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Volume 5 - Opinions of Counsel SBEA No. 46

Opinions of Counsel index

Separate assessment (subdivision lots) - Real Property Tax Law, § 502:

Once a tract of land has been subdivided, unless it can be demonstrated that it would be impracticable to separately assess each subdivided lot, each lot should be separately assessed in order to insure the validity of taxes thereafter levied and any tax sales which might occur for nonpayment of taxes.

Our opinion has been requested concerning the procedure for assessing farmland for which a subdivision map has been filed with the county clerk.

The facts are that a tax map is being prepared for all assessing units located within the county, and subdivision maps have been prepared and filed for some tracts of land which might generally be considered farmland. The question is whether each of the subdivided lots appearing on a subdivision map should be assigned a separate parcel number to be listed and assessed separately on the assessment roll; or, whether the land should be plotted as a single tract with one parcel number and assessed in the name of the owner until individual lots are improved and sold.

There is considerable doubt under relevant statutory and case law that the assessment of a tract of land as a single parcel after it has been subdivided into lots is valid. Subdivision 2 of section 502 of the Real Property Tax Law which prescribes the form of the assessment roll provides as follows:

2. Provision shall be made with respect to each separately assessed parcel of real property for the entry, in appropriate columns, of the name of the owner, last known owner or reputed owner and a description sufficient to identify the same, including the surnames of the abutting property owners and the names of the abutting streets or highways, the approximate number of square feet, square rods or acres contained therein or a statement of the linear dimensions thereof. When a tax map has been approved by the state board, reference to the lot, block and section number or other identification numbers of any parcel on such map shall be deemed a sufficient description of such parcel.

What constitutes a separately assessed parcel of real property for assessment and taxation purposes is not defined in the Real Property Tax Law. However, several cases construing the statute from which section 502 is derived held that the separate assessment as one parcel of subdivided lots owned by one person was a jurisdictional defect which invalidated the assessment and taxes levied thereon (French v. Whittlesey, 30 N.Y.S. 363; Howell v. Rowe, 85 Misc. 560, 147 N.Y.S. 482; Matter of Niagara County Treasurer, 52 St.Dept. 475; see also, May v. Traphagen, 139 N.Y. 478, 34 N.E. 1064). Further, section 560 of the Real Property Tax Law sets forth a procedure under which the owner of a tract of land which has been subdivided may abandon it, after which “for the purpose of assessment, the lands described therein shall be regarded as a single tract.” A reasonable implication is that the passage of section 560 was necessary since the individual lots in a subdivision had to be separately assessed.

However, it would appear that a joint assessment of two or more contiguous lots would not be erroneous and would be upheld where it is found impracticable to separately assess the lots as was the case in a proceeding against the Commissioners of Taxes and Assessments of the City of New York. In that case, the real estate of the petitioner was included with five other lots belonging to other owners; the six lots were assessed as a unit and valued together at one sum. The Appellate Division in upholding the determination of the Commissioners observed that the six lots owned by different persons were occupied entirely by one building situated on leased land and “for that reason it is impracticable to apportion the value of said building among the various parcels upon which it stood” (People ex rel. Lawrus v. Feitner, 65 App. Div. 318, 73 N.Y.S. 97, 102, aff’d, 169 N.Y. 604, 62 N.E. 1099). Similarly, in People ex rel. Strauss v. Purdy, 167 N.Y.S. 66, decided under the New York City Charter, the court noted that where parcels are separate, and occupied by different tenants, they must be separately assessed, but then held, upon the authority of the Feitner case, supra, that since the twelve lots in question, though separately owned by twelve different persons, were all leased to the relators and were covered by one building owned by relators, the assessment of the lots as a unit was valid.

In view of the existence of these cases and statutory provisions, it is our opinion that once a tract of land has been subdivided, unless it can be demonstrated that it would be impracticable to separately assess each subdivided lot, each lot should be separately assessed in order to insure the validity both of taxes thereafter levied and of any tax sales which might occur in the future for nonpayment of taxes.

December 1, 1970