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Law School Case Brief

Neponsit Prop. Owners' Ass'n v. Emigrant Indus. Sav. Bank - 278 N.Y. 248, 15 N.E.2d 793 (1938)


Regardless of the intention of the parties, a covenant will run with the land and will be enforceable against a subsequent purchaser of the land at the suit of one who claims the benefit of the covenant, only if the covenant complies with certain legal requirements. The age-old essentials of a real covenant, aside from the form of the covenant, may be summarily formulated as follows: (1) it must appear that grantor and grantee intended that the covenant should run with the land; (2) it must appear that the covenant is one "touching" or "concerning" the land with which it runs; (3) it must appear that there is "privity of estate" between the promisee or party claiming the benefit of the covenant and the right to enforce it, and the promisor or party who rests under the burden of the covenant.


Neponsit Realty Company conveyed by deed several parcels of land developed by it for a residential community. The deeds contained a covenant, that by its own terms was a lien that ran with land, and bound all subsequent to an annual fee for the purposes of maintaining the community's public amenities. Plaintiff was assigned the interest in a covenant; defendant, Robert Oldner Deyer, obtained land subject to the covenant from a judicial sale. In plaintiff's action to foreclose upon its lien, the trial court struck Deyer’s various defenses, its counterclaim against plaintiff, and denied defendant's motion for judgment on the pleadings. Deyer sought a review of the decision.


Did the trial court properly grant the action to foreclose upon its lien?




The court affirmed the decision of the trial court, holding that Deyer’s defenses were properly struck as redundant of plaintiff's allegations in its complaint. The court further held that plaintiff's covenant ran with the land as it was clearly intended to run with the land, touched and concerned the land, and there was privity of estate between the parties.

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