5 Property Ny Distinctions

Front 1

CHAPTER 1: OWNERSHIP: PRESENT ESTATES AND FUTURE INTERESTS
A. Vocabulary
• A fee simple determinable is called a ________________________________________________,
characterized by ________________________________ language in the conveyance itself.
• A fee simple subject to condition subsequent is called a fee on ___________________________,
characterized by ___________________________________ language.
• A right of re-entry is also called a right of entry, power of _______________________________,
or right of reacquisition. It is a future interest that follows a fee on condition.
• A possibility of reverter is also called a right of reverter. It follows a fee on
____________________________________.
• A vested remainder subject to complete defeasance is also called a remainder vested subject to complete ________________________________________ or subject to
_____________________________________________________________________.

Back 1

fee on limitation
so long as
fee on condition
but if
termination
fee on limitation
defeasement
total divestment

Front 2

(continued)
Example 1: O to A for life, then to B, but if B does not outlive A, instead to C.
B has a __________________________________________________________.
• A contingent remainder and executory interests are both called remainders subject to
______________________________________________________________.
Example 2: O to A for life, then if B is still alive, to her.
A has a __________________________________________________________.
B has a __________________________________________________________.
Example 3: O to A for life, then to C but if C does not outlive A, then to be B.
B has a __________________________________________________________.
C has a __________________________________________________________.

Back 2

remainder subject to total divestment (or complete defeasement)
NY doesn't distinguish - both are remainders subject to condition precedent
life estate
remainder subject to condition precedent
remainder subject to condition precedent
remainder vested subject to complete divestment

Front 3

(continued)
Example 4: Othello conveys Blackacre “to Andrew and his heirs so long as
Blackacre is never used as a business school.”
Andrew has a _____________________________________________________.
Othello has a _____________________________________________________.

Back 3

fee on limitation (so long as)
right of reverter

Front 4

(continued)
Example 4: Othello conveys Blackacre “to Andrew and his heirs so long as
Blackacre is never used as a business school.”
Andrew has a _____________________________________________________.
Othello has a _____________________________________________________.

Back 4

fee on condition
right of reacquisition (look on the handout or check the video to see why I have two "example 4s" and why they're different)

Front 5

CHAPTER 2: FUTURE INTERESTS AND THE RULE AGAINST PERPETUITIES
A. Destructibility
• Remainders subject to condition precedent (contingent remainders) are not subject to
destructibility in New York. The termination of the preceding estate ______________________
terminate the remainder.

Back 5

does not

Front 6

Example 6: O to A for life, then to the children of A and B who survive both A and B. The potential problem in this conveyance is that at A's death, we may not know which of A and B's children have survived both A and B if B is still alive. Under the doctrine of destructibility, the contingent remainder would fail. The remainder subject to condition precedent would not survive the natural
termination of the prior possessory estate if the contingency has not been resolved at that time. That is _______________________ in New York. In New
York, these contingent remainders are _________________________________
to destructibility. The disposition and future interest would be good, and the
future interest in the children would _______________________________

Back 6

not true
not subject
survive

Front 7

B. Abolished Doctrines
• The following three doctrines have been abolished in New York:
o __________________________: Created by conveyance of “O to A, and the heirs of A’s body.” In New York, this conveyance creates a fee simple absolute in A.
o _____________________________________________: Created by conveyance of “O to A for life, remainder to A’s heirs.” Under the rule in Shelley's Case, this
conveyance creates a fee simple absolute in A. In New York, this conveyance creates a
_______________________________________ in A and a
_________________________________________ in A's heirs.
o ____________________________________________: Created by conveyance of “O to A for life, remainder to O’s heirs.” Under the Doctrine of Worthier
Title, this conveyance creates a life estate in A and a reversion in O. In New York, this
conveyance creates a ________________________________________________ in A
and a ____in O's heirs.

Back 7

fee tail
rule in Shelley's case
life estate in A
remainder
doctrine of worthier title
life estate in A
remainder

Front 8

C. Certain Future Interests
• In New York, a right of reacquisition is _______________________________________________
to a third party like any possessory estate.
Example 7: O conveys a corner of Blackacre to A “so long as the property is
used as a business school.” O sells the rest of Blackacre to B, including the right
of reverter that O had retained over the portion of Blackacre he previously
conveyed to A. If A stops using the property as a business school, B may ___________________________________________________ of
Blackacre.

Back 8

transferrable
take possession

Front 9

• New York requires an owner of a future interest to record a “Declaration of Intention to
Preserve Restrictions on the Use of Land” not less than _______________ years, but not more
than _______________________ years, after the future interest was created.
o The holder of the interest must re-file that declaration after every ________________ to
________________ years, unless the holder of the interest has already re-taken possession
under the conveyance.
o This serves as record notice of the interest.

