Volume 4 - Opinions of Counsel SBEA No. 11
Tax maps (boundary disputes) (listing of acreage) (preparation) - Real Property Tax Law, § 1534; 9 NYCRR 185.6:
An assessor’s responsibility does not extend to resolving conflicting claims to property ownership or to resolving boundary disputes. These are matters which can only be resolved by the parties involved.
For tax map purposes, where there is a difference between acreage indicated in a certificate of conveyance however, reasonable attempts must be made to resolve the discrepancy.
There is no statutory requirement directing an assessor to report or pursue violations of subdivision laws; however should such violations be disclosed in the performance of his duties, the assessor should notify the District Attorney of such facts.
We have received inquiries concerning several anticipated problems facing assessors and a tax mapper as tax maps are completed and new information is made available (Real Property Tax Law, § 1534).
One of the benefits of a tax mapping program is that assessment problems will surface and point up the necessity to work toward resolving them. Generally, in preparing a tax map a mapper working with the municipality will assume responsibility for reconciliation of problems uncovered. Since tax maps are prepared primarily for the use of assessors, the mapper must, of necessity, take into consideration the responsibilities of an assessor in the performance of his duties. Accordingly, while the comments listed below may be directed toward assessors, they have equal application to a mapper preparing a tax map.
The first question concerns real property parcels assessed to more than one owner, the owners having deeds which have been recorded but found to cover all or part of the same parcel.
An assessor’s primary responsibility under the Real Property Tax Law is to prepare an assessment roll to be used in real property assessment and taxation administration. Theoretically, it is the duty and responsibility of the property owner to see to it that his assessment is correct and that the ownership name and address entered on the assessment roll are correct. However, it is apparent that an assessor must make a reasonable effort to discover all real property in each assessing unit and the names of the owners. Such search should begin with, but not necessarily be limited to, the recorded documents on file in the county clerk’s office.
An assessor’s responsibility does not extend to resolving conflicting claims to property ownership or to resolving boundary disputes. These are matters which can only be resolved by the parties involved. Generally, an assessor should rely on the last recorded deed for property description and name of owner. However, where there appears to be a “dual ownership” situation, such matter should be called to the attention of both claimants. In no case should the assessor enter two independent listings for the same property on the assessment roll. If the matter is not resolved between both parties, it would appear to be most prudent to use the last recorded deed in the chain of title.
Prefacing the second question, it is noted that the tax map rules and regulations provide that when there is a certain percentage difference between acreage indicated in the certificate of conveyance and the computed acreage, both figures must be shown (9 NYCRR 185.6 (e) (4)). We are asked whether for purposes of assessment, the computed acreage is presumed to be correct with the burden of proof on the taxpayer should he disagree.
A tax map is an assessment tool which should establish a complete inventory of all land parcels in an assessing unit and provide a simple means of property identification for the preparation of assessment rolls. The value and need of a tax map is readily demonstrated when in its preparation, problems such as those described herein arise, pointing out the necessity for taking steps to resolve them. In many situations how such problems are resolved will depend upon circumstances surrounding each individual case. Ideally, there would be few problems if the dimensions of each land parcel appearing on the tax map were derived from an actual land survey. In many cases where an actual land survey has been made, there may be a considerable difference in acreage revealed by the survey and that appearing in the deed. However, to provide such survey in a tax mapping program is economically unfeasible and totally unrealistic. Therefore, in plotting individual parcels on the map the best available evidence must be used.
Generally, where there is a material difference, the assessor should rely on the computed acreage. Of course, reasonable attempts should be made to resolve the discrepancy. It is deemed advisable to contact the property owner. It is possible that he may have in his personal possession an unified survey map, or may wish to take steps to ascertain the correct acreage.
It is next noted that in the preparation of a tax map, encroachments relating to the right of way of public highways may be revealed with questions of property values being raised by individuals and assessors.
As noted above, each such situation as discovered will generally have to be considered on its own facts. From a legal standpoint it may be desirable to request assistance from the attorney for the municipality to determine whether in fact an encroachment does exist. If in fact an encroachment does exist, or there is reason to believe that an encroachment exists, then such facts may have an effect on the value of the property. In such instances the assessor will have to use his best judgment in determining a value for assessment purposes.
We are asked in a final question whether there is a responsibility on the part of an assessor to report “illegal subdivisions” which may be discovered in preparing a tax map or in assessing real property. Failure to file a subdivision map as required by section 334 of the Real Property Law subjects the subdivider to an action to recover a penalty brought by the Attorney General or District Attorney of the county where the action is triable (1969, Op.Atty.Gen. 97). The Public Health Law also contains certain requirements relating to subdivisions (§§ 1115, 1116).
An assessor is statutorily vested with the responsibility and duty of annually preparing an assessment roll listing thereon all real property located in his assessing unit and determining a valuation of such real property for taxation purposes. There is no statutory requirement directing an assessor to report or pursue violations of subdivision laws. However, should such violations be disclosed in the performance of his duties, they should be referred to the District Attorney for his consideration.
February 25, 1974