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Volume 5 - Opinions of Counsel SBEA No. 34

Opinions of Counsel index

Assessment roll, form (designation of owner) (unknown owner); Taxes (delinquent) (tax deed) (unknown owner) - Real Property Tax Law, §§ 502, 504, 1002; Niagara County Tax Delinquency Act, § 7:

Where, after “diligent inquiry,” an assessor is unable to determine the name of an owner of real property, he may simply designate the owner as “unknown” in the name column adjoining the parcel description on the assessment roll. Likewise, such owner may be designated “unknown” on a tax deed transferring title to a purchaser at a tax sale.

We have received an inquiry concerning the proper designation of an owner of real property on an assessment roll and on a tax deed where such owner is unknown.

Subdivision 2 of section 502 of the Real Property Tax Law provides that the entry on the assessment roll shall include “the name of the owner, last known owner or reputed owner . . ..” However, in consideration of the possibility of difficulty in ascertaining the owner of property for assessment purposes, subdivision 4 of section 504 provides that “[i]f in the preparation of the roll an error or omission is made ... in entering or failing to enter the name of the owner, last known owner or reputed owner, such error or omission shall not prevent the levy, collection and enforcement of the payment of the taxes thereon if the parcel can be identified and located with reasonable certainty.” Thus, where a description is otherwise sufficient to identify the parcel in question, an error or omission in listing the owner’s name will not be sufficient to invalidate the assessment. However, this does not relieve the assessor of the responsibility of making a serious effort to determine ownership since section 500 of the Real Property Tax Law requires assessors to ascertain by diligent inquiry all real property and the names of the owners thereof in each city and town.

In answer to the initial question then, where, after diligent inquiry, an assessor is unable to determine the name of the “owner, last known owner or reputed owner” of a particular parcel, his entry of the words “Unknown Owner” in the name column adjoining the parcel description on the assessment roll would appear to meet the foregoing statutory standards. (However, we would advise against an entry such as “John Doe” where the owner is unknown since such entry might be misleading; i.e., it might be mistaken for the actual name of the owner.)

The second question is whether there may be a valid transfer of title to a purchaser at a tax sale of a tax delinquent parcel where the name of the owner is unknown. Concern is expressed over the impact of Chapter 744 of the Laws of 1904 on such transfers. That chapter enacted a special tax delinquency act applying solely to Niagara County, authorizing the County Treasurer to sell property for unpaid taxes in certain circumstances.

Special acts such as Chapter 744 of the Laws of 1904 continue in full force and effect until and unless otherwise amended or repealed despite the existence of the Real Property Tax Law, pursuant to the provisions of section 2006 of the latter law. Therefore, in order to respond to this inquiry we must determine whether Chapter 744 speaks on the subject.

Under section 4 of Chapter 744, the treasurer of Niagara County is given the authority to “reject all taxes on lands that shall be imperfectly described, and all taxes so erroneously assessed in form or substance that the collection of the same cannot be enforced ....” (Similar authority is given to all county treasurers pursuant to Real Property Tax Law, §948(1).) Section 7 of Chapter 744 requires the notice of sale of tax delinquent parcels to contain a statement giving “the name of the parties to whom each piece of land, on which the taxes remain unpaid, was assessed....” (emphasis added) (Again, a similar requirement is found in §1002 of the Real Property Tax Law, viz., “[s]uch notice shall contain ... the name of the owner or occupant thereof as the same appears on the tax roll....” (emphasis added))

While we have been unable to find any cases construing similar language in section 7 of Chapter 744 of the Laws of 1904, section 1002 of the Real Property Tax Law has been judicially interpreted to the effect that an error or omission of the name of an owner of tax delinquent property will not be sufficient to warrant the cancellation of a tax deed on such property, all other statutory standards being met.

For example, in Roseth Realty Co. v. Brighton Bensonhurst Electric R. Co., 228 App. Div. 390, 240 N.Y.S. 8, aff’d, 254 N.Y. 505, 173 N.E. 841, the Appellate Division noted that:

In a tax proceeding, to which all persons having vested estates at law or in equity are made parties or are proceeded against by the publication of notice as unknown owners, there are cut off not only vested estates but also estates contingent or unvested, including the possible interests which might, under contingent limitations vest in persons not yet in being. Jackson v. Babcock, 16 N.Y. 246. (emphasis added) (240 N.Y.S., at 10).

Again, in Hayes v. Blachly, 40 App. Div.2d 518, 333 N.Y.S.2d 917, the Appellate Division, Second Department, held that in determining the validity of title transferred by tax sale certificate and tax deed the test was “whether the description of the property is sufficient to identify the parcel to anyone examining it in good faith” (333 N.Y.S.2d, at 918). As support for this proposition the court cited earlier cases and section 504, subdivision 4 of the Real Property Tax Law which we have previously discussed in response to the first question.

Finally, in Crockford v. Zecher, 74 Misc.2d 1067, 347 N.Y.S.2d 105, property was assessed to “Don D’Ercola” rather than to “Collier Enterprises Inc.,” the actual owner of the property. The court found this error was not a sufficient ground for cancellation of a tax deed “for an error in stating the name of the owner of the property assessed does not impair the validity of the assessment” (347 N.Y.S.2d, at 108).

There are cases which suggest the contrary, such as Kiamesha Dev. Corp. v. Guild Properties, 4 N.Y.2d 378, 151 N.E.2d 214, 175 N.Y.S.2d 63. However, in that case, an error in the name of the owner was only one of several errors which the court felt made the overall description misleading for “a diligent taxpayer, anxious, in good faith to identify his land.” Thus, despite Kiamesha, the question of the validity of a tax deed where the owner of the tax delinquent parcel was unknown still appears to turn on whether the overall description of the property is such that it can be reasonably identified by an interested individual. An error or omission merely in the name of the owner alone on the tax sale certificate or tax deed would not appear to be a sufficient ground for cancellation of such documents.

Thus, in response to the second inquiry it would appear to be proper to convey title to tax delinquent property by tax deed while designating the prior owner simply as “unknown,” where, after diligent inquiry, the name of the “owner, last known owner or reputed owner” cannot be reasonably determined. The provisions of Chapter 744 of the Laws of 1904 do not appear to alter this conclusion.

July 8, 1975

Updated: