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LAND USE CONTROLS (PART 2): BY PRIVATE AGREEMENT

WITTER V. TAGGART

78 N.Y.2d 234, 577 N.E.2d 338 (N.Y.,1991)
*Note: This case is relevant to the current topic, and by virtue of the court’s discussion of recording statutes and the effect of various types of notice, it is also relevant to the topic of real estate conveyances that appears later. This is a complex but demonstrative case [indeed, this is a complex area of 1L course material], although the italicized notes below should provide you with additional background to understand some of the terms used. See if you can follow the rights at issue, the terms used to describe the various property interests, and the reason why the Taggarts are ultimately deemed to own their land free of the claimed restriction.

Plaintiff Witter and defendants Taggarts are … neighboring property owners. Their homes are on opposite sides of a canal on the south shore of Long Island. The Winganhauppauge Creek lies immediately west of both parcels. Their property dispute arose when the Taggarts erected a 70-foot long dock on their canal-side frontage. This was done after a title search revealed that their deed expressly permitted building the dock and reflected no recorded restrictions in their direct property chain against doing so. Witter complained of a violation of his scenic easement to an unobstructed view of the creek and an adjacent nature preserve, which he claims is protected by a restrictive covenant contained in his chain of title. He sued to compel the Taggarts to dismantle and remove the dock and to permanently enjoin any such building in the future.

The trial court held that the Taggarts are not bound by or charged with constructive notice of a restrictive covenant which does not appear in their direct chain of title to the allegedly burdened land. The Appellate Division affirmed. We granted Witter’s motion for leave to appeal to decide whether the covenant recited in Witter’s chain of title to his purported “dominant” land, which appears nowhere in the direct chain of title to the Taggarts’ purported “servient” land, burdens the Taggarts’ property. We agree with the lower courts that it does not, and therefore affirm the order of the Appellate Division.

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