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250 Cards in this Set
- Front
- Back
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Estates in Land |
1. Present Posessory Estates 2. Future Interests 3. Trusts 4. The Rule Against Perpetuities 5. The Rule Agsinst Restraints on Alienation 6. Concurrent Estates |
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Present Possessory Estates |
1. Fee Simple Absolute 2. Defeasible Fees 3. Fee Tail 4. Life Estate 5. Estate for Years 6. Periodic Estate 7. Estate at Will 8. Tenancy at Sufferance |
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Present Posessory Estate
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An interest that gives the holder the right to present possession
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Fee Simple Absolute
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1. can be sold, divided, devised, or inherited |
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Defeasible Fees
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Fee simple estates that can be terminated upon the happening of a stated event.
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Defeasible Fee Estates
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"Fee simple with strings" 1. Fee Simple Determinable 2. Fee Simple Subject to Condition Subsequent 3. Fee Simple Subject to Executory Limitation |
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Fee Simple Determinable (and Possibility of Reverter)
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1. terminates upon teh happening of a stated event AND |
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Possibility of Reverter
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A revisionary future interest that arises automatically in conveyance of fee simple determinable.
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Fee Simple Subject to Condition Subsequent (and Right of Entry)
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1. grantor reserves the right to terminate upon the happening of a stated event
2. created by condition words (e.g. upon condition that, provided that, but if, if it happents that) |
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Right of Entry |
The right to terminated reserved by a grantor, expressly reserved.
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Fee Simple Subject to an Executory Interest
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1. terminates upon the happening of a stated event AND
2. passes to a third party
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Executory Interest |
future interst in third parties that either:
1. divest a transferee's preceding freehold estate (shifting interests), OR 2. cut short a grantor's esate (springing interests)
subject to R.A.P, non-destructible |
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Conditions and Limitations Violating Public Policy
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purpose of condition is to
1. penalize marriage
2. encoruage divorce |
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Fee Tail
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Estate where inheritability is limited to lineal heirs.
"to A and the heirs of his body"
Modern Rule: creates a Fee Simple |
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Life Estate
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Estate measured by the life or lives of one or more persons.
Created by dower or conveyance. |
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Life Estates by Marital Right (Legal Life Estates)
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At common law, interest in spouse's real property of the other spouse (dower, curtesy)
Most states have abolished. |
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Conventional Life Estates
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1. For life of grantee 2. Life estate pur autre |
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Affirmative (Voluntary) Waste Exception for Natural Resources |
Exploitation of natural resources by a life tenant is generally limited to situations when: P.U.R.G.E 1. necessary for Repair or maintenance of the land 2. the land is sutitable only for such use (base don Exploitation); or 3. it is expressly or impliedly permitted by the grantor (Grounds/Prior Use). |
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Life Tenant obligations |
1. preserve/maintain the land and structure in a reasonable state of repair 2. pay interest on mortgages (not principal) 3. pay ordinary taxes on the land (to extent of income or profits from the land/fair rental value); and 4 pay special assessments for public improvemetns of short duration |
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Ameliorative Waste |
Change that benefits the property economically. |
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Life tenant may demolish or alter building if |
1. the market value of the future interest is not diminished; and either
2. the remaindermen do not object; OR
3. a substantial and permanent change in teh neighborhood conditions has deprived the property in its current form of reasonable productivity or usefulness. |
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Leasehold Tenant liability for ameliorative waste |
remain liable for altering/demolishing buildings even if the neighiborhood has changed and market valueof premises was increased |
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Life tenant rights for worthless property |
the life tenant may seek a partition sale, the proceeds of which are put in trust with income paid to the life tenant |
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What happens if a life tenant renunciates his life estate? |
The future interest following the life estate is generally accelerate so taht it becomes immediately possessory |
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Future Interests |
gives its holder the right or possiblity of future possession of an esate. it is a present, legally protected rigth in property. |
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Revisionary Intersts |
Future interests in transferor: 1. possibilites of reverter 2. rights of entry 3. reversions |
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Reversion |
the estate left in a grantor who conveyes less than she owns arise by operation of law, does not need to be expessed alienable, devisable, and inheritable can sue for tortious damage to reversionary interest Not subject to R.A.P because vested |
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Remainder |
future interest in a grantee that can become possessory upon the natural expiration of a preceeding/prior posessesory estate that is expressly created in same conveyance. |
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Vested Remainder |
created in an existin/ascertained person AND not subject to a condition subsequent |
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Indefeasibly Vested Remainder |
vested remainder that is not subject to divestment or diminution certain to acquire estate in future, no strings attached. |
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Vested Remainder Subject to Open |
vested remainder created in a class of persons that is certain to become possessory because at least one is qualified to take, but is subject to dimnution because additional members can still join in. A for life, children of B C (child) of B, vested remainder subject to open |
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Vested Remainder Subject to Total Divestment |
vested remainder that is subject to a condition subsequent |
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Contingent Remainder |
1. created in unborn/unascertained persons, or 2. subject to a condition precedent; or 3. both |
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Destructibility of Contingent Remainders |
contingenet remainder destroyed if it failed to vest before or upon the termination of the preceding freehold estate.
