Westmoreland Association concerns with NYC Department of Finance mechanism for registry of properties subject to protective covenants:

 

January 30, 2016

 

Hon. Paul Vallone

New York City Council

42-40 Bell Boulevard, Suite 507

Bayside, NY 11361

 

Dear Councilman Vallone:

 

We are grateful for your efforts on behalf of homeowners associations like ours that represent neighborhoods protected by restrictive covenants.  We applauded your Intro 280, which would have required the Department of Buildings to maintain a publicly available registry of such covenants contained in property deeds. 

 

We were initially pleased by your January 18, 2016 announcement of an agreement with the Department of Finance to create such a registry.  But we were extremely disappointed when we had a chance to review the proposed DOF form through which information for the registry would be submitted.  The form is so burdensome as to make the entire process almost useless.  Specifically the form requires documentation which will be very difficult and/or expensive for any homeowners association to gather and submit.

 

1.         Section II of the form requires that the Borough, Block and Lot number of each affected parcel be reported.  This is completely reasonable, and is an eminently manageable burden.  However, the form then goes on to require that the property's "legal description" be attached.  We understand this to mean the “metes and bounds” description of each affected property as contained in the actual deed for that property.  Gathering this information for the hundreds of properties protected by covenants in any given neighborhood would be extraordinarily burdensome and expensive.  More to the point, it serves no useful purpose!  The only purpose for the registry is to alert potential buyers or developers or builders of the existence of the covenants.  The legal metes and bounds description of the property adds nothing of any value to that exercise.  All it does is make it nearly impossible for the homeowners association to populate the registry.  In short, this requirement alone fatally undermines the whole plan, which was very simple in its conception.

2.         Section III of the form requires the Liber, Reel and Page where the restrictive covenants for the parcel are located.  The same Section goes on to require that a copy of the document that established the covenants be attached.  It appears that what is demanded here is the original deed for each subject property when the covenants were first imposed.  Once again, this requirement puts the entire process effectively out of reach of most homeowners associations.  In our Westmoreland community, for example, the original subdivision and sale of the parcels in question took place a century ago.  Over 300 properties in our neighborhood are subject to the covenants.  An enormous amount of research would be needed to gather this information for each such parcel.

 

I reiterate that this excessive documentation is not necessary to effectuate the legitimate objectives of your Intro 280.  The purpose of the registry is simply to put people on notice that covenants exist.  Their own title search companies should provide them the detailed information.  (Of course, the title search companies should be identifying the existence of the covenants independent of the registry, but in our experience this does not always happen.)  The DOF form effectively seeks to transfer the burden of doing a proper title search from the landowner or developer to the homeowners association; this is unacceptable.

 

One further concern is that the registry would be maintained by DOF, rather than the Department of Buildings as we originally proposed and as your Introl 280 would require.  This, too, undermines the purpose of the registry.  Most would-be developers or homeowners planning additional construction will necessarily visit the DOB website; they will have far less reason to visit the DOF website.   That is why we suggested that the registry be maintained by DOB, and that there be a clear, simple “flag” on the DOB property record to alert persons to the existence of the covenants.  (If the DOF insists on being the agency to maintain the registry, then the DOB website should provide a notice of that fact and a link to the registry.)

 

We could not be more disappointed by the City administration’s response to your efforts.  We respectfully request that you work further with DOF and DOB to achieve a reasonable, effective and efficient registry that includes a “flag” in the DOB database. 

 

Sincerely,

   /s/

Walter Mugdan

President

 

cc:        Broadway-Flushing Homeowners Association

           Douglas Manor Association

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Written Testimony of the Westmoreland Association, submitted to the New York City Council's Housing & Buildings Committee Regarding City Council Intro 280

 

Date:   September 12, 2015

 

To:      Housing & Buildings Committee, New York City Council

 

From: Westmoreland Association, Inc.

 

We write in strong support of Councilman Paul Vallone’s Intro 280, a bill requiring the Department of Buildings to maintain a publicly available registry of restrictive covenants contained in property deeds.

 

The Westmoreland Association represents over 300 homeowners in the northeast corner of Queens County.  The Association’s boundaries can be found at: http://www.littleneck.net/westmoreland/map.htm.  They extend roughly from Northern Boulevard on the south, to Little Neck Parkway on the west, to 39th Avenue on the north, to Nassau Road on the east.

 

Intro 280 is a simple and inexpensive measure that will be of great value to residents of Westmoreland and similar communities, and also to developers and others who propose residential or commercial construction within these communities.

 

Deeds of all the properties in the Westmoreland community, and similar communities like Broadway-Flushing and Douglaston Manor, include restrictive covenants.  We call these our “Protective Covenants” because for over a century they have served to protect the character of our communities and our property values.

 

The City of New York and its Department of Buildings (DOB) are not legally authorized to administer or enforce our Covenants – only we can do that.  Under the terms of Intro 280, however, DOB would maintain a publicly available registry providing notification that these specific parcels are subject to covenants in the deeds.  That notification will be of great value to prospective developers as well as individual homeowners, reminding them to inform themselves about these covenants before they finalize their building plans. 

