Although the law has long favored the free and unencumbered use of property, the Broadway Flushing Homeowners Association, Inc. (“BFHA”)  recently obtained a legal victory upholding a 1909 private covenant that continues to preserve the park-like character of its suburban neighborhood in North Flushing.  See, Broadway Flushing Homeowners’ Association, Inc. v Eastern NY Enterprises, Inc., (Supreme Court, Queens County, 2013).   Put in place by the Rickert-Finlay Realty Company in the early 190o’s, the covenant’s purpose was to promote the “garden city” ideals of a planned suburban community by preserving large corner lots.  As a result of winning a permanent injunction, the BFHA prevented the defendant, a developer, from subdividing an oversized corner lot into two single-family home sites.

The defendant purchased the property with the intention of tearing down the existing single-family house and subdividing the property.  Although called “hidden agreements” by the defendant’s architect, a standard title search revealed the existence of several private restrictive covenants.  The defendant claimed that the private covenants should be disregarded because the subdivision of the property was in compliance with the New York City zoning laws.

However, regardless of the existing zoning, the BFHA established that the 1909 covenant continues to serve a legitimate purpose as part of a general plan for the permanent preservation of the community’s suburban character.  The Court agreed with the BFHA that the neighborhood preservation purpose of the private covenant remains as compelling today as it did the day it was created.  In reaching its decision that the community continues to benefit from this more than 100-year old covenant, the Court took judicial notice of the “rampant development of McMansions” in other parts of suburbia, and stated that such a “crisis” was averted here by this private restrictive covenant.

This decision underscores the continued vitality of private covenants that conflict with less restrictive underlying zoning and may be a way for communities to better protect their quality of life.  From a developer’s perspective, it also highlights the importance of obtaining a title search as part of the due diligence process to ensure there are no private restrictions in the chain of title that can interfere with a development plan.