Glossary of NY Bar Exam Review - Property Law
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- What type of language will create a fee simple absolute?
- "To A" or
"To A and his heirs"
- What is the duration of a fee simple absolute?
- Fee simple absolute creates absolute ownership or a potentially infinite duration.
- What is the transferability of a fee simple absolute?
- - Devisable
- What future interest is created by a fee simple absolute?
- What type of language creates a feee tail?
- "To A and the heirs of his body"
- What is the duration of a fee tail?
- A fee tail lasts only as long as there are lineal blood descendants of the grantee.
- What is the transferability of a fee tail?
- A fee tail passes automatically to grantee's lineal descendants
- What type of future interest is created by a fee tail?
- A reversion, if held by the grantor.
A remainder, if held by a third party
- What are the three types of defeasible fees?
- - Fee simple determinable
- Fee simple subject to condition subsequent
- Fee simple subject to an executory limitation
- What type of language creates a fee simple determinable?
- "To A so long as..."
"To A until..."
"To A while..."
(Language providing that upon the happening of a given event, the land is to revert to the grantor).
- What is the duration of a fee simple determinable?
- Potentially infinite, provided the specified event does not occur
- What is the transferability of a fee simple determinable?
- - Devisable
subject to the condition.
- What type of future interest is created by a fee simple determinable?
- Possibility of reverter (held by the grantor)
- What type of language creates a fee simple subject to condition subsequent?
- "To A, but if X event happens, grantor reserves the right to reenter and retake."
(Grantor must carve out right of reentry)
- What is the duration of a fee simple subject to condition subsequent?
- Potentially infinite, so long as the condition is not breached, and, thereafter, until the holder of the right of entry timely exercises the power of termination
- What is the transferability of a fee simple subject to condition subsequent?
- - Devisable
subject to condition
- What future interest is created by a fee simple subject to condition subsequent?
- Right of Entry/Power of Termination (held by grantor)
- What language creates a fee simple subject to an executory limitation?
- "To A, but if X event occurs, then to B."
- What is the duration of a fee simple subject to an executory limitation?
- Potentially infinite, so long as stated contingency does not occur.
- What is the transferability of a fee simple subject to an executory limitation?
- - Devisable
subject to condition
- What future interest is created by a fee simple subject to an executory limitation?
- Executory interest (held by third party)
- What language creates a life estate?
- "To A for life." or
"To A for the life of B."
- What is the duration of a life estate?
- It is measured by the life of the transferee or by some other life.
- What is the transferability of a life estate
Also devisable and descendible IF pur autre vie and measuring life is still alive
- What future interest is created by a life estate?
- Reversion, if held by grantor.
Remainder, if held by third party.
- What does devisable mean?
- Can pass by will
- What does descendible mean?
- Will pass by the statutes of intestacy if its holder dies intestate.
- What does alienable mean?
- Transferable inter vivos.
- Can a person have heirs while alive?
- No. A living person has only prospective heirs.
- What is the current status of the fee tail?
- Virtually abolished in the US today, including NY
- What does the attempted creation of a fee tail create today?
- A fee simple absolute
- What is the fee simple determinable called in NY?
- A "fee on limitation"
- What is the result of violation of the stated condition with a fee simple determinable?
- Forfeiture is automatic.
- What is the Mick Jagger rule of property?
- You may convey less than what you started with, but you can't convey more.
- What is the neumonic device for remembering the pairing of present and future interests?
- "Frank Sinatra Didn't Prefer Orville Redenbacher"
"Fee Simple Determinable Possibility of Reverter."
- What is a fee simple subject to condition subsequent called in NY?
- A "fee on condition"
- What is the defining characteristic of the fee simple subject to condition subsequent?
- It's my prerogativee as to whether I choose to terminate the estate.
- What is the right of entry or power of termination called in NY?
- The right of reaquisition.
- What is the distinguishing characteristic of a fee simple subject to an executory limitation?
- Like the fee simple determinable, but if condition is broken, estate is automatically forfeited in favor of someone other than grantor.
- What are the important rules of construction with respect to the defeasible fees?
- 1) Words of mere desire, hope, intention, or expectation are insufficient to create a defeasible fee.
2) Absolute restraints on alienation are void.
- What is an absolute restraint on alienation?
