Volume 7 - Opinions of Counsel SBEA No. 2 (rev.)
Aged exemption (ownership requirement) (life estate - creation of predated life estate) - Real Property Law, § 244; Real Property Tax Law, § 467:
A legal life estate may not be deemed to have been created at a date prior to the date the deed conveying the life estate is delivered and accepted. Therefore, for purposes of the length of ownership requirement of the aged exemption statute (Real Property Tax Law, §467), the life tenant’s period of ownership commences on the date the deed was delivered and accepted.
An individual has applied for an aged exemption (Real Property Tax Law, §467) and a question has been raised as to whether she has satisfied the period of ownership requirement (24 consecutive months). The applicant claims to have satisfied the requirement on the basis of successive life estates in two parcels.
By a grant dated December 13, 1979, the applicant acquired a life estate in a parcel. By a grant dated December 18, 1979, the applicant received a life estate in a second parcel. The second grant, however, purporting to be retroactive included the statement, “For all purposes, this deed conveying a life estate has been and shall be effective from the 15th day of June, 1962.” Based upon the claim of retro-activity, the applicant seeks an aged exemption on the first parcel.
The law is well settled that a life tenant is deemed the owner of the property during his or her lifetime, and is responsible for the taxes on that property (Deraismes v. Deraismes, 72 N.Y. 154 (1878); In re Det-mold’s Estate, 52 Hun 142, 4 N.Y.S. 903 (1st Dept., 1889); In re Gaffers’ Estate, 254 App. Div. 448, 5 N.Y.S.2d 671 (3d Dept., 1938)). Based on this case law, we have stated on several occasions that the owner of a life estate satisfies the ownership requirement of section 467 (1 Op. Counsel SBEA No. 34; 3 id. 45; 5 id. 106).
Among the other requirements of section 467 is that the title to the property for which exemption is sought must have been vested in the owner or owners for at least 24 consecutive months prior to the date of making application for the exemption. However, by statute (Real Property Tax Law, §467(3)(b)), there are several situations in which the time of owning one parcel may be “tacked” on to an applicant’s time of owning a second parcel for calculating length of ownership. Most relevant here is the provision that “where a residence is sold and replaced with another within one year and both residences are within the state, the period of ownership of both properties shall be deemed consecutive for purposes of the exemption from taxation by a municipality within the state granting such exemption.”
In this case, since the applicant is seeking an exemption on the first parcel (purchased originally by her grantor in October, 1979), the “tacking” provision quoted above is applicable only if the applicant had a life estate to the second property (originally purchased in 1962), and that property has since been sold. In our opinion, if the applicant had a legal life estate in the latter parcel dating back to 1962, and within one year of the sale of that parcel obtained a life estate in the other parcel, the periods of ownership should be combined for purposes of calculating the applicant’s length of ownership.
In this case, however, we are not satisfied that the applicant had a life estate in the first parcel until December 13, 1979, or a life estate in the second parcel until December 18, 1979. The long-standing rule in this State (see, e.g., Mitchell v. Bartlett, 51 N.Y. 447 (1873)), now codified in section 244 of the Real Property Law is that “a grant takes effect, so as to vest the estate or interest intended to be conveyed, only from its delivery. . .”. In addition, there must be acceptance of a deed before conveyance occurs (Ten Eyck v. Whitbeck, 156 N.Y. 341, 50 N.E. 963 (1898)). We have been cited to no authority, nor has our research disclosed any, which indicates that a legal life estate may be deemed to have been created as of a time prior to delivery and acceptance.
Accordingly, in our opinion the applicant received no life estate in either parcel until December 1979, and, therefore, does not presently satisfy the length of ownership requirement of section 467 of the Real Property Tax Law. Therefore, no exemption may be granted.
May 21, 1980
Revised June 17, 1982