N.Y. Real Property Law § 345: Recording of declaration of intention to preserve certain restrictions on the use of land

§ 345. Recording of declaration of intention to preserve certain

restrictions on the use of land. 1. Except as provided in subdivision

eight of this section, a condition subsequent or special limitation

restricting the use of land and the right of entry or possibility of

reverter created thereby shall be extinguished and become unenforceable,

either at law or in equity, and if the condition has been broken or the

reverter has occurred the right of entry therefor shall become

unenforceable and the possessory estate resulting from the occurrence of

the reverter shall be extinguished, unless within the time specified in

this section a declaration of intention to preserve it is recorded as

provided in this section, and notwithstanding the recording of such

declaration, unless thereafter, within the times specified in this

section, renewal declarations are recorded as provided in this section.

Such extinguishment shall occur at the end of the period in which the

declaration or renewal declaration may be recorded.

2. A person or persons having a right of entry in the event of breach

of a condition subsequent restricting the use of land or a possibility

of reverter created by a special limitation restricting the use of land,

or having after breach of such condition subsequent or special

limitation a right of entry therefor or a possessory estate resulting

from occurrence of the reverter, or any one of such persons, may record

a declaration of intention to preserve, either in whole or in part, and

against one or more owners of interests in the land subject to the

restriction, the right of entry and the condition subsequent creating

it, or the possibility of reverter and special limitation creating it,

or the possessory estate resulting from occurrence of the reverter.

An agent having actual authority, expressed in a writing signed by the

principal, may execute and record such a declaration on behalf of his

principal. A parent of an infant or a general guardian or guardian of

the property of an infant, or if he has no parent, general guardian or

guardian of his property, the person with whom he resides, or the

committee of the property of an incompetent may execute and record such

a declaration on behalf of the infant or incompetent without prior

authorization of the court.

3. Such declaration shall be entitled "Declaration of Intention to

Preserve Restrictions on the Use of Land," preceded by the word

"Renewal" if the declaration is a renewal declaration, and shall set

forth

(a) the names of the owners of interests in the land against whom and

the successors of whom the restriction is intended to be preserved or,

if the names of any such persons are not known, a statement to that

effect and in the case of each such person whose name is not known, the

name of the last known previous owner from or through whom he derived

his interest;

(b) the names and residence addresses of the persons intending to

preserve the restriction;

(c) a description of the land against which the restriction is to be

preserved, with such information as to its location and specific

identification as would be required to be set forth in or endorsed upon

a deed transferring the land to be recorded in the county where the

declaration is to be recorded;

(d) the terms of the restriction;

(e) a reference to the instrument creating the condition subsequent or

special limitation by which the restriction is imposed and to the place,

if any, where such instrument is recorded or filed, or if the condition

subsequent or special limitation was created otherwise than by written

instrument, a reference to the transaction by which it was created,

together with the names of the parties to such instrument or

transaction, date of execution and in the case of a will, the date it

took effect and the court in which it was probated, or other information

sufficient to show the origin of the condition subsequent or special

limitation and the location of public records, if any, showing its

origin;

(f) references to any conveyances, transactions or events through

which the person by or on whose behalf the declaration is executed

acquired the right of entry, possibility of reverter or possessory

estate resulting from occurrence of the reverter, and the location of

public records, if any, of such instruments or relating to such

transactions or events to the extent that the existence of such public

records and their location are known to the person recording the

declaration;

(g) the date on which the condition subsequent or special limitation

was created;

(h) that the person by or on whose behalf the declaration is executed

claims that the right of entry has arisen or the reverter has occurred,

if such claim is made;

(i) if the declaration is executed by one person on behalf of another,

the source of his authority or his relation to the person on whose

behalf he executed it;

(j) if the declaration is a renewal declaration, the date when the

original declaration was recorded and the date on which any previous

renewal declaration was recorded.

Every such declaration shall be signed by or on behalf of each person

named therein as intending to preserve the restriction. A person

executing a declaration on behalf of another shall append to his

signature a statement of his address and the name of the person on whose

behalf he acted.

The declaration shall be acknowledged or proved and certified in the

manner required to entitle a conveyance of real property to be recorded,

and shall have annexed thereto the affidavit or affidavits of the person

or persons who executed it attesting that the statements set forth in

the declaration are true or that the person making the affidavit is

informed and believes that they are true, setting forth the sources of

his information and the grounds of his belief, and such affidavit shall

be recorded with the declaration.

4. An initial declaration may be recorded in the office in which a

conveyance of the land described in the declaration would be recordable

or registrable, not less than twenty-seven years nor more than thirty

years after the condition subsequent or special limitation described

therein was created; provided, however, that if the date when such

condition subsequent or special limitation was created was prior to

September first, nineteen hundred thirty-one, the declaration may be

recorded on or before September first, nineteen hundred sixty-one.

