New York Real Property Law

ARTICLE 10

Discharge of Ancient Mortgages

  S 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.