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Volume 7 - Opinions of Counsel SBEA No. 30

Opinions of Counsel index

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

Carports or utility sheds meeting criteria for real property are not rendered personal property merely because of ease of removal.

Section 300 of the Real Property Tax Law provides that all real property in this State is subject to taxation “unless exempt therefrom by law.” Real property is defined in paragraph (b) of subdivision 12 of section 102 of that Law to include “[b]uildings and other articles and structures, substructures and superstructures erected upon, under, or above the land, or affixed thereto. . . .” We have been asked whether carports and utility sheds may be assessed and taxed as real property.

The courts have generally applied a threefold test in determining whether an article or structure is so attached to the land that it constitutes real property:

1. Is it actually annexed to the realty or to something appurtenant to the realty?
2. Is it adapted to the use or purpose to which that part of the realty with which it is connected is put?
3. Did the party installing it intend to make a permanent accession to the freehold?

See, e.g., People ex rel. National Starch Mfg. Co. v. Waldron, 26 App.Div. 527, 50 N.Y.S. 523 (2d Dept., 1898); People ex rel. Ne York Edison Co. v. Wells, 135 App.Div. 644, 119 N.Y.S. 1057 (1st Dept., 1909), aff’d, 198 N.Y. 607, 92 N.E. 1097 (1910).

An examination of the property will generally suffice for the purpose of determining annexation and adaptation. Concerning the third test, it is our opinion that it is not necessary that an addition be intended to be perpetual in order for it to constitute real property. It is sufficient that the addition be intended to be affixed to the land for the period of the land’s current use or until superseded by a replacement article (see, 6 Op.Counsel SBEA No. 62, regarding movability and the “useful life” of an article). The mere fact that the addition could be removed is not sufficient to exclude the addition from the real property classification. Where the addition is indistinguishable from similar additions except for this possibility of removal, it should be treated the same as these other, “permanent” additions (People ex rel. Herzog v. Miller, 170 Misc. 1063, 11 N.Y.S.2d 572 (S.Ct., New York Co., 1939), aff’d, 258 App. Div. 724, 15 N.Y.S.2d 141 (1st Dept., 1939)).

The two types of structures in question, carports which are bolted down but can be easily removed and aluminum sheds bolted to a concrete floor, would be susceptible to the same analysis. Each is attached to the land on which it sits. The carport and shed would obviously serve the convenience of some resident or user of the realty (i.e., each is designed or adapted for the use of the property to which connected). The carport appears to be a permanent addition in the sense that it is intended to remain in place so long as its usefulness continues. Likewise, sheds bolted to a concrete floor are generally intended to remain standing for their useful lives.

However, in certain situations, a shed may clearly be intended to be temporary (e.g., a storage shed at a construction site). Such transitory uses necessitate an investigation by the assessor of the purposes for which the shed is intended. Again, the mere possibility of removal does not indicate that the shed is not real property.

March 13, 1979