Third Department: Owner of Land Adjacent to Parcel Subject to “Forever Wild” Covenant Does Not Have Standing to Enforce

In a decision dated August 16, 2018, the Third Department decided the following issue: Does an owner of land adjacent to a parcel which is subject to a “forever wild” covenant have standing to enforce said covenant?

The facts of this particular case (Gorman v. Despart, 2018 NY Slip Op 05795) are as follows. The parties owned adjoining parcels of land which derived from a common grantor (the Estate of Marjory D. Rockwell). In 1998, said estate conveyed a forty-four acre parcel of land to the Audubon Society through three separate deeds, thereby creating Parcels “A”, “B”, and “C”.

The plaintiff in this action acquired Parcel A from the Audubon Society in 2001 subject to all enforceable covenants and restrictions on record. It was comprised of approximately ten acres of land and a single-family residence (at one point occupied by Marjory Rockwell). The deed provided that such covenants (restricting its use to a single-family residence and restricting its subdivision to no more than two lots) “shall run with the land.”

Parcel B was comprised of approximately twenty-five acres and was also subject to covenants which run with the land: “The land shall be forever wild and shall be used as a research, education and management area for urban wildlife conservation and water resource protection . . . The property must be used to further the mission of the Audubon Society.” The Defendant acquired Parcel B in 2013 from the Audubon Society pursuant to a deed containing the same “forever wild” restriction. Parcel C was comprised of approximately seven acres of vacant land.

The Plaintiff commenced an action seeking to enforce the “forever wild” covenant based upon the Defendant’s alleged removal of trees and other plant life from Parcel B. Following joinder of issue, the Plaintiff filed a motion for summary judgment, seeking (1) a declaration that the Defendant was bound by the “forever wild” covenant, and (2) dismissal of the Defendant’s affirmative defense that the Plaintiff did not have standing to enforce said the subject covenant. The Defendant cross-moved for summary judgment, seeking dismissal of the plaintiff’s cause of action to enforce the subject covenant. The Supreme Court denied the Plaintiff’s motion for summary judgment, instead determining that the Plaintiff did not have standing to enforce the “forever wild” covenant. The Plaintiff thereafter appealed.

In analyzing this issue, the Third Department first analyzed whether the “forever wild” restriction was personal or one which runs with the land. The Court opined “‘[w]e are guided by the general principles that because the law favors free and unencumbered use of real property, covenants purporting to restrict such use are strictly construed and restraints will be enforced only when their existence has been established by clear and convincing proof by the owner of the dominant estate’ (citations omitted). ‘One of the elements of a restrictive covenant that runs with the land is that the ‘parties [to the conveyance that created the covenant] intended its burden to attach to the servient parcel and its benefit to run with the dominant estate’ (id. at 225 [certain emphasis added], quoting Orange & Rockland Util. v Philwold Estates, 52 NY2d 253, 262 [1981]).”

Furthermore, the Court noted as follows: “[a]lthough there is evidence that the parties intended that the burden of the forever wild restriction run with parcel B, the record is bereft of evidence suggesting they intended that parcel A benefit from the restriction. The intent that the burden of the restriction run with parcel B is evident from the language of the 1998 deed of parcel B from the Estate to the Audubon Society, which expressly provided that the ‘land shall be forever wild’ (emphasis added) and that the ‘restrictions shall run with the land.’ However, the record lacks clear and convincing proof that the parties intended that the benefit of the forever wild restriction accrue to parcel A. Notably, none of the 1998 deeds that separately conveyed the three parcels from the Estate to the Audubon Society provided for enforcement of the forever wild restriction by the owners of parcels A and C (see Glass v Del Duca, 151 AD3d 941, 942 [2017]; cf. Nature Conservancy v Congel, 253 AD2d 248, 250-253 [1999]). Further, it is apparent from the language of the forever wild restriction — which expressly requires that parcel B ‘shall be used as a research, education and management area for urban wildlife conservation and water resource protection’ — that it was imposed to advance Rockwell’s interest in research, education and conservation, and not for the purpose of simply maintaining undeveloped property for the benefit of parcels A and C, which were not similarly restricted. Nor is enforcement of the forever wild restriction by the owners of parcels A and C necessary to ensure compliance with the stated purposes of the covenant because it may be enforced by the Estate or its assigns.”

Lastly, the Court concluded that the subject restriction was not the type which could be enforced by virtue of its having derived from a common grantor. “‘In that regard, covenants that are entered into to implement a general, or common, scheme for the improvement or development of real property are enforceable by any grantee (see Haldeman v Teicholz, 197 AD2d at 224, citing Korn v Campbell, 192 NY 490, 495 [1908]).’ In this instance, there was no scheme of development or covenant which was common to each of the three parcels. While the ‘forever wild’ restriction prevents further development of Parcel B, the covenants applicable to Parcels A and C allowed for further subdivision and construction of additional single-family residences. ‘Thus, there was no corresponding benefit to parcel B for the diminution in its value that resulted from imposition of the forever wild restriction that would justify enforcement of the forever wild restriction by plaintiffs as owners of parcel A.’” As such, the Third Department affirmed the trial court’s determination that the plaintiff did not have standing to enforce the restrictive covenant at issue.