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Contracts Landlord Tenant Law Litigation

Removing Restrictive Covenants

In Rockwell v. Despart, the Third Department recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?

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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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