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9 Cards in this Set

  • Front
  • Back
What are the exceptions to the NY spendthift trust rules?

J – 10% levy under CPLR 5205(e) – available to judgment creditors in all cases.
A – alimony or child support
N – creditor who provides necessaries
E – excess income beyond that needed for support and education. This is a last resort remedy – creditor must show he has exhausted all other remedies [heavily tested]
T – federal tax liens
What are the requirements to create or terminate a trust?

in Writing
Acknowledged or attested to
What are the rules against self-dealing for trustees
Bad Boys Like Cheating People

B – Trustee cannot buy or sell trust assets to himself
B – Trustee cannot borrow trust funds
L – Trustee cannot loan funds to the trust, and any interest earned on such a loan must be returned to the trust. Also a security interest received in connection with such a loan is invalid
C – Duty to segregate trust assets from personal assets; and duty to earmark trust assets by titling them in the trustee’s name. Trustee cannot commingle trust funds with her own. If commingled funds are used to buy an asset goes down in value, there is a conclusive presumption that (to the extent available) personal funds were used. If the asset goes up in value, there is a conclusive presumption that (to the extent available) trust funds were used
P – Trustee cannot profit from serving as trustee (except for being compensated), as by taking advantage of confidential information received in his capacity as trustee
Corporate trustee cannot purchase its own stock as a trust investment. (But it can retain its stock if a part of the estate received by it as trustee – provided it is a permissible investment. Must meet the “prudent person” standard
What are the rules for changinf the beneficiaries of a Totten Trust?

a. Writing,
b. Signed, and
c. Acknowledged instrument that
d. Has to name the bank, current beneficiary and the new beneficiary and is
e. Written instrument must be delivered to the bank
How can tenants create a joint tenacy?

T: at the same Time
T: by the same Title (in the same instrument)
I: with Identical equal interests and
P: identical rights to Possess the whole
Hpw is a joint tenacy severed?
What are the things to remember when the tenant wrongfully abandons the proprty before the lease is up?
(Surrender, Ignore Re-let)

Surrender - L could choose to treat T’s abandonment as an implicit offer of surrender which L accepts. Surrender is when T demonstrates by words or actions that she wishes to give up the leasehold. If the unexpired term is greater than one year, surrender must be in writing to satisfy the statute of frauds

Ignore the abandonment and hold T responsible for the unpaid rent, just as if T were still there. This option is available only in a minority of states

Re-let the premises on the wrongdoer tenant’s behalf, and hold him or her liable for any deficiency. Majority rule: L must at least try to re-let. This is a mitigation principle
What are the elements for contructive eviction of a tenant?
Substantial Interference: a chronic problem attributable to L’s actions or failure to act

Notice: T must give L notice of the problem and L must fail to respond meaningfully

Goodbye: T must vacate within a reasonable time after L fails to fix the problem
What are a tenant's enetitlements when the implied warrany of habitability is breached?
(Move, Repair, Reduce, Remain)

Move out and terminate the lease

Repair and deduct, allowable by statute in a growing number of jurisdictions. T may make the reasonable repairs and deduct their fair costs from future rent

Reduce rent or withhold all rent until the court determines fair rental value. Typically, T must place withheld rent into an escrow account to show her good faith

Remain in possession, pay rent, and affirmatively seek damages