- An absolute ban on the power to sell or transfer that is not linked to any reasonable, time-limited purpose.
- How may a life estate never be measured?
- In terms of years. Must be measured in explicit lifetime terms. If years are used, it creates a term of years - a leasehold interest and not the life estate.
- What is a life estate pur autre vie?
- A life estate measured by a life other than the grantee's
- What is the distinguishing characteristic of the life estate?
- The life tenant's entitlements are rooted in the doctrine of waste.
- What are the general rules with respect to the life tenant and waste?
- 1) The life tenant is entitled to all ordinary uses and profits from the land.
2) The life tenant must not commit waste, meaning he must not do anything to hurt the future interest holders.
- What are the three species of waste?
- 1) Voluntary or affirmative waste;
2) Permissive waste, or neglect;
3) Ameliorative waste
- What is voluntary or affirmative waste?
- Actual, overt conduct that causes a decrease in value.
- What is the general rule with respect to voluntary waste and natural resources?
- The life tenant must not consume or exploit natural resources on teh property (such as timber, oil, or minerals), unless one of four exceptions applies.
- What are the exceptions to the general rule with respect to voluntary waste and natural resources?
PU - Prior Use, meaning that life tenant may continue to exploir if, prior to the grant, the land was used for exploitation (unless otherwise agreed)
R - Reasonable repairs, meaning that hte life tenant may consume natural resources for reasoanble repairs and maintenance of the premises.
G - Grant, meaning the life tenant may exploit if expressly granted the right to do so,
E - Exploitation, meaning this land is suitable only for exploitation.
- What is the prior use and open mines doctrine?
- If mining was done on the land before the life estate began, the life tenant may continue to mine, but is limited to the mines already open. The life tenant must not open any new mines.
- What is permissive waste or neglect?
- Occurs when land is allowed to fall into disrepair or the life tenant fails to reasonably protect the land.
- What is the life tenant's obligation to repair?
- The life tenant must simply maintain the premises in reasonably good repair.
- What is the life tenant's obligation to pay taxes?
- The life tenant is obligated to pay all ordinary taxes on the land, to the extent of income or proifts from teh land. If there is no income or profit, the life tenant is required to pay all ordinary taxes to the extent of the premises' fair rental value.
- What is the doctrine of ameliorative waste?
- The life tenant must not engage in acts that will enhance the property's value unless all of the future interest holders are known and consent.
- What are the future interests capable of creation in the grantor and what present interests do they accompany?
- 1) Possiblility of Reverter - only accompanies the fee simple determinable (FSDPOR)
2) Right of Entry or Power of Termination (or, in NY, right of reaquisition)- accompanies only the fee simple subject to condition subsequent (or, in NY, the fee on condition)
3) The reversion (the future interest that arises in a grantor who transfers an estate of lesser quantum than she started with, other than a fee simple determinable or a fee simple subject to condition subsequent)
- What types of future interests are held by someone other than the grantor?
- 1) Vested remainder;
2) Contingent remainder; OR
3) Executory interest
- What types of vested remainders are possible?
- 1) Indefeasibly vested reemainder;
2) Vested remainder subject to complete defeasance (also known as the vested remainder subject to total divestment); AND
3) Vested remainder subject to open
- What types of executory interests are possible?
- 1) Shifting executory interest; AND
2) Springing executory interest
- What are the tasks involved in assessing future interests in transferees?
- 1) First, must distinguish vested remainders (of which there are three kinds) from contingent remainders;
2) Second, must distinguish the three kinds of vested remainders from each other; AND
3) Third, must distinguish all remainders from executory interests.
- What is a remainder?
- A future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created.
- What are the characteristics of remainderman?
- Sociable (never travels alone), Patient, and Polite
1) Remainderman always accompanies a preceding estate of known fixed duration. That preceding estate is usually a life estate or a term of years.
2) Remainderman never follows a defeasible fee. He waits patiently for the preceding estate to run its natural course. (Remainderman CANNOT cut short or divest a prior transferee. If your present estate is a defeasible fee, your future interest is NOT a remainder. Instead, it will be executory interest if held by someone other than O)
- When is a remainder vested?
- A remainder is vested if it is BOTH created in an ascertained person and is not subject to any condition precedent.
