Neponsit Property Owners’ Ass’n v. Emigrant Industrial Sav. Bank

278 N.Y. 248, 15 N.E.2d 793 (1938)

 

RULE:

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.

FACTS:

A 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 obtained land subject to the covenant from a judicial sale. In plaintiff's action to foreclose upon its lien, defendant argued that plaintiff has no sufficient privity of estate to enforce the covenant. The trial court ruled in favor of plaintiff and struck defendant's various defenses, its counterclaim against plaintiff, and denied defendant's motion for judgment on the pleadings.

ISSUE:

Whether a covenant in a deed of conveyance over a land binds all subsequent owners including purchasers in a judicial sale?

ANSWER:

Yes.

CONCLUSION:

Defendant was properly denied judgment on the pleadings as the evidence showed that plaintiff's lien was a valid and enforceable covenant that ran with the land. 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 the following: (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. The covenant in this case may properly be said to touch and concern the land and its burden should run with the land since it created an easement or right of common enjoyment not just with defendant’s property, but all other property owners who would stand benefited by the maintenance of the roads and public places.

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