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STATE BOARD OF EQUALIZATION ~4 F---- ----a

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STATE BOARD OF EQUALIZATION ~4 F---- ----a
~4
F---- ----a
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STATE OF CALIFORNIA
STATE BOARD OF EQUALIZATION
GEORGE R. REILLY
First District, San Francisco
c
BOX 1799,
SACRAMENTO,
CALIFORNIA
IRIS SANKEY
Second District, San Diego
95808)
WILLIAM M. BENNETT
Third District, San Rafael
See LTA 79/66
RICHARD NEVINS
Fourth District, Pasadena
December 8, 1978
KENNETH CGRY
Controller, Sacramento
DOUGLAS D. BELL
Executive Secrefary
.
No. 78/213
TO COUNTYASSESSORS:
ATTORNEYGENERAL'S OPINION ON THE ASSESSOR'S RIGHT
OF TRESPASSON PRIVATE PROPERTYFOR ASSESSMENTPURPOSES
For your information,
attached is Attorney General's Opinion No. CV
78/67, dated November 28, 1978, concerning the assessor's right of trespass on private property.
The opinion was given in response to a
request by Mendocino County Assessor Elect, Duane K. Wells.
The
issues are straightforward,
and the conclusions
do not conflict
with
any established
Board policy.
Sincerely,
Verne Walton, Chief
Assessment Standards
VN:ce
Enclosure
Division
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OFFICE OF THE ATTORNEY GENERAL
State
.
of California
EVELLE J. YOUNGER
General
Attorney
.
:
:
:
:
:
OPINION
of
No. CV 78/67
:
:
NOVEMBER
28, 1978
EVELLE J. YOUNGER
:
General
.
. Attorney
:
RODNEYLILYQUIST, JR.
:
Deputy Attorney
General
:
------------------------------------------------------THE HONORABLEJOHN A. DRUMMOND,COUNTYCOUNSEL OF
TEE COUNTYOF HENDOCINO, has requested an opinion on the
following
questions:
1.
assess
property
By what statutory
means may a county assessor
if the owner refuses to allow entry upon the
property?
inspection
against
if
May a county assessor obtain an administrative
warrant in order to assess property?
2.
property
3. May a county assessor enter private
the will of the owner in order to assess property?
4.
he enters
Does a county
private
property
The conclusions
assessor commit criminal
trespass
against the will of the owner?
are:
several statutory
1. A county assessor may exercise
rights
of discovery
in order to appraise and assess property
when an owner refuses to allow entry upon the property.
A county assessor may not obtain
warrant in order to assess property
2.
inspection
3.
A county
assessor
may not
enter
an administrative
private
property
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against
if
the will
. 4.
he entered
and refused
of the owner in order
to assess property.
.
A county
private
to leave
assessor would commit criminal
trespass
property
against the will of the owner
at the request of the owner.
ANALYSIS
.
The basic functions
of county assessors are to
and to assess all taxable property
in their
respective
(Rev. & Tax. Code, §§ 405, 405.5; l/
counties;
Domenghini
v. County of San Luis Obisoo (1974) 40 Cal.App.3d
689 '94695,)
The questions
presxed
for analysis
concern tie'
possible ways in which a county assessor may perform his
statutory
duties when an owner of property
refuses to allow
the assessor to enter upon the property.
appraise
statutory
proceinformation
Ke conclude that an assessor has several
regarding
property.
rights
of discovery
for the appraisal
and assessment of
property
when an owner refuses entry upon the property.
dures
The first
question deals with the
by which a county assessor may obtain
Section,441
states
in part:
' "Every person owning taxable personal property
having an aggregate cost of thirty
thousand dollars
($30,000) or more shall file
a signed property
statement with the assessor.
Everv person owninq personal
property
which does not require
the filing
of-a property
statement or real nroperty
shall upon request of the
assessor file
a signed property
statement.
. . ."
(Emphasis added.)
A formal property
statement must be declared
to be
under penalty of perjury
(S 441, subd. (a)) and must
describe all taxable property
owned (SS 442, 445).
If the
statement is filed
late without
reasonable
cause, a penalty
of 10 percent of the assessed value of the property
is added
to the assessment.
I§ 463.1
true
In addition
to the statutorily
defined property
statement,
an assessor may request any other information
or
records regarding
property.
(5s 441, subd. (d), 442, 470.1
If the person refuses to respond, the assessor may obtain
a court order requiring
the person to answer concerning
his
refer
1. All unidentified
section
to the Revenue and Taxation
references
Code.
hereinafter
2.
CV 78/67
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If
1s 468.1
property.
is dissatisfied
with the
the person under oath.
respond to an assessor's
willfully
responds in a
(s5 461, 462.)
the persol responds but the assessor
response,
he may subpena and examine
*
(S 454.)
A person who fails
to
request for information
or who
false manner is guilty
of a misdemeanor.
when a person
As to the assessment of property
fails
to furnish
requested
information,
"the assessor,
based
upon information
in his possession,
shall estimate
the value
of the property
and, based upon this estimate,
promptly
assess the property.n
If an underassessment
results
(5 501.1
due to a willful
failure
to disclose
information
or due to a
false disclosure,
a penalty of 25 percent of the additional
assessed value must be added to the assessment.
(SS 502504.)
.
The statutory
scheme for the assessment of property
provides criminal
sanctions
and monetary penalties
for
an owner of property
who prevents
an assessor from performing
his duties.
A county assessor may estimate
the value of the
property
when an owner refuses to supply requested
information.
. thus
The conclusion
to the first
question,
therefore,
is that an assessor may exercise
several statutory
rights
of
discovery
in order to ascertain
the value of property
when
an owner refuses
to allow entry upon the property.
The second question
concerns whether a county
assessor may obtain an administrative
inspection
warrant in
order to appraise
and to assess property,
,We conclude that
he may not.
The issuance of an administrative
inspection
warrant
is governed by the provisions
of Code of Civil
Procedure
sections
1822.50-1822.57.
such warrants may be
Normally,
obtained by a building,
fire,
safety,
plumbing,
electrical,
health,
or zoning inspector
to ascertain
whether particular
premises violate
specific
legislative
or administrative
standards.
(See Code Civ, Proc.I
55 1822.50, 1822.52, 1822.56.)
The procedure
is essentially
adversary
in nature and may
result
in criminal
sanctions
if the condition
of the premises
does not comply with state or local
laws or regulations.
(See Currier
v. City of Pasadena (1975) 48 Cal.App.3d
810,
814; Tellis
v. Municipal
Court (1970) 5 Cal.App.3d
455, 458.)
. .---__ -2.
Should
subsequent
suit
the
for
establish
the true
County of San Luis
owner seek to reduce the assessment in a
refund,
the burden would be upon him to
value of the property.
(Domenqhini v,
Obispo, supra, 40 Cal.App.jd
669, 697.)
2-/
.
Warrants are necessary in such circumstances
because
c l except in certain
carefully
defined classes of cases, a
search of private
property
without
proper consent is 'unreaunless it has been authorized
by a valid
search
sonable'
Municiual
Court
(1967)
387
U.S.
523,
(Camara v.
warrant."
528-529; accord, Xarshall
v. Barlow's,
Inc.
(May 23, 1978)
.
46 U.S.L.Week 4483, 4484.)
concerned
As distingushed
from public officials
violations
of law, a county assessor performs functions
(Domcnghini
v.
not adversary."
are "inquisitorial
County of San Luis Obispo, supra, 40 Cal.App.3d
689, 695.)
He does not inspect property
to see if its condition
meets
(See
Skidmore
v.
County
of
Amador
(1936)
specific
standards.
(1890) 85 Cal. 196, 200.)
7 Cal.2d 37, 39; Weyse v. Crawford
and assessment statutes
under which he performs
The appraisal
his duties do not relate
to the subject matter of an administrative
inspection
warrant (Code Civ. Proc.,
5 1822.50),
and
(Code Civ.
the grounds for the issuance of such a warrant
Proc.,
S 1822.52) are not present.
In light
of the legislative scheme contained
in the Revenue and Taxation
Code for
the discovery
of information
by county assessors,
issuance
of administrative
inspection
warrants
to them is not required
for the performance
of their statutory
responsibilities.
with
that
The conclusion
to the second question,
therefore,
that a county assessor may not obtain an administrative
inspection
warrant in order to assess property.
is
The third question
concerns whether a county assessor
may enter private
property
without
a warrant and against the
will of the owner.
We conclude that he may not.
the Legislature
has provided
As previously
explained,
numerous ways in which a county assessor may obtain needed
information
regarding
property
when an owner refuses to
allow entry to his property.
Criminal
prosecution
and monetary penalties
are available
to insure that an assessor may
perform
his duties.
The statutory
scheme makes no provision
for an
to enter private
property
against
the will of the
owner.
Possible physical
confrontations
between an assessor
and an owner are thus avoided,
yet the assessor is able to
perform his assessment responsibilities.
In contradistinction
to
the situations
justifying
the use of administrative
inspection warrants,
the entry upon private
property
by a county
assessor against the will of the owner is not required
to
assess the property.
assessor
The conclusion
to the
4.
third
question,
therefore,
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is that
against
a county
the will
assessor may not enter private
property
of the owner in order to assess the property.
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The fourth question
concerns whether a county
assessor commits criminal
trespass when he enters private
property
against the will of the owner.
We conclude that in
criminal
trespass
would
be
committed
if the assessor
general,
were to refuse the request of the owner to leave the property.
Penal Code section
602 defines criminal
trespass
various conditions
and circumstances.
Among its numerous
subdivisions,
the most likely
to be applicable
for county
assessors
assessing property
is subdivision
(n), which by
recent amendment defines
criminal
trespass
as follows:
under
'Refusing
or failing
to leave land, real property,
or structures
belonging
to or lawfully
occupied by
another
and not open to the general public,
upon being
‘requested
to leave by o e . the owner, his agent, or
possession
thereof.
. . ." 3J
the person in lawful
Under subdivision
(n), a cdunty assessor would be
subject
to prosecution
if he refused to leave the property
after
being requested
to do so by the owner.
question
trespass
of the
request
to the fourth
In general,
then, the conclusion
is that a county assessor would commit criminal
by his entry upon private
property
against the will
owner and his refusal
to leave the property
at the
of the owner. 4-/
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3. The legislation
amending subdivision
(n) was passed
on August 31, 1978, effective
January 1, 1979: prior
law
required
the person
both the owner and a peace officer
leave the property.
to request
that
.
In certain
4,
driving
of a vehicle
may be in violation
limited
circumstances
upon a private
road,
of Penal Code section
5.
-
involving
the
a county assessor
602, subdivision
[m).
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