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Volume 2 - Opinions of Counsel SBEA No. 48

Opinions of Counsel index

Aged exemption (residence and occupancy requirement) - Real Property Tax Law, § 467(3)(c):

A person meeting all other qualifications of this exemption statute with respect to income, age, and ownership will qualify for exemption even if he leases part of his property, provided: (1) the property is used exclusively for residential purposes and (2) the owner resides therein: If a portion of the property is used for other than residential purposes and such portion is capable of being separately assessed in the opinion of the assessor, an exemption will apply to the separately assessed portion used exclusively for residential purposes.

          We have received an inquiry concerning the partial real property tax exemption for the aged authorized by section 467 of the Real Property Tax Law. The question is whether an otherwise qualified applicant would be eligible for the exemption where a portion of his property is leased or used by others.

Section 467 provides that the property for which an exemption is sought must be “used exclusively for residential purposes”. Generally, a person meeting all the other qualifications of the exemption statute with respect to income, age and ownership would qualify for exemption even though rental income is derived from the premises, provided the property is used exclusively for residential purposes and the owner resides therein. Thus, if an otherwise qualified applicant leased the upper story of his home as an apartment, an exemption would apply to the entire property. However, if part of a building on the property is used for a store or business, the property does not qualify.

If part of the property is used for farming, the property does not qualify for exemption. However, it is our opinion that if the portion used for other than residential purposes is capable of being separately described and assessed on the assessment roll, and such a separate assessment is made, the exemption would apply to the separately assessed portion used exclusively for residential purposes. Such determination is within the discretion of the assessor. It should also be noted that separate assessments may be made even though there is but one deed to the entire property.

The same would hold true where there are two buildings on the property. If one of the buildings is a separate leased structure which is capable of being separately described and assessed and the assessor separately assesses such portion of the property, the exemption will apply to the remaining portion used for residential purposes by an otherwise qualified applicant. It should also be pointed out that if the property consists of a main and a subordinate building and the subordinate building is so integrated with the main building that it is part and parcel of the same property (i.e., an apartment over an attached garage) it is for all practical purposes but one property and should be assessed as one parcel. In that case the exemption would apply to the entire property assuming the owner is otherwise qualified. In each case a determination will have to be made by the assessor since he is on the scene where he may obtain a full picture of the facts.

June 4, 1973

Updated: