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Volume 8 - Opinions of Counsel SBEA No. 15

Opinions of Counsel index

Sales reporting (conveyances) (transfer of privately owned streets to a municipality) - Real Property Law, §§ 290, 333(1)(e); Real Property Tax Law, § 574; 9 NYCRR 191-1.1:

A deed by which title to privately owned streets in a subdivision is transferred to a municipality is a “conveyance” for purposes of the Recording Act and the State Board’s sales reporting rules.

Real Property Law, section 333(1)(e), and the State Board’s Rules (9 NYCRR 191-2.1) require that each “conveyance” submitted for recording be accompanied by a completed real property transfer report form (EA-5217). A “conveyance” is defined as any “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 license agreement or a mortgage” (9 NYCRR 191-1.1.(c)).

Streets and highways are “real property” as this term is defined in RPTL, section 102(12)(a) (Johnson v. City of Niagara Falls, 230 N.Y. 77, 129 N.E. 213 (1920); Flack v. Village of Green Island, 122 N.Y. 107, 25 N.E. 267 (1890)). Clearly, a deed conveying title to privately owned streets in a subdivision to a municipality is a “conveyance” as that term is defined in Real Property Law, section 290, and the State Board’s Rules.

Of course, State and municipal highways and streets are exempt from taxation pursuant to sections 404, 406 and 530 of the RPTL. Absent an exemption, privately owned highways and streets are taxable real property and must be so listed on the assessment roll. (Note, however, that the term “parcel” for assessment purposes has been amended to exclude publicly owned bridges and land used for street, road, highway or parkway purposes. See, RPTL, §102(11) as amended by L.1982, c.603.) Thus, the filing of an EA-5217 transfer report where privately owned highways and streets are transferred to a municipality will serve to notify the assessor of the change in the taxable status of the property (see, 2 Op.Counsel SBEA No. 34).

RPTL, section 502(2), which prescribes the form of assessment rolls, provides that “Separately assessed privately owned streets or roads, such as those situated within a subdivision, may be described in a single account in the name of the owner, last known owner or reputed owner thereof.”

If the highway or street is not separately assessed but is assessed along with part of a larger parcel, the relevant information of the present parcel should be entered in order to complete the Tax Map and Assessment Roll Information section on the EA-5217 Form. This instruction is found on the reverse side of the form.

September 6, 1983