Abolished in most states and New York. |
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Destructibility of Contingent Remainders Modern/New York Result |
Property reverts to grantor; and remainder grantee's have a springing executory interest. |
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Doctrine of Merger |
At common law, when one person acquires all of the present and future interests in land except a contingent remainder, the contigent remainder is destroyer.
Cannot be created in one instrument. Must later acquire. |
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Rule in Shelley's case |
Rule Aginst Remainders in Grantee's Heirs At common law, if the same instrument created a life estate in A and gave the remainder only to A's heirs, the remainder was not recognized, and A took the life estate and the remainder (fee simple absolute). Virtually abolished (and in New York). Abolished in most states. |
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Rule in Shelley's Case Modern Result |
grantee's heirs have a contingent remainder grantor has reversion |
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Doctrine of Worthier Title |
Rule Agsinst Remainders in Grantor's Heirs: remainder in the grantor's heirs is invalid and becomes a reversion in the grantor Rule of construction and ONLY applies 1. if intent is NOT clearly manifested. 2. intervivos transfers; and 3. if the word "heirs" is used |
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Doctrine of Worthier Title Modern Result |
If grantor clearly intends to create a contingent remainder in his heirs, that intent is binding. |
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Transferability (common law)
Vested Remainder Contingent Remainder Executory Interests |
Transferable, descendible, and devisable Vested Remainder Descendible, and Devisable (provided survivial not condition to interest's taking) Contingent Remainder Executory Interests |
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Transferability (modern rule) Vested Remainder Contingent Remainder Executory Interests |
Transferable, Descendible, and Devisable Vested Remainder Contingent Remainder* Executory Interests* *provided survivial not condition to interest's taking |
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Rule of Convenience |
In the absence of express contrary intent, a class closes when some member of the class can call for distribution of her share of the class gift. |
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To A, and his heirs... |
Fee Simple Absolute |
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To A... |
Fee Simple Absolute |
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To A and the heirs of his body... |
Fee Tail |
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To A so long as... |
Defeasible Fee
Fee Simple Determinable |
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To A until... |
Defeasible Fee
Fee Simple Determinable |
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To A whle... |
Defeasible Fee
Fee Simple Determinable |
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To A, but if X event happens, grantor reserves the right to reenter and retake |
Defeasible Fee
Fee Simple Subject to Condition Subsequent |
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To A, but if X event occurs then to B |
Defeasible Fee
Fee Simple Subject to an Executory Limitation |
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To A for life |
Life Estate |
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To A for the life of B |
Life Estate |
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Fee Simple Absolute Duration |
Absolute ownership, of potentially infinite duration. |
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Fee Simple Absolute Transferability |
Devisable, Descendible, Alienable |
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Fee Simple Aboslute |
Future Interest |
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Fee Tail Duration |
Lasts only as long as thre are lineal blood descendants of grantee |
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Fee Tail Transferability |
Passes autoamtically to grantee's lineal descendants |
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Fee Tail Future Interest |
Revrsion (if held by grantor) Remainder (if held by third party) |
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Fee Simple Determinable Language |
Language providing that upon the happening of a state event, the land is to revert to the grantor. |
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Fee Simple Determinable Duration |
Potentially infinte, so long as even does not occur |
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Fee Simple Determinable Tranferability |
Devisable Descendible Alienable
Subject to condition |
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Fee Simple Determinable Future Interest |
Possibility of reverter (held by grantor) |
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Fee Simple Subject to Condition Subsequent Language |
Grantor must carve out right of entry |
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Fee Simple Subject to Condition Subsequent Duration |
Poetitionally infine, so long as the condition is not breached and, thereafer, until the holder of the right of entry timely exercises the power of termination. |
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Fee Simple Subject to Condition Subsequent Transferability |
Devisable Descendible Alienable
Subject to condition |
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Fee Simple Subject to Condition Subsequent Future Interest |
Right of Entry/ Power of Termination (held by grantor) |
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Fee Simple Subject to Executory Limitation Duration |
Potentially infinite, so long as stated contingency does not occur.
