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Volume 5 - Opinions of Counsel SBEA No. 25

Opinions of Counsel index

State of New York exemption (liability for special assessments) (failure to notify) (subsequent transfer) - Public Lands Law, § 19; Real Property Tax Law, §§ 102(15), 404:

An assessment for local improvements may not be imposed on state lands unless there is compliance with the notice requirement of section 19 of the Public Lands Law. An assessment which is illegal and void when levied for failure to give the appropriate notice is not made legal and binding on the property by the mere transfer of the property to one other than the State.

Our opinion has been requested in regard to the liability of property acquired from New York State by an individual, for special assessments levied on such property while title was vested in the State. Special assessments were levied in the years 1958 through 1968 on property owned by the State of New York, but during this entire period the notice required to be served on the State Comptroller by section 19 of the Public Lands Law was not duly served.

The relevant portion of section 19 of the Public Lands Law reads as follows:

A person, body or board authorized to assess lands for local improvements or purposes, shall serve on the comptroller of the state, at least three weeks prior to the confirmation of the same, a written notice of every assessment on state lands, showing the purpose for which the assessment is made, the state lands assessed and the amounts for which they are assessed, and referring to the law authorizing the assessment, and no such assessment shall be legal unless such notice is duly served. No fee, interest, penalty or expense shall be added to or accrue on any such assessment against state lands, nor shall such lands be sold therefor; but such assessments shall, if confirmed and uncontested, be paid and discharged out of any moneys appropriated therefor. All sales of state lands for unpaid taxes or assessments for local improvements or purposes are void. All taxes and assessments legally made on state lands, and all legal rents or charges thereon, shall be audited by the comptroller and paid out of the treasury.

A special assessment is defined in subdivision 15 of section 102 of the Real Property Tax Law as a charge imposed on benefitted real property to pay for a local improvement and is what is called an “assessment for local improvements” in section 19 of the Public Lands Law. It has clearly been held that an assessment for local improvements may not be imposed on state lands unless there is compliance with the notice requirement of section 19 of the Public Lands Law and that in the absence of such notice any levy made is void (In re Melrose Ave., 234 N.Y. 48, 136 N.E. 235; see also, 1942, Op.Any.Gen. 135 and 1958, Op.Atty.Gen. 176).

It is our opinion that an assessment which is illegal and void when levied cannot be made legal and binding on the property by the mere transfer of the property to one other than the State. Reason also supports this opinion. Special assessments could be imposed year after year on state lands without giving notice so that after a number of years the total amount would be such that the property would be unmerchantable.

The only case we could find which would cast any doubt upon our opinion is Raisch v. City of New York, 235 App. Div. 706, 255 N.Y.S. 589. However, upon reading the record on appeal, the holding of the Court becomes clear. In this case, the record on appeal shows that the plaintiff alleged, and the defendant City admitted, that on June 1, 1926 the City levied an assessment for sewer improvements on state property and that the three weeks’ notice required by section 19 was properly served on the State Comptroller. The amount of the assessment ($400) was for some reason never paid. In 1928, the property was conveyed by New York State to the plaintiff and the subject action was brought by plaintiff against the defendant City to cancel the lien the City claimed attached to the property at the time plaintiff acquired it. Essentially the plaintiff argues in his brief that since section 19 provides that all sales of state lands for unpaid assessments for local improvements are void, the lien never attached to the property and therefore the City’s claim of lien should be cancelled by the Court. The plaintiff suggested that the City should look to the State for payment. The Second Department, however, after finding the “facts establishing the legality of the assessments are alleged by the plaintiff in his complaint,” held that “immunity from sales . . . does not apply to lands held by individuals purchased from the State, subject to assessments while State lands.” Thus, this case stands only for the proposition that where a valid levy has been made on state lands for special assessments in that all requirements of section 19 have been met, an enforceable lien attaches if the property is ever conveyed by the State to someone else.

In conclusion, therefore, it is our opinion that an individual who purchases state lands may interpose a defense of lack of notice in any action brought to enforce collection of special assessments levied when title to the property was in the State.

July 1, 1975

Updated: