In Rockwell v Despart (87 Misc3d 233 [Sup Ct, Albany County 2025]), the trial court extinguished and declared unenforceable a restrictive covenant that the subject property remain “forever wild” in the loving memory of a decedent. The covenant was supposed to “run with the land,” and a subsequent purchaser was well-aware of the covenant and paid below market value because of it. Yet, the purchaser ultimately prevailed in extinguishing the covenant. The Albany County Supreme Court’s Decision, Order, and Judgment was appealed to the Appellate Division, Third Department, is fully briefed, and is awaiting oral argument.
A. Covenants and N.Y. Real Property and Actions Proceedings Law (“RPAPL”).
Covenants include promises to act or refrain from acting, and can control how land is or is not used. The latter are “negative” or “restrictive” covenants. Covenants that “run with the land” generally bind successors-in-interest, as opposed to personal covenants that merely bind the promise-maker. Before investing in real estate, investors and developers engage in due diligence to determine whether covenants restrict the use of land.
Although it sounds like covenants that “run with the land” remain forever, covenants can be extinguished or rendered unenforceable.1 Pursuant to RPAPL Section 1951, a person may seek injunctive and/or declaratory relief against a restrictive covenant, and the court may grant relief, where the restriction appears to be of “no actual and substantial benefit” to the person(s) seeking enforcement, “either because the purpose of the restriction has already been accomplished or, by reason of changed conditions or other cause, its purpose is not capable of accomplishment, or for any other reason” (RPAPL §1951[1]-[2]).2
B. Rockwell’s Philanthropy and Will, and the Conveyances.
Marjorie Doyle Rockwell, the daughter of a 19th century industrialist, was a philanthropist and avid nature conservationist. Ms. Rockwell died in 1995. Ms. Rockwell’s will authorized her co-executors to, among other things, convey her Loudonville, New York real estate to one or more charitable and non-profit organizations as the co-executors deemed fit, and create an endowment for any charitable or non-profit organization to maintain the property. The will authorized the co-executors to include historical preservation or conservation restrictions, but did not reference any nature-focused charity or “forever wild” restriction.
Based on Ms. Rockwell’s passion and love for nature, the co-executors decided to convey the real estate to the Audubon Society of New York (“NY-Audubon”), together with an endowment to manage it. In 1998, the estate conveyed three parcels to NY-Audubon. One of the parcels – comprising 26 acres – was conveyed with the restriction that the parcel remain “forever wild” and be used as a research, education, and management area for urban wildlife conservation and water resources protection, and that such restriction would “run with the land.”
C. Defendant Seeks to Extinguish the “Forever Wild” Covenant
In 2013, NY-Audubon sold the 26-acre parcel to the defendant. In connection therewith, the defendant admitted that he purchased the parcel with knowledge of the restrictive covenant, and was unsuccessful in asking to have the restriction removed. The defendant’s real estate counsel requested a release from NY-Audubon cancelling-out the restrictive covenant, and noted that the covenant would still be effective unless the Rockwells agreed. NY-Audubon advised defendant’s real estate counsel that the defendant agreed the parcel would be conveyed subject to the restrictive covenant to keep the parcel “forever wild” and used for research, education, and conservation purposes.
After acquiring the parcel, the defendant allegedly undertook actions in contravention of the “forever wild” restriction. Multiple actions involving successors-in-interest to adjacent parcels conveyed out of the estate, NY-Audubon, the estate by co-executor (“Estate”), and the defendant were litigated at the Supreme Court and Appellate Division. In Rockwell, the Estate sought declaratory and injunctive relief to enforce the restrictive covenant that directed the 26-acre parcel to remain “forever wild” and accessible for public use. The defendant asserted a defense based on RPAPL 1951 that the covenant should be extinguished because it has no actual or substantial benefit to the Estate.
