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Volume 6 - Opinions of Counsel SBEA No. 36

Opinions of Counsel index

Assessment roll (designation of owner) (unknown owner); Tax maps (preparation) – Real Property Actions and Proceedings Law, Article 15; Real Property Tax Law §§ 502, 504, 1008, 1534:

Abuses which develop from the designation of an owner as “unknown” on the assessment roll or tax map may be remedied by a county resolution enabling the county to purchase land at a tax sale or by resort to the provisions of the Real Property Actions and Proceedings Law for quieting title.

Neither a tax map nor any other assessment record establishes title to real property.

We have received an inquiry concerning possible remedies to the following problem. Tax maps and assessment rolls have been prepared which designate the owner of a parcel as “unknown” (see, 5 Op.Counsel SBEA No. 34). Certain individuals, upon discovering these designations, have had quitclaim deeds executed and recorded which purport to transfer title to themselves. Their expectation is that the recording of such deeds will result in entry of their names as owners on the tax records. Through either a tax lien sale or the payment of minimal consideration to possible adverse claimants, these individuals would attempt to establish title in themselves. Our reply is concerned with assessment administration.

A tax map (Real Property Tax Law, § 1534) is prepared primarily for use in assessment administration. Tax maps are an invaluable tool in providing assessors and county tax agencies with accurate and current information concerning the status of real property within their jurisdictions. The basic concept in preparing tax maps is the directive to assessors contained in section 500 of the Real Property Tax Law to ascertain all the real property in their respective assessing units. Section 500 directs that on or before taxable status date, the assessor in each city and town shall ascertain by diligent inquiry all the real property located therein and the names of the owners thereof. It should be noted that neither the tax map nor the assessment roll establishes title to real property or provides a legal description, as such, for conveyance purposes.

While tax mappers, in preparing tax maps, and assessors, in describing real property on the assessment roll, use existing records and documents available to them through the office of the county clerk and individual property owners, these records and documents may themselves contain erroneous or faulty descriptions. Thus, a person seeking to establish ownership and property dimensions should rely on a conventional title search and land survey, and, to legally resolve ownership claims or disputes, he should commence an action to quiet title pursuant to Article 15 of the Real Property Actions and Proceedings Law.

As we discussed in 4 Op.Counsel SBEA No. 11:

One of the benefits of a tax mapping program is that assessment problems will surface and point up the necessity to work toward resolving them. Generally in preparing a tax map, a mapper working with the municipality will assume responsibility for reconciliation of problems uncovered. Since tax maps are prepared primarily for the use of assessors, the mapper must of necessity take into consideration the responsibilities of an assessor in the performance of his duties.

Recognizing that it may not always be possible for an assessor to determine the last or current owner of real property, provision was made in the law, pursuant to subdivision 2 of section 502 of the Real Property Tax Law, to include “the name of the owner, last known owner or reputed owner . . .” of the property. However, subdivision 4 of section 504 provides that “[i]f in the preparation of the roll an error or omission is made in the description of a parcel of real property or in entering or failing to enter the name of the owner, last known or reputed owner, such error or omission shall not prevent the levy, collection and enforcement of the payment of the taxes thereon if the parcel can be identified and located with reasonable certainty.” We concluded from a reading of these statutes that:

Where, after diligent inquiry, an assessor is unable to determine the name of the “owner, last known owner or reputed owner” of a particular parcel, his entry of the words “Unknown Owner” in the name column adjoining the parcel description on the assessment roll would appear to meet the foregoing statutory standards (5 Op.Counsel SBEA No. 34).

It is thus the duty of the assessor to discover all real property in each assessing unit and the names of each owner, if reasonably possible. It is not his responsibility, however, to resolve conflicting claims to property ownership or to resolve boundary disputes. These are matters which can only be resolved by the parties involved. Generally an assessor should rely on the last recorded deed for property description and name of owner.

A party cannot establish good title to property merely by recording a quitclaim deed to property to which he otherwise has no interest or claim. The recording statutes, found in Article 8 of the Real Property Law, apply to genuine instruments and not to false or fabricated deeds. The Court of Appeals has stated, “It is legally impossible for anyone to become a bona fide purchaser of real estate, or a purchaser at all from one who never had any title . . . [because t]he fact that a false and fabricated writing of this character, is deposited in a public office for record, and is actually recorded can add nothing to its legal efficacy” (Marden v. Dorothy, 160 N.Y. 39, 56, 54 N.E. 726, 731).

It is possible for a county to thwart abuse of the tax lien sale by exercising the authority granted to it by section 1008 of the Real Property Tax Law. Subdivision 3 of that law provides that “the board of supervisors of any county may by resolution authorize and direct the county treasurer to purchase lands at the tax sale without competitive bidding, for the gross amount due thereon.”

The escheat doctrine may also be of some relevance to this discussion. Ordinarily, property escheats to the State by operation of law where the owner of land dies without heirs (In re Melrose Avenue, 234 N.Y. 48, 136 N.E. 235). Section 201 of the Abandoned Property Law provides that the Attorney General may commence an action to recover possession of any real property which has vested in the people of the State by escheat.

As indicated, an assessor should generally rely on the last recorded deed for property description and name of owner. However, if he finds or believes that the filed data is incorrect, he should use the data or information which in his best judgment reflects the condition of the property. If the assessor believes the indicated ownership is questionable, it is within his province to refrain from using the same on assessment records. In the case of In re Kraus (Board of Assessors, Town of Shelter Island), N.Y.L.J.; 1/27/72, p. 17, col. 4, the assessor doubted the validity of a party’s claim to a parcel of real property and the court refused to compel the assessor to assess and levy taxes upon a parcel under these circumstances. Instead, the court suggested that the dispute be resolved pursuant to Article 15 of the Real Property Actions and Proceedings Law. That article was enacted to establish a procedure for final determination of claims to real property, and places the court in a position where it can terminate adverse claims to property and enter an order so as to provide conclusive title to any party involved. The State of New York can be made a party to an action under this Article pursuant to section 1541 of the law.

August 11, 1977