- When is a remainder contingent?
- A remainder is contingent iff it is created in an unascertained person OR it is subject to a condition precedent, or both.
- What is a future interest in a transferee that is subject to a condition precedent called in NY?
- A "remainder subject to a condition precedent."
- When is a condition a condition precedent?
- When it appears BEFORE the language creating the remainder or is woven into the grant to remainderman. A condition precedent is a prerequisite.
- When a remainder is contingent because of the existence of a condition precedent, what happens if the condition precedent is satisfied?
- The contingent remainder is transformed automatically into an indefeasibly vested remainder.
- What is the Rule of Destructibility of contingent remainders?
- At common law, a contingent remainder was destroyed if it was still contingent at the time the preceding estate ended.
- What is the current status of the Rule of Destructibility in the US?
- It has been abolished, including in NY.
- What happens today if a contingent remainder is still contingent at the time the preceding estate ends?
- Grantor or his heirs hold the estate subject to the springing executory interest of hte party who had the contingent remainder and when the condition precedent is satisfied, that party takes.
- What is the Rule in Shelley's Case?
- It is a rule of law (not a rule of construction) and applies even in the face of contrary grantor intent. It holds that where grantor attempts to convey a life estate, with remainder to the life tenant's heirs, the present and future interests merge, giving the purported life tenant instead a fee simple absolute.
- What is the current status of the Rule in Shelley's Case?
- The Rule has been virtually abolished, including in NY.
- What happens today if a Shelly's Case situation arises?
- A has a life estate and A's as yet unknown heirs have a contingent remainder. O has a reversion becuase A could die without heirs.
- What is the Doctrine of Worthier Title?
- Also known as the rule against a remainder in grantor's heirs- it applies when O, who is alive, tries to create a future interest in his heirs. Where O attempts to convey "To A for life, then to O's heirs," the doctrine of worthier title prevents O's heirs from having a contingent remainder and instead gives O a reversion. But, it is a rule of construction and not a rule of law, so grantor's intent controls and if grantor clearly intends to create a contingent remainder in his heirs, than that intent is binding.
- What is the current status of the doctrine of worthier title?
- Still viable in most states today. BUT
NY has abolished it with respect to transfers taking effect after September 1, 1967.
- What is the defining characteristic of the indefeasibly vested remainder?
- The holder of this remainder is certain to acquire an estate in the future, with no conditions attached.
- What are the requirements for an individual to have an indefeasibly vested remainder?
- He must be born and there must be no strings attached to his interest once he gets it. (OK that there is a possibility he will outlive the life tenant b/c then the estate will simply pass by will or by intestacy to his heirs)
- What is the vested remainder subject to complete defeasance (aka vested remainder subject to total divestment) called in NY?
- A "remainder vested subject to complete defeasance."
- What are the characteristics of a vested remainder subject to complete defeasance?
- Remainderman exists and his taking is not subject to any condition precedent. However, his right to possession could be cut short because of a condition subsequent.
- What does a condition precedent create?
- A contingent remainder.
- What does a condition subsequent create?
- A vested remainder subject to complete defeasance.
- How can you tell the difference between a condition precedent and a condition subsequent?
- Apply the "comma rule." When conditional language in a transfer follows language that, taken alone and set off by commas, would create a vested remainder, the condition is a condition subsequent, and you have a vested remainder subject to complete defeasance.
- Is it possible for a person to die without heirs?
- What is the vested remainder subject to open?
- Exists where a remainder is vested in a group of takers, at least one of whom is qualified to take possesion. But, each class member's share is subject to partial diminution because additional takers, not yet ascertained can still qualify as class members.
- When is a class open?
- If it is possible for others to enter.
- When is a class closed?
- When its maximum membership has been set so that persons born thereafter are shut out.
- What is the rule for when a class closes and what does it hold?
- The common law rule of convenience holds that the class closes whenever any member can demand possession.
- Where the conveyance is: "To A for life, then to B's children," A is alive, and B has two children - C and D, when does the class close?
- Either at B's death OR, according to the rule of convenience, at A's death, no matter that B is still alive. This is because that is when C and D can demand possession and once A dies, a child of B born or conceived thereafter will not share in the gift.
- What is the exception to the rule of convenience?
