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Covenants That Run with the Land Can Be Waived
Real estate practitioners tend to think of covenants that run with the land as absolute: after all, they are signed and recorded documents, binding on successors, and, at least figuratively, run with the land.
Another way to look at such covenants is that there are contractual in nature, and that contractual provisions can be waived or abandoned, at least by the party that benefits from them. That is what the First Department recently held in New York City Transit Auth. v 4761 Broadway Assocs., LLC, 169 AD3d 568 (1st Dept. 2019).
To constitute a covenant that runs with the land, three elements must be present. It must appear that: 1) the grantor and grantee intended that the covenant should run with the land; 2) the covenant touches or concerns land to a substantial degree; and 3) there is privity of the estate between the party claiming the benefit of the covenant and the party who has the burden thereunder. See, Nicholson v 300 Broadway Realty Corp., 7 NY2d 240 (1959).
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