Volume 1 - Opinions of Counsel SBEA No. 112
Boundary disputes (towns) County Law, § 228; Real Property Tax Law, §§ 948, 568, 1542:
A boundary dispute between two towns may be resolved in the courts by action initiated either by one of the towns in the dispute or by each of the affected property owners. If court action is not commenced, however, the county treasurer could force the dispute to the point of resolution by rejecting the taxes on the affected property on the grounds that the property is so inaccurately described or erroneously assessed that collection of taxes by sale cannot be enforced.
We have received an inquiry concerning the proper procedure to be followed in resolving a boundary dispute between two towns. In the factual situation presented, the property owners in the disputed area are being assessed and taxed by both towns, and unpaid tax accounts against various parcels have been returned to the county.
Specifically, the county tax map has placed the disputed area within Town A, whereas Town B has historically maintained jurisdiction over this area. The tax map for Town A was approved by the State Board in August of 1966, and it was accepted by the town. At such time apparently, the town began to assess property within the disputed area.
It should be noted that the approval of a tax map by the State Board concerns itself with form, scale and utility and, obviously; could not constitute an approval as to boundary lines between particular parcels. (Real Property Tax Law, §§ 568, 1542).
The tax map for Town B was approved by the State Board in October of 1967. The map deleted the disputed area from Town B, but the town refused to be bound by such map, and it continued to assess property in the disputed area. The property owners were apparently advised to continue paying taxes to Town B, and they did so. The unpaid taxes levied for Town A in this area have been returned to the county, but we have been informed that the unpaid tax liens have not been sold by the county.
Section 228 of the County Law provides a judicial process by which boundary disputes between towns may be settled in Supreme Court or in the county court. However, the action must be commenced by one of the towns affected by the dispute, and, apparently in the situation described, neither town at present is suffering any loss in revenue which would cause them to initiate such an action.
A second procedure which is available is that of an action by each of the affected property owners to remove a cloud on the title to their property. Such action would be initiated pursuant to the Real Property Actions and Proceedings Law, Article 15 (Action to Compel the Determination of a Claim to Real Property). However, it is our opinion that it would be grossly inequitable to force the property owner to bear the expense of such litigation.
It is therefore our opinion that action which will force the dispute to the point of resolution could be initiated by a county treasurer. And although several statutes appear to authorize rejection or cancellation by the county of insufficient or illegal assessments (e.g., sections 556 and 946), it is our opinion that the procedure set forth in section 948 of the Real Property Tax Law will provide the results which will be most equitable.
Section 948 provides, in part, as follows:
“1. The county treasurer shall examine the accounts of arrears of taxes received from the collecting officer of each city and town and shall reject all taxes charged on real property so inaccurately described or erroneously assessed, in form or substance, that the collection of taxes by the sale of such real property cannot be enforced. The county treasurer shall deliver a list of the taxes rejected to the mayor of the city or the supervisor of the town in which the taxes have been so rejected. Such mayor or supervisor shall cause an accurate description of such real property to be made and returned to the treasurer, with the correct amount of taxes thereon, stating each tax separately. If necessary, such mayor or supervisor may cause a survey and map of any of such real property to be made.”
Because of his knowledge of the circumstances of the delinquencies in question a county treasurer may accurately state that the real property which is being charged is so inaccurately described and erroneously assessed in substance that the collection of taxes by sale cannot be enforced.
Following such rejection, the burden will be upon Town A to initiate action to resolve the dispute. And meanwhile the properties in question will not be encumbered by liens for delinquent taxes. If the town will not voluntarily resolve the dispute, the returns of such properties should continue to be rejected.
April 4, 1972
NOTE: Construes law prior to L.1980, c.748.