 

This simple step can save the prospective builders and homeowners months or years of delay, and the huge costs associated with such delays.  It will also save our associations and our many members the enormous effort, cost and aggravation of having to litigate to enforce the terms of our covenants against those who elect to ignore them, or who assert they were unaware of the existence of the covenants.

                                                                                                           

The Westmoreland community, like Broadway-Flushing and Douglaston Manor, was developed, in whole or in part, by the Rickert-Finlay company in the first two decades of the 20th century.  At that time there were no municipal zoning rules in effect.  The Rickert-Finlay company made the farsighted decision to incorporate covenants in the deeds of the properties it was offering for sale, recognizing that these would enhance and protect the character and value of the communities.

 

Among the covenants are several designed to ensure that the communities would maintain a welcoming and “open” ambiance.  This was achieved by establishing a minimum 20-foot setback requirement for all residential properties, and also prohibiting the construction of fences or walls within the first 20 feet of the front property line, and the side property line for corner properties (hedges and shrubbery are permitted).

 

These covenants run with the land – that is, they are incorporated in the property deeds and pass from owner to owner.  They are applicable to all owners in the chain of title.  They remain applicable even if a deed in a given transaction erroneously copies the covenants, or even omits them entirely.  A competent title search will always identify the covenants.

 

Nevertheless, with troubling frequency, unscrupulous builders elect to commence construction in knowing violation of a covenant, particularly the 20-foot setback requirement.  (The New York City zoning rules applicable throughout most of our communities generally call for only for a 15-foot setback.1

 

There are also occasions when builders or individual property owners embark on a project that does not comply with the covenants, and subsequently assert that they were unaware of the existence of the covenants. 

 

As noted above, the City of New York and the DOB currently have no legal authority to enforce these covenants – that responsibility lies with our homeowner associations.  Over the past century our associations have on multiple occasions each been called upon to do just that – to go to court in order to prevent or correct construction that does not comply with the covenants.  WE HAVE BEEN CONSISTENTLY SUCCESSFUL IN THESE ENFORCEMENT EFFORTS, but they are invariably expensive and time-consuming, both for us as plaintiffs and for the builders or homeowners as defendants.  

 

Intro 280 does not assign to the Buildings Department any responsibility to interpret, administer, apply or enforce those covenants.  The bill merely provides a mechanism to notify owners, prospective purchasers and developers of the existence of the covenants.

 

Our only suggested revision to Intro 280 is that it be enhanced by requiring DOB to place a “flag” in its online database identifying parcels subject to restrictive covenants.  The flag would simply direct users to the registry.  Our covenants apply to entire city blocks, so identification of the lots subject to those covenants is simple. 

 

We respectfully request that the Committee and the entire City Council support Intro 280, with the above-suggested enhancement.

 

Sincerely yours,

     /s/

Walter Mugdan

President

cc:       Hon. Paul Vallone, City Council District 19

 

1  R2A zoning, adopted in 2006 and applicable to parts of our communities, requires a greater setback as necessary to conform to the prevailing setback on the street.

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Supportion Proposed State Legislation Allowing Covenant Registration with NYC Buildings Department (with suggested revision)

April 4, 2014

 

Hon. Tony Avella

New York State Senate

38-50 Bell Boulevard Suite Bayside, NY 11361

 

Subject:           S-6190

Dear Senator Avella:

Thanks again for introducing the above-referenced legislation, which would allow homeowners and associations such as ours to register with the New York City Buildings Department the existence of restrictive covenants in the deeds for our properties.

 

We discussed your bill at our recent March 24 meeting, and all our members were grateful for your strong support.

 

One recommendation emerged from our discussion. In an abundance of caution, and to avoid even the remote possibility of an inappropriate interpretation by some future court, we suggest the addition of one paragraph to the legislation along the following lines:

 

(C) NOTHING HEREIN SHALL BE INTERPRETED TO LIMIT OR REDUCE THE RIGHTS OF ANY OWNER OR HOMEOWNER ASSOCIATION WHOSE AREA OF GEOGRAPHIC CONCERN ENCOMPASSES THE PROPERTY THAT IS SUBJECT OF SUCH RESTRICTIVE COVENANT(S) TO INITIATE AND MAINTAIN LEGAL ACTION TO ENFORCE ANY SUCH COVENANT(S).

 

Thanks in advance for your consideration.

Sincerely,

    /s/ 

Walter Mugdan

President

 

cc:        Hon. Ed Braunstein, New York State Assembly

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Joint Position of Three Queesn Communities with Rickert-Finlay Protective Covenants: 

To:     2013 Candidates for New York City Mayor, Queens Borough President, and New York City Council Member for District 19

From: The Broadway-Flushing Homeowners Association
        The Douglas Manor Association
        The Westmoreland Association

Date:    September 29, 2013

Dear Candidates:

We call upon you to commit, if elected, to work towards a simple and inexpensive measure that will be of considerable value to residents of our communities, and to developers and others who propose residential or commercial construction within these communities.

