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Volume 3 - Opinions of Counsel SBEA No. 65

Opinions of Counsel index

Assessments, generally (conflicting ownership claim) - Real Property Tax Law, §§ 500, 502:

It is the duty of an assessor to place lands on the taxable portion of the assessment roll where private parties not entitled to an exemption claim ownership and pay the taxes levied thereon notwithstanding that the State claims an interest in the lands which is not altogether free from doubt.

Our opinion has been requested regarding the assessment and taxation of certain underwater lands title to which is claimed by both New York State and a private association.

The underwater land consists of about 19 acres located within the boundaries of a village. Both the village and the town have assessed the land on the taxable portion of their assessment rolls because ownership is claimed by a private party not entitled to a tax exemption.

New York State also claims an interest in all such riparian lands. However, what this interest is, if any, is not altogether free from doubt. At least one case, People v. Kraemer, 7 Misc.2d 373, 164 N.Y.S.2d 423, (to which New York State was not a party) has held that all the underwater lands in question are privately owned.

It is the duty of each assessor to ascertain each year by diligent inquiry all the real property located in his assessing unit and determine whether or not it is subject to taxation (Real Property Tax Law, §§ 102(2), 500). Neither the State Board nor any other state agency has control over the determinations so made by local assessors. This is so because local assessors are protected by the constitutional home rule clause. That is, the function of assessing is local and no part of it can be transferred to the state level.

Normally, the proper remedy for those asserting ownership of property which is being illegally taxed is to bring an Article 7 (Real Property Tax Law) or Article 78 (Civil Practice Law and Rules) proceeding. But the State need not bring such an action to protect its asserted ownership since all sales of state lands for unpaid taxes are void (Public Lands Law, § 19).

Be that as it may, we believe it to be the duty of an assessor to place lands on the taxable portion of the assessment roll where private parties not entitled to an exemption claim ownership and pay the taxes levied thereon (Real Property Tax Law, § 502). Assessors obviously are not equipped to “try titles” to real property.

October 18, 1973

Updated: