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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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