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Volume 7 - Opinions of Counsel SBEA No. 100

Opinions of Counsel index

Sales reporting (State acquisition by appropriation) - Eminent Domain Procedure Law, § 402; Real Property Law, §§ 290, 333(l-e); RPTL, § 574; 9 NYCRR 191.1:

In the case of a State acquisition of title by appropriation, a real property transfer report (Form EA-5217) should be filed with the acquisition map so that the county director of real property tax services and the State Board may receive timely notice of such appropriation.

We have been asked if a real property transfer report (Form EA-5217) must be filed with the county clerk when a Notice of Appropriation is filed with an acquisition map by the State. Section 333(l-e) of the Real Property Law provides, in pertinent part, that “A recording officer shall not record or accept for record any conveyance of real property affecting land in New York State unless accompanied by a transfer report form prescribed by the state board of equalization and assessment. . .”.

Taking real property by the exercise of the power of eminent domain has been recognized as the equivalent of a forced sale (Chester Litho v. Palisades Park Commission, 27 N.Y.2d 323, 266 N.E.2d 229, 317 N.Y.S.2d 761 (1971); Jackson v. State of New York, 213 N.Y. 34, 106 N.E. 758 (1914); Vandermulen v. Vandermulen, 52 Misc.2d 144, 275 N.Y.S.2d 127 (Ct. of Claims, 1966)). The Eminent Domain Procedure Law (EDPL) governs acquisitions of real property by the exercise of the power of eminent domain. Section 402 of the EDPL provides that upon the filing of a certified copy of the acquisition map in the office of the county clerk, title to the real property vests in the condemnor. The question thus is whether the acquisition map is a “conveyance” within the terms of the Real Property Law.

The term “conveyance” as used in the Real Property Law is defined in section 290(3) as including:

every written instrument, by which any estate or interest in real property is created, transferred, mortgaged or assigned, or by which the title to any real property may be affected, including an instrument in execution of a power, although the power be one of revocation only, and an instrument postponing or subordinating a mortgage lien; except a will, a lease for a term not exceeding three years, an executory contract for the sale or purchase of lands, and an instrument containing a power to convey real property as the agent or attorney for the owner of such property. (Emphasis added). [See also, 9 NYCRR 191.1(c)].

The term “acquisition map” is defined in section 103(B) of the EDPL as:

the representation of the real property acquired by either a delineation of the perimeter of the particular project covering the acquisition; [sic] together with a description of the project’s perimeter boundaries and of the estate, right or interest in and to such property so acquired or an individual property map representing the estate, right or interest in and to such property so acquired. (Emphasis added).

Given these definitions, it seems clear that an acquisition map is a “conveyance” within the definition of that term in section 290(3) of the Real Property Law.

Further, the courts have said that papers, such as acquisition maps, filed in the county clerk’s office, are included in the recording laws (Raymond v. State of New York, 208 Misc. 43, 143 N.Y.S.2d 354 (Ct. of Claims, 1955), rev’d on other grounds, 4A.D.2d 62, 162 N.Y.S.2d 838 (4th Dept., 1957), aff’d, 4 N.Y.2d 961, 151 N.E.2d 624, 175 N.Y.S.2d 829 (1958)). As noted above, section 402 of the EDPL requires filing of the acquisition map in the county clerk’s office.

While assessors receive notice of appropriation by the State by operation of section 574(1) of the Real Property Tax Law, unless a transfer report form is filed with the acquisition map, the county director of real property tax services and the State Board may not receive timely notice of such appropriation. The county director needs this information in order to comply with his statutory duty of maintaining tax maps for the county (Real Property Tax Law, §1532). The State Board may also have a need for the information in complying with its duties in approving the assessments on State-owned land pursuant to title 2 of Article 5 of the Real Property Tax Law.

The filing of a transfer report form with each acquisition map ensures that assessment administration officials and the State Board receive proper and timely notice of acquisition of real property by the exercise of the power of eminent domain. Thereafter, the appropriate changes may be made on tax maps and assessment rolls, as well as alerting the State Board to the possibility that there may be taxable State-owned land upon which assessments would have to be approved.

April 28, 1981

Updated: