Volume 10 - Opinions of Counsel SBRPS No. 26
Real property, definition of (housing for migrant farm workers - temporary residences) - Real Property Tax Law, § 102(12)(b); 10 NYCRR 7-1:
Whether housing for migrant farm workers is subject to the State Sanitary Code is not determinative of the taxable status of such property. Whether such temporary residences are real property depends on their satisfying the definition of real property in the Real Property Tax Law.
We have been asked whether housing for migrant farm workers constitute real property subject to taxation. The writer has referred to the State Sanitary Code and its provisions regarding temporary residences.
The Public Health Council is authorized by law (Public Health Law, § 225(4)) to establish sanitary regulations, and such action has been taken in the State Sanitary Code (10 NYCRR 1-24). That Code includes various health and safety provisions (e.g., fire safety, water and sewage) regarding temporary residences. For Code purposes, a “temporary residence” is defined as:
a property consisting of a tract of land and any tents, vehicles, buildings, rooms, camping sites or other structures and installations, temporary or permanent pertaining thereto, any part of which is utilized or maintained primarily for overnight occupancy by people, with or without stipulated agreement as to the duration of their stay. . . (10 NYCRR 7-1.1(a)).
It seems clear from this definition and a perusal of other sections of Subpart 7-1 that the word “temporary” as used therein pertains to length of occupancy by people utilizing the “residences,” not to the permanency of the shelters they occupy.
Consequently, whether temporary housing for farm workers constitutes real property for purposes of real property taxation is determined in accordance with the provisions of the Real Property Tax Law. The first question is whether the housing fits within any of the definitions of “real property” included within the statutory definitions of that term (see, RPTL, § 102(12)).
For example, section 102(12)(b) defines real property as “buildings and other articles and structures . . . erected upon . . . the land, or affixed thereto. . . .” As we stated in 9 Op.Counsel SBEA No. 54:
In making a determination as to whether a particular improvement constitutes real property pursuant to this definition, the courts consider the common law test relating to fixtures. That test requires that three conditions be met:
(1) the improvement must be actually annexed to the real property, or something appurtenant thereto;
(2) the improvement must be applied or adapted to the use or purpose to which that part of the realty with which it is connected is used; and
(3) the improvement must be intended to be a permanent accession to the land.
On the other hand, if mobile homes are used to house the workers, the taxable status of the mobile homes will be determined in accordance with the provisions of section 102(12)(g) of the RPTL. {1} It is unlikely that a tent or vehicle used as a “temporary residence” within the meaning of the State Sanitary Code will be taxable real property, but it is possible in certain cases (see, 2 Op.Counsel SBEA No. 30 regarding the taxation of campers).
It is not clear just how “temporary” the housing in question is or will be. While the above discussed definitions of real property are critical to the assessor’s determination of the housing’s taxable status, the assessor must also be mindful of section 302 of the RPTL, which provides that property is to be assessed according to its condition and ownership on taxable status date, which is March 1 in most towns. Consequently, if the housing is constructed after March 1 each year and then dismantled before March 1 of the following year, it will never constitute real property.
Lastly, we note that, if the housing remains in place (thereby becoming real property), and it is used to house farm workers, it may qualify for a farm buildings exemption (RPTL, § 483(2)).
October 2, 1995
{1} Note that if modular housing, such as so-called “double-wide trailers,” are used to house the workers, the taxable status of such property will be determined in accordance with the definition of section 102(12)(b) discussed above.