Environmental Deed Restrictions May “Run with the Land” by Surrounding Circumstances; Tax-Deed/Redemption Does Not Merge Away Recorded Restrictions

1. Introduction

Case: U & Me Homes, LLC v County of Suffolk, 2026 NY Slip Op 03331 (2d Dept May 27, 2026).
Parties: Plaintiff property owner U & Me Homes, LLC (respondent) vs. County of Suffolk and Suffolk County Clerk, and the Town of Southampton and Town Planning Board (appellants).
Posture: Declaratory-judgment action challenging a deed restriction; appeals from an order and a judgment declaring the covenant void.

The dispute concerns a restrictive covenant placed in a 2000 County deed when the County sold environmentally sensitive property at public auction. The covenant stated that there would be “no development rights” except a limited right to construct a “50' westward extension of Laurel Valley Drive,” subject to Town approval. Years later, the plaintiff purchased the parcel (allegedly without learning of the covenant from a title search), sought to build a one-family home, and was denied a building permit due to the restriction.

The plaintiff sought declarations that the covenant (i) did not run with the land and was unenforceable, (ii) was extinguished by merger when the County acquired the property by tax deed, and (iii) was unauthorized under the Suffolk County Code, and (iv) was unenforceable under RPAPL 1951 (balancing of equities / no substantial benefit). The Supreme Court granted the plaintiff summary judgment on the “runs with the land” theory and entered a judgment declaring the covenant void. The Second Department reversed in substantial part and remitted for further proceedings on the remaining RPAPL 1951 claim.

2. Summary of the Opinion

  • Procedural holding: The court dismissed appeals from parts of the order because appealability was cut off by entry of judgment and because a sua sponte declaration not decided on notice is not appealable as of right.
  • Covenant runs with land: Even without an express recital in the deed that the covenant “runs with the land,” intent can be established by surrounding circumstances; here, defendants established intent (environmental conservation purpose, auction listing, and expert proof).
  • No merger extinction: The covenant was not extinguished by merger when the County took title by tax deed in 2009 because the tax deed conveyed title “with all . . . restrictions,” and redemption restored ownership subject to existing covenants.
  • County authority: Defendants established the County was authorized to include the restrictive covenant as a condition of the public auction sale.
  • RPAPL 1951 claim survives: Defendants failed to establish, prima facie, that the balance of equities could not favor extinguishment; therefore, summary judgment was properly denied on the RPAPL 1951 cause of action.
  • Disposition: Judgment declaring the covenant void was reversed; defendants obtained summary judgment on the “runs with land,” “no merger,” and “authorized under Code” claims; case remitted for further proceedings and entry of an appropriate declaratory judgment consistent with the appellate decision.

3. Analysis

3.1. Precedents Cited

Matter of Aho, 39 NY2d 241, 248 (1976) (appealability after entry of judgment)

The court relied on Matter of Aho to enforce New York’s final-judgment rule in practice: once judgment is entered, the right to a direct appeal from many interlocutory order provisions “terminates,” and those issues are instead reviewed on appeal from the final judgment. This framing allowed the Second Department to reach the merits via the judgment appeal while dismissing duplicative order appeals.

CPLR 5701(a)(2) (no appeal as of right from certain sua sponte rulings) and CPLR 5501(a)(1) (issues “brought up for review”)

The court applied CPLR 5701(a)(2) to dismiss an attempted appeal from a portion of the order where the Supreme Court, sua sponte, declared a “taking per se,” because it was not a determination of a motion made on notice. CPLR 5501(a)(1) provided the mechanism for reviewing order issues via the judgment appeal.

Housing Opportunity Multi-Family Efforts ["HOME''] v Village of Airmont, N.Y., 230 AD3d 1120, 1122 (2024) (elements for covenant to run with the land)

HOME supplied the doctrinal template: a restrictive covenant is enforceable against subsequent purchasers when (1) intent to run, (2) “touch and concern,” and (3) privity are satisfied. The Second Department narrowed the dispute to element (1): intent.

Orange & Rockland Utils. v Philwold Estates, 70 AD2d 338, 343 (1979), mod 52 NY2d 253 (1981) (intent from instrument and surrounding circumstances)

This case anchored the interpretive method: intent is determined from the deed, and if needed, from surrounding circumstances. The Second Department used this principle to hold that absence of an express “runs with the land” recital is not dispositive where the context demonstrates a land-running conservation restriction.

Brody v St. Onge, 167 AD2d 671, 673 (1990) (generic “heirs, successors and assigns” language is not enough)

The court treated Brody as a caution against over-reading boilerplate. Although the 2000 deed conveyed to “heirs or successors and assigns” subject to the covenant, that phrase alone did not establish intent that the covenant run. The defendants therefore had to prove intent through context, which they successfully did.

