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Volume 7 - Opinions of Counsel SBEA No. 87

Opinions of Counsel index

Sales reporting (conveyances) (village tax sale certificate) - Real Property Law, §§ 290, 333(1-e); Real Property Tax Law, §§ 574, 1454; 9 NYCRR 191.9:

Unlike a tax deed, a village tax sale certificate does not effect a “conveyance” which would require the filing of a Real Property Transfer Report (Form EA-5217). if the certificate is submitted for recording.

We are asked whether a Real Property Transfer Report (Form EA-5217) must be filed with village tax sale certificates which are submitted to the county clerk for recording.

Real Property Law, section 333(1-e) provides, in pertinent part: “A recording officer shall not record or accept for record any conveyance of real property affecting land in New York State unless accompanied by a transfer report form prescribed by the state board of equalization and assessment . . .”. The term “conveyance” is defined in 9 NYCRR 191.9 as including: “every instrument, in writing, by which any estate or interest in real property is created, transferred, assigned or surrendered, except that it shall not include a will, an easement, a right-of-way, a lease, a license agreement or a mortgage.” (See, Real Property Law, § 290(3)).

The Attorney General has concluded that a county treasurer’s tax sale certificate issued pursuant to section 1006 of the Real Property Tax Law is not a “conveyance” and, thus, is not recordable pursuant to the provisions of Real Property Law, section 291 (1977 Op.Atty. Gen. 125). The rationale for this holding is that a tax sale certificate merely provides the holder with the right to obtain a “conveyance” by tax deed upon the expiration of the statutory period of redemption if no redemption has been made. The tax deed would, of course, convey an estate or interest in the affected real property and is embraced by the recording act (Doyle v. Lazarro, 33 A.D.2d 142, 306 N.Y.S.2d 268 (3d Dept., 1970), aff’d 33 N.Y.2d 981, 309 N.E.2d 138, 353 N.Y.S.2d 740 (1974)). However, the tax sale certificate does not create or transfer any estate or interest in real property.

In Davidson v. Crooks, 45 App.Div. 616, 61 N.Y.S. 362 (1st Dept., 1899), the court held that a sheriff’s certificate of sale was not a “conveyance” as that term is defined in the recording act. However, a sheriff’s deed given in pursuance of a sale under an execution is a conveyance and is recordable (Hetzel v. Barber, 69 N.Y. 1 (1877)). It seems proper to analogize these holdings involving sheriff’s sale certificates and sheriff’s deeds to tax sale certificates and deeds.

We note that section 1454 of the Real Property Tax Law provides that village tax sale certificates must be prepared, signed and acknowledged in the same manner as a deed to be recorded, and further provides (unlike Article 10) that any certificate may be recorded in the office of the county clerk of the county in which the property is located. The mere fact that such a certificate may be recorded does not, however, transform the certificate into a “conveyance”. Possession of a village tax sale certificate merely gives the holder a lien against the subject parcel (In re Nassau County, 24 N.Y.2d 641, 249 N.E.2d 426, 301 N.Y.S.2d 564 (1969); 24 Op.State Compt. 251) and, as with a county treasurer’s tax sale certificate, this does not constitute a possessory interest sufficient to make it a “conveyance”. Accordingly, since a village tax sale certificate is not a “conveyance”, a Real Property Transfer Report Form need not accompany a village tax sale certificate submitted for recording.

July 14, 1981