Volume 4 - Opinions of Counsel SBEA No. 98
Aged exemption (ownership requirement) (owner less than sixty-five years of age) - Real Property Tax Law, § 467:
The enactment of chapter 1004 of the Laws of 1974 did not change the requirement that for purposes of Real Property Tax Law, section 467, title to the real property for which exemption is sought must be vested in the owners, all of whom are at least sixty-five years of age, except where the property is owned by a husband and wife in which case only one need be at least sixty-five.
We have received an inquiry concerning chapter 1004 of the Laws of 1974, which amended section 467 of the Real Property Tax Law, the so-called “aged exemption”. The inquiry is specifically concerned with a change in the language of paragraph (b) of subdivision 3 of said section.
Prior to the enactment of chapter 1004, no exemption could be granted “unless the title of the property shall have been vested in the owner or all of the owners of the property for at least sixty [now twenty-four] consecutive months . . .” (emphasis added). The amendment changed this language to read “unless the title of the property shall have been vested in the owner or one of the owners of the property . . .” (emphasis added). The question is whether this change would permit the granting of an exemption in the following factual situations: (a) where an aged mother and her daughter (under sixty-five years of age) share title to the property as tenants in common; (b) where the same individuals share title as joint tenants; (c) where the aged person retains a life estate with the daughter receiving a remainder interest.
It is our opinion that the amendment of section 467 by chapter 1004 of the Laws of 1974 did not affect in any way the determination of eligibility in the three foregoing factual situations. Chapter 1004 did not alter the requirement of section 467, subdivision 1, that all of the owners must be sixty-five years of age or over (except where the property is owned by husband and wife, in which case only one need be sixty-five or over); therefore there can be no exemption in situations (a) and (b). In regard to situation (c), it has long been our opinion, relying on a long series of judicial determinations, that a life tenant is considered the owner of the property for taxation purposes and, likewise therefore, for purposes of exemption statutes (see, 1 Op.Counsel SBEA Nos. 34 and 59). It does not appear to us that chapter 1004 would affect these opinions and therefore an exemption would be available in situation (c) assuming, of course, that the aged life tenant met all other requirements of the statute.
It is our opinion that the change from “all” to “one” in paragraph (b) of subdivision 3 did not change existing interpretation and appears to be relevant in two situations. The first is where property is held jointly by a married couple and one spouse is under sixty-five years of age (subd. 1) . The second is where a transfer occurs between a husband and wife (subd. 3(b)). Notwithstanding chapter 1004, in all other situations, besides the additional exceptions provided by subdivision 3(b), an applicant or applicants will have to show that title, at the time of filing and the application, existed and was uninterrupted for the period required by statute, and that all other requirements of the statute have been met including the requirement that all the owners be sixty-five years of age or over except where the property is owned by husband and wife.
February 19, 1975
NOTE: L.1975, c.664, effective January 1, 1976, amends section 467 to provide that an aged exemption once granted on real property owned by husband and wife shall not be rescinded because of the death of one spouse so long as the survivor is at least sixty-two years of age. Further, this Opinion has been superseded by Opinion 12-35.