are asked: (1) if this result is proper, since the husband cannot compel his wife to resume living with him, and (2) if the parties were to be divorced, would the husband be entitled to the exemption even though title to the property would continue in both parties.

Subdivision 3 of section 467 provides, among other things, that no exemption may be granted “unless the real property is the legal residence of and is occupied in whole or in part by the owner or all of the owners of the property.” (emphasis supplied)

Accordingly, for purposes of section 467 the fact that the husband and wife are living apart does not alter the requirement that the property be occupied in whole or in part by all the owners of the property. Here, the wife and husband, are owners of the property; therefore, the fact that she does not occupy the premises is a valid basis for denying the aged exemption to the husband. In addition, the statute requires that the income of both husband and wife be combined and that such combined income be within the limit set by the granting municipality irrespective of whether the property is jointly or separately owned (3 Op.Counsel SBEA No. 59). The present provisions of section 467 are so clearly set forth that there may be no exercise of discretion in the matter. (See also, 4 Op. Counsel SBEA No. 43.)

The same result is reached in the second situation presented; i.e., where a husband and wife are divorced but continue to own the property jointly, each must meet all the requirements of the statute, including that of residency on the property. Thus, the fact that the husband may divorce his wife would not change his status for purposes of this exemption unless he became sole owner of the property thereafter; even then he would have to be the sole owner for the time required by statute (reduced from five years to two years, as of January 1, 1975, pursuant to Chapter 1004 of the Laws of 1974) before he would be eligible for this exemption. However, it should be noted that in 1971 this statute was amended (L.1971, c.800) to permit the combining of the time of ownership by one spouse, where all or part of the title is transferred to the other spouse, with the time of such new ownership. Thus, if the wife were to transfer her interest in this property to her husband before their divorce, he could combine the periods of ownership and thus might meet the length of ownership requirement.

Statutes granting exemptions from taxation must be strictly construed against the taxpayer seeking same (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), and a property owner or owners must comply with all the terms and conditions of the statute in order to qualify for exemption. An assessor may not legally grant an exemption in cases where the statutory conditions are not satisfied. To grant an exemption in this factual situation would require an amendment to section 467 which can only be done by an act of the Legislature.

December 11, 1974

NOTE:  Construes law prior to L.1981, c.981.