Volume 8 - Opinions of Counsel SBEA No. 62
Assessment roll, form (designation of owner) (divorce, annulment, or death) - Civil Rights Law, § 65; Domestic Relations Law, § 240-a; Real Property Tax Law, §§ 502, 504; 9 NYCRR 90-1.3:
Notwithstanding the lack of a written instrument evidencing a conveyance of title, an assessor may correct assessment records to show as the owner of real property the name of a person who has resumed the use of a maiden name or former surname after a divorce or annulment, or the names of devisees or distributees of a decedent.
We are asked whether an assessor may change assessment records to show as the name of the owner of real property the name of a person who:
(1) has resumed the use of a maiden name or former surname after divorce or annulment; and
(2) has acquired title to property by will or intestacy.
No deed has been recorded or offered as evidence of the new ownership.
The statutory criteria for preparing an assessment roll, set forth in subdivision two of section 502 of the Real Property Tax Law, provides in part, that “[p]rovision shall be made with respect to each separately assessed parcel for the entry . . . of the name of the owner, last known owner or reputed owner. . .” (emphasis added) (see also, 9 NYCRR 190-1.3(b)(1), 190-1.4(a)). A person’s name is the designation by which he or she is distinctively known in the community (In re Cohen, 142 Misc. 852, 255 N.Y.S. 616 (Sup.Ct., New York Co., 1932); Application of Jeffrey, 23 Misc.2d 707, 198 N.Y.S.2d 966 (Oneida Co. Ct. 1960), Toigo v. Columbia Co. Board of Elections, 51 Misc.2d 754, 273 N.Y.S.2d 781 (Sup.Ct., Columbia Co. 1966)). Common law recognizes the right to change one’s name, provided there is no fraud, misrepresentation or interference with the rights of others (Smith v. United States Casualty Co., 197 N.Y. 420, 90 N.E. 947 (1910); Application of Halligan, 46 A.D.2d 170, 361 N.Y.S.2d 458 (4th Dept. 1974)).
In addition to the common law right to change one’s name, Article 6 of the Civil Rights Law provides a statutory means to the same end. The existence of a statutory alternative, however, does not repeal the common law right by implication or otherwise; rather, it affords an additional method for effecting such a change (Smith v. United States Casualty Co., supra; Application of Halligan, supra). The statutory privilege includes the right to change one’s name upon marriage, divorce or annulment according to specified provisions of the Domestic Relations Law (Civil Rights Law, § 65). Specifically, subdivision 2 of section 65 permits any person, upon divorce or annulment, to resume the use of a former surname pursuant to Domestic Relations Law, section 240-a. In turn, section 240-a provides that in an action for divorce or to annul a marriage, “any interlocutory or final judgment or decree shall contain, as a part thereof, a provision that each party may resume the use of his or her premarriage surname or any other former surname” (as amended by chapter 583 of the Laws of 1985). Thus, section 240-a of the Domestic Relations Law expressly allows a divorced woman (or man) to resume the use of a prior surname.
It is, of course, desirable to maintain up-to-date designations of the owners of property on assessment rolls. Thus, we have concluded that where an assessor is satisfied that title to property has vested in a new owner, he should indicate the change in ownership on the assessment roll, notwithstanding the absence of a deed of record to that effect (5 Op.Counsel SBEA No. 48). There is no prohibition against changing the designation of ownership on assessment records to indicate a change in the name being used by the present owner of property. Accordingly, even where there is no transfer of property, if an assessor is satisfied that the owner of property has assumed the use of a new name upon marriage, divorce or annulment, the assessor may enter the new name on the next prepared assessment roll.
With respect to the death of a property owner, it is well settled that the title to real property, upon the death of the owner, vests immediately in his heirs or devisees (Kingsland v. Murray, 133 N.Y. 170, 174, 30 N.E. 845 (1892)). Thus, an assessor may designate on the assessment roll the person taking title to real estate by reason of the death of the previous owner, either by the terms of the decedent’s will or by reason of intestate succession. Where the decedent owned the property as a joint tenant or a tenant by the entirety, the assessor may enter the name of the surviving joint tenant on the assessment roll. If, however, the assessor is not certain to whom title has passed, he may choose to leave the designation of ownership in the name of the deceased owner (see also, 2 Op.Counsel SBEA No. 71 (although title to real property can never be in an estate, the parenthetical addition of “(Estate)” to the name of the deceased owner is a permissible entry)).
As the foregoing indicates, where there is a transfer of real property upon the death of the last owner of property, the assessor may list the parcel on the assessment roll in the name of the reputed owner and, accordingly, delete the name of the deceased owner. Naturally, the assessor should endeavor to obtain for his files copies of any documents, such as a surrogate court’s decree or the death certificate of a joint tenant, evidencing such changes.
It is possible that a change in the designation of ownership on an assessment roll may not correspond to the name as shown on the last recorded deed to the property. The assessor’s designation of ownership, however, does not affect title to real property (see, 6 Op.Counsel SBEA No. 36). Thus, the fact that assessment records may not list the owner of record title should not deter the assessor from making a change in the designation of ownership on such records as discussed herein (see, 3 Op.Counsel SBEA Nos. 25, 82; 5 id. No. 48; 7 id. No. 37).
Furthermore, it is the property itself, and not the owner, which is ultimately liable for the tax (RPTL, § 304). A mistake in the name of the owner does not affect the validity of a tax on property provided that the description on the roll is otherwise sufficient to identify it to an interested party (RPTL, § 504(4); 5 Op.Counsel SBEA No. 34; 7 id. No. 75). Entry of the owner’s name, although statutorily required, is merely incidental to the assessment itself and the assessment roll is not notice as to the identity of the actual owner (Becraft v. Strobel, 158 Misc. 844, 287 N.Y.S. 22 (Sup.Ct., Herkimer Co. 1936), aff’d 248 App.Div. 810, 290 N.Y.S. 556 (4th Dept. 1936), aff’d 274 N.Y. 577, 10 N.E.2d 560 (1937); see also, 6 Op.Counsel SBEA No. 36).
June 26, 1985
Revised September, 1985 to conform discussion of section 240-a of the Domestic Relations Law to amendments to that section made by chapter 583 of the Laws of 1985.