If the condition is broken, the estate is automatically forfeited in favor of someone other than the grantor. |
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Fee Simple Subject to Executory Limitation Transferability |
Devisable Descendible Alienable
Subject to condition |
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Fee Simple Subject to Executory Limitation Future Interest |
Executory Interest (held by third party) |
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Life Estate Duration |
Measured by the life of transferee or by some other life (pur autre vie) |
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Life Estate Transferability |
Devisable Descendible Alienable
if pur autre view and measuring life is still alive |
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Life Estate Future Interest |
Reversion (if held by rantor) Remainder (if held by third party) |
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Categories of freehold estates |
1. Fee Simple Absolute 2. Fee Tail 3. Defeasible Fees 4. The Life Estate |
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O conveys to A or to A and his heirs. A is alive. What interest do A's heirs have? |
None. Only A has absolute ownership.
A may only have prospective heirs.
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The attempted creation of a fee tail creates: |
a fee simple absolute |
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In NY, the Fee Simple Determinable is called |
Fee on LImitation |
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If a stated condition is violated in a fee simple determinable: |
the forefiture is automatic |
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O conveys Blackacre to A so long as the premises are used as a recording studio. |
A has a fee simple determinable O has a possibility of reverter |
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In NY, the Fee Simple Subject to Condition Subsequent is called |
Fee on Condition |
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In NY, the right of entry is called |
the right of reacquisition |
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To A, but if B ever performs music on the premises, then to C. |
B has a Fee Simple Subjec to Executory Limitation (C's shifting executory interest)
C has a shifting executory interest |
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What is the difference between a fee simple determinable and a fee simple subject to condition subsequent? |
A fee simple subject to condition subsequent is NOT automatically terminated unlike a fee simple determinable.
It CAN be cut short at the grantor's option if the stated condition occurs (right of entry). While in a fee simple determinable, the termination is automatic (possibility of reverter). |
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What is the difference between a fee simple determinable and a fee simple subject to executory limitationt? |
A fee simple subject to executory interest is auatomatically forfeited in favor of someone other than the grantor. In a fee simple determinable, the termination is automatic to the grantor (possibility of reverter). |
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Defeasible Fees Rules of Construction |
1. Words of mere desire, hope, or intention are insufficeint to create a defeasible fee. 2. Absolute restraints on alienation are void. |
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Abslute restraint on alienation |
an absolute ban on the powert to sell or transfer, that is not linked to a reasonable time limited purpose. |
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O conveys: "To A so long as she never attempts to sell" |
A has a fee simple absolute O has nothing |
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O conveys: "To A so long as she does not attempt to sell until 2015, when clouds on title will be resolved." |
A has a fee simple determinable O has a possibility of reverter |
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O conveys: "To A for life" |
A has a life estate O has a possibility of reverter |
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Pur Autre Vie |
"for life of another'
A life estate measured by a a life of another, someone other than the grantee. |
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Life tenant is entitled to |
ordinary uses and profits from the land |
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Species of Waste |
1. Voluntary/Affirmative Waste 2. Permissive Waste 3. Ameliorative Waste |
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Affiramtive (voluntary) Waste |
Overt Conduct that cause a drop in value |
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Permissive Waste |
occurs when land falls in disrepair |
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Ameliroative Waste Rule |
A life/leasehold tenant must not engage in acts that will enhance the property's value, unless: all future itnerest holds are known and consent. |
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Future Interests capable of Creation in the Grantor |
1. Possiblity of Reverter 2. Right of Entry 3. Reversion
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Possibility of Reverter only accompanies |
a fee simple detrminable |
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Right of Entry is also known as ___ and only accompanies___. |
The power of termiantion, fee simple subject to condition subsequent |
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Reversion |
a future interst that arises in a grantor who transfers an estate of lesser quantum that she started with, other than:
a fee simple detrminable (possibility of reverter) or a fee simple condition subsequent (rigth of entry) |
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Future Interests held by someone other than grantor |
1. Vested Remainder 2. Contingent Remainder 3. Executory Interest |
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Vested Remainders |
1. indefeasibly vested remainder 2. vested remainder subject to complete defeasance/ total divestment 3. vested remainder subject to open |
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Executory Interests |
1. Shifting Executory Interest 2. Springing Executory Interest |
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The preceding estate to a remainder is |
- of known and fixed duration - never a defeasible feeq - not followed by a gap (between it and remainder) - is not cut/divested by remainder (naturally expires)
usually: 1. life estate 2. term fo years estate 3. fee tail |
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Present Interest: Defeasible Fee Future Interest: __________________ |
Executory Interest (someone other than grantor) Possiblity of Reverter (grantor) Right of Entry (grantor) |
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Remainders are either |
1. vested or 2. contingent |
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In NY, contingent remainders are called |
a remainder subject to a condition precedent |
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Examples of unascertained or unborn persons |
"B's first Child" when B has no children yet "B's heirs" when B Alive "B's children who survive A" when A is alive. |
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To A for life, then, if B graduates from college, to B."