- The womb rule: A child of B in the womb at A's death will share with C and D.
- In the previous example, what result at common law if C or D predeceases A?
- Their share goes to their devisees or their heirs.
*Note - NY statutory result will be taken up in Wills.
- What is an executory interest?
- A future interest created in a transferee (a third party), which is not a remainder and which takes effect by either cutting short some interest in another person ("shifting") or int the grantor or his heirs ("springing").
- What is a shifting executory interest?
- It always follows a defeasible fee and cuts short someone other than the grantor.
- What is a springing executory interest?
- It cuts short O, the grantor.
- How does NY treat executory interests?
- NY has abolished the distinction between executory interests and contingent remainders. Instead, contingent remainders AND executory interests are called "remainders subject to a condition precedent."
- What is the Rule Against Perpetuities (RAP)?
- Certain kinds of future interests aree void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life.
- What is the four-step technique for assessing potential RAP problems?
- 1) Determine which future interests have been created by the conveyance.
2) Identify the conditions precedent to the vesting of the suspect future interest.
3)Find a measuring life.
4) Ask: Will we know, with certainty, within 21 years of the death of our measuring life, if our future interest holder(s) can or cannot take? If so, the conveyance is good. If not, the future interest is void.
- To what types of future interests does the RAP potentially apply?
- ONLY to:
2)Executory interests, and
3)Certain vested remainders subject to open.
- To what types of future interests does the RAP NOT apply?
- 1) Any future interest created in O, the grantor,
2) Indefeasibly vested remainders, or
3) Vested remainders subject to complete defeasance.
- What are the bright line rules of common law RAP?
- 1) A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the common law RAP
2) Many shifting executory interests violate the RAP. An exectory interest with no limit on the time within which it must vest violates the RAP.
- What is the rule with respect to conditions precedent and classes?
- To be valid, it must be shown that the condition precedent to every class member's taking will occur within the purpetuities period. If it is possible that a disposition might vest too remotely with respect to any member of the class, the entire class gift is void. ("Bad as to one, bad as to all.")
- What happens if, by striking a RAP violation from a purported conveyance, you render the conveyance no longer grammatically sound? E.g. "To A and his heirs, but if the land ceases to be used for farm purposes, to B and his heirs."
- Then the entire conditional clause is strken and, in the example, A would be left with a fee simple absolute and O with nothing.
- What is the exception to the RAP?
- The charity-to-charity exception. A gift from one charity to another does not violate the RAP.
- What is the majority reform of the common law RAP?
- The "wait and see" or "second look" doctrine.
- What does the wait and see doctrine provide for?
- The validity of any suspect future interest is determined on the basis of the facts as they now exist at the conclusion of our measuring life. Eliminates teh "what if" or "anything is possible" line of inquiry.
- What is the Uniform Statutory Rule Against Perpetuities (USRAP)?
- Codifies the common law RAP and, in addition, provides for an alternative 90-year vesting period.
- What is the cy pres doctrine?
- "As near as possible" If a given disposition violates the rule, a court may reform it in a way that most closely matches the grantor's intent, while still complying with the RAP.
- What do both the wait and see and USRAP reforms embrace?
- 1) The cy pres doctrine and
2) The reduction of any offensive age contingency to 21 years.
- What is the NY position on RAP?
- NY applies the common law rule against perpetuities and has rejected wait and see and cy pres, except for charitable trusts and powers of appointment (see Trusts)
- What is the fertile octogenarian rule?
- Every living person is presumed to be capable of bearing a child regardless of age.
- What points must be known about the NY Perpetuities Reform Statute?
- 1) Where 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.
2) The common law fertile octogenarian principle is modified. NY statute presumes that a woman over the age of 55 cannot have a child. The possibility that the person may havee a child by adoption or some other technology is disregarded.
3) The rule against suspension of the absolute power of alienation applies the common law RAP to restrictions on the power to sell or transfer. Thus, an interest is void if it suspends the power to sell or transfer for a period longer than lives in being plus 21 years.
- What are the possible forms of concurrent ownership?
- 1) The joint tenancy
2) The tenancy by the entirety
3) The tenancy in common
- What is the definition of a joint tenancy?
- Two or more own with the right of survivorship.
- What is the definition of a tenancy by the entirety?
