How far back must a New York county treasurer search before certifying that a subdivision parcel has no unpaid taxes, and can the county charge for that certificate?

Plain-English summary

Jefferson County had three questions about Real Property Law § 334, the statute that requires a subdivision owner to file a map and a tax payment certificate before subdivided lots can be sold. How many years of tax records must the county treasurer search before signing the certificate? Can the county pass a local law sending the certificate work to private abstract and title companies instead of the treasurer? And can the county charge a fee for the certificate?

The AG answered: as far back as reasonably practical; no; and no.

The certificate itself. Real Property Law § 334 forbids the county clerk from filing a subdivision map without an endorsement from either the county treasurer or a private abstract and title company stating that all levied-and-unpaid taxes, and all tax liens, have been paid. The purpose, traced through the 1938 enactment for Erie County and the 1985 expansion to all counties, is to prevent subdividers from fragmenting tax liens by altering parcel lines while back taxes are still owed.

The "how far back" question has no statutory cap. Real Property Tax Law §§ 902 (county taxes), 1312 (school district taxes), and 1422 (village taxes) say tax liens remain in effect "until paid," and L.K. Land Corp. v. Gordon held that "until paid" means no statute of limitations cuts off enforcement. In a literal reading, the treasurer would have to search the entire record back to the original assessment of the parcel. The AG declined the literal reading because Statutes § 96 cautions against constructions that produce absurd results. The practical compromise: search as far back as reasonably practical to find unpaid taxes and liens. The treasurer should weigh the diminishing likelihood of finding old, collectible liens against the cost of an exhaustive search.

The AG also flagged an under-appreciated risk for treasurers. Under Roose v. Hamilton, a treasurer who erroneously issued a tax search certificate has been held liable in damages to a title company that relied on it. Op. State Compt. No. 75-612 raised similar tort exposure for a buyer who later paid back taxes after relying on an erroneous certificate.

The "abstract and title companies only" question. The AG concluded this was inconsistent with section 334 and therefore unauthorized under home rule. Counties have power to enact local laws relating to the collection of local taxes (Municipal Home Rule Law § 10(1)(ii)(a)(9) and N.Y. Const., art. 9, § 2(c)(ii)(8)), but only if they are "consistent with laws enacted by the legislature." A local law that eliminated the county treasurer option, leaving only private title companies, was plainly inconsistent with the statutory two-option structure. The legislative history reinforced this: in 1937 the Governor had vetoed a bill that limited Erie County subdividers to title company certifications, precisely because it cut out the county treasurer.

The fee question. Real Property Law § 334 does not authorize a fee for the certificate. C.P.L.R. 8021 sets county clerk fees for real property filings, and § 8019 makes C.P.L.R. Article 80 fees override others. A separate county fee for the treasurer's certificate would effectively layer an extra filing-related charge on top of the state-mandated fee structure. The AG noted that the Legislature had expressly authorized a separate fee for the county director of real property tax services where map changes require tax-map updates (RPTL § 503(7), (8)). The contrast made the absence of any similar fee authorization in § 334 meaningful: had the Legislature wanted to allow a fee, it would have said so. State Comptroller opinions, particularly Op. State Compt. No. 81-34, took a similar narrow view of implied fee authority.

The AG also pointed to real-property filings as falling within state concern rather than local home rule, citing Op. Att'y Gen. (Inf.) No. 96-49 (deed-language requirements) and Op. Att'y Gen. (Inf.) No. 92-55 (Real Property Law § 333-b filings).

Currency note

This opinion was issued in 2004. 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: How many years of records did the AG say a county treasurer should search?
A: There was no fixed number. The AG read Real Property Law § 334 to require a search "as far back as reasonably practical." The treasurer has to balance the open-ended duration of tax liens (which run "until paid") against the practical limits of records and staff capacity.

Q: Why are tax liens not subject to a statute of limitations?
A: Real Property Tax Law §§ 902, 1312, and 1422 say tax liens remain in effect "until paid." The Court of Appeals in L.K. Land Corp. v. Gordon interpreted that language to defeat any limitations defense.

