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In Rockwell v. Despart, 2022 WL 1492438, the Third Department recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land? Of course, a burdened landowner may always negotiate removal with the covenant’s beneficiaries, but strategic behavior or the high transactions costs that arise when many parties benefit from the covenant may preclude negotiated removal. RPAPL 1951 addresses the problem. Subsection 1 precludes enforcement of land use restrictions “if, at the time the enforceability of the restriction is brought in question, it appears that the restriction is of no actual and substantial benefit to the persons seeking its enforcement.” Subsection two provides that when a party seeks relief from a restriction, a court may adjudge that the restriction is not enforceable by injunction, and may adjudge that the covenant be extinguished on payment of damages if “the restriction is of no actual and substantial benefit to the persons seeking its enforcement or seeking a declaration of its enforceability, either because the purpose of the restriction has already been accomplished or, by reason of changed conditions or other cause, its purpose is not capable of accomplishment, or for any other reason.”
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When Is A Pretext By A Municipality A Bar To Land Use Approvals?
By Steven M. Silverberg
Recently, there have been several instances in which municipalities have been challenged by property owners claiming that the municipal boards have utilized delaying tactics and other actions as a pretext to prevent development of their properties.
By New York Real Estate Law Reporter Staff
Housing Discrimination Claim Dismissed
Co-Op Did Not Breach Shareholder’s Guaranty Agreement
Co-Op Not Exempt from Lead Paint Mandate
By New York Real Estate Law Reporter Staff
Environmental Group Has Standing But Loses On the Merits of Challenge to Subdivision Approval
Applicant Entitled to Permit For Small Wireless Facilities
By New York Real Estate Law Reporter Staff
Occupation of Premises Does Not Establish Assignment By Operation of Law
Amendment to Rent Stabilization Law Is Not Unconstitutional