Eight Feet Jolted a $180M Real Estate Deal
An old deed covenant requiring an eight‑foot setback on a Brooklyn Heights property has complicated a $180 million real estate sale, prompting broader questions about how such private restrictions shape modern cities. Commenters debate whether long‑lasting covenants are a legitimate form of property right or an undemocratic “dead hand” that should be converted into flexible zoning laws or invalidated, especially when no clear beneficiary exists. The thread also explores who can enforce these covenants, how they interact with doctrines like the rule against perpetuities, and whether aesthetics and wider sidewalks justify limits on buildable space amid severe housing scarcity.
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.