Q: Could a county delegate the certificate function exclusively to private title companies?
A: No. Section 334 gives the subdivider a choice between the county treasurer and a private abstract and title company. A local law eliminating the treasurer option would be inconsistent with the statute and therefore unauthorized under home rule.

Q: Could the treasurer charge a fee for the search?
A: No. The AG concluded that absent express legislative authorization, a fee would be inconsistent with section 334. The contrast with Real Property Tax Law § 503(7) and (8), which authorize a fee for the county director of real property tax services where a map change requires tax-map updates, was a signal that the Legislature knew how to authorize fees and chose not to here.

Q: What is the treasurer's tort exposure for an erroneous certificate?
A: Roose v. Hamilton held a county treasurer liable to a title company for damages caused by an erroneously issued tax search certificate. Op. State Compt. No. 75-612 contemplated similar liability to a buyer compelled to pay back taxes the certificate had cleared. Read together: a slipshod search can become a county liability claim.

Q: Did the AG decide which counties this applies to?
A: Section 334 applies state-wide since 1985. Nassau and Suffolk Counties have their own parallel statutes at Real Property Law §§ 334-a and 335. The AG noted those exceptions but did not address them in detail.

Background and statutory framework

The procedural backbone is Real Property Law § 334. A subdivider must file a certified map before selling subdivided lots, on penalty of $25 per lot. The map cannot be filed without endorsements from either the county treasurer or an abstract and title company (certifying tax payments), the tax collecting officer of any affected county/city/town/village (same), and the county director of real property tax services (certifying that the RPTL § 503 fee, if any, has been paid).

The tax payment certificate requirement was added in 1938 for Erie County only (L. 1938, ch. 649), expanded to Broome County in 1943 (L. 1943, ch. 418) and Monroe County in 1966 (L. 1966, ch. 74), briefly extended state-wide in 1968, retracted to the original three counties in 1970, and finally extended state-wide in 1985 (L. 1985, ch. 605). The repeated legislative attention reflected the policy goal of preventing tax-lien fragmentation through subdivision.

The home rule analysis runs through N.Y. Const., art. 9, § 2(c) and Municipal Home Rule Law § 10. Counties may enact local laws relating to local tax collection, but only consistent with state statutes (Mun. Home Rule Law § 10(1)(ii)(a)(9)). Local laws inconsistent with general state laws are invalid (Mun. Home Rule Law § 10(1)). Matter of Rab Co. v. Tompkins County Board of Assessment Review struck down a local law that altered the deadline for filing assessment complaints, on this principle.

The fee analysis tracks the broader rule that fees for government services require express statutory authority. Op. State Compt. No. 81-34 (county cannot charge implied fee for processing real property transfer reports), Op. Att'y Gen. (Inf.) No. 2003-4 (probation services), Op. Att'y Gen. (Inf.) No. 87-45 (pistol permits), and Op. Att'y Gen. (Inf.) No. 83-13 (certificates of residency under Education Law § 6305(3)) all reach the same conclusion in different settings.

Citations and references

Constitution:

• N.Y. Const., art. 9, § 2(c)

Statutes:

• C.P.L.R. Article 80; 8010, 8019, 8021 (county clerk and treasurer fees)
• Education Law § 6305(3)
• Municipal Home Rule Law § 10
• Real Property Law § 145, § 334, § 334-a, § 335
• Real Property Tax Law § 503(7), (8) (RPTS fee)
• Real Property Tax Law §§ 560, 902, 1312, 1422 (tax lien duration)
• L. 1985, ch. 605; L. 1944, ch. 182; L. 1938, ch. 649; L. 1936, ch. 662 (legislative history)

Cases:

• In re City of New York, 239 N.Y. 119 (1924)
• L.K. Land Corp. v. Gordon, 1 N.Y.2d 465 (1956), cert. denied sub nom. Greenfield v. L.K. Land Corp., 352 U.S. 989 (1957)
• Roose v. Hamilton, 161 Misc. 800 (Co. Ct. 1935), aff'd as modified 249 A.D. 852 (2d Dep't 1937), aff'd 276 N.Y. 678 (1938)
• Matter of Rab Co. v. Tompkins County Bd. of Assessment Review, 68 A.D.2d 374 (3d Dep't 1979)
• Sonmax, Inc. v. City of New York, 43 N.Y.2d 253 (1977)
• Roosevelt Raceway, Inc. v. Nassau County, 18 N.Y.2d 30 (1966)
• Town of Smithtown v. Howell, 31 N.Y.2d 365 (1972)