Back 9

27
30
9
10

Front 10

• A right of reverter in New York is not necessarily self-executed.
Example 8: O to A, so long as the property is used as a business school. This
creates a right of reverter in O. If A stops using the property as a business
school, O has to __________________________________________ to retake
possession of the property. Title or the possessory interest does not transfer
back to O automatically.

Back 10

actually petition

Front 11

D. Rule Against Perpetuities
• New York applies the common law Rule Against Perpetuities. New York has not adopted
Perpetuities reform (such as "wait and see" reforms).
• One change from the common law: For purposes of the Rule Against Perpetuities, New York
presumes that a woman over the age of ________________ cannot have additional children.
o This is a modification of the fertile "octogenarian rule."

Back 11

55

Front 12

Example 9: In 2010, Othello conveys Blackacre “to Alice for life, then to Alice’s
first grandchild.” At the time of the conveyance, Alice is 40 years old, has two
children, Beatrice and Charlie, but no grandchildren.
Alice has ___________________________________________.
Othello has ________________________________________.

Back 12

life estate
reversion

Front 13

Alice’s first grandchild (as yet unborn) has nothing. That future interest violates
the Rule Against Perpetuities. Why? We won't necessarily know who Alice's
first grandchild is within 21 years of the death of a life in being at the time of the conveyance. Alice may have another child, David, after the date of the
conveyance. David was not alive at the time of the conveyance and is not __________________. It may be that David is the child who provides Alice with her first grandchild - that event may not happen for more than 21 years after everyone else dies.

Back 13

a life in being at the time of the conveyance

Front 14

If at the time of the conveyance, Alice is 70 years old, has two children, Beatrice
and Charlie, and no grandchildren, then this remainder becomes
____________________________________:
Alice has _____________________________________________________.
Alice's first grandchild (unborn) has a valid remainder
________________________________________________________________.
Othello has ______________________________________________________.
Since Alice is over 55 years old, there is a presumption that she is not able to
have another child.

Back 14

valid
life estate
subject to condition precedent
right of reacquisition

Front 15

• The Rule Against Perpetuities in New York applies to _________________________________________________.
Example 10: Oh Corporation enters into a transaction with Acme Corporation
in 2010 whereby Oh Corporation conveys Blackacre to Acme for $10,000, but retains a right to repurchase Blackacre for $10,000 that can be exercised in 2025, 2030, or 2035. One of those periods (2035) is outside the Rule Against
Perpetuities period - it is more than 21 years after the conveyance. ACME has a _________________________________________________
in the property.
Oh Corporation has ________________________________________.
The option is ________________________ under the Rule Against Perpetuities.

Back 15

commercial options
fee simple absolute
nothing
void

Front 16

CHAPTER 3: LANDLORD/TENANT AND CONCURRENT ESTATES
A. Ameliorative Waste
In general, a life tenant cannot make changes to property. NY has modified the multi-state definition of ameliorative waste. New York’s Real Property Law essentially provides a life
estate holder with a __________ against ameliorative waste – and therefore they can make changes
to the property – so long as:

Back 16

defense

Front 17

o The proposed alteration is one which a ___________________________________________
in fee simple absolute would make in view of conditions on the property;
o The proposed alteration when completed will not reduce the _________________________
value of the interests following the estate;
o The proposed alteration is not in violation of the terms of any agreement regulating the
conduct of the life estate holder;
o The life expectancy of the life tenant or the term left on a “term of years” interest is not less
than __________________________________________;

Back 17

prudent owner
market
5 years

Front 18

o The person proposing the alteration has served on all future interest holders notice of
alteration at least __________________________ prior to the commencement of the
alteration.
• Tip: A life estate holder can make changes to the property so long as the changes are
appropriate, ___________________________________________________________________,
not prohibited, by not someone too old, with 30 days' notice.

Back 18

30 days
value-enhancing

Front 19

B. Lien Theory
• In New York, a lien does not sever a _________________________________________________
– only default or foreclosure sale does.
Example 11: Othello conveys Blackacre “to Andrew and Bernice as joint tenants.” Interested in opening a business school, Andrew takes out a mortgage
on Blackacre. Shortly thereafter, he dies testate, with a will leaving all of his
property to Candice. ______________________________ will take Blackacre.

Back 19

joint tenancy
Bernice

Front 20

C. Tenancy by the Entirety
• New York law recognizes a tenancy by the entirety, which prevents a spouse from
___________________________________ conveying away the property.
Example 12: Othello conveys Blackacre to a husband and wife, “Andrew and
Bernice, as tenants by the entirety.” Five years later, Andrew conveys his
interest in Blackacre to his son, Charlie. Andrew then dies. Bernice dies a few
years later leaving all of her property to her daughter Debbie.
_________________________________ now owns Blackacre.

