Volume 11 - Opinions of Counsel SBRPS No. 59
Assessment review (form of complaint) (non-residents) - Real Property Tax Law, §§ 508, 524:
A non-resident property owner seeking an alternative grievance day must apply for the same and must file a written complaint on or before the regularly scheduled grievance day, but need not use the State Board prescribed complaint form.
We have been asked to render an opinion concerning a non-resident’s complaint regarding the assessment of its property. An out-of-state company purchased property shortly before grievance date. Its attorney advised that the company president was out of the country and therefore unavailable to sign the State Board prescribed complaint form (i.e., RP-524) which must generally be filed by complainants (Real Property Tax Law, § 524(3)). A company representative (presumably not the attorney) attended the hearing of the board of assessment review [BAR], but did not file a complaint, and instead requested an adjourned hearing date. The representative was referred to 10 Op.Counsel SBRPS No. 80 in which we discussed “late” complaints:
Complaints may be filed with the assessor at any time prior to the BAR hearing or with the BAR at such hearing, but they may not be submitted at an adjourned hearing of the BAR (RPTL, § 524(1)). An assessment complaint submitted after Grievance Day should be returned, since the BAR has no jurisdiction to consider untimely complaints. Technically, a late complaint is not dismissed; rather, the attempt to file was not effective. Nevertheless, the return of an untimely complaint has the same effect as a dismissal: no judicial review will be possible.
In response, the representative alleged that our publication “How to File for a Review of Your Assessment” (prepared pursuant to L.1980, c.100, § 3) states that a non-resident property owner may file a complaint at an adjourned hearing of the BAR. Given these facts, the question is if the BAR must accept a late complaint from the company and whether an adjourned hearing must be held.
It appears that the company representative has misread our publication. In relevant part, p.4, #6 of the latest (i.e., Jan. 2002) version of our publication states:
6. File Form RP-524 prior to deadline.
The fourth Tuesday in May, is Grievance Day . . . in most towns and cities. You should mail or deliver the review form to your local assessing unit so that it arrives on or before Grievance Day. If mailing, certified mail is best. Even if it is postmarked on or before Grievance Day, it is deemed to be late if its arrival is not on Grievance Day. Ideally, the form should arrive at least four business days before Grievance Day.
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A non-resident owner can request a date after Grievance Day for the review hearing. The non-resident owner must make this request to the BAR or to the assessor on or before Grievance Day. It is recommended that this request be sent by certified mail, return receipt requested. The BAR must set a date no later than 21 days after Grievance Day for the hearing of this review (emphasis in original omitted).
Section 508(2) of the RPTL authorizes a non-resident property owner to make written application for an adjourned hearing date before the BAR, {1} and that request may be “[u]pon written application received by the assessor or the [BAR] on or before [grievance day]. . . .” Our publication tracks this statute in stating that a non-resident may request an adjourned hearing date; it does not state that the non-resident may file his or her application after grievance day.
We also note that in Dennin v. Board of Assessors of the Town of Harrietstown, 41 A.D.2d 990, 991, 343 N.Y.S.2d 906, 908 (3d Dept., 1973), the court held that:
Thus, all a nonresident must do to obtain a review of his assessment is to make an application on or before the third Tuesday in the month of June. The form of the application is not prescribed by the statute and, therefore, need not be in compliance with the formal requirements of the sworn statement required by section 512 of the Real Property Tax Law, and need not be filed prior to or at the Board of Review meeting held in compliance with that section. {2} Respondent’s contention that the application must be filed during normal business hours is also without merit. Subdivision 2 of section 508 does not provide for filing or receipt during normal business hours, but merely provides that the application be made on or before the third Tuesday of June, a calendar day. The time within which the application must be made on that day is, therefore, governed by section 19 of the General Construction Law. {3}
In Dennin, the non-resident property owner filed a handwritten protest with a member of the board of assessors on grievance day but some time after the BAR had adjourned its hearing. Nevertheless, a complaint of some sort was filed on such date, apparently not the case here, so even the Dennin precedent does not appear to excuse the company’s inaction.
As we also discussed in the aforecited 10 Op.Counsel SBRPS No. 80, however, courts are reluctant to dismiss assessment complaints based on technicalities. If this BAR did not insist on the filing of a complaint on grievance date or somehow acquiesced in the applicant’s delayed filing, a court could find that the BAR waived the defect. As such, if litigation ensues, a final outcome in this situation will likely turn on the precise facts.
May 28, 2004
{1} We discussed the mandatory nature of the adjourned hearing for a non-resident owner in 2 Op.Counsel SBEA Nos. 7 and 111.
{2} In 1984 (c.379), grievance date for most towns was changed to the third Tuesday in May; in 1991 (c.662), it was changed to the fourth Tuesday of that month (RPTL, § 512(1)). The content of the complaint form is now prescribed in section 524 of the RPTL.
{3} Section 19 provides that a calendar day includes the time from midnight to midnight.