B graduates. |
A, life estate B, indefeasibly vested remainder
B used to have a contingent remainder, conditioned on 2) B's graduating |
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To A for life, and, if B has reached the age of 21, to B"
A is alive B is 20 |
A, life estate B, contingent remainder O, reversion |
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To A for life, and, if B has reached the age of 21, to B"
A is alive B is 22 |
A, life estate B, indefeasibly vested remainder
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In NY, Doctrine of Worthier Title Rule |
Abolished with respect to transfers taking effect AFTER September 1, 1967 |
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To A for life, remainder to B.
A is alive. B is alive. |
A, life estate. B, indefeasible vested remainder |
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To A for life, remainder to B.
A is alive. B is dead. |
A, life estate B, futrue interest passes by will or intestate |
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Vested Remainder Subject to Complete Defeasance is also known as |
In NY, Remainder Vested Subject to Complete Defeasance Vested Remainder Subject to Total Divestment |
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Vested Remainder Subject to Complete Defeasance |
A remainderman exists but his right to possession could be cut short because of a condition subsequent. |
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O conveys: "To A for life remainder to B, provided, however, that if B dies under the age of 25, to C."
A is alive. B is 20. |
A, life estate B, vested subject to complete defeasance C, shifting executory interest O, reversion |
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O conveys: "To A for life and if B reaches the age of 25, to B."
A is alive. B is 20. |
A, life estate B, contingent remainder O, reversion |
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O conveys: "To A for life and if B reaches the age of 25, to B."
A is dead. B is 20. |
O, reversion B, springing executory interest |
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Rule of convenience |
A class closes whenever any member can demand possesssion.
Note class members can deman possesssion upon death of the preceding estate.
Ex: To A for life, then B's children. At A's death, class closes. Also closes at B's death. |
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Exception to Rule of Convenience |
The Womb Rule: A child in gestation, in the womb, at death of preceding esate will share in class. |
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What happens to a closed class member's share of estate? |
At common law, it goes to devisees or heirs. |
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Shifting Interest |
Always follows a defeasible fee and cuts short someone other than grantor. |
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Springing Interest |
cuts grantor's interest. |
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To A and her heirs, but if B returned from Canada sometime next year to B and his heirs. |
A, fee simple subeject to a shifting excutory interest B, shifting excutory interest |
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Future Interests Types |
A. Future interests in Grantor 1. possibility of reverter
2. right of entry
3. reversion
B. Future Interests in Transferee 1. vested remainder - indefeasible vested remainder - vested remainder subject to total defeasment - vested remainder subject to open
2. contingent remainder
3. executory interests - shifting executory interest - springing executory interest |
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O conveys: "To A, if and when he becomes a lawyer."
A is in high school. |
A, springing executory interest O, fee determinable subject to executory interest |
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In NY, what is a contingent remainder called? |
remainder subejct to a condition precedent |
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In NY, what is an executory interest called? |
remainder subejct to a condition precedent |
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Rule Against PerpePerpetuities |
A future interest is void if there is any possibility, however remote, tht the given interst may vest more than 21 years after the deat of a measuring life. |
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Future Interests subject to R.A.P |
1. Contingent Remainders 2. Executory Interests 3. some Vested Remainders Subject to Open |
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Future Interests NOT subject to R.A.P |
1. any future interest in O the grantor 2. Indefeasibly Vested Remainders 3. Vested Remainder Subect to Complete Defeasance |
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To A for life, then to A's children.
A is alive and has no children. |
A, life estate O, reversion A's unborn children, contingent remainder
Not void under R.A.P, we will know within 21 years of A's death whether future interest holders can take. |
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To A for life, then to the first of her children to reach the age of 30.
A is 70. B is her only child, age 29 |
A, life estate O, reversion B, contingent remainder (subject to open) VOID under R.A.P |
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What are the four steps to R.A.P? |
1. Identify the future interest 2. Identify the condition precedent 3. Find measuring life 4. Ask will we know with certainty within 21 years of measuring life if future interest can take? |
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Bright Line R.A.P. Rules |
1. A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates common law RAP.
2. Many shifting executory interests violate RAP. An executory interest with NO LIMIT on time within which it must vest violates RAP. |
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Bas as to one, bad as to all |
To be valid it must be show that the condition precedent to every class member's taking will occur within the perpetuities period. If it is possible the disposition might vest too remotely with respect to any member of the class, the entire class gift is void. |
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To A for life, then to such of A's children as live to attain the age of 30.
