Can a New York city pass a local law refusing to issue building permits, certificates of occupancy, or other property-related licenses to owners who are delinquent on real property taxes?

Subject

Whether a New York city may enact a local law conditioning the issuance of any license or permit affecting real property, including a certificate of occupancy, on the property owner being current on all real property taxes for the parcel.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-45_pw.pdf

Plain-English summary

Newburgh's corporation counsel wanted to know if the city could use its permit and certificate-of-occupancy approvals as leverage against property owners who were delinquent on real property taxes. The idea would have been simple: no permit unless taxes are current. He pointed to Executive Law § 379, part of the State's Uniform Fire Prevention and Building Code Act, as possible authority for such a local law.

The AG said no, on several intersecting grounds. Executive Law § 379(1) authorizes local laws imposing higher or more restrictive construction standards than the Uniform Code, but only when those higher standards are reasonably necessary because of local conditions and only when they conform to accepted engineering and fire-prevention practices and the general purposes of the Uniform Code. A tax-payment precondition is not a construction standard; it has nothing to do with the safety and durability of buildings. So § 379 does not authorize it.

The AG then addressed the broader question. A city may attach conditions to its land-use approvals (under the General City Law's subdivision and site-plan authority, § 32 et seq.), but the conditions must be reasonable and "related only to the proposed use of the property." Conditioning a building permit on tax payments would not relate to the use; it would be an unrelated collection mechanism. The AG also pointed to the existence of a fully developed State scheme for collecting delinquent real property taxes (Real Property Tax Law, Article 11, Title 3), which includes lien procedures, in rem tax foreclosure, and tax sales. That scheme is the State Legislature's chosen mechanism, and a parallel local pressure tactic was not within the city's authority.

Currency note

This opinion was issued in 1996. 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

What is the Uniform Fire Prevention and Building Code?
The Uniform Code, established under Executive Law Article 18 (§§ 370 et seq.), sets statewide minimum construction standards covering structural integrity, fire safety, energy efficiency, and accessibility. Local governments administer it within their jurisdictions. Section 377(2)(a) directs the Code Council to promulgate rules and standards "consistent with accepted engineering and fire prevention practices." Section 379 then lets a local government adopt higher or more restrictive standards if the State's Code Council, on review, finds them justified by local conditions.

Why doesn't § 379 reach tax-payment conditions?
Because § 379 is structurally about the substantive content of building standards, that is, the construction methods, materials, and safety features the local code requires. A condition that has nothing to do with how a building is built or maintained is not a "construction standard." It is a separate, unrelated requirement, and § 379 does not authorize unrelated requirements.

Can a city ever attach a condition to a permit related to taxes?
Generally no. Permit conditions must reasonably relate to the project. A site-plan approval, for example, can condition build-out on installation of stormwater controls or sidewalk improvements, because those relate to land use. A condition that requires the owner to settle a tax delinquency unrelated to the construction project crosses the line.

What if the city is going to collect the tax through the property anyway?
That is the point of Real Property Tax Law Article 11. The State has built a comprehensive system: the city or county tax collector serves notices, lists the parcel on a delinquent tax roll, may eventually foreclose under Article 11, Title 3, and can sell the property at a tax sale. The proceeds go to the unpaid taxes. The Legislature did not also authorize cities to use the permit system as a parallel collection tool.

Could a municipality argue this is a "home rule" issue?
The opinion does not address home rule expressly, but the AG's reasoning forecloses it. Even where home rule permits a city to legislate on a subject, the legislation must be consistent with State law. Here the State has occupied the field of real property tax collection through Article 11, and has limited the basis for restrictive building-code standards through Executive Law § 379. A local permit-tax-linkage scheme would conflict with both.

Background and statutory framework

The Uniform Fire Prevention and Building Code (Executive Law Article 18) was enacted in 1981 to replace a patchwork of inconsistent local codes with a statewide minimum. Section 377 lays out the purposes of the Code, including uniformity, professional engineering and fire-prevention practice, and adequacy to protect life and property. Section 379(1) authorizes localities to adopt higher standards; § 379(2) requires the Code Council to review proposed higher standards and adopt them in whole or in part on a finding that they are reasonably necessary because of special local conditions and consistent with accepted practice and the general purposes of the Code.

