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New York State
REAL PROPERTY LAW (RPL)
Laws 1909, Chap. 52


ARTICLE 10

DISCHARGE OF ANCIENT MORTGAGES

Section        345. Recording of declaration of intention to
                    preserve certain restrictions on the use of
                    land.

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Sec. 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.


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