Volume 9 - Opinions of Counsel SBEA No. 122
Assessment review, small claims (residence and occupancy requirement) (home under construction) - Real Property Tax Law, § 730:
Real property which is unoccupied because it is under construction is not eligible to receive small claims assessment review.
We have been asked whether a particular parcel is eligible for small claims assessment review (Real Property Tax Law (RPTL), Art. 7, title 1-A). The owner has not resided in the structure because it is still under construction.
Section 730(1)(b) of the RPTL provides that the primary jurisdictional requisite for small claims assessment review is that the property be improved by a 1, 2 or 3 family owner-occupied structure used exclusively for residential purposes.
As discussed in 7 Op.Counsel SBEA No. 80, the requirement of “owner-occupation” is not as stringent a test as a “legal residence” requirement. Thus, we concluded in that Opinion that a seasonal residence qualifies for small claims assessment review, provided that it is occupied by its owner during the period of usage. Subsequently, Supreme Court Justice Murphy adopted our analysis (Goldman v. Havemayer, n.o.r., Sup.Ct., Onondaga Co. (12/2/82)).
In a later case involving different facts, the Court of Appeals held that RPTL, section 730, is a remedial statute and should be given a liberal interpretation (Town of New Castle v. Kaufman, 72 N.Y.2d 684, 532 N.E.2d 1265, 536 N.Y.S.2d 37 (1988)). In that case, the Court of Appeals held that the nonresidential use of a room in an otherwise qualifying residential structure for a total of ten hours over a seven-month period did not disqualify the parcel from small claims review. We have followed this directive in our advice to hearing officers, taxpayers and local government officials. However, as noted by the Appellate Division in Kline v. City of Rye, 150 A.D.2d 576, 541 N.Y.S.2d 840 (2d Dept. 1989), the principle of liberal interpretation cannot be applied to ignore the literal language of the statute. That same court recently quoted the plain language of section 736(2) of the RPTL [granting a taxpayer the right to Article 78 review of a small claims decision] and concluded that a municipality has no such right to appeal (Matter of Village/Town of Scarsdale, 200 A.D.2d 623,606 N.Y.S.2d 720 (2d Dept. 1994); but see, Town of Plattekill v. Larsen, n.o.r., Sup.Ct., Ulster Co. (12/30/82), Williams, J., aff’d, 99 A.D.2d 897, 472 N.Y.S.2d 878 (3d Dept. 1984)).
Given the facts presented in this instance, it is clear that although the structure is residential, the taxpayer has never actually lived in the structure, and, therefore, we believe that it was proper for the hearing officer to disqualify the petition on the basis of the fact that it is not owner-occupied (RPTL, § 730(1)).
October 13, 1993