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OWNERS OF A PARCEL OF LAND WHICH ADJOINS A PARCEL RESTRICTED BY A COVENANT TO REMAIN FOREVER WILD DO NOT HAVE STANDING TO ENFORCE THE COVENANT (THIRD DEPT).

The Third Department determined that the plaintiffs, who own land (parcel A) which adjoins land owned by defendant (parcel B), did not have standing to enforce the “forever wild” covenant in the deed to parcel B:

The standing issue requires that we determine whether the forever wild restriction is personal or runs with the land … . In making that determination, “we are guided by the general principles that because the law favors free and unencumbered use of real property, covenants purporting to restrict such use are strictly construed and restraints will be enforced only when their existence has been established by clear and convincing proof by the owner of the dominant estate” … . “One of the elements of a restrictive covenant that runs with the land is that the 'parties [to the conveyance that created the covenant] intended its burden to attach to the servient parcel and its benefit to run with the dominant estate'” … .

Although there is evidence that the parties intended that the burden of the forever wild restriction run with parcel B, the record is bereft of evidence suggesting they intended that parcel A benefit from the restriction. …

… [T]he forever wild restriction does not fall within the category of restrictive covenants that is recognized as being enforceable by an owner of a parcel that derives from a common grantor. In that regard, covenants that are entered into to implement a general, or common, scheme for the improvement or development of real property are enforceable by any grantee … . … Here, there is no scheme of development or covenant that is common to all three parcels. Gorman v Despart, 2018 NY Slip Op 05795, Third Dept 8-16-18

REAL PROPERTY LAW (OWNERS OF A PARCEL OF LAND WHICH ADJOINS A PARCEL RESTRICTED BY A COVENANT TO REMAIN FOREVER WILD DO NOT HAVE STANDING TO ENFORCE THE COVENANT (THIRD DEPT))/DEEDS (OWNERS OF A PARCEL OF LAND WHICH ADJOINS A PARCEL RESTRICTED BY A COVENANT TO REMAIN FOREVER WILD DO NOT HAVE STANDING TO ENFORCE THE COVENANT (THIRD DEPT))/COVENANTS (DEEDS, FOREVER WILD, OWNERS OF A PARCEL OF LAND WHICH ADJOINS A PARCEL RESTRICTED BY A COVENANT TO REMAIN FOREVER WILD DO NOT HAVE STANDING TO ENFORCE THE COVENANT (THIRD DEPT))/ENVIRONMENTAL LAW (DEEDS, COVENANTS, FOREVER WILD, OWNERS OF A PARCEL OF LAND WHICH ADJOINS A PARCEL RESTRICTED BY A COVENANT TO REMAIN FOREVER WILD DO NOT HAVE STANDING TO ENFORCE THE COVENANT (THIRD DEPT))/FOREVER WILD (DEEDS, COVENANTS, OWNERS OF A PARCEL OF LAND WHICH ADJOINS A PARCEL RESTRICTED BY A COVENANT TO REMAIN FOREVER WILD DO NOT HAVE STANDING TO ENFORCE THE COVENANT (THIRD DEPT))

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