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Volume 9 - Opinions of Counsel SBEA No. 4

Opinions of Counsel index

Assessor (powers and duties) (entry upon real property) - Real Property Tax Law, §§ 500,501:

An assessor should not enter on private property and take measurements or photographs without first securing the permission of the land owner.

We have been asked whether an assessor has the right to enter on private property for purposes of making an assessment. This is a difficult problem which we have discussed in two prior opinions (7 Op.Counsel SBEA No. 19 and 2 Op.Counsel SBEA No. 78).

An assessor is charged with the duty of preparing an assessment roll (Real Property Tax Law, § 504(1)). Individualized, personal viewing of each parcel of land by an assessor is not expressly required by the Real Property Tax Law (Bertholf v. Cisco, 72 Misc.2d 901,339 N.Y.S.2d 798 (Sup.Ct., Sullivan Co., 1973), affd, 45 A.D.2d 787,357 N.Y.S.2d 1023 (3d Dept. 1974)). However, sections 500 and 501 of the Real Property Tax Law require each assessor to prepare, maintain and make available assessment inventories. These inventories must include the name of the property owner, tax map land parcel number, property description, physical characteristics of the improvements to the parcel that are necessary to value the parcel by at least one of the standard appraisal methods, and exemption status (9 NYCRR 190-1.2).

As a general rule, real property is private, and the owner is entitled to exclusive possession thereof. The U.S. Constitution, Fourth Amendment prohibition against unreasonable searches and seizures has been applied to administrative inspections of private and commercial property. Thus, a landowner can deny access to property, even to government regulators such as health, building and fire inspectors. Accordingly, a warrant may be required for specific administrative inspection of private property. An entrance or intrusion upon the land, without a warrant, can result in a trespass.

The Supreme Court has identified numerous factors relevant in determining whether a warrant is required for a specific administrative inspection of premises (e.g., an assessor’s entry on private property for the purpose of determining an assessment for that property). Administrative inspections of pervasively regulated industries (i.e., the liquor industry, interstate traffic in firearms and federal inspections of mines) have been held to be permissible without the necessity of a warrant (See Colonade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972); Marshall v. Barlow’s, Inc., 436 U.S. 307,98 S.Ct. 1816,56 L.Ed.2d 305 (1978); Donovan v. Dewey, 452 U.S. 594,101 S.Ct. 2534,69 L.Ed.2d 262 (1981)). A warrantless administrative inspection of premises may also occur when the imposition of a warrant requirement would impair the efficiency of a legislative scheme which authorizes the inspection (United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972); Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978)). A warrant has also been held to be unnecessary for an administrative inspection of premises in an emergency situation Camara v. Municipal Court of San Francisco, 387 U.S. 523,87 S.Ct. 1727,18 L.Ed.2d 930 (1967); Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978)).

One additional factor that the Supreme Court has considered is the application of the “open fields” exception to the Fourth Amendment warrant requirement, to justify a warrantless administrative inspection of open land (Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974)). Accordingly, an administrative inspection requires a warrant unless the property is open to the public, i.e., the public is not excluded from the land. Even if the public is excluded from the property because the land is posted, the “open fields” exception to the Fourth Amendment search and seizure protection might be applied. An individual may not demand privacy for activities conducted out of doors in fields, except in an area immediately surrounding the home (the curtilage) (Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984)). Fences or “No Trespassing” signs do not generally effectively bar the public from viewing open fields (Id. at 179).

For administrative searches that are subject to the Fourth Amendment warrant requirement, probable cause for the issuance of a warrant will exist if the reasonable legislative and administrative standards promulgated for conducting such an inspection are shown by the government to be satisfied with respect to the particular premises sought to be inspected. Probable cause to issue an inspection warrant will exist only if the decision to inspect is based on neutral criteria and there are broad legislative or administrative guidelines for such inspections, i.e., inspections to enforce municipal fire, health or housing codes (Marshall v. Barlow’s Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); Michigan v. Tyler, 436 U.S. 499, 98 S.Q. 1942,56 L.Ed.2d 486 (1978)).

There are no legislative or administrative standards or guidelines promulgated for an assessor conducting inspections to determine real property tax assessments. Accordingly, compared to fire, health or building inspectors, in our opinion, assessors would be far less likely to demonstrate probable cause to obtain an inspection warrant.

An assessor should not enter on private property and take measurements or photographs without first securing the permission of the landowner. It is a relatively simple procedure for an assessor to identify himself to the landowner and request permission before entering private property. This would result in less confusion because the landowner would not be placed in a situation of discovering an uninvited, unknown person on his property.

Nevertheless, a property owner cannot be permitted to escape taxation by denying access to the assessor. The assessor must determine an assessed value, even when access to property is denied by a property owner. Under such circumstances, the assessment of the property (necessarily more of an estimate and less of a computation) can be based on any reasonable method which would aid the assessor, including descriptions of the property by third persons who have seen the property (2 Op.Counsel SBEA No. 78). If the property owner is dissatisfied with his assessment, he will need to present proof to the board of assessment review (or a court) that the assessor’s estimate was inaccurate.

March 2, 1989
Revised January 4, 1990