Restrictive covenants are common conditions of zoning approvals. Municipal boards typically require applicants to record restrictive covenants as a condition of approval. These restrictive covenants are drafted to "run with the land," meaning the covenants automatically transfer with the property.
Generally, restrictive covenants are enforceable in New York, provided they are reasonable and benefit all property owners in the community and are not inconsistent with public policy or violate a property owner's rights. See, Deak v. Heathcote Association, 191 AD2d 617 (2d Dept 1993) (party seeking extinguishment of the restrictive covenants must prove (1) lack of benefit derived from enforcement of the restriction, and (2) legally cognizable reason for the extinguishment of the restriction under RPAPL 1951, such as "changed conditions" which render the purpose of the restriction incapable of being accomplished).
The basic rule for municipal or land use practitioners when drafting restrictive covenants is – never to leave any details open for negotiation. To leave open certain details can lead to costly litigation down the road, which will far exceed the cost of preparing detailed restrictive covenants.
Take for example, Matter of Denisov v DeChance, (2025 NY Slip Op 01629) a recent Second Department decision on March 19, 2025. In Denisov, the Planning Board of the Town of Brookhaven granted the application of DeChance to subdivide the subject property. In that case, DeChance sought to subdivide his 1.67-acre lot, occupied by a single-family home, to create an additional building lot and construct a second single-family home on the additional lot. DeChance's lot is part of a 28-lot subdivision known as Sunset Bluffs, approved in 1984, subject to covenants and restrictions, one of which states that "[n]o lot shall be subdivided or its lot lines changed in any manner at any future date unless authorized by the Brookhaven Town Planning Board." DeChance applied to the Planning Board for authority to subdivide his lot, using a form application that asked for "relief of covenant."
The Planning Board, in considering the application, clarified that the relief sought was permission from the Planning Board to subdivide the lot, not repeal of the language in the covenant. After multiple hearings, the Planning Board, granted the application subject to certain conditions, including land division and variance approval by the Board of Zoning Appeals. Paragraph 11 of the Planning Board's findings sets forth that the applicant is acting pursuant to and in compliance with the covenant restrictions in question and that enforcement of the covenant leads to the applicant's current application before the Planning Board, seeking permission to subdivide the subject property.
Lo and behold, the neighbors sued. In a judgment dated August 10, 2021, the Supreme Court granted the neighbors' petition, annulled the Planning Board's determination. The court found that the Planning Board demonstrated confusion as to whether it was setting aside the covenant, originally enacted as part of the 1984 subdivision plan, or was granting authorization to subdivide pursuant to the terms of the covenant.
Contrary to the Supreme Court's conclusion, the Second Department, found that the application before it is not to repeal the covenant, but to act pursuant to the covenant language. The Court went on to concluded that, evidence of "changed circumstances" pursuant to RPAPL §1951 was not necessary. The Court relied on the plain language of the covenant that "[n]o lot shall be subdivided or its lot lines changed in any manner at any future date unless authorized by the . . . Planning Board." In other words, the covenant required the approval of the Planning Board for further subdivision. It did not categorically prohibit further subdivision.
Takeaway – restrictive covenants are fact based and variable. Thus, drafting, enforcing and navigating them can hinge on a critical turn of phrase.
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.
