Opinion 91-62


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


REAL PROPERTY -- Gifts (from village to school district public library) -- Conveyance (with reservation of right to use)
CONSTITUTIONAL LAW -- Gifts and Loans (gift of property from village to public library)

VILLAGE LAW, §1-102; MUNICIPAL HOME RULE LAW, §10(1)(i): A village, by local law, may transfer a building to a school district public library without consideration, subject to the village reserving to itself the right to use a portion of the building and planned improvements thereto for village purposes.

You ask whether a village, by local law, may transfer a building to a school district public library without consideration, subject to the village reserving to itself the right to use a portion of the building and planned improvements thereto for village purposes. You state that the village is wholly contained within the school district and that the school district public library serves village residents.

Village Law, §1-102(1) authorizes villages to sell and convey real property "as the purposes of the corporation may require". Section 1-102 does not expressly state that only property which is no longer needed for village purposes may be conveyed (cf. County Law, §215[4]). This Office has consistently expressed the opinion, however, that village property, having been acquired and used for village purposes, may not be conveyed unless the village board has first determined that the property is no longer needed for village purposes (see, e.g., 1988 Opns St Comp No. 88-1, p 1). Further, a conveyance of unneeded village real property may not be made in the form of a gift or loan in violation of article VIII, §1 of the State Constitution. Article VIII, §1 prohibits municipalities from making gifts or loans of their property to or in aid of any individual or private corporation, association or undertaking. Article VIII, §1 does not, however, prohibit gifts or loans to or in aid of public entities for public purposes (see, e.g., Comereski v City of Elmira, 308 NY 248). Therefore, since there is no constitutional bar to a village making a gift of unneeded real property to a school district public library, the village may make such a gift if it is authorized by state statute or may be authorized by local law.

General Municipal Law, §72-h authorizes municipal corporations and fire districts to convey unneeded real property, with or without consideration, to another municipal corporation, fire district, school district or BOCES. Since a school district public library is authorized to take and hold real property in its own name, separate and apart for the sponsoring school district (Education Law, §226[5],[6]), it is our opinion that section 72-h does not authorize the conveyance without consideration of village property to a school district public library (cf. 1981 Opns St Comp No. 81-81, p 82, concerning the conveyance, without consideration, of real property by a school district to a school district public library; 1982 Opns St Comp No. 82-305, p 389, concerning conveyance by a town to a village for library purposes). Further, although Education Law, §256 provides authority for a village to grant moneys for the support of the cost of maintaining or the cost of any capital improvements to or expenditures for a school district public library, it does not authorize gifts of real property (cf. 1983 Opns St Comp No. 83-117, p 146).

Although there is no state statute which authorizes a gift of real property from a village to a school district public library, local governments are authorized to adopt local laws, not inconsistent with the Constitution or any general law, relating to their property, affairs or government (Municipal Home Rule Law, §10[1][i]). This Office has expressed the opinion that, pursuant to this authorization, a local government, by local law, may authorize a gift to another public entity in furtherance of a public purpose of the donor local government (see, e.g., 1990 Opns St Comp No. 90-1, p 1; 1982 Opns St Comp No. 82-342, p 434). The provision of library service to its residents clearly is a proper village purpose (see Education Law, §§255, 256, 259). Therefore, it is our opinion that a village, by local law, may authorize a gift of unneeded village real property to a school district public library if the village board determines that the gift will further that purpose.

In this instance, we understand that the local law authorizing the gift of real property to the public library will require that the conveyance be made subject to the rights of the village to retain use of the portion of the property needed for village purposes. Under these circumstances, we believe that there is a proper basis for the village board to determine that fee simple title to the property is not needed for village purposes (cf. 1982 Opns St Comp No. 82-341, p 432) and that a gift of the property, subject to a reservation of rights of the village to use a portion of the improved property, is in furtherance of a proper village purpose.

January 15, 1992
Robert J. Dickover, Esq., Village Attorney
Village of Greenwood Lake