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Volume 8 - Opinions of Counsel SBEA No. 73

Opinions of Counsel index

Tax deed (conveyance of title by warranty deed) - County Law, § 215; Real Property Tax Law, §§ 1018, 1166:

Although the more common practice is to convey by quitclaim deed title to real property acquired for non-payment of taxes, there is no statutory prohibition against a county conveying title by warranty deed.

We have been asked whether a county may by warranty deed convey title to property acquired for non-payment of taxes.

The only New York case on point of which we are aware is Rubin v. City of New York, n.o.r., 16 N.Y.S.2d 373 (S.Ct., Kings Co. 1939). At issue was former section 205 of the New York City Charter which provided that commissioners of the sinking fund had power to sell and convey “the right, title and interest” of the City in certain lands. In construing the quoted language, the court concluded that “[n]o warranties or representations could be made under this section” (16 N.Y.S.2d at 374). In short, the commissioners were limited by such language to conveying title by quitclaim deed.

The sale or leasing of county real property is subject to the provisions of section 215 of the County Law, subdivision five of which includes language identical to that construed in the Rubin case. That subdivision provides that if the county board of supervisors determines any county real property is no longer necessary for public use, it may sell and convey “all the right, title and interest” of the county. Thus, if the Rubin case is a proper construction of New York law generally {1}, subdivision five of section 215 would limit the authority of a county legislative body to conveying title to real property by quitclaim deeds.

However, note that subdivision eight of section 215 of the County Law makes the provisions of subdivision five inapplicable “to the disposition of real property acquired . . . by tax title.” Other provisions of law apply. For example, where a county acquires title to real property for non-payment of taxes pursuant to Article 10 of the Real Property Tax Law [RPTL], “the title thus acquired . . . may be disposed of. . . at such times and upon such terms as shall be determined by a majority of the board of supervisors at any meeting thereof” (RPTL, § 1018(4) (emphasis added)). {2}  We have interpreted this language as granting the county board very broad authority in fixing the terms and conditions in regard to the disposition of property so acquired (see, e.g. 7 Op.Counsel SBEA Nos. 62, 106). It may, in fact, be indefinite enough that a county board might reasonably conclude that it could convey title by warranty deed.

The question has also been raised, however, as to whether the issuance of a warranty deed might not contravene the general rule prohibiting one legislative body from restricting or limiting the ability of a successor legislature to act. We believe that rule is inapplicable to these circumstances. The Court of Appeals has defined that prohibition as follows: “Unless specifically provided by statute or charter provisions, one county legislature may not bind the hands of its successors in areas relating to governmental matters [citations omitted]” (Morin v. Foster, 45 N.Y.2d 287, at 293, 380 N.E.2d 217, 408 N.Y.S.2d 387, at 390 (1978) (emphasis added)). The rule has elsewhere been described as limited to “discretionary authority” in areas relating to “governmental or legislative functions” (Quigley v. City of Oswego, 71 A.D.2d 795, 419 N.Y.S.2d 27, at 29 (4th Dept. 1979)). While the line between governmental and proprietary functions is often a fine one, the disposition of real property acquired for non-payment of taxes is clearly in the latter category. Accordingly, the rule discussed above would not apply to these facts.

Finally, at least one expert on the subject of municipal law believes the general rule to be that a municipal corporation may issue a warranty deed. In 10 McQuillin Mun. Corp. (3rd Ed.), Corporate Property, § 28.44c, at 141, we find the statement that “[c]ovenants of general warranty may be included in a conveyance by a municipal corporation; and a resolution authorizing the mayor to execute a deed authorizes him to insert a general warranty covenant.” As authority for these propositions, the author cites a South Carolina case (Carter v. Greenville, 176 S.C. 130, 178 S.E. 508) and one from Texas (Abbott v. Galveston, 97 Tex. 474, 79 S.W. 1064).

June 26, 1985

{1}  There is some support for this conclusion in other New York cases construing the phrase “right, title and interest”. For example, in Maerlender v. Barasch, 279 App.Div. 1027, 112 N.Y.S.2d 259 (2d Dept. 1952), the court said: “The words, ‘right, title and interest’, as used in conveyances, have acquired a definite meaning, not importing ownership but conveying whatever title the grantor has, and that alone. The grant is of all the right, title, and interest in the land, and not of the land itself, nor of any particular estate in the land [Citations omitted]” 112 N.Y.S.2d at 260-261. This construction also seems consistent with that applied by courts in other states (see cases cited in Words and Phrases, Vol. 43A, “Right, Title and Interest”, at 441-443 (West Publishing Co., 1980)).

{2}  Similarly, property acquired by in rem foreclosure may be sold I “either with or without advertising for bids” (RPTL, § 1166(1)).