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Scott. E. Mollen

Development Rights Constitute Real Property for Purposes of RPAPL 1602, but Plaintiffs Failed to Establish That Sale of Development Rights Would Be “Expedient” as Required by RPAPL §1604

This decision involved an appeal by the plaintiffs, in an action, inter alia, pursuant to Real Property Actions and Proceedings Law (RPAPL) §1602 (§1602), from a trial court order which dismissed plaintiff’s cause of action pursuant to §1602 to compel the sale of certain development rights (development rights).

The parties were siblings who disagreed as to the future of a farm that had been owned by their family for more than 240 years. The parties’ mother’s will “conferred a qualified life estate in the property upon [the plaintiff brother], and left the remainder interest to her four children in equal shares.” The plaintiff and “two of his sisters, who hold remainder interests, seek authorization pursuant to [§1602] to sell the [development rights] to the property in order to preserve its future use as a farm.” The Appellate Division, Second Dept. (court), explained that it had to determine, “for the first time,” “whether [development rights] constitute ‘real property, or a part thereof’ for purposes of [§1602].” The court held that “development rights constitute real property for purposes of [§1602], but that the plaintiffs failed to establish their entitlement to relief pursuant to that statute.”

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