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Volume 8 - Opinions of Counsel SBEA No. 117

Opinions of Counsel index

Real property, definition of (trees) (right of removal) - Real Property Tax Law, § 102(12)(a):

The right to remove timber is an incorporeal hereditament, rather than real property or a taxable interest in real property.

Trees are real property until severed, at which time they become personal property.

In a case where a vendor retains, for ten years, the right to take timber, does this require separate assessment of (l) the land upon which the trees grow, and (2) the trees themselves.

Real property is defined in the Real Property Tax Law to include the land itself, and any trees and undergrowth (§102(12)(a)). In North Eastern Fruit Council v. State Board of Equalization and Assessment, 124 Misc.2d 67, 475 N.Y.S.2d 1010 (Sup.Ct., Albany County, 1984), aff’d, 115 A.D.2d 139, 495 N.Y.S.2d 925 (3d Dept. 1985, mot. for lv. to app. den. 67 N.Y.2d 603, the court found fruit trees to be trees as defined in paragraph (a) of subdivision (12) of section 102 of the Real Property Tax Law, and thus to be real property subject to taxation to the extent that they add value to the land upon which they are located. A tree is considered the property of the person who owns the land where the trunk stands (Warren’s Weed New York Law of Real Property, Vol. 5A, “Trees”, §§1.01, 2.01 (1986); Hoffman v. Armstrong, 48 N.Y. 201 (1871); Dubois v. Beaver, 25 N.Y. 123 (1862)). {*}

In Crook v. Curry County, 292 P.2d 1080 (Sup. Ct., Oregon 1956), overruled on other grounds, Parr v. Department of Revenue, 276 Or. 113, 553 P.2d 1051 (1976), a reservation contained in a deed of conveyance did not reserve to the grantor any or all of the timber standing upon the land, but merely the right for a period of five years to go upon the land and to take and to remove the timber. The Court held that “[t]he law is well settled that a mere reservation of a right to remove timber from land creates a license and not an estate in the land or timber” (292 P.2d at 1081). The Court voided the separate assessment of the timber, ruling that the entire value of the timber must be assessed with the land.

While this precise issue apparently has not been litigated in New York, it appears that the rule in New York is the same as it is in Oregon. In Niagara Mohawk Power Corporation v. Cutler, 109 A.D.2d 403, 492 N.Y.S.2d 137 (3rd Dept. 1985), aff’d 67 N.Y.2d 812, 492 N.E.2d 398, 501 N.Y.S.2d 325 (1986), the Court of Appeals held that a right to water power is an incorporeal hereditament and not real property. The Court concluded that when severed from the land to which it is appurtenant, a right to water power does not become appurtenant to other riparian land and is not “real property” within the meaning of the Real Property Tax Law.

Therefore, the right to remove timber for a period of years, rather than being real property itself or a taxable interest in real property, is an incorporeal hereditament. The trees are real property and should be assessed to the owner of the land. As the Oregon Court stated in the Crook case, supra, the right to remove trees from land does not in itself create an ownership interest in the land or trees in the holder of that right. An ownership interest in the trees does not arise in the owner of that interest until the trees are severed from the land. But once severed, the trees are no longer real property, subject to the real property tax; at that point, they become personal property.

April 18, 1986


{*}  Compare, Morgan v. Bolsan Realty Corp., 48 A.D.2d 331, 369 N.Y.S.2d 544 (3d Dept. 1975), in which case where pursuant to an easement an individual was given the right to plant, maintain and replace trees, subsequent plantings upon the land were held to belong to the person to whom the easement had been granted.

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