Westmoreland Association, Inc. v. West Cutter Estates, 174 A.D.2d 144 

Supreme Court of New York

1992

Chapter

27

Title

Common Interest Communities

Page

529

Topic

Common Interests Communities

Quick Notes

A developer was enjoined from building 3 houses 15 feet away from the front line of the property, because he was in violation of the covenant which required houses to be build 20 feet away from the  the front line of the property.

Four Factor Test to Determine whether an association has standing

1.     These are the capacity of the organization to assume an adversarial position,

2.     Whether its size and composition reflect a position fairly representative of the community or interest which it seeks to protect,

3.     The adverse effect of the decision sought to be reviewed on the group represented,

4.     Whether full participating membership is available to the residents and property owners in the neighborhood.

These Factors Ensure

1.     That the organization has a substantial identification with the successors in interest of the original grantor, AND

2.     That it will represent their collective interests.

Court Holding

o         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.

o         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.

o          Westmoreland had standing to bring this action, irrespective of the fact that it may not have met the technical requirements of privity of estate

Book Name

Fundamentals of Modern Property Law: Rabin; Kwall, Kwall.  ISBN:  978-1-59941-053-1.

Issue

o         Whether the plaintiff Westmoreland Association has standing to bring such an action to enforce a restrictive covenant which runs with the land?  Yes.

Procedure

Trial

o         The Supreme Court (New York), which entered a permanent injunction in favor of appellee homeowners' association in their action to block the construction of homes that violated a restrictive covenant

Supreme

o         Affirmed

o         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.

Facts

Discussion

Reasoning

Rules

Pl - Westmoreland (Appellee)

Df - West Cutter Estates (Developer, Appellant)

Description

o         This is an appeal.

20 Feet Restriction

o         A 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

o         There is no dispute that the houses in question were subject to the restrictive covenant.

15 Feet instead of 20 feet

o         The houses were being built at a distance of 15 feet from the front lines of the respective lots.

2 lots per house

o         Each house was on two lots where the Df owned 6 contiguous lots.

Westmore Association

o         First formed in 1917.

o         Incorporated in 1924.

Covenant

o         No building shall be erected nearer than twenty feet to the front of any lot, except in the business sections.

Supreme Court Queens County

o         Construction was halted upon application of the association.

o         Skeleton structures.

Defendant Arg Contends Westmoreland had not standing

o         Use Douglaston, to say their particular need is recognized in zoning cases for a broader rule of standing.

o         Where financial inequities between developer and individual property owners.

Court Response This case does not involve zoning.

o         It involves an equitable action concerning private restrictive convenants.

Traditional Covenant Rule

o         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. "

o         The age-old essentials of a real covenant" have been set forth as follows:

1. It must appear that grantor and grantee intended that the covenant should run with the land;
2. It must appear that the covenant is one 'touching' or 'concerning' the land with which it runs;
3. 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
4. The promisor or party who rests under the burden of the covenant.

Standing Rule

o         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

o         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 land.

o         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 expended.

Court focused on the instrument that advanced property owners interest

o         The court did not, however, focus upon the corporate plaintiff's lack of privity of estate.

o         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

o         The plaintiff associations representative status was sufficient to satisfy the requirement of privity.

Broadening of the Rules Spread expense

o         The individual home owner would have an economic disparity.

o         Even successful he will not be able to recoup his expenditures.

o         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 standing

1.     These are the capacity of the organization to assume an adversarial position,

2.     Whether its size and composition reflect a position fairly representative of the community or interest which it seeks to protect,

3.     The adverse effect of the decision sought to be reviewed on the group represented,

4.     Whether full participating membership is available to the residents and property owners in the neighborhood.

These Factors Ensure

1.     That the organization has a substantial identification with the successors in interest of the original grantor, AND

2.     That it will represent their collective interests.

Starkey

o         Did not specifically name the Pl or provide for its prospective creation.

o         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

o         Douglaston provided a good rationale for expanding Neponsit (supra) to eliminate the rigid requirement of privity.

o         Starkey further expanded it to include situations where the homeowners association was not established by deed

Court Holding

o         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.

o         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.

o          Westmoreland had standing to bring this action, irrespective of the fact that it may not have met the technical requirements of privity of estate

Affirmed

Rules

Four Factor Test to Determine whether an association has standing

1.     These are the capacity of the organization to assume an adversarial position,

2.     Whether its size and composition reflect a position fairly representative of the community or interest which it seeks to protect,

3.     The adverse effect of the decision sought to be reviewed on the group represented,

4.     Whether full participating membership is available to the residents and property owners in the neighborhood.

These Factors Ensure

1.     That the organization has a substantial identification with the successors in interest of the original grantor, AND

2.     That it will represent their collective interests.

Class Notes