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Volume 11 - Opinions of Counsel SBRPS No. 52

Opinions of Counsel index

Assessment roll (designation of owner) (guardian); Senior citizens exemption (ownership) (guardian) - Mental Hygiene Law, § 81.29; Real Property Tax Law, §§ 467, 502:

Where title to real property has been taken in the names of an incapacitated person’s guardians, who have been appointed pursuant to Article 81 of the Mental Hygiene Law, the incapacitated person should be deemed the owner of the property for real property tax (including exemption) purposes.

We have received an inquiry concerning eligibility for the senior citizens exemption (Real Property Tax Law, §467). The sole issue appears to relate to ownership of a condominium unit. {1}  The deed conveys title to the condominium unit to “X” and “Y” “as co-guardians” for “Z,” X and Y having been appointed Z’s guardians in accordance with the provisions of Article 81 of the Mental Hygiene Law [hereafter MHL]. The question is whether, for purposes of section 467, ownership of that unit should be considered as in the name of Z (who is a senior citizen) or in the names of X and Y (who are not).

An assessor does not “determine” title to real property. However, for purposes of real property tax administration, the assessor must enter on the assessment roll the name of “the owner, last known owner or reputed owner” (RPTL, §502(2)) and should rely on the latest recorded deed or other information that is deemed reliable (6 Op.Counsel SBEA No. 36).

Z’s attorney provided a copy of the Article 81 court order issued that appointed guardians both of the person and of the property of Z. In 10 Op.Counsel SBRPS No. 15, we discussed applications for senior citizens exemptions being filed by guardians. We concluded:

Where a parcel is otherwise entitled to a senior citizens real property tax exemption, the exemption may be granted despite the fact that application for such exemption is made by a guardian appointed pursuant to the provisions of Article 81 of the Mental Hygiene Law on behalf of the incapacitated person.

Section 81.29(c) of the MHL provides that:

The title to all property of the incapacitated person shall be in such person and not in the guardian. The property shall be subject to the possession of the guardian and to the control of the court for purposes of administration, sale or other disposition only to the extent directed by the court order appointing the guardian (emphasis added).

We note that Z was declared incapacitated prior to the purchase of the condominium. An incapacitated person, for whom a guardian has been appointed pursuant to Article 81, retains all powers except those which the guardian is granted (MHL, §81.29(a)). In this instance, the court order grants Z’s co-guardians the right to manage property on her behalf. Thus, effective with the issuance of the commission to the co-guardians (MHL, §81.27), only those co-guardians had the legal capacity to manage Z’s property. (Note that for purposes of the pertinent provisions of the MHL, the term “property management” is defined to include “taking actions to obtain, administer, protect and dispose of real ... property” (§81.03(g), emphasis added).)

Necessarily then, the co-guardians were the only parties with the authority to enter into the contract for the purchase of the condominium and to close the transaction and accept the deed. Therefore, the co-guardians had to be named in both the contract for sale and the deed. However, despite the fact that X and Y are recited as the grantees in the deed, they could not take title in themselves as individuals but, rather, on behalf of Z in their capacity as her guardians (MHL, §81.29(c), quoted above).

Therefore, it is our opinion that by virtue of this particular conveyance, the title to the condominium was transferred to Z, consistent with the above-discussed provisions of the MHL. Accordingly, we believe that it would be appropriate for the assessor to enter Z’s name as the owner of the condominium unit on the assessment roll, and treat her as the owner for purposes of determining exemption eligibility.

January 20, 2004


{1}  A condominium unit owned by a qualified owner may receive a senior citizens exemption (see, 5 Op.Counsel SBEA No. 84).

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