- A protected marital interest between H and W with the right of survivorship.
- What is the definition of the tenancy in common?
- Two or more own with no right of survivorship.
- What does the right of survivorship mean?
- When one tenant dies, his share passes automatically to the surviving tenant.
- What are the distinguishing characteristics of the joint tenancy?
- 1) The right of survivorship and
2) A joint tenant's interest is alienable (can sell it or give it away during your lifetime), but is NOT devisable or descendable because of the right of survivorship.
- What is required for the creation of a joint tenancy?
- 1) The four unities;
2) Grantor must clearly express the right of survivorship;
3) Use of a straw
- What are the four unities?
T - at the same Time
T - by the same Title, meaning the same instrument
I - with Identical equal interests; and
P - with identical rights to Possess the whole.
- What is required to create a joint tenancy in NY?
- All above except the straw. NY has, by statute, dispensed with the need for a straw, meaning that a current holder of land may convey directly to himself and another as joint tenants.
- How may a joint tenancy be severed?
S - Sale,
PA - Partition, AND
M - Mortgage
- What rules apply to sale of an interest in a joint tenancy by one of the joint tenants?
- 1) A joint tenant can sell or transfer her interest during her lifetime.
2)In equity, a joint tenant's mere act of entering into a contract for the sale of her share will sever the joint tenancy as to that contracting party's interest.
- May a joint tenant sell or transfer her interest secretly?
- Yes. Even without the other's knowledge or consent.
- What is the effect of a sale by one joint tenant?
- One joint tenant's sale severs the joint tenancy as to the seller's interest because it dusrupts the four unities.
- What status does the buyer of an interest in a joint tenancy have?
- He is a tenant in common.
- What result if the joint tenancy existed between more than two joint tenants before the sale?
- The joint tenancy remains intact as between the other, non-transferring joint tenants, and the buyer is a tenant in common with the remaining original joint tenants.
- What is the doctrine of equitable conversion?
- Provides that equity regards as done that which ought to be done.
- What variations of partition exist?
- 1) By voluntary agreement (allowable, peaceful way to end the relationship)
2) Partition in kind (judicial action for physical division of the property, if in teh best interests of all parties)
3) Forced sale (judicial action, if in the best interests of all parties, where land is sold and sale proceeds divided up proportionately).
- What is the majority rule with respect to mortgage and severance of joint tenancies?
- Lien Theory of Mortgages:
A joint tenant's execution of a mortgage on his or her interest will NOT sever the joint tenancy.
- What is the minority rule with respect to mortgage and severance of joint tenancies?
- Title Theory of Mortgages:
A join tenant's execution of a mortgage or a lien on his share will sever the joint tenancy as to that now encumbered share.
- What rule does NY follow with respect to mortgage and severance of joint tenancies?
- Lien Theory of Mortgages
- Does NY recognize the tenancy by the entirety?
- How is a tenancy by the entirety created?
- Can only be created in H and W, who share the right of survivorship. In those states to recognize the tenancy by the entirety, it arises presumptively - in any conveyance to H and W, unless clearly stated otherwise.
- What is the general rule with respect to creditors and the tenancy of the entirety?
- Can't touch this --
Creditors of only one spouse cannot touch the tenancy.
- What is the rule in NY with respect to creditors and the tenancy of the entirety?
- One spouse may mortgage his interest and his creditors may enforce against that interest, but only as to the debtor spouse's share. And, the non-debtor spouse's rights, including the right of survivorship, must not be compromised.
- What is the rule with respect to unilateral conveyance and the tenancy of the entirety?
- Neither tenant, acting alone, can defeat the right of survivorship by a unilateral conveyance to a third party.
- What are the features of hte tenancy in common?
- 1) Each co-tenant owns an individaul part and each has a right to possess the whole.
2) Each interest is descendable, devisible, and alienable. There are no survivorship rights between tenants in common.
3) The presumption favors the tenancy in common.
- What is wrongful ouster?
- When one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part.
- What is the rule with respect to rent from a co-tenant in exclusive possession?
- Absent ouster, a co-tenant in exclusive possession is not liable to others for rent
- What is the rule with respect to rent from third parties?
- A co-tenant who leases all or part of hte premises to a third party must account to his co-tenants providing them their fair share of hte rental income (prportionally).
