Can a New York village sell a property to recover demolition or cleanup costs after the owner refuses to pay?

Plain-English summary

The Village of Fort Plain asked whether it had any options short of litigation for collecting demolition and cleanup costs from the owner of a dangerous building. The Attorney General's office said it did. The Municipal Home Rule Law gave the village two stacked authorities: the broad police power under § 10(1)(ii)(a)(12) to legislate on health and safety, and the fiscal authorities under § 10(1)(ii)(a)(8), (9), and (9-a) to impose, collect, and lien-secure assessments. Together, those gave the village a four-step procedure: (1) declare a building unsafe with due process, (2) demolish or clean up if the owner does not act, (3) assess the cost against the owner and lien the property, and (4) if the lien is not paid, sell the property to enforce it.

The village could put the demolition, assessment, lien, and sale procedures into a local law. The opinion says the local law must provide due process, and its footnote points to notice and an administrative hearing in the town and city statutes as models. The county had not amended its tax-collection law to cover village demolition costs, so the AG identified a village sale procedure as an alternative for enforcing an unpaid lien.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the village need a court order before demolishing a building? A: Under this opinion, no. The local law had to provide notice to the owner and an administrative hearing satisfying due process, but the Legislature had removed the judicial-proceeding requirement from the Town Law in 1980, and the AG's office accepted similar administrative procedures for villages under their home-rule police power.

Q: What did "due process" require?
A: At a minimum, notice to the property owner and an opportunity for an administrative hearing before the building was demolished or cleaned up. The opinion drew the standard from the Town Law and General City Law unsafe-building statutes, which require notice plus a hearing.

Q: Did the opinion say the village could skip a hearing in an emergency? A: No. It says the village may clean up, repair, or demolish if the owner fails to act or in an emergency, and separately says the local law must provide due process. It does not explain whether an emergency changes the hearing procedure.

Q: How did the village turn its cleanup expense into a property sale? A: It assessed the cost against the owner, placed a lien on the property when the assessment was not paid, then sold the property to enforce the lien. The local law spelled out each step. The Municipal Home Rule Law provisions in § 10(1)(ii)(a)(8), (9), and (9-a) gave the village the underlying fiscal authority to do this.

Q: Could the county have collected the demolition cost through its tax sale instead? A: That was the option Fort Plain had suggested, but the AG's office noted the county had not amended its delinquent-tax collection law to include village demolition costs. Until a county did so, a village would have to enforce its own lien through its own sale procedure.

Background and statutory framework

The Municipal Home Rule Law's § 10(1)(ii)(a)(12) gives villages broad police power to enact local laws "for the protection and enhancement of [the village's] physical and visual environment" and similar health, safety, and well-being purposes. Towns and cities have explicit unsafe-building statutes (Town Law § 130(16); General City Law § 20(35)), and villages may enact equivalent local laws relying on their home-rule police power.

The fiscal hooks come from Municipal Home Rule Law § 10(1)(ii)(a)(8), (9), and (9-a), which let a village establish, impose, and enforce assessments on property to pay for local-government services and improvements. Those provisions support a lien against the assessed property when the owner does not pay. The 1981 AG opinion the 1998 opinion cites (1981 Op Atty Gen [Inf] 182) had already endorsed property sale as the enforcement mechanism for similar municipal liens, which was the path Fort Plain wanted to use.

Citations and references

Statutes:

• N.Y. Municipal Home Rule Law § 10 (home-rule powers)
• N.Y. Town Law § 130 (town unsafe-building authority)
• N.Y. General City Law § 20 (city unsafe-building authority)

Prior AG opinions:

• Op Atty Gen (Inf) No. 84-71 (village authority to demolish unsafe buildings under home-rule police power)
• 1981 Op Atty Gen (Inf) 182 (sale of property to enforce municipal lien)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-35_pw.pdf

Original opinion text

MUNICIPAL HOME RULE LAW § 10(1)(ii)(a)(8), (9), (9-a),(12). A village may enact a local law providing for demolition and clean up of unsafe buildings and, in the event the owner fails to reimburse village costs, also providing for sale of the property in order to effectuate its lien. August 4, 1998

John L. Kirkpatrick, Esq.
Village Attorney
Village of Fort Plain
P. O. Box 350
Fort Plain, New York 13339

Informal Opinion
No. 98-35

Dear Mr. Kirkpatrick:
You have asked whether a village has any options other than litigation in order to collect from the owner of a dangerous building the costs to the village of demolition and clean up of the property. Villages and other local governments are authorized to enact local laws relating to the safety, health and well-being of persons or property located therein. Municipal Home Rule Law
§ 10(1)(ii)(a)(12). The enactment of a local law providing for the demolition and clean up of unsafe buildings falls within this grant of authority. Op Atty Gen (Inf) No. 84-71. Such a local law must provide due process.1 See, id. In the event the owner

1

The source of authority for the local law is the broad delegation of police power to local governments. The State Legislature, utilizing the police power, has authorized towns and cities to enact unsafe building regulations. Town Law § 130(16); General City Law § 20(35). These provisions satisfy due process requirements by providing for notice to the owner of the building and an administrative hearing. A village, acting under its delegation of police power (Municipal Home Rule Law
§ 10[1][ii][a][12]), may enact similar due process provisions. We note that the requirement of a judicial proceeding and court order prior to removal or clean up of an unsafe structure was removed from the Town Law. L 1980, ch 520. The bill jacket indicates the purpose of this and other changes was to expedite the procedure while continuing to satisfy due process requirements. Memorandum by Senator Trunzo; June 27, 1980 Memorandum from Counsel, Department of State, to Counsel to the

2
fails to take action or in an emergency, the village may clean up, repair or demolish the building. A village may assess the costs of demolition and clean up on the property owner and in the event that the assessment is not paid, place a lien on the property. Municipal Home Rule Law § 10(1)(ii)(a)(8), (9) and (9-a). You have suggested that the county could amend its local law relating to the collection of delinquent village taxes to provide for reimbursement of village costs of demolition and clean up to the extent that the county collects these funds through its tax sale procedures. To date, the county has not taken such action. In our view, an alternative is for the village to include in its local law a procedure for sale of the property by the village in the event the owner fails to reimburse costs. See, 1981 Op Atty Gen (Inf) 182. We conclude that a village may enact a local law providing for demolition and clean up of unsafe buildings and, in the event the owner fails to reimburse village costs, also providing for sale of the property in order to effectuate its lien. The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office. Very truly yours,

JAMES D. COLE
Assistant Attorney General
In Charge of Opinions

Governor.