Perry-Gething Found. v Stinson, 218 AD2d 791, 792 (1995) (quoting Castle Assoc. v Schwartz, 63 AD2d 481, 486 (1978)) (merger doctrine)

These cases state the merger rule: if fee title to both the benefited and burdened estates becomes vested in one owner, an easement or restrictive covenant can be extinguished by merger. The plaintiff invoked this doctrine based on the County’s temporary tax-deed ownership in 2009.

Behar v Wiblishauser, 99 AD3d 838, 841 (2012) (tax deed “with all . . . restrictions”; redemption restores subject to covenants)

Behar was the central authority defeating merger here. The Second Department held that when the tax deed conveys title “with all . . . restrictions,” and the former owner redeems, the owner takes back subject to the restrictions that existed previously. This prevents a temporary tax-foreclosure interval from functioning as a “covenant-wiping” event via merger.

Suffolk County Administrative Code § A40-3(A)-(H) (redemption framework)

The court referenced the County’s statutory redemption scheme to reinforce that redemption is contemplated as a restoration mechanism, not a reset of private/public land-use encumbrances.

Neri's Land Improvement, LLC v J.J. Cassone Bakery, Inc., 65 AD3d 1312, 1314 (2009) (RPAPL 1951 pleading/standard)

Neri’s Land Improvement supplied the RPAPL 1951 touchstone: to seek extinguishment, a plaintiff must allege (and ultimately show) that, upon balancing equities, the restriction provides “no actual and substantial benefit” to the party seeking enforcement.

Chambers v Old Stone Hill Rd. Assoc., 1 NY3d 424, 434 (2004) (balancing equities under RPAPL 1951)

Chambers is the leading Court of Appeals authority on RPAPL 1951’s equitable balancing. The Second Department used it to frame the defendants’ burden on summary judgment: they had to show the equities could not “tip” toward extinguishment. They failed to do so, so the RPAPL 1951 claim remained alive.

Ramaquois Real Estate Co., LLC v Town of Haverstraw, 219 AD3d 1538, 1540 (2023) (comparative RPAPL 1951 analysis)

Cited as a contrast (“cf.”), Ramaquois reflects that RPAPL 1951 outcomes are highly fact-sensitive; it underscores why the defendants needed a stronger prima facie showing on equities here.

Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985) (summary judgment: failure of movant’s prima facie case ends inquiry)

The court applied Winegrad to affirm denial of the defendants’ RPAPL 1951 summary-judgment request “without regard to the sufficiency of the opposition papers.” In other words, because defendants did not meet their initial burden, the plaintiff’s opposition did not matter.

Lanza v Wagner, 11 NY2d 317, 334 (1962) (remittal in declaratory judgment actions)

In declaratory judgment actions, appellate courts often remit for entry of an appropriate judgment that contains the correct declarations. The Second Department invoked Lanza to send the case back for further proceedings on the surviving claims and for a revised declaratory judgment consistent with its holdings.

3.2. Legal Reasoning

A. “Runs with the land”: intent can be proven by context, especially for conservation restrictions

The court treated “intent” as the only disputed element under the HOME test. It acknowledged that the deed did not expressly state the covenant would “run with the land” and that boilerplate transfer-to-successors language was insufficient under Brody v St. Onge.

The decisive move was the court’s reliance on Orange & Rockland Utils. v Philwold Estates: intent may be derived from surrounding circumstances. Defendants’ proof established that (i) the parcel lay within a groundwater protection area and aquifer overlay district; (ii) the covenant’s purpose was environmental preservation; (iii) the County’s willingness to sell was conditioned on elimination of development rights (except the narrow road-extension right); and (iv) the auction listing itself described the “no development rights” limitation. The Town’s expert further opined that the covenant functioned as a conservation tool intended to burden the land itself, not merely the initial purchaser.

On that record, defendants satisfied their prima facie burden that the covenant was intended to run with the land, and the plaintiff did not raise a triable issue of fact. The court therefore held the Supreme Court should have declared the covenant runs with the land and should have denied the plaintiff summary judgment on this claim.

B. Merger: a temporary tax-deed interval does not extinguish restrictions where the tax deed preserves them and redemption restores subject to them

The plaintiff’s merger argument depended on the notion that when the County reacquired fee title by tax deed in 2009, the covenant “merged” into the fee and disappeared. The Second Department accepted the general merger principle from Perry-Gething Found. v Stinson (quoting Castle Assoc. v Schwartz), but held merger did not apply on these facts.

