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Volume 2 - Opinions of Counsel SBEA No. 94

Opinions of Counsel index

Real property, definition of (car washing machinery) - Real Property Tax Law, § 102:

Car washing machinery installed in a building specially constructed for use as a car wash demonstrates an intention of permanent affixation as well as adaptation of the property to a specific use. The machinery, therefore, is real property for taxation purposes.

Our opinion has been requested as to whether car washing machinery is real property for taxation purposes.

Subdivision 12(b) of section 102 of the Real Property Tax Law makes “articles . . . erected upon, under or above the land, or affixed thereto” real property for taxation purposes. Cases construing the meaning of this language clearly establish that this provision does not make articles real property for taxation purposes merely because they are “affixed” to land or a building (People ex rel. National Starch Mfg. Co. v. Waldron, 26 App. Div. 527, 50 N.Y.S. 523; People ex rel. New York Edison Co. v. Wells, 135 App. Div. 644, 119 N.Y.S. 1057, aff’d 198 N.Y. 607, 92 N.E. 1097; People ex rel. Federal Telephone and Telegraph Co. v. Longwell, 131 N.Y.S. 361). However, these cases set forth the criteria for determining when an “article” is real property. An article is real property only if it is: (1) actually annexed to the realty or something appurtenant thereto, (2) adapted to the use or purpose to which that part of the realty with which it is connected is appropriated, and (3) the party installing it intended to make a permanent accession to the freehold. In all of the cases cited, the court found that machinery being used in connection with the business being conducted on the premises, which was removable without injuring either the article or the building, had been installed with a permanent intent and therefore was real property.

          A car wash installation has been described as being composed of a water tank or tanks, a water pump with a heating unit and a swinging arm with attached hosing which forms the washing apparatus itself, a coin operated metering unit and miscellaneous lighting and drainage equipment, which is housed in a building designed to contain the machinery. Where the buildings were specially constructed for use as a car wash, an intention of permanent affixation at the time of construction is demonstrated as well as an adaptation of the property to that specific use. Accordingly, it is our opinion that the building, boiler, water and drainage pipes and other appurtenant articles which are permanently affixed, satisfy the criteria and therefore constitute real property for assessment purposes. On the other hand, equipment which is normally removable, such as spray nozzles or rubber hosing would not constitute real property.

February 7, 1973