N.Y. Real Property Law § 294: Recording executory contracts and powers of attorney

§ 294. Recording executory contracts and powers of attorney. 1. An

executory contract for the sale, purchase or exchange of real property,

or an instrument canceling such a contract, or an instrument containing

a power to convey real property, as the agent or attorney for the owner

of the property, acknowledged or proved, and certified, in the manner to

entitle a conveyance to be recorded, may be recorded in the office of

the recording officer of any county in which any of the real property to

which it relates is situated, and such recording officer shall, upon the

request of any party, on tender of the lawful fees therefor, record the

same in his said office.

2. In lieu of the recording of an executory contract, there may be

recorded a memorandum thereof, executed by the parties, and acknowledged

or proved, and certified, in the manner to entitle a conveyance to be

recorded, containing at least the following information with respect to

the contract: the names of the parties to the contract, the time fixed

by the contract for the conveyance of title, and a description of the

property. The executory contract shall be deemed duly recorded upon the

recording of a memorandum in conformity with this subdivision.

If the purchaser is entitled to possession of the property under the

terms of the contract, the memorandum must so state. The provisions of

article eleven of the tax law shall not be applicable to an executory

contract for the sale, purchase or exchange of real property, or

memorandum thereof, unless the contract provides that the purchaser is

entitled to possession of the property.

3. Every executory contract for the sale, purchase or exchange of real

property not recorded as provided in this section shall be void as

against any person who subsequently purchases or acquires by exchange or

contracts to purchase or acquire by exchange, the same real property or

any portion thereof, or acquires by assignment the rent to accrue

therefrom as provided in section two hundred ninety-four-a of the real

property law, in good faith and for a valuable consideration, from the

same vendor or assignor, his distributees or devisees, and whose

conveyance, contract or assignment is first duly recorded, and shall be

void as against the lien upon the same real property or any portion

thereof arising from payments made upon the execution of or pursuant to

the terms of a contract with the same vendor, his distributees or

devisees, if such contract is made in good faith and is first duly

recorded.

4. (a) Where an executory contract is duly recorded as provided in

this section the right of the purchaser to performance of the contract

is enforceable against a person who, subsequent to the recording and

while the recording is effective as provided in this section, purchases

or acquires by exchange the same real property or any part thereof, from

the same vendor, his distributees or devisees.

(b) If the recorded contract provides for payments made or to be made

by the purchaser before conveyance of title, including payments made at

the execution of the contract, or if the recorded memorandum states that

the contract so provides, the lien of the purchaser arising from any

such payments actually made is enforceable against any such person

described in paragraph (a) to the extent of such payments, not exceeding

the total amount specified in the recorded contract or memorandum, and

is so enforceable without regard to any notice of the estate or interest

of such person.

5. The recording of the executory contract or memorandum shall be

effective for the purposes of subdivision four up to and including the

thirtieth day after the day fixed by the contract for the conveyance of

title. An agreement extending the time for the conveyance of title,

acknowledged or proved, and certified, in the manner to entitle a

conveyance to be recorded, may be recorded, and the recording shall be

effective up to and including the thirtieth day after the day fixed by

such agreement for the conveyance of title.

6. An executory contract or memorandum thereof shall not be deemed

recorded as provided in this section if it is recorded more than one

year previous to the date on which the vendor acquired title to the real

property to which the contract relates.

An executory contract recorded before the date when the vendor

acquired title shall not be deemed recorded as provided in this section

as against a person to whom the real property is conveyed or contracted

to be sold or exchanged, by a conveyance or contract which is part of

the transaction in which the vendor acquired title.

7. An option to purchase or lease real property shall be deemed an

executory contract within the meaning of this section, except that the

recording of the option agreement shall be effective only up to and

including the thirtieth day after the last day fixed by the agreement

for the exercise of the option. If the option is exercised in accordance

with the terms of the option agreement, the optionee may extend the

effectiveness of the recording of the option agreement to and including

the thirtieth day after the day fixed pursuant to the option agreement

for the conveyance of title or the execution and delivery of the lease,

as the case may be, by recording, within thirty days after the last day

fixed by the option agreement for the exercise of the option, a written

declaration executed by the optionor and the optionee, or by the

optionee alone, and acknowledged or proved and certified in the manner

to entitle a conveyance to be recorded, stating that the said option has

been duly exercised and setting forth the day fixed pursuant to the

option agreement for the conveyance of title or the execution and

delivery of the lease, as the case may be. In the event that such

declaration is executed by the optionee alone, it shall be verified by

the optionee and shall also set forth the time and manner in which such

option was exercised and, if the last day for the conveyance of title or

the execution and delivery of the lease is not specified in the option

agreement, the extension of the effectiveness of the recording of the

option agreement shall in no event exceed ninety days from the date of

the recording of such declaration.

8. (a) After the recording of an executory contract or memorandum has

ceased to be effective as provided in subdivision five, or the recording

of an option to purchase or lease real property has ceased to be

effective as provided in subdivision seven, such executory contract,

memorandum or option shall be (1) void as against a subsequent purchaser

in good faith and for a valuable consideration, who has no other notice

of an estate or interest of the contract vendee or optionee in the

premises to which such contract, memorandum or option refers, or of any

claim thereof, and (2) ineffective to give notice to such subsequent

purchaser of any estate or interest of the contract vendee or optionee

in such premises, or of any claim thereof, or to create any duty of

inquiry with respect thereto.

(b) For the purposes of this subdivision, "purchaser" includes a

person who purchases or acquires by exchange or contracts to purchase or

acquire by exchange the same premises or any portion thereof or estate

or interest therein, or acquires by assignment the rent to accrue from

tenancies or subtenancies thereof in existence at the time of the

assignment.