Relying heavily on Behar v Wiblishauser, the court emphasized that the 2009 tax deed conveyed title to the County “with all . . . restrictions,” and that Route 58’s subsequent redemption (under Suffolk County Administrative Code § A40-3[A]-[H]) returned the property subject to the restrictive covenants that existed when Route 58 previously owned it. Thus, the tax-foreclosure-and-redemption cycle did not cleanse the title of the covenant.

C. County authority: deed restriction as an authorized condition of public auction sale

The plaintiff asserted the covenant was unenforceable because it was not authorized under the Code of Suffolk County. The Second Department held defendants made a prima facie showing that the County was authorized to impose the covenant as a condition of sale, and the plaintiff failed to raise a triable issue. Accordingly, summary judgment should have been granted to defendants on that cause of action.

D. RPAPL 1951: equitable extinguishment remains fact-intensive; defendants did not carry their prima facie burden

The court sharply distinguished the foregoing legal determinations (intent, merger, and authority) from the RPAPL 1951 inquiry, which turns on equitable balancing and benefit. Citing Neri's Land Improvement, LLC v J.J. Cassone Bakery, Inc. and Chambers v Old Stone Hill Rd. Assoc., the court held defendants failed to demonstrate—prima facie—that the plaintiff’s hardships could not “tip the balance of equities” toward extinguishment under RPAPL 1951(2).

Applying Winegrad v New York Univ. Med. Ctr., the court affirmed denial of defendants’ summary judgment on the RPAPL 1951 claim without considering the adequacy of plaintiff’s opposing papers. The practical consequence is that, even though the covenant is valid, runs with the land, and was not extinguished by merger, it may still be modified or extinguished later if the plaintiff can prove the RPAPL 1951 equities.

3.3. Impact

  • Strengthening enforceability of conservation-oriented deed restrictions: The decision confirms that environmental protection covenants may run with the land even absent an explicit “runs with the land” clause, so long as the sale context and evidence demonstrate that intent. Public-auction materials, agency conditions of sale, and expert land-use proof can be decisive.
  • Stability of restrictions through tax-foreclosure cycles: By applying Behar v Wiblishauser, the court reduces the likelihood that temporary governmental tax title and later redemption will be used to argue that covenants were wiped out by “merger.” This protects municipalities’ and counties’ long-term land-use objectives from being undermined by delinquency-and-redemption events.
  • RPAPL 1951 remains a meaningful safety valve: Even a valid, authorized covenant running with the land is not immune from equitable review. The opinion signals that courts may require a developed factual record before extinguishing (or refusing to extinguish) restrictions under RPAPL 1951, particularly where hardship and public/environmental benefit must be weighed.
  • Transactional lesson (title and due diligence): While not a holding on liability for title defects, the facts highlight the practical risk to purchasers when restrictions exist in prior deeds and permit issuance depends on them. This case suggests litigants should expect courts to enforce properly imposed conservation restrictions despite later purchasers’ claimed lack of discovery.

4. Complex Concepts Simplified

Restrictive covenant
A promise, typically in a deed, limiting how land may be used (e.g., “no development rights”).
“Runs with the land”
Means the restriction binds future owners, not just the original buyer, if legal requirements (including intent) are met.
Intent (for a covenant to run)
Not limited to magic words in the deed; courts may infer intent from the deed’s structure plus surrounding circumstances such as conditions of sale and the covenant’s conservation purpose.
Summary judgment / prima facie burden
To win without trial, the movant must first show entitlement to judgment as a matter of law; if that showing fails, the motion is denied regardless of the opponent’s response (the Winegrad rule).
Merger (extinguishment)
Sometimes a restriction ends if one person comes to own both the benefited and burdened interests; here, that doctrine did not apply because the tax deed preserved “all . . . restrictions” and redemption restored ownership subject to those restrictions.
RPAPL 1951
A New York statute allowing a court to modify or extinguish land-use restrictions when, after balancing the equities, the restriction provides no “actual and substantial benefit” to the party seeking to enforce it.
Declaratory judgment and remittal
In declaratory actions, appellate courts often send the case back so the trial court can enter a corrected judgment containing the proper declarations (per Lanza v Wagner).

5. Conclusion

U & Me Homes, LLC v County of Suffolk establishes (and reinforces) three practical rules in New York real-property litigation: (1) intent for a restrictive covenant to run with the land may be proven through surrounding circumstances—especially where the covenant is part of an environmental conservation bargain at a public sale; (2) a tax-deed interval followed by redemption does not extinguish recorded restrictions by “merger” where the tax conveyance preserves restrictions and redemption restores title subject to them; and (3) despite validity and land-running effect, RPAPL 1951 equitable extinguishment remains a separate, fact-driven inquiry that may survive summary judgment.