The opinion
John N. Fath, Esq. Deputy Town Attorney, Town of Brookhaven Patchogue
This is in response to your letter of July 26, 1979, asking whether the Town of Brookhaven, pursuant to the State Town Law and chapter 73 of the Brookhaven Town Code, when it becomes aware of an unsafe, abandoned structure such as a burned out residence, can enter onto the property to board it up, secure it or level it without a court order or without the permission of the owner, utilizing Town funds.
To begin with, I presume you are not using the phrase "abandoned" in its legal meaning since, generally, the doctrine of abandonment is not applicable to real property ( Matter of City of New York (Realty Associates), 256 N.Y. 217 [1931]), and whether or not a property is "abandoned" presents complicated questions of intention and interpretation ( Foulke v New York Consolidated R.R. Co., 228 N.Y. 269
[1920]).
Chapter 73 of the Brookhaven Town Code follows closely section 130 (16) of the State Town Law, and requires notice and a court order before the Town could repair or remove an unsafe structure. Accordingly, I am of the opinion that the Town could not level, remove or repair the structure without a court order, or permission of the owner.
However, while there is no express statutory authority in the Town Law with regard to securing an unsafe structure such as exists in the General City Law, it is my further opinion that under the Town's general power to preserve and care for the safety, health and general welfare of its citizenry, and express power to protect property exposed to destruction by fire, and for such other purpose as shall tend to provide for the general safety of persons or property within the Town (Town Law, § 130 [5]), that the Town could, without court order or permission of the owner, where it determines that a property is an unsafe structure presenting an immediate hazard to the health and safety of its citizenry, enter onto a property to board it up or secure it.
Expenditures for such boarding up or securing can properly be made from the Town contingency fund, since a town like a City, can generally spend money for any public purpose in an emergency situation.
The Town should thereafter, as soon as practicable, proceed under the Town Code to effect notice to the owner and follow its statutory procedure pursuant to its unsafe structures law. Thereupon, the expenses of securing the property may be assessed against the land in accordance with the statute.