Notably, the Appellate Division, Third Department, in dismissing a neighbors’ attempt to enforce the covenant, held that the neighbors lacked standing because the covenant was not intended to benefit the adjacent parcel, and that it was not necessary to allow the neighbors to enforce the covenant because the Estate or its assigns may enforce the covenant. The Appellate Division also recognized the covenant prescribed that the parcel remain forever wild and, in order to advance the Estate’s interest therein, must be used for research, education, and conservation purpose.
D. RPAPL 1951’s Application
When evaluating a restrictive covenant under RPAPL 1951, “the issue is not whether the party seeking enforcement obtains any benefit from the existence of the restriction, but whether in a balancing of equities it can be said to be…of no actual and substantial benefit.” The Court concluded, after balancing the equities, that the covenant must be extinguished.
Weighing in favor of extinguishment, on the one hand, the Court considered whether the covenant was of actual and substantial benefit to the Estate. The Court recognized that the Estate retained some interest in having the parcel remain an ecological preserve in memory of Ms. Rockwell’s abiding interest in the natural world – sufficient to support standing. However commendable, though, the interest was attenuated because the Rockwells no longer had connections with the area or the parcel.3
The full purpose/intent of the covenant could not practically be accomplished because NY-Audubon conveyed the parcel to a private individual who lacked access to the endowment funds and relevant expertise to manage the parcel. The disassociation of the endowment from the defendant rendered management of the property for research and education, as well as wildlife conservation and water resource protection, highly impracticable.
And, the purpose and intent were partially accomplished by the endowment and the sale-proceedings remaining with NY-Audubon – furthering its mission.
Weighing against extinguishment, on the other hand, the defendant purchased the parcel with full knowledge of the covenant. Any hardship resulting from the covenant was self-created.
Precisely because of the covenant, the defendant purchased at a greatly reduced price. The Estate produced evidence that the parcel would have had a market value of $520,000 in 2013 without the covenant, but the defendant only paid $150,000 (and the equalized assessment rate was $118,027). Extinguishing the covenant would result in a financial windfall.
Moreover, the covenant imposed an affirmative obligation to use the parcel for education and research – “a fact that bore significant weight in balancing the equities.” The court was “compelled to consider the extent of the burden imposed by this affirmative covenant that is ostensibly intended to operate in perpetuity.”4
The Court ultimately held:
[A]s laudable is the intent to create an urban wildlife preserve in memory of plaintiff’s forbearer, the restrictive covenant should be deemed unenforceable. Balancing the equities, the Court concludes that the covenant should extinguished pursuant to RPAPL 1951. The Court acknowledges the windfall to defendant. But the impractical burden of requiring adherence to a covenant that imposes affirmative obligations on defendant and successive landowners, where the endowment has been severed from such substantial obligations, outweighs the plaintiff’s [Estate’s] attenuated interest in perpetuating the covenant, seemingly without end.
***
Here, the attenuated in personam interest which the plaintiff [Estate] may have in enforcing the covenant, weighed against the perpetual and onerous affirmative duties which the covenant seeks to impose upon defendant, sans endowment, convinces the court that the covenant ought to be extinguished. To enforce such a covenant would run afoul of the policy interest of promoting the free and unencumbered use of property embodied by RPAPL 1951. Thus, after balancing the equities, the court concludes they weigh in favor of extinguishing the covenant.
New York’s RPAPL provides an equitable remedy for extinguishing certain restrictive covenants, and so covenants that come with the territory could vanish into thin air.
Footnotes
1. Identifying that a covenant “runs with the land” does not necessarily make it so; the parties must have intended that the covenant run with the land, the covenant must touch and concern the land, and there must be privity of estate between the promisor and promisee. In Rockwell, the Supreme Court stated, “the covenant is personal to the Estate and does not run with the land such that abutting owners may enforce it.”
2. Covenants can also be rendered inert if it is determined no one has standing to enforce them.
3. The Court also “decline[d] to hold the restrictive covenant unenforceable as a matter of law on the ground it no longer provides a cognizable benefit to the original grantor.”
4. While RPAPL 1951 applies only to negative or restrictive covenants, the court apparently considered certain affirmative covenants or aspects in its equities analysis.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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