2023 New York Laws › RPP - Real Property › Article 10 - Discharge of Ancient Mortgages › 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.