Volume 10 - Opinions of Counsel SBRPS No. 71
Sewer and water rents (delinquent) (collection procedure); Correction of errors (sewer and water rents) - General Municipal Law, § 452; Real Property Tax Law, § 550 et seq.; Village Law, § 11-1118:
Delinquent sewer rents and water rents may be added to the tax roll in accordance with the provisions of sections 452 of the General Municipal Law and 11-1118 of the Village Law, respectively, which are self-executing and independent of the correction of errors provisions of title 3 of Article 5 of the Real Property Tax Law. Once such entries are made to the assessment or tax roll, however, they are subject to the correction of errors procedures.
Our opinion has been requested concerning the procedure to be followed in amending assessment or tax rolls to account for the collection of delinquent water rents (Village Law, § 11-1118) and delinquent sewer rents (General Municipal Law, § 452).
The facts are that an entry for such delinquent charges was made to a 1997-98 tax roll of a non-assessing unit village (Real Property Tax Law, § 1402(3)), but the charge was placed on the wrong parcel. The owner of the parcel wrongly charged sought and received a refund (RPTL, § 556). Thereafter, the charge was not placed on the village’s 1998-99 tax roll, but was instead included on the town’s 1998 assessment roll which will be used for 1999-2000 village purposes.
It’s been suggested that this was not the correct procedure, and we agree that the entry should not have been made to the 1998 town assessment roll even though that roll will be used for the next village tax levy. Presumably, the official who did so believed that he or she needed to follow the correction of errors provisions regarding omissions in title 3 of Article 5 of the RPTL. However, the procedure for including such charges on the roll is not found in the RPTL, but is instead found in the aforecited sections of the Village Law and General Municipal Law which are self-executing (cf.,7 Op.Counsel SBEA No. 12).
Both sections provide that the unpaid rents may be made a lien on real property. As to water rents: “The board of trustees shall include such amounts in the annual tax levy and shall levy the same upon the real property in default” (Village Law, § 11-1118). As to sewer rents: A municipal governing board (including a village board) “shall levy the amounts . . . against the real property liable at the same time and in the same manner as . . . village . . . taxes . . .” (General Municipal Law, § 452(4)). {1} In other words, these provisions authorize an entry to the tax roll independent of the RPTL and its correction of errors procedures. Of course, once the entry has been made to the tax roll, it is subject to those procedures, hence the refund granted here when the charges were originally placed on the wrong parcel.
The State Comptroller has concluded that, because section 11-1118 provides a separate procedure for entering the delinquent rent on the tax roll, it is not subject to the omission provisions of title 3 of Article 5 of the RPTL (including its general requirement that such a correction be made within one year (RPTL, §§ 551(1), 553(1)(c), (d))). The Comptroller concluded, “A village may bill a property owner for water rents which it failed to bill for a period of up to six years from the date originally due and may include these rents in the annual tax levy in accordance with section 11-1118 of the Village Law if the rents become delinquent and are not paid” (Op.State Compt. 81-396). Given the similarity of section 452(4) of the General Municipal Law, we assume that a similar conclusion would be reached as to sewer rents.
Accordingly, in our opinion, the entry made to the 1998 town assessment roll should be removed by utilizing the correction of errors procedure. The unpaid water rent and sewer rent may then be added to the 1999-2000 village tax roll as provided in section 11-1118 of the Village Law and section 452(4) of the General Municipal Law.
December 1, 1998
{1} Section 452(4)of the General Municipal Law also includes an alternative judicial remedy to enforce delinquent sewer rents.