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Volume 5 - Opinions of Counsel SBEA No. 38

Opinions of Counsel index

Taxes (delinquent) (tax lien list) (notice of unredeemed land) (notice requirement) - Real Property Tax Law, §§ 1002,1014, 2006; Niagara County Tax Delinquency Act, § 7:

Chapter 611 of the Laws of 1975, which requires county treasurers to send notices of tax sales and unredeemed lands by certified mail, return receipt requested, to owners of tax delinquent parcels is not applicable to Niagara County since the provisions of the Real Property Tax Law and the Niagara County Tax Delinquency Act vary, and pursuant to section 2006 of the Real Property Tax Law, such law is not meant to “repeal or otherwise affect” a special act applicable to a county.

Our opinion has been requested as to whether Chapter 611 of the Laws of 1975, amending section 1002 and 1014 of the Real Property Tax Law, is applicable in Niagara County which has its own procedure for the sale of tax delinquent properties as set forth in Chapter 744 of the Laws of 1904.  Chapter 611 of the Laws of 1975 requires county treasurers to send notices, by certified mail return receipt requested, of tax sales and unredeemed lands at specified times to owners of tax delinquent parcels.

The Real Property Tax Law was enacted by Chapter 959 of the Laws of 1958, and the principles enunciated therein are generally applicable throughout the State. However, section 2006 of the Real Property Tax Law [formerly § 1606] provides the following exception to the general rule:

§ 2006. Exceptions

This chapter shall not be deemed to repeal or otherwise affect the provisions of any special or local law or ordinance or of any county, city or village charter, or other special form of government, it being the intention of the legislature that the same shall continue in full force and effect until and unless otherwise duly amended, repealed or affected.

The question is whether Niagara County is excepted from the requirements of Chapter 611 because of section 2006.

In 1904, the Legislature of the State of New York enacted a special act authorizing the treasurer of Niagara County to sell property for unpaid taxes (Chapter 744). Section 7 of said chapter requires publication of a notice of tax sale at least once in each week for six weeks in two designated newspapers prior to the date of the sale. (Most other counties are similarly required to publish such notice pursuant to subdivision 1 of section 1002 of the Real Property Tax Law.) Section 10 of the Niagara County act provides for a two year period of redemption, after which the owner of a tax sale certificate must give written notice to the occupant (and certain other parties) that he or she has six months within which to pay all taxes, penalties and interests on said property before title is transferred to the certificate holder. Section 10 further provides that,

[t]his service shall be made by personally giving a copy of such notice to the occupant, . . . and if none can be found, then by posting such copy of notice conspicuously on the premises and by mailing such notice as a registered letter to the owner of each mortgage or judgment recorded as a lien upon such premises. . . . (emphasis added)

Proof that the required notice has been served is also required.

The Real Property Tax Law provides a general period for redemption of one year (§ 1014(1)), which is increased to three years in the case of occupied (§ 1002(1)) and mortgaged (§ 1024(1)) land, although the two additional years in those cases may be reduced to six months by service of a written notice on the occupant (§ 1022(2)) or mortgagee (§ 1024(2)) requiring payment of the amount necessary to redeem the property within six months. Such notice must be served personally whenever possible.

Chapter 611 of the Laws of 1975 adds a new subdivision 1-a to section 1002 and section 1014 requiring written notice to be sent, by certified mail return receipt requested, by the county treasurer at the beginning of the six week period of publication prior to a tax sale (§ 1002), and at least three months prior to the expiration of the period of redemption (§ 1014). While there appears to be some question whether the additional mailing requirement prior to a tax sale, if applied to Niagara County, would violate the provision of section 2006 of the Real Property Tax Law, it is clear that Chapter 611 is inapplicable to Niagara County because the period of redemption in the Real Property Tax Law and the Niagara County act vary and therefore to impose the mailing requirement of section 1014, subdivision 1-a, would clearly “repeal or otherwise affect” the special act applicable solely to Niagara County, thereby contravening section 2006. (Had the Legislature intended Chapter 611 to apply to all counties it could have used language similar to that in section 559 of the Real Property Tax Law, part of the so-called “Correction of Errors Law” of 1974 (L.1974, c.177).)

Despite this conclusion, it is to be noted that Chapter 611 was enacted in response to a recommendation by the Court of Appeals, in Botens v. Aronauer, 32 N.Y.2d 243, 298 N.E.2d 73, 344 N.Y.S.2d 892. There, while upholding the constitutionality of the notice by publication provisions of sections 1002 and 1014 of the Real Property Tax Law, the court concluded that,

[w]hen the Legislature enacted the provision regarding the selection of two newspapers for the purpose of advertising tax sales and notices of redemption, land ownership was much more parochial and there was a less mobile populace than now. We deem it advisable that the Legislature address itself to this problem and that these statutes be reexamined with the view that owners of property be afforded notice reasonably calculated to better apprise them of the pendency of either a tax sale or of the final date of redemption. (32 N.Y.2d 243, 249, 298 N.E.2d 73, 75, 344 N.Y.S.2d 892, 896.)

It seems clear that the Court was suggesting that reasonable notice requires more than publication. While the Niagara County act requires much more in the case of redemptions, notice of tax sale by mere publication continues under section 7 of said act.

September 22, 1975

NOTE: Subdivision 1-a of section 1002 and subdivision 7 of section 1014 of the Real Property Tax Law, referred to above, were repealed by chapter 355 of the Laws of 1976 and new notice requirements were enacted by such chapter.