A is alive. A has two chidlren, B and C. B is 35 C is 40 |
A, life estate O, reversion
B, vested remainder subject to open- VOID C, vested remainder subject to open- VOID
Void under R.A.P (A is alive and could have another child)
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To A and his heirs so long as the land is used for farm purposes, and if the land ceases to be so used, to B and his heirs. |
A, fee simple subject to executory interest B, shifting executory interest- VOID O, reversion
Converts to:
A, fee simple determinable O, possibility of reverter |
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To A and his heirs, but if the land ceases to be used for farm purposes, to B and his heirs. |
A, fee simple subject to executory interest B, shifting executory interest- VOID O, reversion
Converts to:
A, fee simple
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Charity to Charity exception |
A gift from one charity to another does not violate R.A.P. |
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To the American Red Cros, so long as the premises are used for Red Cross purposes, and if they ceas to be so used, to YMCA. |
Red Cross, fee simple subject to executory interest YMCA, shifting executory interest O, reversion OK under R.A.P because charity exception. |
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RAP Reform |
Wait and See/Second Look Doctrine Uniform Statutory RAP (USRAP) NY Perpetuities Statute |
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Wait and See/Second Look |
Under this majority reform effort, the validity of any suspect future intrest is determined on the basis of the facts as they now exist, at the end of our measuring life.
Abolished in NY Step 4: In 21 years will there be a vested interest? |
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USRAP |
Codifies the common law RAP and providres for an alternative 90 year vesting period. Step 4: Will they vest in 90 years? |
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Cy Pres |
If a given disposition violates the rule, a corut may reform it in a way that most closely matches the grantor's intent, while still compying with RAP. |
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NY Perpetuities Reform Statute |
NY applies the common law rule against perpetuitites, and has rejected wait and see and cy pres, except for charitable trusts and powers of appointment. |
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In NY, if an interest would be invalid because it is made to depend on any person's having to attain an age in excess of 21 years. |
the age contingency is reduced to 21 years. |
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NY Octogenarian Principle |
In NY, Octogenarian Principle is modified by the NY perpetuities statue and presumes that a woman over the age of 55 cannot have a child. Adoption is disregarded. |
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NY Rule against Suspension of the Absolute Power of Alienation |
applies cmmon law RAP to restriction on power to sell or transfer
An interest is void if it suspends the power to sell or transfer for a period longer than a measuring life in being + 21 years.
There must be persons who could join in conveyance of full fee simple title within lives in being +21. |
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Concurrent Estates |
1. Joint Tenancy 2. Tenants in the Entirety 3. Tenants in Common |
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Joint Tenancy |
Two or more own with the right of survivorship |
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Tenancy by the Entirety |
marital interst between married partners with the right of survivorship |
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Tenancy in Common |
Two or more own with NO RIGHT of survivorship |
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Creation of a Joint Tenancy |
A. Four unities: (T-TIP)
1. Time 2. By the same Title 3. Identical Shares 4. Right to Possess the whole
B. Expressly Create |
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Straw |
A holds a fee simple absolute and wants to create a joint tenancy with B.
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Use of straw in NY |
Unecessary. It is ok for A to convey to A and B to createa a joint tenancy with right of survivorship. |
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Severance of Joint Tenancy |
S.P.A.M
1. Joint Tenant can Sell or transfer interest during lifetime, without knowledge or consent. 2. Severance and Partition AND 3. Severance and Mortgage |
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What result when Joint Tenancy severd by sale |
Buyer is a tenant in common |
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Profits |
Profits entitel the holder of the benfit to take some resource (soil, tiember, materials, fish) from teh servient estate. |
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Profit Extinguished |
Through surcharge (misuse that overly burdens the servient estate) |
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Real Covenant |
Normally found in a deed, a written promise to do something on the land (maintain a fence) or a promsie not to someting on the land (not build multifamily home).
Runs with the land- may be enforced against subsequent owners. |
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Requiremetns for Burden to Run with Land |
Intent Notice Horizontal Privity Vertical Privity Touch and Concern |
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Requirements for Benefit to Run with Land |
Intent Verticle Privity Touch and Concern |
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Remedies for breach of real covenant |
GENERALLY damages
1. money damages from defendants general assets 2. injunctive relief- may be enforced through equitable servitude |
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Termination of Real Covenant |
1. written release 2. merger of benefited and burdened estates or 3. condemnation of the burdened property |
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Equitable Servitude |
a covenant that regardless of whether it runs with the land at law, equity will enforce against the assignees of the burdened land who have notice of the covenant. |
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Exception of writing for equitable servitude |
Negative equitable servitudes may be implied from a acommon scheme for devleopment of a residential subdivision. |
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Common Scheme Evidenced by: |
1. recorded plat 2. general pattern of restrictions 3. oral representations to early buyers |
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Can a scheme arise after some lots are sold? |
No implied servitude can arise with respect to the lots already sold without express covenants. |
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Notice requiremetns for covenant not in a deed |
