Volume 7 - Opinions of Counsel SBEA No. 44
Tax lien (date) (city charter) – Newburgh City Charter, § 902:
The assessment roll must be prepared and completed and the amount of the tax ascertained before the assessment or tax can become a lien.
Taxes, water rents and sewer rents in the City of Newburgh become a lien at the time of the delivery to the collector of the roll which includes those charges, as provided in the City Charter, notwithstanding the provisions of section 902 of the Real Property Tax Law.
We have been asked whether the Real Property Tax Law of the Charter of the City of Newburgh determines the date when taxes, water rents and sewer rents become liens on real property in the City of Newburgh.
Section 902 of the Real Property Tax Law provides that all taxes, special ad valorem levies and special assessments levied by the county board of supervisors become a lien on January first of the fiscal year for which levied “...except as otherwise expressly provided by law.” This provision is inapplicable to the City of Newburgh for several reasons, namely:
(1) section 902 applies only to charges levied by the county legislature; taxes of the City of Newburgh are levied by its City Council (Charter of the City of Newburgh, §8.15);
(2) section 902 applies “except as otherwise expressly provided by law” and the City Charter sets forth a lien date (Charter, §8.30);
(3) section 902 establishes a general lien date only for “taxes, special ad valorem levies [or] special assessments” as those terms are defined in the Real Property Tax Law (§102(20), (14) and (15)), and those terms do not include sewer or water rents (see, YMCA v. Rochester Pure Water Dist., 37 N.Y.2d 371, 334 N.E.2d 555, 372 N.Y.S.2d 633 (1975)).
Section 8.30 of the Charter of the City of Newburgh provides that “[e]very tax, assessment or water rents [sic]...imposed...upon any real property within the city...shall be a lien upon the real property so charged from the time of the delivery to the collector of the roll containing the same with warrant for the collection thereof, thereto annexed...” (emphasis added). Based upon this language and our analysis of section 902, we conclude that “taxes, assessments and water rents” imposed by the City of Newburgh become liens at the time of the delivery to the collector of the roll which includes those charges.
An examination of section 8.85 of the City Charter, which provides for the imposition and collection of water rents, and Local Law No. 1, 1970, of the City, which provides similar authority in regard to sewer rents, reveals nothing which would alter this conclusion. Section 2 of the latter law simply refers us back to section 8.85 of the City Charter, stating that “the provisions of [§8.85] referring to water rents shall be in all ways applicable to the collection of...sewer rents...”.
Subdivision (2) of section 8.85 provides that “water rents shall be liens upon the property in respect to which they are assessed”. As previously noted, however, section 8.30 of the City Charter specifically provides that “water rents” become a lien upon delivery of the roll to the collector. Therefore, each water and sewer rent imposed in the City of Newburgh becomes a lien at the time of the delivery of each of the quarterly rolls to the collector (see, City Charter, §8.85(1); L.L.1970, No. 1, §2.
Subdivision 4 of section 452 of the General Municipal Law provides no basis to vary this conclusion relative to sewer rents. That subdivision merely establishes alternative methods for the enforcement of the collection of delinquent sewer rents, including the right to include those delinquencies in the ensuing municipal tax levy.
Finally, a suggestion that water and sewer rents might become liens upon real property prior to confirmation and delivery of the roll for collection appears to be contrary to general provisions of law, as interpreted by the Court of Appeals. In German v. Niferopulos, 276 N.Y. 161, 11 N.E.2d 713 (1937), that Court declared as follows:
Where any particular unit of government in this state has jurisdiction to impose a tax on real property the assessment rolls must be prepared and completed and the amount of the tax ascertained...and the assessment roll confirmed by the agency charged with the duty of confirming the roll before the assessment or tax can become a charge against or a lien or incumbrance upon the land to which it relates in all cases where the applicable statute is silent as to the time when the lien attaches [citations omitted]. The amount which the taxpayer must pay is then fixed and becomes due. (276 N.Y. at 167-168 (emphasis added)).
In short, before the amount of tax liability becomes ascertainable and is fixed by the officer or body charged by law with that responsibility, a lien does not attach to the real property (see also, Luthers v. Koegh, 109 N.Y. 583 at 588-589 (1888)).
September 17, 1979