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Volume 9 - Opinions of Counsel SBEA No. 94

Opinions of Counsel index

Assessment review, small claims (residence and occupancy requirement) (vacancy after taxable status date) - Real Property Tax Law, § 730:

A residential parcel which was owner-occupied on taxable status date but vacant thereafter qualifies for small claims assessment review.

We have been asked for our opinion as to what constitutes “owner-occupancy” of a residence for purposes of determining eligibility for small claims assessment review (RPTL, §730). In the instant inquiry, a residence was occupied by its owner on taxable status date, but the owner subsequently moved as a result of a transfer by his employer. No one else has occupied the residence in the intervening time.

We have previously concluded that a seasonal residence may qualify for small claims review, provided that during the time it is in use, it is used by its owner (7 Op.Counsel SBEA No. 80). This opinion has been cited with approval in the only judicial decision of which we are aware on the issue of the eligibility of seasonal residences for small claims assessment review (Goldman v. Havemeyer, Sup.Ct., Onondaga Co., Murphy, J., 12/2/82).

The residence in this situation was owner-occupied on taxable status date, but residency thereafter ceased and no other use has been made of the structure. We believe this to be analogous to a seasonal residence which is used for a short time during the summer (or other season) and then is unoccupied during the rest of the year. Although the statute is not clear on this issue, given the liberal construction applicable to the small claims assessment review program (Town of New Castle v. Kaufman, 72 N.Y.2d 684, 532 N.E.2d 1265, 536 N.Y.S.2d 37 (1988); 7 Op.Counsel SBEA No. 80), in our opinion, the small claims review procedure should be available in this situation.

July 31, 1992

Updated: