Volume 5 - Opinions of Counsel SBEA No. 87
Taxes (delinquent) (tax sale certificate - liability of holder for condition of property) - Real Property Tax Law, §§ 1006, 1010, 1018:
A county which holds a tax sale certificate on real property is not liable for tortious acts that occur on such property, which result from a defective or dangerous condition, unless the county has taken possession or control of the property.
Our opinion has been requested concerning the liability of a county for accidents occurring upon property on which the county holds a tax sale certificate.
It is our opinion that a county which holds a tax sale certificate on real property is not liable for tortious acts that occur on such property, which result from a defective or dangerous condition, unless the county has taken possession or control of the property.
Liability under these circumstances depends on the prior action of the county and the responsibility of the person injured. Assuming the person injured is not at fault, the general rule is that liability depends on the breach of a duty imposed on defendant as an incident to the occupation or control of the premises, independent of title or ownership (Cullings v. Goetz, 256 N.Y. 287, 176 N.E. 397). There are certain exceptions to this rule where an owner of land may be liable for a defect or dangerous condition although he is not in possession of the premises concerned (Weiner v. Loroco Realty Corp., 279 N.Y. 127, 17 N.E.2d 796).
The county avoids liability if it is not owner of the property in question and has neither exercised control nor taken possession of the property. The question of ownership or control depends on the status of a holder of a tax sale certificate in relation to the owner of the fee absolute.
A review of Article 10 of the Real Property Tax Law governing tax sales of property whose taxes are delinquent will aid in determining this relationship. Section 1006 entitles a purchaser at a tax sale to a written certificate which allows him to obtain absolute title if the land is not redeemed. The period of redemption for unoccupied land or land not subject to a mortgage is one year from the last day of the tax sale (§1010). The tax sale purchaser can apply to the county for conveyance of the real property if redemption does not occur within the specified period (§1018). The title of the purchaser is perfected when such a conveyance is executed (Armstrong v. Nassau County, 101 App. Div. 116, 91 N.Y.S. 867). Title does not pass automatically upon expiration of the equity of redemption; application to the county is a condition precedent to execution of a conveyance of title. It is important to remember that counties which purchase at tax sales must also make application before they can obtain absolute title (1945, Op.Atty.Gen. 283).
New York decisional law points out the relative status of a holder of a tax sale certificate and the owner of the fee absolute. The holder of a tax sale certificate, while the equity of redemption is outstanding, has no estate in the land, nor right to make use of it. The legal title, right to possession, enjoyment, and all rights incident to ownership remain in the owner (Millard v. Breckwoldt, 100 App. Div. 44, 90 N.Y.S. 890). Section 1012 of the Real Property Tax Law emphasizes this status by providing that a purchaser of land shall not exercise any acts of ownership on the land until the equity of redemption has expired.
Once the time for redemption has expired, a purchaser at a tax sale has a qualified right of possession which becomes absolute upon perfection of title by execution of a deed (Armstrong v. Nassau County, supra; Kostanowski v. Donchig, 269 App. Div. 194, 55 N.Y.S.2d 487). This qualified right to possession is subordinate to the right of possession of the owner of the fee, whose title is not divested until the purchaser’s title is perfected (Miller v. Warren, 94 App.Div. 192. 87 N.Y.S. 1011, aff’d, 182 N.Y. 539, 75 N.E. 1131).
It is apparent from this discussion that absent the exercise of control over the property, a purchaser at a tax sale holding a tax sale certificate does not have sufficient rights incident to ownership to create liability for a defect or dangerous condition on the land.
July 27, 1976