Volume 4 - Opinions of Counsel SBEA No. 118
Aged exemption (ownership requirement) (joint tenancy - aged sisters) (tenancy in common - aged sisters) - Real Property Tax Law, § 467:
For purposes of section 467 of the Real Property Tax Law, where title to real property held in joint tenancy by two sisters passes to one upon the death of the other, the period of ownership of the survivor is deemed to date back to the creation of the joint tenancy. However, where the sisters shared title as tenants in common, and the surviving sister acquired the decedent’s share by will or by operation of law, a new title vests in the survivor, and she must own the property for two additional years before she will be eligible for exemption.
We have received an inquiry concerning the length of ownership requirement of the aged exemption, section 467 of the Real Property Tax Law. The facts are that two sisters, both over sixty-five years of age, owned property for more than the statutory period (now two years) but no application for exemption was filed because their combined income exceeded the local limit. One of the sisters died in 1974 and the surviving sister has applied for exemption in 1975. The question is whether the surviving sister is entitled to the exemption.
It is not stated whether the sisters held title as joint tenants or as tenants in common prior to the first sister’s death in 1974. Since the resolution of the question depends on how title was shared, we will treat both possibilities.
We have previously held (1 Op.Counsel SBEA No. 5), that where title to property held in joint tenancy passes to a survivor at the death of the other joint tenant, the period of ownership of the survivor is deemed to date back to the creation of the joint tenancy for the purpose of computing the survivor’s period of ownership under section 467. Thus in this case, if the two sisters held title as joint tenants, it is our opinion that the surviving sister’s title would be deemed to date back to the creation of the joint tenancy for purposes of this exemption and she would apparently be entitled to the exemption in 1975.
The result is not the same if the two sisters shared title to the property as tenants in common, which is by definition an estate held in joint possession by two or more persons at the same time by several and distinct titles. Thus, at the time of the death of the first sister, the surviving sister acquired the decedent’s share in the property only by will or by intestacy. A new title or interest was thereby created. Unlike the joint tenancy situation where each tenant has an identical undivided interest in the property and title passes to the survivor at the death of the other joint tenant, in a tenancy in common there is no right of survivorship, and each tenant in common is free to dispose of his interest as he sees fit. The change in this case from a tenancy in common to sole title in the surviving sister would effect a break in the chain of title and create a new title or interest in the property. To satisfy the length of ownership requirement of section 467 this new title or interest in the property would have to exist for two years.
April 22, 1975