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Volume 3 - Opinions of Counsel SBEA No. 48

Opinions of Counsel index

Real property, definition of (plastic greenhouse) - Real Property Tax Law, § 102(12)(b):

A building, structure or article can be considered real property even if it is affixed to the land only by its own weight or if it is removable intact. The crucial issue with respect to a building which does not have a foundation is whether or not it is intended to be permanently installed. The burden is upon the taxpayer to show by objective criteria that such intention does not exist.

Our opinion has been requested as to whether a plastic greenhouse to be built upon railroad ties is real property for purposes of taxation.

The definition of real property for purposes of taxation is contained in subdivision 12 of section 102 of the Real Property Tax Law. Paragraph (b) of this subdivision provides as follows:

§ 102. Definitions

* * *
12. “Real property”, “property” or “land” mean and include:

* * *

(b) Buildings and other articles and structures, substructures and superstructures erected upon, under or above the land, or affixed thereto, including bridges and wharves and piers and the value of the right to collect wharfage, cranage or dockage thereon, but shall not include bulk milk tanks or coolers installed upon a farm to hold milk awaiting shipment to market;

We believe that a greenhouse is a “building.” Certainly it falls within the following definition: “‘In its broadest sense it can mean only an erection intended for use or occupation as a habitation, or for some purposes of trade, manufacture, ornament, or use, constituting a fabric or an edifice, such as a house, a store, a church, a shed’” (Rouse v. Catskill & N.Y. Steam-Boat Co., 59 Hun 80, 13 N.Y.S. 126, 127). A building, structure or article can nonetheless be considered real property even if it is affixed to the land only by its own weight (Smedeker v. Warring, 12 N.Y. 170) or if it is removable intact (People ex rel. Herzog v. Miller, 170 Misc. 1063, 11 N.Y.S.2d 572, aff’d, 258 App. Div. 724, 15 N.Y.S.2d 141). It seems to us that the crucial issue with respect to a building which does not have a foundation is whether or not it is intended to be permanently installed. We take the position that it should be presumed that a building is intended to be permanently installed and that it is incumbent upon the taxpayer to prove by objective criteria that such intention does not exist.

The need for frequent replacement of the plastic covering would not seem to negate an intent to create a permanent structure. However, such proof might exist if the entire structure, including ties, supports, etc., is installed each spring and entirely removed each fall.

August 13, 1973

NOTE:  See also RPTL, sec. 483-c.

Updated: