Alabama Attorney General Opinion 1979-0176

OFFICE OF THE ATTORNEY opi GENERAL rnc \41f CHARLES A. GRADDICK ATTORNEY GENERAL STATE OF ALABAMA LEE L. HALE DEPUTY ATTORNEY GENERAL WILLIAM M. BEKURS. JR. EXECUTIVE ASSISTANT WALTER S. TURNER CHIEF ASSISTANT ATTORNEY GENERAL JANIE NOBLES ADMINISTRATIVE ASSISTANT APR 26 10Th ADMINISTRATIVE BUILDING 44 NORTH UNION STREET MONTGOMERY. ALABAMA 34130 (205) 832-5640 HERBERT I. BURSON, JR. B. FRANK LOEB PHILIP C. DAVIS RON BOWDEN JOHN J. BRECKENRIDGE WILLIAM L. THOMPSON Assistant Attorneys General Revenue Department Dorothy S. Carmichael Tax Assessor-Elect Colbert County Colbert County Courthouse Tuscumbia, AL 35674 Tax Assessor, Ad Valorem, Curtilage What constitutes curtilage is usually a mixed question of law and fact and cannot be stated as a definite number of acres. Generally curtilage is the space necessary and con- venient and habitually used for family purposes and the carrying on of domestic employments. It may include the garden, if there be one, and need not be separated from other lands by a fence. It would be com- parable to the lot surrounding an ordinary suburban home. It is the responsibility of the tax assessor to determine what is a proper curtilage in connection with the principal residence when the exemption under Section 40-9-21 is claimed. Dear Mrs. Carmichael: In your letter of March 26, 1979 addressed to this office, you ask for an opinion respecting the amount of acreage which can be treated as exempt as curtilage of the principal residence under Act 48, Acts of Alabama 1978, Second Extra Session, p. 1734, Code of Alabama 1975, Section 40-9-21. You state that you understand that the tax officials of Franklin County are of the opinion that the curtilage is 160 acres, of Lauderdale County that it is 5 acres, and of the Department of Revenue that it is 3 acres. Curtilage is defined in Webster's New International Dictionary, Second Edition, Unabridged, as "a yard, courtyard or piece of ground included within the fence surrounding a dwelling house". -2- In the annotations to the case of State of North Carolina v. Lillie Mae Frizzelle, 243 NC 49, 89 SE 2d 725, 52 ALR 2d 1455, the editors of the American Law Reports observed: "What constitutes the curtilage is usually a mixed question of law and fact. However where the facts are not in dispute, certain buildings or areas have been held as a matter of law to constitute a part of the curtilage, . . ." There are a number of Alabama cases cited in the annotation just referred to, as well as in Words and Phrases, Permanent Edition, Volume 10A, beginning on page 477. Curtilage is the space necessary and convenient and habitually used for family purposes in the carrying on of domestic employments. DeMouv v. Jepson, 51 So.2d 506, at 510, 255 Ala. 337. The "curtilage" usually includes the yard, garden, or field which is near to and used in connection with a dwelling regardless of whether it is enclosed. Dennis v. State, 111 So.2d 21, 24, 40 Ala. Appls. 182. Obviously curtilage is not a definite number of acres but constitutes the yard or grounds associated with a dwelling house. Accordingly the extent, or acreage, which is appropriately included with the principal residence as curtilage will vary depending upon circumstances. It is the duty of the tax assessor to ascertain what portion of the lands involved are appropriately included as curtilage when the exemption under Code of Alabama 1975, Section 40-9-21 is claimed. Curtilage may be compared to the lot around an ordinary suburban home and when an area greater than that extent is claimed, it would be appropriate for the tax assessor to require the taxpayer claiming the exemption to demonstrate that the claimed curtilage, in fact, constitutes grounds surrounding the home which are used for domestic purposes. As a general rule of thumb, it might be stated that it would be extremely unusual for curtilage to exceed three acres. I trust that the foregoing answers your question. Sincerely, CHARLES A. GRADDICK Attorney General By- PHILIP C. DAVIS Assistant Attorney General PCD:pm