Legal Question in Real Estate Law in New York

Please see a section of a Deed for a parcel of land we would like to purchase. IS THIS DEED CLAUSE unenforceable?

WHEREAS, a Deed .... dated on September 30, 1940 (the �1940 Deed�), which conveyed a .33 acre portion of the land constituting the Property to .....(therein the �Grantee�), stated that if and when the Grantee, her heirs or legal representatives, or any person who holds title through gift from the Grantee, shall desire to sell the said portion of the Property, ...... (name of company) , or any successor to either corporation, shall have the right to purchase the said portion of the Property at a price equal to the amount of any bona fide purchase offer made by any third party. The foregoing provision shall runs with the land;

Here is your previous answer to my question about whether an ROFR can "run with the land"..

Nope. An option is not "vested." No interest is good unless it must vest, if at all, within 21 years after a life in being. The attempt to encumber the land with a perpetual ROFR means that no ROFR was created.


Asked on 3/30/14, 11:49 am

1 Answer from Attorneys
Kevin Connolly Kevin J. Connolly

No, it is not. It violates the rule against perpetuities. Mind you, the presence of the purported ROFR should be good for a discount from fair market value, because it will cost money to get the ROFR declared invalid. But the ROFR is facially invalid because it's not limited to 21 years after the death of someone who was alive when the deed was delivered.

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Answered on 3/30/14, 12:19 pm


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