Land Use Restriction
This week we wanted to bring your attention to an interesting decision out of the First Department that interpreted RPAPL Section 2001 (“Actions to enforce certain covenants restricting use of land…”) in the context of an action commenced by a Condominium Board to require a Unit Owner to remove a structure that was constructed in a rear yard of the complex.
In denying the Unit Owner’s claims that the Condo Board’s cause of action was time-barred under RPAPL § 2001 (2), the Court’s decision, in relevant part, turned on the fact that the Unit Owner was not the fee owner of the rear yard but rather a beneficiary of an “affirmative easement” which granted her exclusive used of a Limited Common Element appurtenant to the Residential Unit under the Condo’s governing documents.
The relevant facts of, as well as a link to, the case are set forth below.
RPAPL § Section 2001 “… applies to actions to enforce a covenant or agreement restricting the use of land or to recover damages for breach thereof…2. An action to enforce the covenant or agreement by compelling the removal or alteration of a structure, or to recover damages for breach of the covenant or agreement…cannot be maintained unless it is commenced (a) before the expiration of two years from the completion of the structure concerned…”
The Plaintiff in Schoen v. Board of Managers of 255 Hudson Condominium, 2023 NY Slip Op 02746, decided May 18, 2023, owns a condominium unit with an exclusive right of access to the backyard of the condominium’s property, which yard is a limited common element appurtenant to the Plaintiff’s unit. The Supreme Court, New York County, denied the Plaintiff’s motion seeking a declaratory judgment that the Board’s counterclaims, seeking removal of a structure in the yard, were barred by RPAPL Section 2001. The Appellate Division, First Department, affirmed the lower court’s ruling. According to the Appellate Division,
“Defendant’s counterclaims are not time barred by RPAPL 2001(2). Defendant is not seeking to enforce a negative easement to restrain plaintiff from having a structure on her land [citations omitted]…Since plaintiff does not own the land where the structure is constructed, RPAPL 2001(2) is not applicable to the action…”
This decision is posted at https://www.nycourts.gov/reporter/3dseries/2023/2023_02746.htm
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