First of all, the headline is pretty clickbaity -- from the article it seems quite clear that this was a case of competing buyers, and the 8-foot setback is some spurious justification for why one of the buyers didn't move fast enough.
Second, many commenters here are arguing that perpetual clauses like this ought to be disallowed. It certainly makes sense to me that clauses like these ought to be converted to regular zoning laws that the city can then adjust as future generations deem necessary.
But third, this particular clause makes sense! You wouldn't want to get rid of it. All the buildings on the block have façades that are aligned with each other, to form a continuous "wall" of buildings. The last thing you want is for some random property owner to get to jut out 8 feet in front of all the other buildings. Ensuring some minimal level of architectural consistency on a dense city block is a good thing.
So keep the eight-foot setback. It makes perfect sense. But just convert it to be a city zoning regulation. It should be decided and modified if necessary via democratic means, not private contract.
> Ensuring some minimal level of architectural consistency on a dense city block is a good thing.
Check zillow. Of the 32 units for rent in Brooklyn Heights, the cheapest is a tiny $2,600/month studio. The median rent is $4,500/month, and that's for an apartment with one bedroom and one bathroom.
No, I don't think allowing a 200 year old private rule to reduce living space in an age of incredible housing scarcity is good. I could not care less about your architectural consistency when it is part of the reason why people are sleeping on the streets and others are paying most of their income on rent.
There's zero chance this particular covenant is reducing living space, instead it's preventing some billionaire from building some obnoxious entrance across the existing sidewalk.
Why do you want to limit people’s property rights for looks? Why does a row of buildings need to be exactly aligned? This type of thing and HOAs are a bane upon property owners. I’m glad I don’t have an HOA, and I’ll never understand the push to not allow semi-organically grown cityscapes. You need some zoning limits, but do it Japan style rather than for looks.
Because some of the USA (notably the north east) still gives a shit about the communities where they live rather than embracing rugged frontier individualism a la "trust no one, and get yours first."
Just because you own something doesn't mean you get a free pass to be a nuisance to others. Laws are there to keep society together, not to enable antisocial proclivities.
Yeah this is why I bought land with no HOA and no covenants and basically no codes and liberal zoning. Sure the roads are dirt 4x4 and my neighbors have livestock and wild noises at all times but if I wanted to regulate other land I'd buy it myself rather than using violence of enforcers sent in to stop it.
If you want 8 ft setback, simple solution. Build 16 ft from your property line,problem solved even if your neighbor hits the edge.
I'd argue this is a bit different than your typical suburban HOA restrictions.
Cities are shared spaces, and design consistency is pleasing to humans. Beautiful architecture and good city planning are obviously subjective, but aesthetically, design consistency creates a sense of harmony, unity, and comfort compared to a disjointed hodgepodge without a cohesive architectural through line. Functionally, it can also promote things like walkability and sustainability, making it a nicer place to live and work and visit.
The 99% Invisible podcast recently had an episode about Sante Fe, NM. The city has strict guidelines for architecture and design which have ultimately been a big factor in the city's success as a tourist destination. https://99percentinvisible.org/episode/roman-mars-describes-...
> All the buildings on the block have façades that are aligned with each other
What's interesting here is that in the picture they provide to document the 8 foot setback, the reason the buildings do not align with each other is because of that. Other buildings on the block go right up to the sidwalk.
Typically, covenants are meant to cover issues more locally than zoning could, like a permanent easement for the benefit of an adjoining property or setbacks for all the properties on one street to achieve a particular aesthetic. You could make them zoning laws, but they would be rather complex and have to refer to particular parcels.
They can be removed, but typically you have to prove that removing the covenant isn't negatively impacting another property owner for which it was originally added. It can be done by unanimous agreement of the property owners, or more commonly, by just buying up all the adjoining properties.
Doesn't your argument that this should be converting to a zoning regulate kind of negate your point that we should want to ensure some level of consistency on a dense city block?
No, the point is that the zoning maintains the consistency.
But that if someday in the future there's a greater public need for something that outweights the architectural consistency, there's the flexibility to consider that too, through the existing public mechanisms of zoning changes.
Like if the entire block gets purchased and torn down to put in a single school building, then the setback is no longer needed, because a new kind of consistency can take its place.
Personally, I think rent is far too high. We need real change. Perhaps hard-working worker co-ops could build homes designed to a consistent pattern by artists like me for us to live in. Housing is a human right, so the government should build them. It's sheer Mammon-worship if someone were to make a profit so we should ensure that doesn't happen. We could call the project El Sombrito.
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.
> 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.
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.)
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 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.
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.
That was anticlimactic (based on the headline, which is an editor's choice, not the author's). They knew about the requirement and followed it, no jolting involved. The setback is used for a sidewalk. Probably makes more sense for it to be public, but that's not how the man laying out the suburb decided to do it.
To be clear, this is 8’ in addition to the normal public sidewalk/right-of-way. Looking at the photo, the building in question has a wider sidewalk than the buildings on either side.
In the UK you can adjust or remove covenants by paying a large fee to the original covenant holder. The legal theory is that the land without the covenant would have been worth more when it was originally sold, so you pay that difference. In this case finding the original covenant holder seems like it would be tricky, but in the UK most covenants were issued by councils [local government] when council-owned housing was sold off, so you'd pay the council to adjust the covenant. Our house has a covenant against keeping farm animals which I've not felt the need to remove.