Prior AG and Comptroller opinions:

• Op. Att'y Gen. (Inf.) No. 96-25; No. 96-49; No. 92-55; No. 97-15; No. 2003-4; No. 87-45; No. 83-13
• Op. State Compt. No. 82-98; No. 81-268; No. 88-47; No. 81-204; No. 74-281; No. 53-6111; No. 75-612; No. 81-34; No. 82-120

Other authorities:

• Statutes § 96, § 145, 1 McKinney's Cons. Laws of N.Y. (1971)
• Bill Jackets for L. 1985, ch. 605; L. 1938, ch. 649; L. 1970, ch. 689
• 76 C.J.S. Records § 19 (1994)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/i_2004-3_pw.pdf

Original opinion text

N.Y. CONST., ART 9, § 2(c); C.P.L.R. ART. 9, ART. 80, 8010, 8019, 8021; EDUCATION LAW § 6305(3); MUNICIPAL HOME RULE LAW § 10; REAL PROPERTY LAW §§ 145, 334, 334-a, 335; REAL PROPERTY TAX LAW §§ 560, 902, 1312, 1422; STATUTES § 96; L. 1985, CH. 689; L. 1944, CH. 182; L. 1938, CH. 649; L. 1936, CH. 662.

The county treasurer should search as far back as practical to ascertain the existence of unpaid taxes and tax liens prior to issuing the tax payment certificate pursuant to Real Property Law § 334. A county may not adopt a local law requiring that the tax payment certificate be provided by an abstract and title company or a local law permitting the county treasurer to charge a fee for providing this certificate.

April 30, 2004

John V. Hartzell, Esq.
County Attorney
Jefferson County
County Office Building
175 Arsenal Street
Watertown, New York 13601

Informal Opinion
No. 2004-3

Dear Mr. Hartzell:

You have inquired as to how many years of tax records a county treasurer must search before she can provide, pursuant to Real Property Law § 334, a certificate that all taxes have been paid. Additionally, you have asked whether your county has the legal authority to adopt a local law requiring that this tax payment certificate be provided by an abstract and title company, or to adopt a local law permitting the county treasurer to charge a fee for providing the tax payment certification. We conclude that the statute does not limit the search to a specified number of years, but contemplates that the treasurer will conduct as diligent a search as reasonably practical to uncover delinquent taxes. We further conclude that your county lacks authority to enact the local laws you describe.

BACKGROUND

Real Property Law § 334 requires persons or corporations that subdivide real property for the purpose of offering the subdivided lots for sale to the public to file a map of the property, certified by the licensed land surveyor who completed the map, in the office of the clerk of the county where the property is situated. The owner of the subdivision or of the unsold lots is subject to a penalty of $25.00 for each lot sold or conveyed prior to the filing of the map. See Real Property Law § 334. The purpose of this filing requirement is "to make a public record of the map for the sake of definiteness and certainty." In re City of New York, 239 N.Y. 119, 129 (1924).

Real Property Law § 334 also requires that the owner file a certificate stating that all relevant taxes have been paid. It provides:

Every such map of subdivided land, whether intended as an original subdivision or as an alteration of a prior subdivision, shall have endorsed thereon or annexed thereto at the time such map is offered to be filed a certificate of the county treasurer or of an abstract and title company and a certificate of the tax collecting officer of any county, city, town or village wherein such property or any part thereof is situate, stating that all taxes levied and unpaid and in addition, all taxes which are a lien prior to the time such original or subsequent map is offered to be filed, whether assessed against the entire tract of land or against any lot or part of such land, have been paid, and a certificate of the county director of real property tax services that the fee authorized by section five hundred three of the real property tax law, if any, has been paid and the county clerk shall not file any such map without such endorsements or certificates.

(emphasis added). Thus, a subdivision owner may not sell lots without filing the map described in section 334, and the map may not be filed unless the county treasurer or an abstract and title company certifies that all levied and unpaid taxes and all tax liens have been paid.