As explained further below, each of our communities includes a significant number of properties that are subject to what are known as “Restrictive Covenants” contained within the deeds of these parcels.  We call these our “Protective Covenants” because for over a century they have served to protect the character of our communities and our property values.

Our Simple Proposal, and How You Can Help:

The City of New York and its Department of Buildings (DOB) are currently not legally authorized to administer or enforce our Covenants – only we can do that. 

DOB can, however, provide a simple notification in its online database that these specific parcels are subject to covenants in the deeds.  That notification will be of great value to prospective developers as well as individual homeowners, reminding them to inform themselves about these covenants before they finalize their building plans.  

This simple step can save the prospective builders and homeowners months or years of delay, and the huge costs associated with such delays.  It will also save our associations and our many members the enormous effort, cost and aggravation of having to litigate to enforce the terms of our covenants against those who elect to ignore them, or who assert they were unaware of the existence of the covenants.

Each of our communities was developed, in whole or in part, by the Rickert-Finlay company in the first two decades of the 20th century.  At that time there were no municipal zoning rules in effect.  The Rickert-Finlay company made the farsighted decision to incorporate covenants in the deeds of the properties it was offering for sale, recognizing that these would enhance and protect the character and value of the communities.

Among the covenants are several designed to ensure that the communities would maintain a welcoming and “open” ambiance.  This was achieved by establishing a minimum 20-foot setback requirement for all residential properties, and also prohibiting the construction of fences or walls within the first 20 feet of the front property line, and the side property line for corner properties (hedges and shrubbery are permitted).

Location of our Communities:

The boundaries of the Broadway-Flushing Homeowners Association can be found at: http://bfhassoc.org/physicalboundaries.html.   They extend roughly from Northern Boulevard and Crocheron Avenue on the south, to 155th Street on the west, 29th and 32nd Avenues on the north, and 170th Street on the east.  Some 500 properties here are subject to the covenants.

The Douglas Manor Association covers most of the Douglaston peninsula north of Cherry Street and Bay Avenue.  Some 600 properties here are subject to the covenants.

The boundaries of the Westmoreland Association can be found at: http://www.littleneck.net/westmoreland/map.htm.  They extend roughly from Northern Boulevard on the south, to Little Neck Parkway on the west, to 39th Avenue on the north, to Nassau Road on the east.  Over 300 properties here are subject to the covenants.

Applicability of the Covenants:

In legal parlance, these covenants run with the land – that is, they are incorporated in the property deeds and pass from owner to owner.  They are applicable to all owners in the chain of title.  They remain applicable even if a deed in a given transaction erroneously copies the covenants, or even omits them entirely.  A competent title search will always identify the covenants. 

Noncompliance with the Covenants:  

Nevertheless, from time-to-time unscrupulous builders elect to commence construction in knowing violation of a covenant, particularly the 20-foot setback requirement.  (The New York City zoning rules applicable throughout most of our communities generally call for only for a 15-foot setback.)  

There are also occasions when builders or individual property owners embark on a project that does not comply with the covenants, and subsequently assert that they were unaware of the existence of the covenants.  

Enforcement of the Covenants

As noted above, the City of New York and the DOB currently have no legal authority to enforce these covenants – that responsibility lies with our homeowner associations.

Over the past century each of our associations has on multiple occasions been called upon to do just that – to go to court in order to prevent or correct construction that does not comply with the covenants.  WE HAVE BEEN CONSISTENTLY SUCCESSFUL IN THESE ENFORCEMENT EFFORTS, but they are invariably expensive and time-consuming, both for us as plaintiffs and for the builders or homeowners as defendants.  

Our Simple Proposal

When elected, you can help to minimize the number of occasions on which this kind of costly litigation becomes necessary.

We ask that you pledge to work to have the NYC Department of Buildings include a “flag” in its online database identifying parcels subject to such restrictive covenants.  The flag will simply alert those proposing to build on one or more of these parcels that covenants may apply and should be researched before construction plans are finalized.  

Our covenants apply to entire city blocks, so identification of the lots subject to those covenants is simple.  It would, of course, be the responsibility of our associations to provide to DOB the specific City Block numbers in question.

This request asks only that DOB create a simple flag to alert those planning to build that restrictive covenants exist, thus encouraging the prospective builders to inform themselves about the terms and applicability of such covenants.  We are not proposing that DOB be assigned any responsibility to inform prospective builders about the terms of those covenants, nor that DOB would have any responsibility to interpret, administer, apply or enforce those covenants.

Our Request of You:

We ask that you pledge to work to implement our proposal.  We stand ready to assist you and the DOB towards this end, and to provide the information and documentation that may be necessary to implement it.  We thank you for your consideration and hope we can count on your support. We respectfully request the favor of a written reply prior to the general election.

Sincerely,


_____/s/__________    _____/s/______________               _____/s/______________
Walter Mugdan, President    Janet McCreesh, President                         Pauline Healy, President
Westmoreland Assoc.          Broadway-Flushing Homeowners Assoc.      Douglas Manor Assoc.
718-224-7256                     718-762-3769                                          631-774-1631    

 

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