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Volume 9 - Opinions of Counsel SBEA No. 38

Opinions of Counsel index

Disabled persons exemption (scope) - Real Property Tax Law, § 459:

The portion of an addition made to real property which is entitled to exemption is that which facilitates and accommodates the disabled resident’s use and accessibility of the real property.

We have received an inquiry concerning the partial exemption from real property taxes available to the physically disabled. The property owner suffers from a progressive bone disease which has limited his mobility and made it difficult for him to climb the stairways in his split level residence. Accordingly, he added a bedroom, living room, dining area and bath to the first floor of his home. He and his wife reside in this addition while his son resides in the upstairs portion of the home. The question is whether the exemption is restricted to structural improvements, such as ramps and widened doorways, or whether it also includes the entire addition.

Section 459 of the Real Property Tax Law provides an exemption to improvements to one, two or three family residences to the extent of any increase in value attributable to the improvement if the improvement is used to facilitate and accommodate the use and accessibility of the real property by a disabled person. This disabled person must be a resident owner of the real property, who is physically disabled, or a member of the resident owner’s household, who is physically disabled, if such member resides on the property. To qualify as physically disabled for purposes of the exemption, an individual must have a permanent physical impairment which substantially limits one or more major life activities (e.g., walking, breathing) as certified by a licensed physician.

The law does not specify the types of improvements which qualify for exemption. Clearly, however, the Legislature intended the exemption to apply to structural improvements (e.g., ramps, extra-wide doorways, elevators, specially adapted bathrooms) which facilitate a disabled resident’s access to and use of real property. However, when such structural improvements are part of a larger addition, or where the addition itself is claimed as being necessary to facilitate continued use of the entire home, a more difficult question is presented. Upon review of the statute and its intended purposes, it is our opinion that the portion of an entire addition which is entitled to exemption is that which facilitates and accommodates the disabled resident’s use of and accessibility to the real property.

Not every addition made to a disabled person’s residence is entitled to exemption; the improvement must facilitate and accommodate use or accessibility. Obviously, certain rooms, such as a bedroom and bathroom, are essential to residential use of property. Other rooms or improvements, although they may improve a disabled person’s living conditions, are not necessary to enable the person to use his home. For example, where a disabled resident is unable to climb stairs, the addition of a downstairs bathroom or bedroom certainly constitutes an improvement which accommodates use of the residence. That is, such an addition is necessary to enable the disabled resident to use the property and, as such, the entire value of such addition would be exempt. However, the addition of a downstairs study or sewing room would not, in our opinion, be eligible for exemption.

Whether and to what extent a particular structural modification or addition is an improvement eligible for exemption is a difficult determination which the assessor, who more closely knows the facts, should make on a case-by-case basis. To obtain the exemption, the applicant must file the necessary application form (EA-459) with the local assessor on or before taxable status date and demonstrate that the improvement facilitates and accommodates the disabled resident’s use or access of the property. If dissatisfied with the assessor’s determination, the applicant may seek administrative and judicial review of such decision.

July 24, 1989