Volume 7 - Opinions of Counsel SBEA No. 4
Correction of errors (error in essential fact) (tax map as proof of incorrect acreage) - Real Property Tax Law, § 550; 9 NYCRR 189.6:
For purposes of proving and correcting an “error in essential fact” based upon incorrect acreage, an applicant may not rely upon the acreage listed on a county tax map in lieu of the survey required by statute.
We have been asked whether a county tax map may be substituted for a taxpayer-submitted survey for purposes of proving acreage with respect to an alleged “error in essential fact”.
Errors in assessed value attributable to an erroneous description of the acreage of real property may be corrected administratively pursuant to Title 3 of Article 5 of the Real Property Tax Law (§556-a). An “error in essential fact” is defined to include an incorrect entry of acreage which was considered by the assessor in the valuation of the parcel and which resulted in an incorrect assessed valuation, “where such acreage is shown to be incorrect on a survey submitted by the applicant” (§550(3) (c) (emphasis added)).
The descriptions of parcels appearing on tax maps are derived from the best available documentary evidence, the accuracy of which may vary from one case to another (5 Op. Counsel SBEA No. 49). In other words, a description so indicated will only be as good as that appearing on the document(s) from which obtained.
An awareness of this fact prompted certain provisions set forth in the rules promulgated by the State Board with respect to tax map standards (Real Property Tax Law, §1542(1)). Section 189.6 of title 9 of the NYCRR describes the requirements of a “section map”. Subdivision (e), paragraph (4) thereof provides that “computed acreage” is to be compared to the amount set forth in a deed of record. If computed acreage exceeds a certain “tolerance” (using a sliding tolerance scale in comparison to that set forth in the deed) both acreages are to be shown on the tax map (see, 4 Op. Counsel SBEA No. 11). (For example, the rules and regulations allow for a four percent difference on parcels of more than 50 acres, but ten percent for parcels of one to five acres). Should the tolerance level be exceeded, the only means for obtaining an accurate measurement would be by a land survey.
Implicit in the requirement that both computed acreage and deed acreage be shown on a tax map is a judgment by the Legislature that tax map acreage does not define the amount of land owned for all other purposes. This explains the requirement in Real Property Tax Law section 550(3) (c) that a claim for correction of an error in assessment attributable to an alleged error in acreage must be based on a survey submitted by the applicant. A parcel description on a tax map, by itself, does not lay a foundation for a refund of taxes based upon an alleged error in acreage, unless a survey is submitted as required by paragraph (c) of subdivision 3 of section 550.
February 4, 1980