The tax payment certificate requirement was added to section 334 in 1938, but at that time applied only to property in Erie County. See Act of April 11, 1938, ch. 649, § 1, 1938 N.Y. Laws 1711. The requirement was later expanded to apply to real property in Broome (by Chapter 418 of the Laws of 1943) and Monroe Counties (by Chapter 74 of the Laws of 1966). The reference to these specific counties was subsequently eliminated so that a tax payment certificate would be required for subdivision map filings throughout the State. See Act of July 28, 1985, ch. 605, § 1, 1985 McKinney's N.Y. Laws 1505, 1506; Act of March 19, 1968, ch. 57, § 1, 1968 McKinney's N.Y. Laws 141, 142.

According to its legislative history, the tax payment certificate requirement was intended to address problems that local governments had encountered in attempting to collect delinquent taxes when a parcel was subdivided or existing subdivision lines were changed. Subdividing a parcel or changing the subdivision boundaries frequently fragmented any existing tax liens among new parcels, making it difficult for the local government to determine the amount of real property taxes outstanding against each of the new lots and to collect them. The legislation sought to prevent alteration of property lines by the mere filing of a subdivision map when back taxes were owed against a parcel. See Bill Jacket for ch. 605 (1985), at 5, 7, 8 (comments on amendment to Real Property Law § 334 that extended tax payment certificate requirement state-wide); Bill Jacket for ch. 649 (1938), at 4, 8 (comments on amendment to Real Property Law § 334 adding tax payment certificate requirement for property in Erie County).

ANALYSIS

A. The Obligation to Search Tax Records Before Providing a Tax Payment Certificate

You have asked how many years of tax records a county treasurer must search before she can provide a subdivision owner with the certificate required by Real Property Law § 334, stating that all taxes and tax liens against the subject property have been paid.

Section 334 does not define the number of years of tax records that must be searched in order to issue such certification. We are not aware of any other statutory or regulatory provision that defines how far back a county treasurer must search before she can certify that a parcel of real property is not subject to any outstanding taxes or tax liens. Moreover, nothing in the legislative history of section 334 (or in the legislative history of other statutes that require a similar tax payment certificate for subdivision filings) indicates that the Legislature contemplated that the search would be limited to a specific time-frame.

By its terms, section 334 requires a tax payment certificate stating that all unpaid taxes and taxes that have become a lien have been paid. In this regard we note that unpaid real property taxes become a lien against the property pursuant to statute and such tax liens remain a lien "until paid." See Real Property Tax Law §§ 902 (taxes levied by county), 1312 (school district taxes), 1422 (village taxes). This language has been interpreted to mean that proceedings to enforce such statutory tax liens are not subject to a statute of limitations period. See L.K. Land Corp. v. Gordon, 1 N.Y.2d 465 (1956) (interpreting language in both New York City Charter and Administrative Code providing that tax liens remain in effect "until paid" to mean that no period of limitations bars enforcement of such liens), cert. denied sub nom., Greenfield v. L.K. Land Corp., 352 U.S. 989 (1957); Op. State Compt. No. 88-47; Op. State Compt. No. 81-204; Op. State Compt. No. 74-281; Op. State Compt. No. 53-6111. Thus, the county could seek to enforce any tax lien, no matter how old, revealed in connection with a request for a section 334 tax payment certificate.

On this basis, it could be argued that section 334 requires a county treasurer to search as far back as possible to find all potential unpaid taxes and outstanding tax liens. We recognize, however, that such a literal interpretation of the county treasurer's responsibilities under section 334 may be impractical. Searching older tax records is often a difficult and time-consuming process and it may be difficult to conduct a search that rules out the possibility of any pre-existing tax liens.

We do not believe that such an inflexible interpretation of the statute is necessary or accords with the statute's intended purpose. Under established rules of statutory construction, a statute must be interpreted in light of its intended purpose and a construction that leads to an absurd result is to be avoided. See Statutes § 96 & cmt., 1 McKinney's Cons. Laws of N.Y. at 209 (1971) ("Language of a statute is not to be accepted in all of its sheer literalness without regard to the object which the statute was designed to accomplish; and a statute is not to be read with a literalness that kills meaning, intention, purpose or beneficial end for which the statute was designed."); id. § 145, at 294 ("A construction which would make a statute absurd will be rejected.")