Not sure why everyone is desperate in these replies to eliminate the setback; seems like a perfectly good outcome to have a wide sidewalk in an area that is likely to have a lot of pedestrian traffic.
Because constituents will often fight such an attempt. For every covenant that's annoying you, there are people in the vicinity that like it.
People generally like setbacks. It prevents their neighbors from being too close, or the street getting crowded in. Property owners might want to develop along the edges, but their neighbors may not want them to.
So clearing these covenants out wholesale is going to be a fight. And going through the legislative process for a single property is really inefficient.
Ah, this answers a question I had: How is a covenant enforced since it's not a law? Who would have standing for a civil suit if a 200 year old covenant was simply ignored?
So what you're saying is that others in the vicinity would be able sue to make sure the covenant was honored? I have to assume this has been tested in court many times before and upheld.
Legally, it's not hard, you just make a law. You can make an existing type of contract illegal. At that point in time, the contract (or parts of it) become unenforceable. See banning non-competent agreements.
Basically yeah, it take legislation. Like the Civil rights act immediately struck down all of the racist covenants (that still exist but are unenforceable).
So maybe a municipal action could do something similar?
Of course the easiest way to not deal with covenants like this is don't buy property with them. Condos have tons and I will never live in one.
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Second, many commenters here are arguing that perpetual clauses like this ought to be disallowed. It certainly makes sense to me that clauses like these ought to be converted to regular zoning laws that the city can then adjust as future generations deem necessary.
But third, this particular clause makes sense! You wouldn't want to get rid of it. All the buildings on the block have façades that are aligned with each other, to form a continuous "wall" of buildings. The last thing you want is for some random property owner to get to jut out 8 feet in front of all the other buildings. Ensuring some minimal level of architectural consistency on a dense city block is a good thing.
So keep the eight-foot setback. It makes perfect sense. But just convert it to be a city zoning regulation. It should be decided and modified if necessary via democratic means, not private contract.
Check zillow. Of the 32 units for rent in Brooklyn Heights, the cheapest is a tiny $2,600/month studio. The median rent is $4,500/month, and that's for an apartment with one bedroom and one bathroom.
No, I don't think allowing a 200 year old private rule to reduce living space in an age of incredible housing scarcity is good. I could not care less about your architectural consistency when it is part of the reason why people are sleeping on the streets and others are paying most of their income on rent.
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Literally is an overused word, but it fits here:
A covenant is literally a property right!
Just because you own something doesn't mean you get a free pass to be a nuisance to others. Laws are there to keep society together, not to enable antisocial proclivities.
If you want 8 ft setback, simple solution. Build 16 ft from your property line,problem solved even if your neighbor hits the edge.
Cities are shared spaces, and design consistency is pleasing to humans. Beautiful architecture and good city planning are obviously subjective, but aesthetically, design consistency creates a sense of harmony, unity, and comfort compared to a disjointed hodgepodge without a cohesive architectural through line. Functionally, it can also promote things like walkability and sustainability, making it a nicer place to live and work and visit.
The 99% Invisible podcast recently had an episode about Sante Fe, NM. The city has strict guidelines for architecture and design which have ultimately been a big factor in the city's success as a tourist destination. https://99percentinvisible.org/episode/roman-mars-describes-...
What's interesting here is that in the picture they provide to document the 8 foot setback, the reason the buildings do not align with each other is because of that. Other buildings on the block go right up to the sidwalk.
They can be removed, but typically you have to prove that removing the covenant isn't negatively impacting another property owner for which it was originally added. It can be done by unanimous agreement of the property owners, or more commonly, by just buying up all the adjoining properties.
a good portion of the US has racial covenants saying what properties can be sold to whom, but none of those have been legal or legally enforceable since the Fair Housing Act. https://www.alta.org/advocacy/housing-opportunities/discrimi...
But that if someday in the future there's a greater public need for something that outweights the architectural consistency, there's the flexibility to consider that too, through the existing public mechanisms of zoning changes.
Like if the entire block gets purchased and torn down to put in a single school building, then the setback is no longer needed, because a new kind of consistency can take its place.
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.
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.
Including everyone who has sold the property in the past, and/or decided not to buy it.
(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.)
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?).
It's also held indirectly by owners of other properties which sale hinged on that restriction applying to all the properties on the street.
In this photo, it’s the space to the right of the person in the brown jacket… https://archive.is/uNYgK/bc5622d4591c17c2ac4c1f0ff826d2331ab...
Makes you wonder who was involved in that agreement and if it matters now. And I wonder if this applies? https://en.wikipedia.org/wiki/Rule_against_perpetuities
Semi related: Who approved those signs, all caps, that spacing?
https://static01.nyt.com/images/2024/04/19/multimedia/bkheig...
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People generally like setbacks. It prevents their neighbors from being too close, or the street getting crowded in. Property owners might want to develop along the edges, but their neighbors may not want them to.
So clearing these covenants out wholesale is going to be a fight. And going through the legislative process for a single property is really inefficient.
So what you're saying is that others in the vicinity would be able sue to make sure the covenant was honored? I have to assume this has been tested in court many times before and upheld.
See https://en.wikipedia.org/wiki/Shelley_v._Kraemer where the United States Supreme Court ruled the 14th amendment made "racially restrictive covenants" unenforceable.
Also, depending on the state, you might be able to get a covenant removed by a court if it has been violated for a sufficient period of time.
So maybe a municipal action could do something similar?
Of course the easiest way to not deal with covenants like this is don't buy property with them. Condos have tons and I will never live in one.