A renewal declaration may be recorded after the expiration of nine

years and before the expiration of ten years from the date when the

declaration was recorded or the recording of the next previous renewal

declaration became effective. The recording of a renewal declaration

shall become effective on the anniversary of the recording of the

original declaration following the recording of the renewal declaration.

5. A declaration or renewal declaration executed as provided in this

section shall, on tender of lawful fees, be recorded and indexed as if

it were a conveyance executed by the persons named in such declaration

or renewal declaration as persons against whom the restriction is

intended to be preserved, except that if title to the land described

therein is registered the declaration or renewal declaration shall be

recorded as provided in section four hundred eight of this chapter,

noted on the original certificate of title of such land and indexed

against the names of the persons named in the declaration or renewal

declaration as persons against whom the restriction is to be preserved.

For the purposes of any provision of law relating to fees for

recording, entering or indexing of conveyances, or relating to searches,

furnishing of certified copies, reproduction by photographic method or

otherwise, or destruction, or to any other matter pertaining to the

powers and duties of recording officers with respect to conveyances,

except matters expressly provided for in this section, a declaration or

renewal declaration shall be deemed a conveyance.

6. Recording of a declaration or of a renewal declaration shall be

effective to preserve the condition subsequent or special limitation and

the right of entry, possibility of reverter or possessory estate

resulting from occurrence of the reverter from extinguishment as

provided in this section, (a) in favor of those persons only by or on

whose behalf it was executed and persons succeeding to their interests

and (b) against such persons only as are named in the declaration or

renewal declaration and persons deriving their interest, either before

or after the recording of the declaration or renewal declaration, from

or through persons so named. It shall not be effective to prevent

extinguishment or modification, under any other statute or rule of law,

of the condition subsequent or special limitation or the restriction on

the use of land resulting therefrom or the right of entry or possibility

of reverter created thereby or the possessory estate resulting from

occurrence of the reverter, nor to continue the existence of the

restriction beyond such duration, as may have been prescribed for it

when it was created, nor to extend the time allowed for commencement of

any action.

7. This section shall apply without regard to (a) the infancy,

incompetency or other disability of any person entitled to record a

declaration of intention to preserve a restriction or a renewal of such

a declaration, (b) knowledge of the existence of the restriction by the

owner of an interest in the land burdened by it, (c) the pendency, at

the time recording of the declaration or a renewal declaration is

required by this section, of any action or proceeding to declare or

determine rights or interests dependent on the restriction or its breach

or to recover possession of the land or to assert in any manner a right

of entry accruing by reason of breach of the restriction, or ownership

of a possessory estate resulting from occurrence of the reverter, or (d)

a judicial determination of the existence or continued validity of the

restriction, other than a judgment for the recovery of possession of the

land or of proceeds of a sale thereof or of compensation for a taking

thereof, by persons entitled thereto by reason of breach of the

condition or by reason of a reverter occurring upon breach of the

restriction.

8. This section shall not apply where the condition subsequent or

special limitation was created in favor of (a) the United States, the

state of New York, or any governmental subdivision or agency of the

United States or of the state of New York; or (b) the owner of a

reversion following an estate for life; or (c) the owner of a reversion

following an estate for years where the number of years for which such

estate was created will expire less than seventy years after the time

recording of an initial declaration would otherwise be required under

this section; or (d) the owner of a reversion on a lease of

communication, transportation or transmission lines; or (e) a mortgagee

or contractor-vendor of land or the holder of any other security

interest in land.

If prior to the time specified in this section for recording of an

initial declaration or renewal declaration a person entitled to record

such declaration or renewal declaration shall have made valid and

effective entry into possession of the land, pursuant to a right of

entry or upon a possessory estate resulting from occurrence of a

reverter, or shall have obtained a judgment for the recovery of

possession of the land or of proceeds of a sale thereof or of

compensation for a taking thereof this section shall not apply to bar

enforcement of his rights so established.

9. The extinguishment by this section of a condition subsequent or

special limitation restricting the use of land and of the right of entry

or possibility of reverter created thereby or possessory estate

resulting from occurrence of the reverter shall not affect

(a) the power of any person, including the owner of the right of

entry, possibility of reverter or possessory estate, to enforce the same

restriction by action for damages or for an injunction to the extent

that it is also imposed by covenant, promise or negative easement;

(b) a condition subsequent or special limitation, or the right of

entry or possibility of reverter created thereby or possessory estate

resulting from occurrence of the reverter, to the extent that the right

of entry or possibility of reverter is conditioned upon some event other

than breach of a restriction on the use of land.