Property II, Pages 592–596

Neponsit Property Owners' Ass'n, Inc. v. Emigrant Industrial Savings Bank

Court of Appeals of New York, 1938

Facts:

Neponsit owned a tract of land in Queens and sold lots for residential uses. In 1917, Neponsit conveyed land to the Deyers, which is now owned by defendant. This conveyance contained a covenant providing that each lot owner would pay up to $4 annually per 20x100-foot lot owned. This charge was for maintenance of public purposes. It said if this charge was not paid, it would become a lien on the land until fully paid. Finally, it said that the covenant would run with the land to bind the successors until 1940, when it would terminate.

Procedural History:

Lower court and appellate court denied defendant's motion for judgment on the pleadings and granted plaintiff's motion to dismiss defendant's counterclaim and affirmative defenses.

Issues:

  • Did the covenant run with the land and become enforceable against defendant?

  • Did the covenant "touch" or "concern" the land?

Rules:

  • LexisNexis IconWestLaw LogoCaseMine LogoPage 592–593

    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. These requirements rest upon ancient rules and precedents. 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.
  • LexisNexis IconWestLaw LogoCaseMine LogoPage 594

    [A] covenant which runs with the land must affect the legal relations—the advantages and the burdens—of the parties to the covenant, as owners of particular parcels of land and not merely as members of the community in general, such as taxpayers or owners of other land.

Reasoning:

The covenant also granted an easement to use these public places, which requires maintenance. These burdens should rest upon these who are benefitted thereby. Under equitable principles, privity is not needed.

Holding:

The covenant "touched" or "concerned" the land and therefore ran with it. Affirmed with costs.

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