The requirement that a property owner obtain a tax payment certificate as a prerequisite to the filing of a subdivision map prevents the subdivision of a parcel or the alteration of existing subdivision lines when outstanding taxes are due against the property. As recognized in its legislative history, the creation of subdivision lots or the alteration of lot boundaries makes collection and enforcement of real property taxes more difficult. Thus, a primary purpose of the provision is to aid local governments in the enforcement of unpaid property taxes and tax liens.

Presumably, there is a point beyond which searching the county's tax records is not practical and is unlikely to result in the collection of significant additional tax revenues. Interpreted in light of its intended purpose and the practical constraints on searching for older tax liens, we believe the statute requires the treasurer to go as far back as reasonably practical to ascertain the existence of unpaid taxes and tax liens prior to issuing the tax payment certificate pursuant to Real Property Law § 334.

B. The County's Authority to Pass a Law Exempting the County Treasurer from the Duty to Issue Tax Payment Certificates

You have also asked whether a county is authorized to adopt a local law requiring that the tax payment certificate required by Real Property Law § 334 be provided by an abstract and title company, thus divesting map filers of the option of obtaining the certification from the county treasurer. For the reasons discussed below, we believe that such a local law relates to the collection of taxes and because it would be inconsistent with the requirements of section 334, is unauthorized.

While a municipality has broad power to enact local laws pursuant to the law of municipal home rule, see N.Y. Const. art. 9, § 2(c); Mun. Home Rule Law § 10, such power is not unbounded. One limitation is that the municipality may not enact legislation inconsistent with the Constitution or any general law. N.Y. Const. art. 9, § 2(c); Mun. Home Rule Law § 10(1). Additionally, while a county is specifically authorized to enact local laws relating to the collection of local taxes authorized by the State Legislature, such laws "shall be consistent with laws enacted by the legislature." N.Y. Const. art. 9, § 2(c)(ii)(8); Municipal Home Rule § 10(1)(ii)(a)(9); see Matter of Rab Co. v. Tompkins County Bd. of Assessment Review, 68 A.D.2d 374, 375 (3d Dep't 1979). This restriction recognizes that taxation is a State function in which local governments have limited delegated powers. See Sonmax, Inc. v. City of New York, 43 N.Y.2d 253, 257 (1977); Roosevelt Raceway, Inc. v. Nassau County, 18 N.Y.2d 30, 37 (1966).

Although the general subject matter of Real Property Law § 334 is the recording of subdivision maps and not the collection of local taxes, the legislative history of the tax payment certificate requirement suggests that this specific provision was enacted as a local tax collection measure. As noted, the provision was originally enacted, and subsequently expanded to all counties, for the purpose of assisting local governments in the collection of real property taxes. The tax payment certificate requirement was originally added to section 334 to address specific problems Erie County was encountering in collecting delinquent taxes on subdivided parcels. See Bill Jacket for ch. 649 (1938), at 4, 8. The tax collection purpose of the provision was reaffirmed when the requirement was extended state-wide. See Division of Budget Recommendation on Bill (July 5, 1985), at 1-2, reprinted in Bill Jacket for ch. 605 (1985), at 8; Letter from Charles D. Cook, Senate Sponsor of the Bill (June 28, 1985), at 1, reprinted in Bill Jacket for ch. 605 (1985), at 7; see also Letter from Office for Local Government (Apr. 28, 1970), at 2, reprinted in Bill Jacket for ch. 689 (1970), at 9. Consequently, a local law that attempts to vary the criteria of the tax payment certificate required by Real Property Law § 334 would likewise be considered a law relating to the collection of local taxes, requiring consistency with both general and special state laws. See Op. State Compt. No. 82-98 (concluding that local law creating tax payment certificate requirement for subdivision map filings was related to collection of local taxes and impermissible because it was inconsistent with Real Property Law § 334, which at that time did not require certificate for filings in that county).