- May a co-tenant in exclusive possession acquire title to the whole through adverse possession?
- Unless he has ousted the other co-tenants, one co-tenant in exclusive possession for the statutory adverse possession period cannot acquire title to the exclusion of the others becuase the hostility element of adverse possession is absent. There is no hostility if there is no ouster.
- May a co-tenant in exclusive possession acquire title to the whole through adverse possession in NY?
- Recent Court of Appeals decision has held that a cotenant may acquire full title by adverse possession if he's in exclusive possession for twenty continuous years. NY has advanced a theory of implied ouster.
- What carrying costs are co-tenants responsible for?
- Each co-tenant is responsbile for his fair share of carrying costs (such as taxes and mortgage interest payments) based upon the undivided share that he holds.
- What is the rule with resepct to repairing co-tenants?
- The repairing co-tenant enjoys a right to contribution for necessary repairs, provided that she has notified the others of the need for the repairs. The contribution is proportionally based on each co-tenant's share of the property.
- What are the rules with respect to improvements by co-tenants?
- 1) During the life of the co-tenancy, there is no right to contribution for "improvements."
2) At partition, the improving co-tenant is entitled to a credit, equal to any increase in value caused by her efforts.
3) At partition, the so-called "improver" bears full liability for any decrease in value caused by her efforts.
- What are the rules with respect to waste?
- 1) A co-tenant must not commit waste.
2)A co-tenant can bring an action for waste during the life of the co-tenancy.
- What is the rule of partition?
- A joint tenant or tenant in common has a right to bring an action for partition.
- What are the types of leasehold or nonfreehold estates?
- 1) The tenancy for years (aka Estate for years or Term of years)
2) The periodic tenancy
3)The tenancy at will
4) The tenancy at sufferance
- What are the distinguishing features of a tenancy for years?
- 1) A lease for a fixed, determined period of time (if you know the termination date from the start, its a tenancy of years)
2) Because a term of years states from the outset when it will terminate, no notice is needed to terminate,
3) A term of years greater than one year must be in writing to be enforceable because of hte statute of frauds.
- What is a periodic tenancy?
- A lease which continues for successive intervals until landlord or tenant give proper notice and terminate.
- How can a periodic tenancy be created?
- 1) Expressly (i.e., "To T from month to month OR year to year OR week to week.")
2) By implication
- How may a periodic tenancy arise by implication?
- One of three ways:
1) Land is leased with no mention of duration, but provision is made for the payment of rent at set intervals;
2) An oral term of years in violation of the statute of frauds creates an implied periodic tenancy, measured by the way rent is tendered.
3) The holdover: In a residential lease, if L elects to holdover a T who has wrongfully stayed on past the conclusion of the original lease, an implied periodic tenancy arises, measured by the way rent is now tendered.
- What is the rule with respect to holdover tenants in NY?
- In NY, the landlord's acceptance of rent subsequent to the expiration of the term wll create an implied month-to-month periodic tenancy, unless otherwise agreed.
- How can a periodic tenancy be terminated?
- Notice - usually written - must be given.
- How much notice is required?
- At common law, at least equal to the length of the period itself, unless otherwise agreed.
- What is the excpetion to the general notice rule?
- If the tenancy is from year to year or greater, only six months notice is required.
- What other limitations apply to the general notice rule?
- 1) By private agreement, the parties may lengthen or shorten the common law prescribed notice provisions
2) The periodic tenancy must end at the conclusion of a natural lease period.
- What is the tenancy at will?
- A tenancy for no fixed period of duration.
- How is a tenancy at will formed?
- The parties must expressly agree to a tenancy at will. Otherwise, the payment of regular rent will cause a court to treat the tenancy as an implied periodic tenancy.
- How may a tenancy at will be terminated?
- The tenancy at will may be terminated by either party at any time; however, a reasonable demand to vacate is typically required.
- How may a tenancy at will be terminated by a landlord in NY?
- In NY, the landlord terminating a tenancy at will must give a minimum of 30 days written notice of termination.
- How is the tenancy at sufferance created?
- It is created when T has wrongfully held over, past the expiration of the lease. We give this wrongdoer a leasehold estate - the tenancy at sufferance - to permit L to recover rent.
