- Westmoreland (Appellee)
- West Cutter Estates (Developer, Appellant)
This is an appeal.
20 Feet Restriction
homeowners' association seeks to enjoin the defendants from
completing construction of three single-family homes on the
ground that the construction violates a restrictive covenant
requiring that dwellings be set back a minimum of 20 feet from
the front line of the property.
Subject to Covenants
There is no dispute that the houses in question were subject to
the restrictive covenant.
15 Feet instead of 20 feet
The houses were being built at a distance of 15 feet from the
front lines of the respective lots.
lots per house
Each house was on two lots where the Df owned 6 contiguous lots.
First formed in 1917.
Incorporated in 1924.
No building shall be erected nearer than twenty feet to the
front of any lot, except in the business sections.
Supreme Court Queens County
Construction was halted upon application of the association.
Defendant Arg Contends Westmoreland had not standing
Use Douglaston, to say their particular need is recognized in
zoning cases for a broader rule of standing.
Where financial inequities between developer and individual
Court Response This case does not involve zoning.
It involves an equitable action concerning private restrictive
Traditional Covenant Rule
The traditional rule is that, irrespective of the intention of
the parties, a covenant will run with the land and
will be enforceable against a subsequent purchaser of the land
at the suit of one who claims the benefit of the covenant,
only if the covenant
complies with certain legal requirements. "
The age-old essentials of a real covenant" have been set forth
It must appear that grantor and grantee intended that the
covenant should run with the land;
It must appear that the covenant is one 'touching' or
'concerning' the land with which it runs;
It must appear that there is 'privity of estate' between the
promisee or party claiming the benefit of the covenant and
the right to enforce it, and
The promisor or party who rests under the burden of the
Under such a restrictive view,
civic and property owners'
associations, with no direct proprietary interest
in the land, would clearly have
no standing to challenge the violation of a covenant.
Court - Neponsit Prop. Owners Association
The realty company assigned to the plaintiff all of its right,
title and interest "in and to the said annual charge or lot tax,
provided for in the covenant of each deed theretofore made" by
the realty company, of lots or plots out of the subject tract of
Significantly, the corporate plaintiff had not succeeded to any
of the land, nor did it have title to the streets or public
places upon which the charges assigned to it were to be
Court focused on the instrument that advanced property owners
The court did not, however, focus upon the corporate plaintiff's
lack of privity of estate.
Rather, the court emphasized the fact that the association had
been formed as a convenient instrument by which the property
owners might advance their common interests.
Privity was sufficient for the association
The plaintiff associations representative status was sufficient
to satisfy the requirement of privity.
Broadening of the Rules Spread expense
The individual home owner would have an economic disparity.
Even successful he will not be able to recoup his expenditures.
By granting neighborhood and civic associations standing in such
situations, the expense can be
spread out over a number of property owners, putting them on an
economic parity with the developer.
Four Factor Test to Determine whether an association has
These are the capacity of the organization to
assume an adversarial position,
Whether its size and composition reflect
a position fairly representative of the community or
interest which it seeks to protect,
The adverse effect of the decision
sought to be reviewed on the group
Whether full participating membership is available
to the residents and property owners in
These Factors Ensure
That the organization has a substantial identification with the
successors in interest of the original grantor, AND
That it will represent their collective interests.
Did not specifically name the Pl or provide for its prospective
Standing was found to have a substantial identification with the
property owners and to be an appropriate representative of both
the owners and the property to be benefited by the covenant.
Douglaston, Neponsit and Starkey
Douglaston provided a good rationale for expanding Neponsit
(supra) to eliminate the rigid requirement of privity.
Starkey further expanded it to include situations where the
homeowners association was not established by deed
The corporate plaintiff Westmoreland Association was formed as a
convenient instrument by which the property owners could advance
their common interests and that it has a substantial
identification with the real property owners in Westmoreland.
Given all of the aforementioned factors, the Westmoreland
Association qualified as a bona fide representative of the
residents and property owners in the subject locale.
Westmoreland had standing to bring this action, irrespective of
the fact that it may not have met the technical requirements of
privity of estate