Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the May 30, 2014 mailing of "Constructive Notice":

Single Lot Restriction is a
"Development Scheme"

An interior setback line affecting only one lot in a subdivision has been held to be part of a common development scheme for the benefit of all property owners within the subdivision. Hidalgo v. 4-34-68, Inc., 2014 NY Slip Op 03491 (2nd Dept., May 14, 2014).

The subdivision contained four lots. The deeds out of the subdivider for Lot 2 (owned by plaintiff) and Lot 3 contained identical restrictions, but a specified setback was not among them. Lot 4 (owned by defendant) did not contain explicit restrictions, but recited that the house was to be located per attached plan, which showed a house set 45 back from the plaintiffs lot line. Lot 1 is not mentioned in the opinion.

Defendant built the house but violated the setback. Plaintiff sued to enforce and was found to have standing despite lacking privity with the defendant and without showing how the setback line benefited any other lots in the subdivision.


The rationale behind the common scheme or plan doctrine requires a scheme of development by common restrictions Korn v. Campbell, 192 N.Y. 490 (1908) (emphasis supplied). The restrictions are accepted by the grantees for their mutual protection and benefit, giving them an equitable right to enforce. All the cases cited by the Hidalgo court involved either 1) a blanket declaration of restrictions imposed prior to subdivision or 2) identical restrictions imposed on the majority of lots in the deeds out of the subdivider. In Hidalgo, the setback appears to benefit only one lot and burden only one adjoinder. In addition, the plaintiffs lot does not carry a reciprocal burden toward the defendants lot.