Back 20

unilaterally
Debbie

Front 21

NOTE: NY requires residential leases to be written in a clear and coherent manner. Failure to comply subjects the landlord to damages which result from confusion and $50 for non-compliance.
o A holdover tenant creates an implied month-to-month tenancy if:
 ________________________________________________________________; and
 _________________________________________________________________.
o Tenancy at sufferance becomes a periodic, month-to-month tenancy if landlord accepts
rent.
o Tip: Termination for a ___________________________________ requires landlord to give
______________________ days' notice.

Back 21

the tenant continues to pay rent
the landlord accepts the rent
tenancy at will
30

Front 22

Example 13: Lando Lardo leased an office space to the company, Ten Ants, a spa for pet insects. The lease was for a five year tenancy for years, with rent
payable monthly. The lease expired on the last day of September 2009. Ten Ants failed to vacate and remained in possession, tendering rent each month, which Lando Lardo accepted and deposited. On January 5th, Ten Ants gave notice of intent to vacate. Ten Ants is obligated to continue paying rent until ___________________________________________ because the lease was converted to a month-to-month tenancy when Ten Ants continued
to pay and Lando Lardo continued to accept rent.

Back 22

the end of February

Front 23

D. Provisions Favorable to Tenant
• If a landlord resorts to self-help, but wrongly evicts the tenant, the tenant may recover
________________________________ damages.
• Although a commercial lease may contain a provision authorizing the landlord to reenter
premises, such re-entry must be preceded by a demand for rent due.
• When a tenant remains in possession past the term of the lease, a new incoming tenant may
either bring an action against _____________________________________________________
or __________________________________________________.
• If the premises are destroyed, the tenant does not have to pay rent.
• Leases cannot include a “no children” clause except for facilities exclusively for people over
_____________________________________________.
• Landlords are under a duty to keep the property in good repair.

Back 23

treble
the holdover tenant
may void the lease altogether
55

Front 24

E. Provisions Favorable to Landlord
• A landlord ________________________________________________ a duty to mitigate damages by trying to re-let the premises in the event of breach.

Back 24

does not have

Front 25

• A landlord may collect ________ rent from a tenant who remains in possession after the landlord
demands in writing that the tenant leave.
• A tenant can be liable for damage resulting from the tenant’s acts or negligence.
Example 14: A tenant has a wild party causing substantial damages to the premises. The landlord demands that the tenant pay for the repairs; the tenant responds by moving out before the expiration of his lease. The landlord makes
no effort to re-rent the apartment. The landlord can recover damages from the party and unpaid rent for the period of time when tenant vacated – the landlord has no duty to mitigate by attempting to re-rent the apartment.

Back 25

double

Front 26

• A landlord may withhold consent to an assignment of the lease for
__________________________________________.
o Note: A sublease also requires the landlord’s consent, but the landlord CANNOT arbitrarily
withhold consent. The landlord’s failure to respond to a request to sublease is deemed to be
consent.

Back 26

any reason

Front 27

Example 15: During a five-year term of years lease, a tenant decided to move to Europe for one year and found a sublessee. The tenant sent a letter to the landlord requesting permission to sublet the apartment and the landlord responded with a letter of denial. Tenant’s Remedy – The tenant may go ahead and sublet the apartment because permission to sublet the apartment may not
be _________________________.
Example 16: Same facts only the tenant is moving to Europe for the remainder of the lease term (not a sublease, but an assignment). Tenant’s remedy – None, because consent to an assignment may be arbitrarily denied.

Back 27

arbitrarily denied

Front 28

Example 17: On September 1, 2010, Tina Ent rented an apartment for one year
from a landlord. For each situation, what legal remedies can Tina pursue?
1. Upon arriving to take possession of the apartment, she discovered that the
prior tenant had not yet vacated the apartment.
Tina’s Remedy – Tina can bring an action against the holdover tenant or void
the lease.
2. After moving into the apartment but before the expiration of the lease, the building is destroyed in a fire and everything is lost.
Tina’s remedy – _______________________________________________.

Back 28

stop paying rent

Front 29

3. After expiration of the lease term, Tina remained in possession of the apartment and continued paying rent. After three months, the landlord sent a
registered letter to Tina, informing her that failure to vacate the apartment within 10 days would result in her being locked out. Ten days later, Tina still
hasn’t left and landlord changed the locks on the doors while she was out.
Tina’s remedy – Tina can sue for ____________. While the landlord may have been free to demand that she leave, the landlord was not free to give her only
10 days’ notice. As a result, the eviction was illegal and the self-help was illegal.