By eliminating the option of obtaining the requisite certification from the county treasurer, a local law requiring that a subdivision owner obtain the required tax payment certificate from an abstract and title company would be plainly inconsistent with Real Property Law § 334. See, e.g., Matter of Rab Co. v. Tompkins Co. Bd. of Assessment Review, 68 A.D.2d at 375; Op. State Compt. No. 81-268. Notably, the original bill amending section 334 to add a tax payment certificate requirement for property in Erie County was vetoed by the Governor in 1937 because it limited property owners to obtaining a certificate only from an abstract and title company. See Senate Bill Int. No. 717, Assembly Bill Int. No. 1063 (Feb. 15, 1937); Memorandum of Governor's Counsel in Support (Apr. 8, 1938), reprinted in Bill Jacket for ch. 649 (1938), at 8. In the following year, legislation permitting property owners to obtain the requisite certificate from either the county treasurer or an abstract and title company was signed into law. See Act of April 11, 1938, ch. 649, § 1, 1938 N.Y. Laws 1711.

Accordingly, we conclude that the county may not enact a local law requiring that the tax payment certificate required by Real Property Law § 334 be furnished by an abstract and title company. Such a local law would be inconsistent with a legislative enactment relating to the collection of local taxes by a county and thus would be prohibited under Municipal Home Rule Law § 10(1)(ii)(a)(9).

C. Imposing a Fee for the County Treasurer's Certificate of Tax Payment

Real Property Law § 334 does not impose a fee in connection with the issuance of the required tax payment certificate or specifically authorize such a fee. Nor are we aware of any other State statute that expressly permits the county treasurer to charge a fee for conducting a tax search or issuing a tax payment certificate. Cf. C.P.L.R. 8010. You have asked whether the county may adopt a local law permitting the county treasurer to charge a fee for providing a tax payment certification.

As discussed, see supra Part B, a local law relating to the tax payment certificate of Real Property Law § 334 must be consistent with that provision because it concerns the collection of local taxes. Thus, the issue is whether a local law establishing a fee for the treasurer's tax payment certificate conflicts with Real Property Law § 334. Although this matter is not free from doubt, on balance we believe that such a local law is inconsistent with the State law and is therefore unauthorized.

We find it significant that the certification is a condition precedent to filing a subdivision map with the county clerk and that this requirement was made part of the filing statute. Fees for real property filings, including the filing and indexing of maps, are set forth in State law. See C.P.L.R. 8019; C.P.L.R. 8021(a). Because the issuance of a certificate is a condition precedent to filing the subdivision map, imposition of a fee for the issuance of a certificate to be filed with a subdivision map would, in practice, constitute an additional fee incurred as part of the map filing process.

Given that State law already provides for a map filing fee, and that section 334 does not authorize an additional local fee for the county treasurer's tax search and certification, we believe it is appropriate to infer that the Legislature did not intend for an additional municipal fee to be charged. See Op. Att'y Gen. (Inf.) No. 96-25; see also 76 C.J.S. Records § 19 (1994); cf. Real Property Tax Law § 503(7), (8). Indeed, the Comptroller has opined that in the absence of express authority for a local fee, the municipality must have implied authority to impose a fee; this implied authority is narrowly construed: the fee must be necessary to effect an expressly granted power or be indispensable to the functioning of the municipal government. See Op. State Compt. No. 81-34.

Moreover, we have previously indicated that real property filings and recordings implicate state concerns and as such do not generally appear to be within the scope of home rule authority of local governments. See Op. Att'y Gen. (Inf.) No. 96-49; Op. Att'y Gen. (Inf.) No. 92-55; see also Op. Att'y Gen. (Inf.) No. 97-15. In other areas of state concern, we have concluded that a local law establishing a fee for the required local government service would be unauthorized. See Op. Att'y Gen. (Inf.) No. 2003-4; Op. Att'y Gen. (Inf.) No. 87-45; Op. Att'y Gen. (Inf.) No. 83-13.

Accordingly, we conclude that a local law imposing a fee for the issuance of a tax payment certificate would be inconsistent with section 334, and is therefore unauthorized.

The Attorney General issues formal opinions only to officers and departments of State government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

LAURA ETLINGER
Assistant Solicitor General
In Charge of Opinions

By:_________
FRANK BRADY
Assistant Solicitor General