N.Y. Real Property Actions & Proceedings Law § 1955: Modification or extinguishment of certain restrictions on the use of land held for charitable purposes

§ 1955. Modification or extinguishment of certain restrictions on the

use of land held for charitable purposes. 1. Where land is held, whether

or not in trust, for benevolent, charitable, educational, public or

religious purposes and the use of such land is restricted to such

purpose or to a particular application of or means of carrying out such

purpose by a special limitation or condition subsequent created in the

conveyance or devise under which the land is so held, or by an agreement

to convey, reconvey or surrender the land or the estate so held upon a

contingency relating to its use, an action may be brought in the supreme

court to obtain relief from such restriction as provided in this

section.

2. No action for the relief provided in this section shall be

commenced until the expiration of two years from the creation of the

special limitation or condition subsequent, or the making of the

agreement. The attorney-general shall be a party to such action.

3. In determining whether relief shall be granted, and the nature of

such relief, the court shall consider and shall make findings with

respect to the following:

(a) whether the primary purpose of the special limitation, condition

subsequent or agreement to convey, reconvey or surrender was to restrict

the use of the land;

(b) whether the purpose of the restriction was to ensure that the

substantial value of the land or of the estate subject to the special

limitation, condition subsequent or agreement, rather than the land

itself, or such estate itself, be devoted to and employed for a

benevolent, charitable, educational, public or religious purpose.

If the findings with respect to (a) and (b) are such as to make the

following matters relevant or appropriate for consideration, the court

shall also consider and make findings with respect to the following:

(c) whether the existence of the restriction is substantially impeding

the owner of the land, or of the estate subject to the special

limitation, condition subsequent or agreement, in the furtherance of the

benevolent, charitable, educational, public or religious purposes for

which the land is held;

(d) whether the person or persons who would have a right of entry,

possessory estate resulting from the occurrence of a reverter, or right

to conveyance, reconveyance or surrender of the land or estate in the

event of breach of the restriction at the time of the action will suffer

substantial damage by reason of extinguishment or modification of the

restriction, and, in such event, whether damages or restitution of the

land, or its value, in whole or in part, should be awarded to such

person or persons.

4. The judgment of the court may include, in the discretion of the

court, an adjudication (a) that the restriction is discharged in whole

or in part, or that its tenor is modified as provided in the judgment;

(b) that the holder of the land or estate therein subject to the

restriction be authorized or directed to convey, lease, mortgage or

otherwise dispose of the land or estate therein free of the restriction

and that the purchaser under such disposition shall take free of the

restriction; (c) directing the use to which the avails of any such

disposition shall be put; (d) declaring the interests that the owners of

the possibility of reverter or right of entry, or persons having an

interest pursuant to the agreement, shall have in any property paid for

in whole or in part with the proceeds of the disposition; (e) awarding

damages for such injury as a party to the action may sustain by reason

of extinguishment or modification of the restriction. The judgment may

include such other provisions as will in the opinion of the court

further the benevolent, charitable, educational, public or religious

purposes for which the land is held and such other provisions as equity

may require.

5. This section shall apply to a special limitation or condition

subsequent created or agreement made either before or after September 1,

1958, except that it shall not apply (a) where a right of entry or right

to a conveyance, reconveyance or surrender of the property has accrued

or a reverter has occurred prior to that date, or (b) where the

conveyance creating the restriction was made by or the agreement

creating the restriction was made with the United States, the state of

New York or any governmental unit, subdivision or agency of the United

States or the state of New York.