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Volume 7 - Opinions of Counsel SBEA No. 80

Opinions of Counsel index

Assessment review (small claims) (residence and occupancy requirement) (seasonal residence) - Real Property Tax Law, §§ 467, 730:

A seasonal residence may qualify for small claims assessment review, provided that during the period it is in use it is occupied by its owner.

Among the eligibility requirements for small claims assessment review (Real Property Tax Law, Article 7, Title 1-A) is that “the property is improved by a one, two or three family owner-occupied structure used exclusively for residential purposes” (Real Property Tax Law, §730(1)(a)(2), as amended by L.1982, c.531). We have been asked whether this class of eligible properties is limited to a primary residence or may be considered to include a seasonal home under some circumstances. In other words, does the statutory language “owner-occupied structure” require year-round occupancy as a prerequisite to small claims assessment review?

Title 1-A of Article 7 does not include any additional language which would clarify this ambiguity. Accordingly, we must look to other sections of the Real Property Tax Law for guidance. In so doing, we believe that it is appropriate to compare the language of the small claims law to another statute which affords a form of real property tax relief to certain homeowners, namely, the so-called “aged exemption” (Real Property Tax Law, §467).

Provisions in both the small claims law (§730(1 )(a)(2)) and the aged exemption statute (§467(3)(c)) limit the class of eligible properties to those “used exclusively for residential purposes”. However, while the small claims law merely requires that property be an “owner-occupied structure”, section 467(3)(d) specifies that real property must be the “legal residence” of the owner-occupant(s) in order to be entitled to exemption. Where the Legislature uses unlike terms in different parts of a statute, the courts have said it is reasonable to assume that a dissimilar meaning was intended (see, Albano v. Kirby, 36 N.Y.2d 526, 330 N.E.2d 615, 369 N.Y.S.2d 655 (1975)). Thus, in using the distinguishable terms “owner-occupied structure” and “legal residence” in the two sections of the Real Property Tax Law, we believe that the Legislature has made a distinction between the eligible classes.

It has been said that “a person can have but one domicile, but it is certain that he may have two residences” (Bell v. Pierce, 51 N.Y. 12, at 17 (1872)). The courts have similarly held that there is a distinction “between actual and legal residence; the latter being generally equivalent to a domicile” (Cincinnati, H. & D. R. Co. v. Ives, n.o.r., 3 N.Y.S. 895 (S.Ct., N.Y.Co., 1889)). We have previously stated that only the domicile of an applicant may qualify for the aged exemption, since section 467 refers to “legal residence” (5 Op.Counsel SBEA No. 5; see also, 2 id. No. 57). Since the small claims law does not include any similar language, it is our opinion that the owner-occupied structure is not required to be the legal or primary residence of an applicant for small claims assessment review.

Our conclusion is also buttressed by the rules governing the interpretation of “remedial” statutes. A “remedial” act is generally considered as one “designed to correct imperfections in prior law and to cure a wrong where an aggrieved party had an ineffective remedy under existing law” (Industrial & Research Associates v. Bd. of Assessors of Nassau County, n.o.r., p.8, Index No. 13281/73 (8/2/79); see also, McKinney’s Cons. Laws of N.Y., Annot., Book 1, Statutes, §35, p.79 (1971)). Such acts are liberally construed by the courts (McKinney’s, id., §321, p.489).

It seems apparent that the small claims assessment review law (L.1981,cc.l022, 1023; L.1982, cc.531, 714) is remedial in nature. The memorandum in support of the bill which became chapter 1022 of the Laws of 1981 (1981 Senate Bill No. 6287-A) includes a statement that the purpose of the bill was “to provide a simple, effecient [sic] and inexpensive method for the residential property owner to obtain prompt review of his. . . assessment”. In comparison, the same memorandum refers to the “undue burden” otherwise imposed on such property owner by the “complexity and cost” of proceedings under Title one of Article 7.

As a remedial statute, then, the small claims assessment review law should be liberally construed in favor of the potential beneficiaries of its provisions. That being the case, we believe it reasonable to include in the class of properties eligible for such assessment review, owner-occupied seasonal residences.

September 1, 1982

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