§ 345 — Recording of declaration of intention to preserve certain restrictions on the use of land

New York § 345

• Jurisdiction: New York
• Law RPP: Real Property
• Art. 10: Discharge of Ancient Mortgages

Text

§ 345. Recording of declaration of intention to preserve certain\nrestrictions on the use of land. 1. Except as provided in subdivision\neight of this section, a condition subsequent or special limitation\nrestricting the use of land and the right of entry or possibility of\nreverter created thereby shall be extinguished and become unenforceable,\neither at law or in equity, and if the condition has been broken or the\nreverter has occurred the right of entry therefor shall become\nunenforceable and the possessory estate resulting from the occurrence of\nthe reverter shall be extinguished, unless within the time specified in\nthis section a declaration of intention to preserve it is recorded as\nprovided in this section, and notwithstanding the recording of such\ndeclaration, unless thereafter, within the times specified in this\nsection, renewal declarations are recorded as provided in this section.\nSuch extinguishment shall occur at the end of the period in which the\ndeclaration or renewal declaration may be recorded.\n 2. A person or persons having a right of entry in the event of breach\nof a condition subsequent restricting the use of land or a possibility\nof reverter created by a special limitation restricting the use of land,\nor having after breach of such condition subsequent or special\nlimitation a right of entry therefor or a possessory estate resulting\nfrom occurrence of the reverter, or any one of such persons, may record\na declaration of intention to preserve, either in whole or in part, and\nagainst one or more owners of interests in the land subject to the\nrestriction, the right of entry and the condition subsequent creating\nit, or the possibility of reverter and special limitation creating it,\nor the possessory estate resulting from occurrence of the reverter.\n An agent having actual authority, expressed in a writing signed by the\nprincipal, may execute and record such a declaration on behalf of his\nprincipal. A parent of an infant or a general guardian or guardian of\nthe property of an infant, or if he has no parent, general guardian or\nguardian of his property, the person with whom he resides, or the\ncommittee of the property of an incompetent may execute and record such\na declaration on behalf of the infant or incompetent without prior\nauthorization of the court.\n 3. Such declaration shall be entitled "Declaration of Intention to\nPreserve Restrictions on the Use of Land," preceded by the word\n"Renewal" if the declaration is a renewal declaration, and shall set\nforth\n (a) the names of the owners of interests in the land against whom and\nthe successors of whom the restriction is intended to be preserved or,\nif the names of any such persons are not known, a statement to that\neffect and in the case of each such person whose name is not known, the\nname of the last known previous owner from or through whom he derived\nhis interest;\n (b) the names and residence addresses of the persons intending to\npreserve the restriction;\n (c) a description of the land against which the restriction is to be\npreserved, with such information as to its location and specific\nidentification as would be required to be set forth in or endorsed upon\na deed transferring the land to be recorded in the county where the\ndeclaration is to be recorded;\n (d) the terms of the restriction;\n (e) a reference to the instrument creating the condition subsequent or\nspecial limitation by which the restriction is imposed and to the place,\nif any, where such instrument is recorded or filed, or if the condition\nsubsequent or special limitation was created otherwise than by written\ninstrument, a reference to the transaction by which it was created,\ntogether with the names of the parties to such instrument or\ntransaction, date of execution and in the case of a will, the date it\ntook effect and the court in which it was probated, or other information\nsufficient to show the origin of the condition subsequent or special\nlimitation and the location of public records, if any, showing its\norigin;\n (f) references to any conveyances, transactions or events through\nwhich the person by or on whose behalf the declaration is executed\nacquired the right of entry, possibility of reverter or possessory\nestate resulting from occurrence of the reverter, and the location of\npublic records, if any, of such instruments or relating to such\ntransactions or events to the extent that the existence of such public\nrecords and their location are known to the person recording the\ndeclaration;\n (g) the date on which the condition subsequent or special limitation\nwas created;\n (h) that the person by or on whose behalf the declaration is executed\nclaims that the right of entry has arisen or the reverter has occurred,\nif such claim is made;\n (i) if the declaration is executed by one person on behalf of another,\nthe source of his authority or his relation to the person on whose\nbehalf he executed it;\n (j) if the declaration is a renewal declaration, the date when the\noriginal declaration was recorded and the date on which any previous\nrenewal declaration was recorded.\n Every such declaration shall be signed by or on behalf of each person\nnamed therein as intending to preserve the restriction. A person\nexecuting a declaration on behalf of another shall append to his\nsignature a statement of his address and the name of the person on whose\nbehalf he acted.\n The declaration shall be acknowledged or proved and certified in the\nmanner required to entitle a conveyance of real property to be recorded,\nand shall have annexed thereto the affidavit or affidavits of the person\nor persons who executed it attesting that the statements set forth in\nthe declaration are true or that the person making the affidavit is\ninformed and believes that they are true, setting forth the sources of\nhis information and the grounds of his belief, and such affidavit shall\nbe recorded with the declaration.