Back 29

treble damages

Front 30

CHAPTER 4: DISPUTES ABOUT OWNERSHIP OF LAND, SALES, MORTGAGES AND DEEDS
A. Adverse Possession
• The adverse possession period in New York is _________________________________.
o Tip: Look for a fact pattern with possession by a non-owner for more than 10 years.

Back 30

10

Front 31

NOTE: co-tenants adversely possession against each other: in general both co-tenants have equal right to possess the property. In NY, a tenant in common seeking to assert adverse possession against a fellow co-tenant is required to show more than mere possession; the co-tenant must commit acts constituting ouster (must expressly communicate an intention to exclude or deny the right of the co-tenant ).
- in the absence of an ____________, a co-tenant can begin to claim an implied ouster if the co-tenant has held the property exclusively for 10 years. AFter the 10-year period, a co-tenant may then hold the property subject to the normal adverse possession period, totaling ____ years.

Back 31

actual ouster
20 (first 10 years establishes ouster and the second 10 years is the period for adverse possession)

Front 32

B. Sales
• Remedies for unmarketable title, if the seller is not at fault, are limited to:
o _____________________________________________________
o Expenses of title examination
o ____________________________________________________
• The existence of a possibility of reverter makes title unmarketable.

Back 32

recovery of purchase monies paid
nominal damages

Front 33

Example 18: A buyer and seller enter into a contract for the sale of a house. The seller, Sally, inherited the house through her father’s unprobated will. The
will contained a restriction that, “if the property shall ever be used as a business
school, the property shall instead go to Sally’s brother, Barry.”
In this case, title is unmarketable because (i) the father’s will was not probated
and so the seller does not have the power to convey good title, and (ii) the
existence of the contingent remainder subject to condition precedent renders
title unmarketable. As a result, the buyer does not have to ___________ and can __________ his down payment and the fees associated with the title search.

Back 33

close
recover

Front 34

C. Disclosure
• A seller is required to provide a buyer with a statutory disclosure form called a property
condition disclosure statement and requires sellers to provide detailed information about the
____________________________________ of the property.
• Applies to 1-4 family residential dwellings, but not co-ops and condos.
• Seller can choose not to fill out the form and credit the buyer with $500.00 at closing.

Back 34

condition

Front 35

D. Uniform Vendor and Purchaser Risk
• The risk of loss is with the ___________________________ until the buyer takes possession or
title is transferred.

Back 35

seller (this is opposite in many states)

Front 36

E. Mortgages and Foreclosure
• New York does not have a statutory right of redemption.
• A mortgagee has two options for recovering unpaid debt:
o Suing to recover the unpaid debt and bringing a ___________________________________
action as part of the recovery; or
o Filing a foreclosure action on the property.

Back 36

foreclosure

Front 37

• New York has abolished non-judicial foreclosures. A power of sale clause in a mortgage is
_____________________________________________________.
• A buyer at a foreclosure sale is not subject to the same buyer beware principles as in a typical
property transaction. However, a purchaser is not excused from completing performance on
account of an apparent defect of title of which he or she had notice at the time the bid was
made

Back 37

simply ineffective

Front 38

In 2008, NY adopted a subprime lending reform bill which requires lenders to file a preforclosure notice to the borrower at least _____ days before foreclosure which must advise the borrower to avoid default by entering into state approved counseling, and triggers a mandatory
settlement conference within 60 days to seek an amicable solution with the lender and
someone authorized to settle the debt.

Back 38

90

Front 39

• Before foreclosing, a bank must:
o Send notice __________________________________ in advance;
o Advise the debtor to avoid default and enter state counseling; and
o Appear at a mandatory conference _________________________________________ with
someone authorized to settle the debt.

Back 39

90 days
within 60 days

Front 40

F. Usury
• Usury is available in New York as a defense for a mortgage, so long as the mortgage holder is not
a ___________________________________________________.
G. Deeds
• NY is a race-notice jurisdiction. In order for a subsequent purchaser to take good title, she
must:
o Take without notice of the prior interest; and
o ___________________________________________________.
Example 19: On January 1st, Seller conveys Blackacre to Buyer 1. On January
2nd, Seller purports to convey Blackacre to Buyer 2. If Buyer 2 files his deed first, will he take good title to Blackacre? In NY, Buyer 2 will take good title only
if he did not have notice of the prior sale to Buyer 1.

Back 40

corporation (mortgage holder = mortgagor)
be the first to record
bargain and sale deed
inquiry notice isn't enough (look this up on the outline for clarification)

Front 41

• A special warranty deed is also called a ______________________________________________
deed.
H. Disputes about the Use of Land
• A buyer must have actual or constructive notice of an implied servitude in order to be bound. _________________

Back 41

??????????????????? look up on handout or in video