Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the January 22, 2018 mailing of "Constructive Notice":

Erection Prohibition Held Unenforceable

“At the time of the conveyance, the covenant cannot be said to have benefitted any part of the land burdened by it.” Fleetwood Chateau Owners Corp. v. Fleetwood Garage Corp., 153 AD3d 1238 (Second Dept. 2017).

The covenant at issue was contained in a 1924 deed for a unified tract of land and it prohibited, “among other things, the erection of any nonresidential buildings, including any garage except one for the exclusive use of the occupant or occupants of any building erected on the property” [emphasis supplied]. The deed did not mention the lands intended to benefit from these restrictions, nor did it require or foresee future subdivision of the burdened parcel.

In 1929, a seven-story apartment building was built upon a portion of the tract, and in 1931, a private parking garage was built upon another portion of the tract. By 1990, Hudson owned both portions, as part of a single parcel. In 1990, Hudson conveyed the portion on which stood the apartment building, to the plaintiff, Fleetwood Chateau. The following year, Hudson conveyed the remainder of the parcel, which included the garage, to Fleetwood Garage. No deed in the appellate record contained any reference to the 1924 anti-erection covenant. Apparently aroused by the situation, Chateau sued to enforce it.

The Appellate Division determined that since Chateau was not a party to the instrument containing the covenant, or referred to therein as a beneficiary, in order to enforce the covenant, Chateau had to show an equitable right of enforcement based on the existence of a common plan or scheme of building development. There was no evidence of such a common development scheme imposed by any common owner of the original tract including, most importantly, Hudson. Hence, Chateau had no standing to enforce the covenant.


Due to lacunae in the appellate record, the Court could not determine if the covenant ran with the land. As a result, the question whether anyone could enforce the covenant more than 80 years after its arguable violation went unanswered. Fleetwood Garage wisely focused its appeal solely on the standing issue.