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Volume 5 - Opinions of Counsel SBEA No. 27

Opinions of Counsel index

Real property, definition of (houseboat) - Real Property Tax Law, § 102(12)(b):

Where utility connections have been made and a houseboat is attached to a dock, and evidence exists as to an intent to permanently affix the boat to the dock, the houseboat becomes taxable real property.

We have received an inquiry regarding the taxable status of houseboats.

Paragraph (b) of subdivision (12) of section 102 of the Real Property Tax Law provides, in part, as follows:

12. “Real property”, “property” or “land” mean and include:
(b) Buildings and other articles and structures, substructures and superstructures erected upon, under or above the land, or affixed thereto . . . . (emphasis added)

In order for an article, structure or superstructure to be considered real property, the cases have held that the following conditions must be met:

1) It must be actually annexed to the realty or something appurtenant thereto;
2) It must have been adapted to the use or purpose to which the part of the realty with which it is connected is appropriated; and
3) The party installing it must have intended to make a permanent accession to the freehold.

In People ex rel. Herzog v. Miller, 170 Misc. 1063, 11 N.Y.S.2d 572, a lunch wagon brought to a lot intact and placed on a brick foundation built into the ground, and connected with sewer, water, gas and electric facilities was considered a “structure erected upon or affixed to the land” within the meaning of subdivision 6 of section 2 of the Tax Law [predecessor to Real Property Tax Law, § 102]. In New York Mobile Homes Assoc. v. Steckel, 9 N.Y.2d 533, 175 N.E.2d 151, 215 N.Y.S.2d 487, the Court of Appeals upheld the constitutionality of paragraph (g) of subdivision (12) of section 102 in relation to the assessment of mobile homes. The Court stated:

[T]hey, too, are “attached to the freehold”. Their water supply flows through a copper tube attached to the park outlet on the ground; they are connected to the park sewage system, gas, electricity and telephone connections are required to be made; . . .

In our opinion, where the utility connections have been made and a houseboat is attached to the dock, such boat may be said to be annexed to the freehold. However, there remains the close question of intention to permanently affix the boat. This test of permanency may involve a case-by-case basis.

June 19, 1975

NOTE: In line with the above, see, Consolidated Edison Co. of New York v. City of New York, 80 Misc.2d 1065, 365 N.Y.S.2d 377; and Capri Marina & Pool Club v. Board of Assessors of Nassau County, 84 Misc.2d 1096, 379 N.Y.S.2d 341.