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Comment by pfdietz | Hacker News Reader

I think a case can be made that covenants like this should be disallowed.

Sure, allow contracts to be signed, where if a condition is violated then a penalty can be paid. But here? There's no one to buy off to relax the constraint. It's held in perpetuity by the dead hand of the past.

To put it another way: there's a property right here (in that setback) that is just sort of floating in the air, not owned by anyone alive. That makes it untaxable, when all sorts of other property is taxable. It should be possible for the city government to condemn that "property" and then change the covenant. They wouldn't even have to pay anyone, since there's no owner.

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> But here? There's no one to buy off to relax the constraint. It's held in perpetuity by the dead hand of the past.

I'd agree that there no one specific with whom you could re-negotiate the condition, but that doesn't mean there is "no one". It means that the negotiation must involve everybody who has made decisions based on the presence of the covenant, and who would be negatively impacted by it.

As others have mentioned, there are procedures in place that could strike down a covenant. It isn't the "dead hand of the past" that is being protected. It's the current homes of the living.

I don't think its logistically possible to negotiate with every relevant party in Brooklyn, or even within a half mile radius. It's effectively impossible to change, without resorting to the legislature, if that's a mandatory requirement.

If you live a half mile away are you impact at all by a setback covenant being altered? If you're a neighbor you almost certainly are.

This is a normal street where people walk every day for their commute, of course someone living a half mile away who uses the street can credibly claim to experience some non-zero impact with a narrower sidewalk.

What about some who visits on Google street view?

You probably know more than me about this since I didn't even think of it until now.

> everybody who has made decisions based on the presence of the covenant, and who would be negatively impacted by it.

Including everyone who has sold the property in the past, and/or decided not to buy it.

There is the Rule against Perpetuities, that may apply. But it sounds the rule and its application is very complex in New York, so you'd likely need a lawyer very familiar with the specifics in New York to tell you if it applies to restrictive covenants in real estate deeds. My lay person understanding is the covenants in the 1905 deed were void for my house near San Jose, CA; but those were temperance covenants and didn't affect my daily use anyway.

My understanding of the Rule against perpetuities is that it only applies to inheritance, not general real estate transactions, so covenants can't violate the rule.

(Of course, rule against perpetuities is so difficult to apply correctly that some courts have ruled it's not legal malpractice for a lawyer to screw it up.)

Nope, applies generally to deeds too. [https://en.m.wikipedia.org/wiki/Rule_against_perpetuities]

The rule as I've generally seen stated specifically bans interests from vesting, so even if it does apply to deeds, it wouldn't cover the kind of covenant here I think.

it’s far more than that - read the wiki. avoiding the ‘rule of dead hands’ is a major consideration. such as imposition of unchangeable rules long after death.

The interests vested when the lots were first sold.

I'm happy to be wrong, but this is my understanding...

My restrictive covenant was phrased that if some event occurred, the ownership would convey to the original seller or his heirs.

In that case, the seller's interest would not vest unless that event occurred; and since this vesting could happen in the far future, it's prohibited.

I don't know how the covenant on setbacks is written in this case though, unfortunately the images from the article are too small to be legible, and I don't know where to find them otherwise.

Setbacks are part of the property that is still owned by the school. Schools don't (currently) pay property taxes in New York, but whoever buys the buildings will still owe taxes on the property, including the setback.

One of the potential buyers are trying to stop the sale to a different buyer, so the setback isn't at issue. The most one could say is that the setback diminishes the potential taxable value of the property by not allowing larger buildings, but that's somewhat subjective (does the setback itself make the existing footage more desirable?).

Yes, I understand taxes are still owned on the property itself. But the right embodied in the covenant is another form of property that has been severed from the real property. That right has value (and this value is reflected in the reduced value of the actual property it applies to), but is not now subject to taxation.

It's not severed. Still part of the real property and owned fee simple, but subject to use restrictions.

You did not understand what I wrote. I didn't say the eight foot slice was severed, I said control of the right to build on it was severed. That right is an abstract thing, but it has value, and the value is now not owned by anyone.

Control over the right remains with the covenant. The city could end it if they so choose.

> There's no one to buy off to relax the constraint. It's held in perpetuity by the dead hand of the past.

It's also held indirectly by owners of other properties which sale hinged on that restriction applying to all the properties on the street.

It's this dispersed ownership I'm objecting to. Ultimately it's indistinguishable from being a citizen living in a region. We have a way of representing such collectives: the government of that region. Only here, we have a law that's effectively undemocratic.

Yeah, ideally there would be a HOA-like collective of owners that could change it if they all agreed.

They can change it if they all agree. Just the buyers are complaining that getting them all to agree to that is "very, very hard" to do.

An HOA is essentially just another covenant giving you more flexible rules to change things.

I wonder if you could get them to agree to drop that interest?

There are procedures to strike down covenants, they just involve time and expense. Obviously the expense wasn't deemed worth it.

That's nice. It would be nicer if the time and expensive involved were zero.

Why would "zero" be the ideal price? A price of zero would mean that everybody who wants the covenant to remain in place would need to constantly be on their guard for a hypothetical overly aggressive developer who wants to change it.

Having a non-zero price means that the developer can't just drag out the same argument again and again, trying to overturn the same covenant. Having minimum notice periods and public comment periods means that the developer can't just raise and force the issue in a single meeting over the holidays.

If one holds that such covenants should not exist, then any cost or difficulty to remove them is a negative.

I think people may not know how many things are handled by covenants such as this.

Sure, it's a position that anything like this should be a law on the books, but it's likely a not-very-popular position.

If most people think covenants don't affect many things, then I suspect the position that covenants should be replaced by laws is quite popular. I certainly agree with it - I've never seen a covenant that I felt should exist.

I do not hold that all such covenants should not exist.

That's nice. I was speaking for me, not for you.

Wow, big surprise. Poster who does not even seem to comprehend who actually owns the covenant also thinks that they shouldn't exist at all!

There are actual owners of the property. It's held by each other the other owners of the lots. They could go to their neighbors and buy them off to sign releases of that covenant, just that's hard to get each of them to agree to do.

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