Notice may be
actual, direct knowledge inquiry, neighborhood appears to common restrictions record, prior deed with covenant in grantee's chain of title |
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Requirements for Burden to Run in Equitable Servitude |
1. intent 2. actual, inquiry, or record notice 3. touches and concerns
no privity |
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Requirements for Benefit to Run in Equitable Servitude |
1. intent 2. touches and concerns
no privity |
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Equitable Defenses to Enforcement |
1. person seeking is violating simlar restriction on his own land (unclean hands) 2. benefited party acquiesced in a violation by one burdened party 3. benefited party acted in a way that a reasonable person would believ the covenant was abandoned (estoppel) 4. beenfited party fails to bring suit within a reasonable time (laches); or 5. neigborhood has changes so significantly that enforcement would be inequitable. |
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Termination of Equitable Servitude |
1. Release 2. Merger 3. Condemnation |
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Cross Easemetn of SUpport |
Courts will imply a cross easements of support where a wall erected partly on the property of two adjoining landowners exists and is treated as belonging to each owner to the extent it rests upon her land. |
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Party Walls and Common Driveways Rule |
written agreemetn required under SoF Implication prescription
an irrevocable license can arise from detrimental reliane on a parol agreement. |
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Adverse Posession |
1. actual entry giving exclusive possession 2. open and notorious 3. adverse (hostile) 4. continuous throughout the statutory period |
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Doctrine of Equitable Conversion |
Equity regards as done that which ough to be done. |
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Severance and Partition Variations |
1. Voluntary Agreement 2. Parition in Kind 3. Forced Sale |
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Partition by Voluntary Agreement |
a peacful way to end the relationship that sllows parties come to end of the road and seek dissolution of estate. |
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Partition in Kind |
Court action for physical division of estate if in the best interest of all.
Rural, sprawling accerage, agricultural, vineyard |
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Forced Sale |
Court action where estate is sold and teh sale proceeds divided propotionately if in best interest
single building that doesn't lend itself to being broken up |
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Severance and Mortgage- Title Theory of Mortgages |
One joint tenants execution of a mortgage or a lien on his or her share will sever the join tenancy as to taht now encumbered share. |
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Severance and Mortgage- Lien Theory of Mortgages |
A joint tenant's execution of a mortgage on his or her interest will not sever the join tenancy. |
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NY uses the ____ Theory of Mortgages |
Lien |
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Tenancy by the Entirety Creation |
only between married partnes share the right of survivorship arises presumptively, unless stated otherwise |
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Creditors Claim to Tenancy by Entirety |
Creditors of only one spouse can't touch. |
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In NY Creditors Claim to Tenancy by Entirety |
One spouse may mortgage his interest and his creditors may enforce against THAT interest, but ONLY as to the debtor spouse's share.
Further the non debtor spouse's rights, including the right of survivorship, must not be compromised. |
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Tenants by the Entirety Unilateral Conveyance |
neither tenatn, acting alone, can defeat the right of survivorshipp by unilateral transfer to a third party |
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Tenancy in Common Features |
1. Each co-tenant owns individual interest 2. Each has right to posses the whole 3. Each interest is divisible, descendible, and alienable. 4. No survivorship rights. 5. Favored by courts
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Tenants in Common Rent from Co-Tenent |
Absent ouster, a cotenant in exclusive possession is not liable to the others for rent. |
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Tenants in Common Rent from Third Parties |
A cotenant who leases all or part of the premises to a third party must account to his cotenant providing their fair share for the rent income. |
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Can Tenants in Common Adversely Possess? |
Cannot adversely possess if a tenant in common |
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In NY, a life tenant may alter or even demolish existing buildings if: |
1. the market value of teh future interests is not dminished; and either
2. the remaindermen do not obejct; or
3. a substantial and permanent change in the neighborhood conditions (eg change from residential to 90% industrial) ahs deprived the property in its current form of reaosnable productivity or usefulness; and
4. the propsed change does not violate any agreement regulating the conduct of the life tenant;
5. the life estate or term of years is not less than five years; and
6. the life tenant gives each future interst holder written notice of the proposed changed at least 30 days prior to commencement of any work. Notice must be served personally or by reigstered mail. If the owner of a future interst demands a security to protect his interest, the court will set a reasonable dollar amount which must be satisdfied before any work can begin. |
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What happens in a disposition in a trust in favor of a class of persons described only as heirs, next of kind, or distributees of the creator? |
No beneficial interest in teh trust is created and therefore the settlor can terminate the trust without the consent of the heirs, etc.
If the settlor does not terminate on the death of the settlor the heirs willt ake by remainder. |
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How do you apply age contingency in NY? |
Where an estate would b einvalid because it depends on a person attaining or fialing to attain an age in excess of 3 years, the age contingency is reduced to 21 years. |
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NY Preumption for Childbearing Age/Fertile Octogenarian Rule |
It is presumed that a male can ahve a child at 14 years of age or over.
A femae can ahve a child at 12 years or over, but not over the age of 55 years.