- How long does a tenancy at sufferance last?
- Only until L either evicts T or elects to hold T to a new term.
- What is T's liability to third parties?
- 1) T is responsible for keeping the premises in reasonably good repair.
2) T is liable for injuries sustained by third parties T invited, even where L has expressly promised to make all repairs. (Of course, T may seek indemnification from L, but vis-a-vis the plaintiff, T is liable)
- What is T's duty to repair whwen the lease is silent?
- 1) The standard is maintenance, meaning T must maintain the premises and make ordinary repairs
2) T must not commit waste
3) T is subject to the law of fixtures.
- What types of waste must T not commit?
- 1) Voluntary
- With what doctrine is the law of fixtures often intertwined?
- The waste doctrine
- What is the result of a tenant removing a fixture?
- He has committed voluntary waste.
- What is a fixture?
- A once movable chattel that, by virtue of its annexation to realty OBJECTIVELY shows the intent to permanently improve the realty.
- What are common examples of fixtures?
- 1) Heating systems
2) Custom made storm windows
3) Certain lighting installations.
- By what rule is T governed with respect to fixtures?
- T must not remove a fixture, no matter that she installed it.
- How can you tell when a tenant installation qualifies as a fixture?
- 1) Express agreement controls - agreement between L and T on the issue is binding
2) In the absence of agreement, T may remove a chattel that she has installed so long as removal doesn't cause substantial harm to the premises. If remomval will cause substantial damage, then in objective judgment, T has shown the intent to install a fixture and the fixure must stay put.
- What is T's duty to repair when T has expressly covenanted in hte lease to maintain the property in good condition for the duration of the lease?
- 1) At common law, historically, T was responsible for any loss to the property, including loss attributable to force of nature.
2) Today, the majority view is that T may terminate the lease if the premises are destroyed without T's fault.
- What is the rule in NY with respect to destruction of property subject to a leasehold?
- In NY, absent tenant's express undertaking to restore the premises in the event of their destruction, if the premises are destroyed through no fault of tenant, tenant may quit the premises and surrender possession without any further duty to pay rent.
- What are the landlord's options if T breaches his duty to pay rent and is in possession of the premises?
- L's only options are to:
1) evict through the courts or
2) continue the relationship and sue for rent due.
If L moves to evict, she is nonetheless entitled to rent from teh tenant until the tenant, who is now a tenant at sufferance, vacates.
- What may L not do in case of T's breach of duty to pay rent?
- L must not engage in self help, such as changing the locks, forcibly removing the tenant, or removing any of hte tenant's possessions.
- What is the remedy where L engages in self-help in NY?
- Treble damages.
- What are L's options where T breaches the duty to pay rent but is out of possession?
S - L can choose to treat T's abandonment as an implicit offer of Surrender, which L accepts
I - L may 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.
R - L may Re-let the premises on the wrongdoer tenant's behalf, and hold him or her liable for any deficiency. *This is the majority rule and a mitigation principle.
- What is surrender?
- T demonstrates by words or actions that she wishes to give up the leasehold.
- What additional rules apply to surrender?
- If the unexpired term is greater than one year, surrender must be in writing to satisfy the statute of frauds.
- What is the rule in NY with respect to mitigation of damages by L?
- Generally, NY does not require L to mitigate damages when tenant abandons the premises.
- What are L's duties?
- 1) Duty to deliver possession
2) The implied covenant of quiet enjoyment
3) The implied warranty of habitability
- What is the majority rule with respect to L's duty to deliver possession?
- The majority (or English or Anglo-Saxon) rule requires that L put T in actual physical possession of the premises. Thus, if at the start of T's lease a prior holdover T is still in possession, L is in breach and the new T is entiteld to damages.
- What is the minority rule with respect to L's duty to deliver possession?
- The American rule, which is the tiny minority view, does not require that L put T in actual physical possession. The American rule requires only that L give T legal possession.
- What is the implied covenant of quiet enjoyment and to what types of leases does it apply?
- T has a right to quiet use and enjoyment of the premises without interference from L. Applies to both residential and commercial leases.
- How may L breach the implied covenant of quiet enjoyment?
- 1) By actual wrongful eviction;
2) By constructive eviction.
