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Volume 7 - Opinions of Counsel SBEA No. 19

Opinions of Counsel index

Assessor (powers and duties) (entry upon real property) - Real Property Tax Law, §§ 102(3), 500:

An assessor, without first securing permission, may enter on unenclosed real property from which the public is not excluded and take photographs of the land and the exterior of buildings thereon, for the purpose of assessment. Except as to buildings generally open to the public, however, the assessor may not enter a building for such purpose without permission.

Our opinion has been requested concerning the right of an assessor to enter upon real property and take photographs of buildings and land for the purpose of assessing the property.

The New York City Charter gives an assessor the right to

enter upon real property and into buildings and structures at all reasonable times to ascertain the character of the property. Refusal by the owner or his agent to permit such entry shall be a misdemeanor triable by a judge of the criminal court of the city of New York and punishable by not more than thirty days’ imprisonment or a fine of not more than fifty dollars, or both. (N.Y. City Charter, § 1521).

There is no comparable statute having general statewide application. In 2 Op. Counsel SBEA No. 78, we stated, that based upon the Fourth Amendment prohibition against unreasonable, that is, “warrantless” searches, an assessor may not enter a private residence for the purpose of inspection without permission, relying upon Camera v. Municipal Court, 378 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). We are of the opinion that this principle is applicable to all buildings which are not generally open to the public.

With regard to open lands and lands containing structures but otherwise unenclosed, it is necessary to balance a property owner’s “right to privacy” with the duty of an assessor to perform his official responsibilities.

In the absence of a specific statutory provision (e.g., Civil Rights Law, §§ 50, 51, in relation to the unauthorized use of a person’s name or picture for purposes of advertising or trade), the “right to privacy” as a legal doctrine is limited to protecting individuals from an invasion of privacy involving tortious acts forbidden by law (e.g., trespass) and to the Fourth Amendment prohibition against unreasonable searches.

In Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 998 (1924), revenue officers entered upon private lands, concealed themselves and discovered containers of illicitly distilled whiskey on the land. Justice Holmes stated that “. . . even if there had been a trespass,. . . [the evidence] was not obtained by an illegal search or seizure . . . [since] the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects’, is not extended to open fields. The distinction between the latter and the house is as old as the common law. . .”.

In Air Pollution Variance Board of Colorado v. Western Alfalfa Corporation, 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974), a State health inspector entered upon open land without the knowledge and consent of the owner to make a test of plumes of smoke being emitted from the chimneys of a plant on the property. Addressing the Fourth Amendment issue, Justice Douglas wrote:

The field inspector did not enter the plant or offices. He was not inspecting stacks, [sic] boilers, scrubbers, flues, grates or furnaces; nor was his inspection related to respondent’s fires or papers. He had sighted what anyone in the city who was near the plant could see in the sky-plumes of smoke. The Court in Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 [1924], speaking through Mr. Justice Holmes refused to extend the Fourth Amendment to sights seen in “the open fields.” The field inspector was on respondent’s property but we are not advised that he was on premises from which the public was excluded. . . . The invasion of privacy ... if it can be said to exist, is abstract and theoretical. . . . Depending upon the layout of the plant, the inspector may operate within or without the premises but in either case he is well within the “open fields” exception to the Fourth Amendment approved in Hester. (94 S.Ct. at 2115-2116).

Clearly, the Fourth Amendment does not prohibit public officers from entering upon open lands in the performance of their official duties.

As to the issue of trespass, conduct otherwise a trespass is often justifiable by reason of authority vested in the person who does the act, as for example, an officer of the law acting in the performance of his duty (see, Giacona v. United States, 257 F.2d 450 (5th Cir., 1958), cert. den., 358 U.S. 873, 79 S.Ct. 113, 3 L.Ed.2d 104 (1958); 75 Am. Jur.2d Trespass, § 43 (1974), and the cases cited therein).

In construing a provision of the New York City Charter (L.1897, c.378) which authorized the president of the board of public improvements, and all others acting under his authority, to make daytime entrances onto and upon lands, which he deemed necessary for purposes of making a survey, preliminary to preparing a map of the City, the Appellate Division, Second Department, affirmed a trial court decision that an entry upon private property by a public official in the performance of his duties pursuant to law does not constitute a trespass in the absence of evidence of an abuse of authority (Edwards v. Law, 63 App.Div. 451, 71 N.Y.S. 1097 (2d Dept. 1901)).

An assessor is required by law to ascertain all the real property in his assessing unit (Real Property Tax Law, § 500) and to value such real property for purposes of real property taxation (Real Property Tax Law, §§ 102(3), 502, 504). Therefore, absent an abuse of authority, an assessor, without first securing permission, may lawfully enter on real property which is unenclosed and from which the public is not excluded and take photographs of the land and buildings thereon for assessment purposes.

August 1, 1980