\n 4. An initial declaration may be recorded in the office in which a\nconveyance of the land described in the declaration would be recordable\nor registrable, not less than twenty-seven years nor more than thirty\nyears after the condition subsequent or special limitation described\ntherein was created; provided, however, that if the date when such\ncondition subsequent or special limitation was created was prior to\nSeptember first, nineteen hundred thirty-one, the declaration may be\nrecorded on or before September first, nineteen hundred sixty-one.\n A renewal declaration may be recorded after the expiration of nine\nyears and before the expiration of ten years from the date when the\ndeclaration was recorded or the recording of the next previous renewal\ndeclaration became effective. The recording of a renewal declaration\nshall become effective on the anniversary of the recording of the\noriginal declaration following the recording of the renewal declaration.\n 5. A declaration or renewal declaration executed as provided in this\nsection shall, on tender of lawful fees, be recorded and indexed as if\nit were a conveyance executed by the persons named in such declaration\nor renewal declaration as persons against whom the restriction is\nintended to be preserved, except that if title to the land described\ntherein is registered the declaration or renewal declaration shall be\nrecorded as provided in section four hundred eight of this chapter,\nnoted on the original certificate of title of such land and indexed\nagainst the names of the persons named in the declaration or renewal\ndeclaration as persons against whom the restriction is to be preserved.\n For the purposes of any provision of law relating to fees for\nrecording, entering or indexing of conveyances, or relating to searches,\nfurnishing of certified copies, reproduction by photographic method or\notherwise, or destruction, or to any other matter pertaining to the\npowers and duties of recording officers with respect to conveyances,\nexcept matters expressly provided for in this section, a declaration or\nrenewal declaration shall be deemed a conveyance.\n 6. Recording of a declaration or of a renewal declaration shall be\neffective to preserve the condition subsequent or special limitation and\nthe right of entry, possibility of reverter or possessory estate\nresulting from occurrence of the reverter from extinguishment as\nprovided in this section, (a) in favor of those persons only by or on\nwhose behalf it was executed and persons succeeding to their interests\nand (b) against such persons only as are named in the declaration or\nrenewal declaration and persons deriving their interest, either before\nor after the recording of the declaration or renewal declaration, from\nor through persons so named. It shall not be effective to prevent\nextinguishment or modification, under any other statute or rule of law,\nof the condition subsequent or special limitation or the restriction on\nthe use of land resulting therefrom or the right of entry or possibility\nof reverter created thereby or the possessory estate resulting from\noccurrence of the reverter, nor to continue the existence of the\nrestriction beyond such duration, as may have been prescribed for it\nwhen it was created, nor to extend the time allowed for commencement of\nany action.\n 7. This section shall apply without regard to (a) the infancy,\nincompetency or other disability of any person entitled to record a\ndeclaration of intention to preserve a restriction or a renewal of such\na declaration, (b) knowledge of the existence of the restriction by the\nowner of an interest in the land burdened by it, (c) the pendency, at\nthe time recording of the declaration or a renewal declaration is\nrequired by this section, of any action or proceeding to declare or\ndetermine rights or interests dependent on the restriction or its breach\nor to recover possession of the land or to assert in any manner a right\nof entry accruing by reason of breach of the restriction, or ownership\nof a possessory estate resulting from occurrence of the reverter, or (d)\na judicial determination of the existence or continued validity of the\nrestriction, other than a judgment for the recovery of possession of the\nland or of proceeds of a sale thereof or of compensation for a taking\nthereof, by persons entitled thereto by reason of breach of the\ncondition or by reason of a reverter occurring upon breach of the\nrestriction.\n 8. This section shall not apply where the condition subsequent or\nspecial limitation was created in favor of (a) the United States, the\nstate of New York, or any governmental subdivision or agency of the\nUnited States or of the state of New York; or (b) the owner of a\nreversion following an estate for life; or (c) the owner of a reversion\nfollowing an estate for years where the number of years for which such\nestate was created will expire less than seventy years after the time\nrecording of an initial declaration would otherwise be required under\nthis section; or (d) the owner of a reversion on a lease of\ncommunication, transportation or transmission lines; or (e) a mortgagee\nor contractor-vendor of land or the holder of any other security\ninterest in land.\n If prior to the time specified in this section for recording of an\ninitial declaration or renewal declaration a person entitled to record\nsuch declaration or renewal declaration shall have made valid and\neffective entry into possession of the land, pursuant to a right of\nentry or upon a possessory estate resulting from occurrence of a\nreverter, or shall have obtained a judgment for the recovery of\npossession of the land or of proceeds of a sale thereof or of\ncompensation for a taking thereof this section shall not apply to bar\nenforcement of his rights so established.\n 9. The extinguishment by this section of a condition subsequent or\nspecial limitation restricting the use of land and of the right of entry\nor possibility of reverter created thereby or possessory estate\nresulting from occurrence of the reverter shall not affect\n (a) the power of any person, including the owner of the right of\nentry, possibility of reverter or possessory estate, to enforce the same\nrestriction by action for damages or for an injunction to the extent\nthat it is also imposed by covenant, promise or negative easement;\n (b) a condition subsequent or special limitation, or the right of\nentry or possibility of reverter created thereby or possessory estate\nresulting from occurrence of the reverter, to the extent that the right\nof entry or possibility of reverter is conditioned upon some event other\nthan breach of a restriction on the use of land.\n