Evidence may be given to establish whether a living person is able to have a child at the time in quest. |
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How do you consider aodption in NY RAP? |
You don't. if the validity of a disposition depends upon the ability of a person to have a chld at some future time, the possiblity that the person may have a child by adoption is disregarded. |
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In NY, what happens upon the appearance of a miracle child or after-adopt child in RAP? |
The afterborn or afteradopted child who actually appears is included in teh gift and the disposition is still valid. |
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In NY, what is the persumption for administrative contingency problems in RAP? |
Where the duration or vesturing of an estate is contingent upon teh occurence of a specified event, it is presumed that the creator of the estate intended the contingency to occur if at all, within 21 years from teh effective date of the instrument creating the estate. |
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NY rule Agsint Suepension of Alienation |
The aboslute power of alientation is suspended when there are no persons in being by whom an absolute fee or estate in possession can be coneyed or transferred. To be valid under the suspension rule, there must be persons in being who could join together in a conveyance of the full fee simple title within lives in being plus 21 years.
Thus, all pieces of the fee simple title must be held by ascertainable persons in being within lives in being plus 21 years. |
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NY Statutory Spendthrift Exception |
A staute allows the creator of a trust to give an income beneficiary the power to transfer his interest.
If the income beneficiaries are given the power to transfer their beneficial interests, the trust can last beyond lives in being plus 21 years provided all interests vest within that period. |
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In NY, what is the consequence of trust income interst in an unborn person subjec tto the statutory spendthrif trule? |
They are subject to the restriction on transfer/
The suspension rule is volated whenver there is a life estate in trust in an inborn person. |
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In NY, disposittion of property to two or more persons as executors, trustees, or guardians creates what type of concurrent estate? |
Joint tenancy |
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NY Severance Contract to Convey requirement |
conveyance must be properly recorded |
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failure of a tenant to give timely notice of her exercise of an option to renew will be excused if |
1. it is the result of an honest mistake; 2. the landlord is not prejudiced by the lateness; and 3. substantital forfeiture would result to teh tenant as a result of the leasehold |
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In NY, Periodic Tenancies Termination |
Before the expiration of the term, a periodic tenancy may be terminated by notice of termination from the landlord to the tenant before the expiration:
at least 30 days (in NYC) at least 1 month (outside NYC)
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In NY, notice requirement for periodic tenancy if a definite term has been set forh |
Outside NYC, no notice is required if a definite term has been set forh. |
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In NY, notice requirement for tenancy at will |
Landlord must
give 30 days written notice; and should be personally served on tenant |
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Tenancy at Sufferance |
Acceptance of rent create a month to month periodic tenancy commencing on the first day after expiration, absent a contrary agreement.
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Tenancy at Sufferance Termination |
Landlord must
give 30 days written notice; and should be personally served on tenant
Same as tenancy at will |
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The NY Hold Over Doctrine |
In NY, the landlord's acceptance of rent form a hold-over tenant only gives rise to a month to month periodic tenancy by opeartion of law.
Periodic tenancy for any other term may be created by agreemnet. |
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In NY, what are the rights of a new tenant against a hold over tenant? |
The new tenant may
1. bring an action against the hold over tenant or 2. avoid the lease and recover any consideration paid to the landlord.
UNLESS the lease contains express provsisoins ot the contrary. |
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Hold Over Tenant notice requirements |
If a hold over tenant has a lease of indefinite duration and notifies the landlord of an intention to quit the premises BUT then fails to deliver possession of the premises,
must pay the landlord double the rent otherwise payable, as long as she is in possession. |
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NY Rule of destruction of premises without fault |
Where the buliding is destroyed or becomes untenable and noe xpress agreement to teh contrary has been amde in writing, the tenant without fault may quit and surrender possession of the leadehold without any futhre duty to pay rent.
Rent paid in advnace shall be adjusted to the date of such srrender. |
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In NY rent deposits must |
not be commingled.
in a dwelling with six units or more, the deposit must be placed in an interest bearing account for the benefit of the tenant. |
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In NY, are landlord required to mitigate damages? |
Although NY does not require the landlord to mitigate, there are cases where the courts have not followed this rule.
It is more likely mitigation is necessary in a residential rather than commercial lease. |
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In NY, when is a tenant partially evicted? |
When the tenant is physically excluded from a substantial portion of the leased premises. |
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In NY, what is constructive eviction as a defense? |
A tenant may defend against an action to disposess by depositng rent due with teh court, provided conditions in the leased premises are sufficient to constitute a constructive eviction. |
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In NY, retaliatory eviction limitations |
Applies to all residential rental premises except owner-occupied dwellings with less than four units.
Must be pleaded as an affiramtiev defense but also may subject the landlord to civil action. |
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In NY, the rule for assignment covenants |
A tenant renting a residence may not assign his lease without the written consent of the owner, unless the lease provides otherwise.