The General City Law's subdivision and site-plan provisions (§§ 32 et seq.) are the principal land-use authority for cities outside of New York City. Cities may approve, condition, or deny subdivision and site plans, but the conditions must reasonably relate to the project's use and impact.

Real Property Tax Law Article 11, Title 3 sets out the in rem tax foreclosure procedure, which is the State's main mechanism for collecting on delinquent real property taxes. After a statutory delinquency period, the enforcement officer can list the parcel for foreclosure, give notice to the owners and lienholders, conduct a hearing, and ultimately transfer the property to the taxing jurisdiction or sell it. The procedure is detailed and procedurally protected, balancing collection with due-process protections for owners.

Citations

• Executive Law § 377(2)(a) (purposes of the Uniform Code)
• Executive Law § 379 (local laws imposing higher construction standards)
• General City Law §§ 32 et seq. (subdivision approvals)
• Real Property Tax Law, Article 11, Title 3 (in rem tax foreclosure)
• 1984 Op Atty Gen (Inf) No. 84-6 (permit conditions must relate to use of property)

Original opinion text

EXECUTIVE LAW §§ 377(2)(a), 379; GENERAL CITY LAW §§ 32, et seq.;
REAL PROPERTY TAX LAW, ART 11, TITLE 3.
A municipality is not authorized to condition the issuance of permits or licenses affecting real property
upon the payment of delinquent real property taxes.
December 31, 1996

William F. Ketcham, Esq.
Corporation Counsel
City of Newburgh
City Hall
83 Broadway
Newburgh, NY 12550

Informal Opinion
No. 96-45

Dear Mr. Ketcham:
You have asked whether a city may enact local legislation requiring that a property owner be current in
the payment of all real property tax bills as a condition of issuance by the city of any license or permit
affecting such property, including certificates of occupancy. Specifically, you inquire whether section
379 of the Executive Law, which is part of the New York State Uniform Fire Prevention and Building
Code Act, provides authority for such local legislation.
We do not believe that section 379(1) of the Executive Law authorizes the proposed local legislation.
That provision authorizes the legislative body of any local government to enact local laws or ordinances
imposing higher or more restrictive standards for construction within the jurisdiction of that local
government than are applicable under the Uniform Code. If the State Fire Prevention and Building Code
Council finds that the higher or more restrictive standards are reasonably necessary because of special
conditions prevailing in that jurisdiction and that the standards conform with accepted engineering and
fire prevention practices and with the general purposes served by the Uniform Code, the Council must
adopt these standards in whole or in part. Executive Law § 379(2).
It seems clear that the Legislature has authorized locally enacted higher or more restrictive construction
standards than those provided in the Uniform Code that are reasonably necessary because of local
conditions and which promote the purposes served by the Uniform Code. Generally, the purpose of the
Uniform Code is to provide uniform standards and requirements for construction and construction
materials, consistent with accepted standards of engineering and fire prevention. Id., § 377(2)(a).
Therefore, it is our view that section 379 of the Executive Law does not authorize a municipality to
condition the issuance of a certificate of occupancy upon the payment of outstanding real property tax
bills. That condition is unrelated to construction standards and the purpose of the Uniform Code.
Nor, in our view, may the city condition the issuance of other licenses or permits affecting real property
upon the payment of such tax bills. While a municipality, for example, through its subdivision and site
plan regulations may attach conditions to the development of property, the conditions imposed must be
reasonable and related only to the proposed use of the property. Op Atty Gen (Inf) No. 84-6. See, for
example, sections 32, et seq., of the General City Law relating to approval of subdivisions.
There is an established procedure for the collection of delinquent real property taxes. Real Property Tax
Law, Art 11, Title 3. That procedure may result in the sale of the affected property by the municipality
in order to collect the taxes owed. The statute provides no authority to condition the issuance of licenses
or permits affecting the real property upon the payment of delinquent taxes.
We conclude that a municipality is not authorized to condition the issuance of permits or licenses
affecting real property upon the payment of delinquent real property taxes.
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