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Steve R Wagner, A Partner at the Firm, Successfully Helping Buyers Navigate Purchasing Property on a 1840’s Slave Burial Ground

Bowery Residents Committee (BRC) (2021)

BRC, a highly respected not-for-profit whose mission is to provide shelter and social services to New York’s homeless, entered into a purchase and sale agreement for a property in northern Manhattan.  The contract deposit was in excess of $1 million.  As is typical on these matters, BRC arranged with City agencies to finance, build, and operate a homeless shelter and social services center on the site.  As the final touches were put on the documents with the City, it was discovered that the site was, in fact, an enslaved person burial ground for three farms in the 1840s.  In 1903, newspaper articles in the New York Times confirmed use of the property as an enslaved persons burial ground when human remains were discovered during excavation to build foundations for an overhead rail line which is still in use today as part of Amtrack.  The site was dreadfully desecrated at the time with human bones and skulls left in boxes for local residents to take.

The City slammed the breaks on signing the contracts with BRC until the site had been thoroughly investigated in accordance with protocols established by the Landmarks Preservation Commission and arrangements to relocate any remains discovered at the site and to honor the enslaved people.  This put BRC in a terrible bind.  They could not close on the purchase and sale agreement with the property owner, who had previously adjourned the closing and declared it to be time of the essence.  Thus, BRC could not close because the City wanted the enslaved burial grounds issues resolve and would not fund the purchase of the property or the project until it was.   If BRC was not able to close because the City pulled its support of the project, even temporarily as had happened, BRC was going to lose its $1 million plus contract deposit.  Losing more than $1 million is not something a not-for-profit company can afford – ever.

With only three weeks remaining before the time of the essence closing date, the attorneys representing BRC had exhausted any possibility of negotiating further extensions of the closing date or saving the $1 million contract deposit.  The closing was scheduled for to take place at the end of January, 2021.  The seller’s attorneys told BRC that they were going to declare BRC in default and keep the deposit.

One of the board members, the former president of Battery Park City Authority, knew me and previously hired me to litigate issues for Battery Park City.  I was successful in defending Battery Park City against constitutional challenges to its enabling legislation.  He suggested that BRC contact me to see if anything could be done.

I researched the issues and found a case from 1893 in which New York’s Court of Appeals declared the rights of descendants to visit burial sites of their ancestors even where they burial sites were located on private property.  Later cases built off this Court of Appeals precedent to establish that the right of descendants to visit the burial site of their ancestors was not only the rights of descendants, it was an issue that affected title to the property.  The Purchase and Sale Agreement BRC signed required the seller to clear title, subject to a list of very specific exception.  This right of descendants to visit their ancestors’ graves was not one of the exceptions listed in the contract.  In other words, the seller had to address these rights before the transfer of the property or BRC could get its contract deposit back.

I prepared a full set of papers for a declaratory judgment in which I asked the court to recognize the rights of the descendants and to declare that the location of an enslaved person burial ground on the property was a title issue that the seller was required to clear in order to transfer the property.  I also sought a temporary restraining order and an injunction prohibiting the seller from terminating the contract and preventing the seller’s law firm – who was holding the $1+ million escrow deposit – from releasing it to the seller.

After the papers were finished, with less than 10 days left before the ‘time of the essence’ closing, I called up the attorneys for the seller and told them about the seller’s title issue.  I explained that I was ready to go to court and I pointed out that once I filed the court papers, there would be a permanent court record of the title defect which would stay on the property until the title issue was resolved.  I explained the process to clear the title defect and that the matter was under the jurisdiction of the Landmarks Preservation Commission, who would carefully oversee everything done.  I also mentioned to the attorneys that BRC estimated the cost to resolve the defect would be several hundred thousand dollars.  This conversation was on a Friday.  I told the attorneys that I intended to file the court papers the following Tuesday and that my call was the 24-hour notification required by court rules.

When the attorneys calmed down and stopped yelling at me, I offered to send them the memorandum of law I had prepared along with all the other court papers that were ready to be filed.  The attorneys said they would get back to me after they analyzed the court papers I forwarded to them.  I gave them my phone number in case they wanted to speak to me over the weekend.  Two days later, on the following Sunday, attorneys for the seller called me and asked very nicely for a short adjournment of the ‘time of the essence’ closing so that they could try to work something out between the seller and BRC.  They also asked me not to file any papers with the court.  I agreed.  A stipulation was prepared and signed by the attorneys.

BRC understood part of its mission was to honor the enslaved people who had been buried on the site.  During negotiations it offered to purchase the property from the seller with the title defect if additional time was given to BRC to sort out everything that needed to be done with the City agencies.  The Seller agreed.  The City was extremely happy to work with BRC to create a memorial for the enslaved people in upper Manhattan similar to the African Burial Ground National Monument created in lower Manhattan.  Funds were released from the contract deposit escrow to the seller to assist in payment of taxes and upkeep on the property during the adjournment of the closing date.  The closing on the property occurred on November 1, 2021, ahead of schedule.  The seller sold the property and got his money, BRC did not lose a $1+ million deposit and purchased the site for the new facility it wanted to build, and the remains enslaved persons who were buried on the site will be honored appropriately with a memorial created with the assistance of the City for the benefit of the descendants and the community at large.

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