Landlord may unconditionally withold consent without cause. |
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In NY, the rule for assignment covenant remedy for tenant |
sole remedy is seekign release from the lease BUT if the landlord consent is reasonably withheld, there can be no release of lease OR assignment. |
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In NY, the rule for sublease covenants |
A tenant in a residential building having four or more units has the righ tto subleas subject to the written consent of the landlord.
Failure to respond to th tenant's notice will also constitue consent. |
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In NY, landlord duty to repair |
landlord of every multple dwelling (three or more units) is required to keep teh dwelling in good repair. |
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Tenant's Liability |
Tenant may be held liable if condition of disrepair is caused by the tenant's act or negligence or by third party under tenant's conrtol. |
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In NY easement prescription/adverse posession statutory period |
10 years |
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In NY touch and conern the land includes |
contributions toward a co mmon fund for neighborhood upkeep of parks, roads, etc., where contributing property owners receive an easement in common to sue the public areas. |
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In NY, may a tenant in common advesely possess? |
yes. A tenatn in common in exclusive possession who has not ousted his nonposessory co-tennt can claim title by adverse possession after 20 years |
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Is an adverse posessor required to posess with a cliam of right? |
Yes. If not, merely a trepass. |
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NY Doctrine of Equitable Conversion |
Under the Uniform Vendor and Purchaser Risk Act, the risk is placed on the seller
unless the buyer has either legal title or possession at the time of the loss. |
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Right to insurance proceeds upon loss during land sale contract |
The seller gets to recover the full purchase price and insurance proceeds ebcause an insurance policy is a personal contract between the seller and insurer, absent an express agreement to teh contrat.
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In NY, additional marketable title encrumbrances? |
invisible or visible easements, other than a highway and its structures, are encroachmetns tgiving the purchaser a right to bojec to title. |
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Remedy for Title Not Marketable |
If unmarketable but not at fault of seller,
the buyer may recover only
1the purchase money paid, 2. the expenses of the titel examination, and 3. nominal damages |
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In NY a special warranty deed |
In NY, special warranty deed is referred to as a bargain and sale deed |
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Effect of transfer of mortgage without a note |
void |
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Effect of transfer of note without mortgage |
The mortgage always followed the note, even if an assignemtn of the ntoe is silent as to the mortgage. |
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NY Methods of Foreclosure |
1. Foreclosure by an action in equity and sale
2. strict foreclosure, |
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In NY, foreclsoreu by an aciton in equity and sale |
where the property is sold and the proceeds are distribetud among the interested parties |
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In NY, strict foreclore |
an action in equity to compel the parties entiteld to teh righ tof redemption to exercise it by paying the mortgage debt within a reasonable time or be forever barred on such right of redemption. |
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Statutory Right of Redemption in NY |
does not exist.
Only an equitable right of redemption prior o sale. |
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If sale proceeds are less than jdugment in the foreclosure action |
if the mortgagor ha sbeen personally served in teh foreclosure action, the mortgagee can askt eh court for a deficiency judgment. |
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timeline for deficiency judment |
within 90 days of the sale.
if no demand is made, then proceeds from sale are considered full satisfaction of the mortgage debt. |
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NY Unconsitutional Takings and Exactions Standard |
NY requires an actual appropriation or taking by title or
government occupation or management
before it will apply the principles of a constitutional limitation or taking. |
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What must the complaining landowner establish for a actual appropriation or taking by title or government occupation or management |
that, beyond a reasonable doubt, under the ordinance he cannot obtain a reasonable return under any use, other than public or quasi-public use, permitted by the ordinance. |
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Property Owners' Assocaition Standing |
Members of a property owners association affected by an adverse decision have standing to sue, even if not owning affected land HOWEVER:
Associaitons cannot assert claims for damges on behalf of indvidiual memebrs arising out of alleged zoning abuses. |
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Large Lot Zoning Standard |
To overturn large lot zoning, must show either:
1. enacted with an exclusionary purporse 2. ignores regional needs an dha sunjustified exclsuionary affect OR 3. no propertly balanced and well ordered plan for the community nor consideration of regional needs and requirements |
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Co-Tenant Rights for Carrying Costs |
Each co-tenant is responsible for his or her fair share of carrying costs such as taxes and mortgage interest payments bsed pon his undivided share. |
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What are the rights of a repairing co-tenant? |
The repairing cotenant has a right to contribution (based on co-tenant's equitable share) for reasonable AND necessary repairs provided she has
told the other cotenant of the need |
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What are the rights of a co-tenant whose made improvements? |
During the life of the co-tenancy there is no right to contribtuion for improvements. They are inherently subjective in nature. |
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What are the rights of a co-tenant whose made improvements at a partition sale? |
However, at partition, the improving co-tenant is entitled to a share equal to any increase of value she caused.
The so-called “improver” bears full liability for any drop in value she caused |
