Eight Feet Jolted a $180M Real Estate Deal
Headline and factual setup
- Several commenters find the NYT headline overstated.
- Reading of the article: buyers knew about the 8-foot setback and complied; it became a talking point in a competitive sale rather than a true “jolt.”
What the covenant does and who “owns” it
- Setback is an extra 8 feet beyond the normal sidewalk/right-of-way, currently used by pedestrians.
- Dispute over whether the “right to build” on that slice is a severable property interest or just a use restriction on the fee-simple owner.
- Some argue the benefit is effectively dispersed among nearby property owners and street users, making renegotiation practically impossible.
Rule Against Perpetuities (RAP) and legal complexity
- Debate on whether RAP applies:
- One side says RAP limits certain future interests, not this kind of restrictive covenant.
- Others argue RAP is broader, aimed at avoiding “dead hand” control, and can apply to deed restrictions depending on how they’re drafted.
- Consensus that RAP is technically complex and state-specific; outcome here is unclear without expert local counsel.
Enforcement and standing
- Question of who could sue if the covenant is violated: neighbors, other lot owners under the same scheme, possibly pedestrians claiming harm (light, space, value).
- Practical risk: title insurers and lenders may balk, so ignoring the covenant is risky even if no one sues.
- If all affected neighbors consent and sign releases, covenant can typically be removed, but coordination is “very, very hard.”
Covenants vs legislation/zoning
- One camp: perpetual private covenants are undemocratic; their content should be moved into zoning law, which can be changed politically.
- Others: covenants are a legitimate, localized property right, often more fine-grained than zoning, and can be modified by law if needed (e.g., racist covenants made unenforceable).
- Some note that legislatures resist sweeping invalidation because many residents like setbacks and similar controls.
Aesthetics, community, and housing scarcity
- Supporters: aligned façades and wider sidewalks improve urban design and walkability; covenants protect neighborhood character.
- Critics: prioritizing 200-year-old aesthetic rules over buildable space in a high-rent area is morally dubious amid housing scarcity.
- Broader philosophical split between strong individual property freedom and viewing cities as shared spaces where design consistency and the “common good” matter.