- When does actual wrongful eviction occur?
- When L wrongfully evicts T or excludes T from the premises.
- What are the elements of constructive eviction?
SI - Substantial Interference attributable to L's actions or failure to act. (*On exam, look for a chronic problem - doesn't have to be permanent, but has to be chronic)
N - T must give L Notice of the problem and L must fail to respond meaningfully.
G - Goodbye or Get out. T must vacate within a reasonable time after L fails to correct the problem. (Can't let tenant have it both ways)
- Is the landlord liable for the acts of other tenants?
- The general rule is no, but there are two exceptions:
1)L has a duty not to permit a nuisance on the premises (e.g. rent apartment above you to Riverdance)
2) L must control common areas.
- What is the standard for the implied warranty of habiltability and to what types of leases does it apply?
- The standard is that the premises must be fit for basic, human habitation, meaning bare living requirements must be met. The appropriate standard may be supplied by local housing code or independent judicial conclusion. The warranty applies only to residential leases.
- May the implied warranty of habiltability be waived?
- No. Any attempt to disclaim is invalid.
- What sorts of problems will trigger a breach of the implied warranty of habitability?
- 1) Failure to provide heat in winter
2) Lack of plumbing
3) Lack of running water
- What are T's entitlements when the implied warranty of habitability is breached?
M - Move out and terminate the lease
R - Repair and deduct, allowable by statute in a growing number of jurisdictions - T may make the reasonable repairs and deduct their cost from future rent.
R - 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.
R - Remain in possession, pay rent and affirmatively seek money damages.
- What is the key analytical distinction between the implied covenant of quiet enjoyment and the implied warranty of habitability?
- To plead constructive eviction successfully, T has to get out. But under implied warranty of habitability, T does not have to move out.
- What is the rule of retaliatory eviction?
- If T lawfully reports L for housing code violations, L is barred from penalizing T by, for example, raising the rent, ending the lease, harassing T, or taking any other retaliatory measures.
- What is the rule with respect to assignments and subleases?
- In the absence of some prohibition in the lease, a T may freely assign or sublet.
- What is the difference between an assignment and a sublease?
- Where T transfers his interest in whole, he accomplishes an assignment; where he transfers his interest in part, he accomplishes a sublease.
- What types of restrictions on assigning and subletting may be applied?
- In the lease, L can prohibit T from assigning or subletting without L's prior written approval.
However, once L conssents to one transfer by T, L waives the right to object to future transfers by that T, unless L expressly reserves the right.
- What is the rule with respect to subletting and assignment in NY?
- In NY, unless the lease provides otherwise, a residential T may not assign without L's written consent. L can unreasonably withhold consent to assign, and T's sole remedy is to seek release from the lease. By contrast, in NY, a T in a residential building having four or more units has the right to sublease subject to L's written consent. Consent to sublease cannot be unreasonably withhled. Unreasonably withheld consent is deemed consent.
- Where T1 assigns his interest to T2, what is the relationship between L and T2?
- They are in privity of estate, but they are NOT in privity of contract, unless T2 expressly assumed all promises in the original lease.
- What does it mean to be in privity of estate?
- L and T2 are liable to each other for all of the covenants in the original lease that "run with the land."
- What are common examples of covenants in the lease which run with the land?
- Promise to
1) pay rent, or
2) paint the premises,
*Most of the promises, if not all of the promises in the orignal lease will run with the land.
- What is the relationship between L and T1 after T1 assigns his lease to T2?
- L and T1 are no longer in privity of estate, but remain in privity of contract.
- What does it mean that L and T1 remain in privity of contract, but not in privity of estate?
- They are secondarily liable to each other.
- What is the relationship between L and a sublessee?
- L and a sublessee are neither in privity of estate nor in privity of contract, meaning they share no nexus. So, if all you have is a sublease, T2 is responsible to T1 and vice versa.
- What is the general rule with respect to L's tort liability?
- The common law of caveat lessee is let tenant beware, meaning that in tort, L was under no duty to make the premises safe.
- What are the most important exceptions to the common law rule?
C - Common areas: L must maintain all common areas like hallways and stairwells
L - Latent defects rule: L must warn T of hidden defects of which L has knowledge or reason to know. *NOte - only duty to warn, not a duty to make accompanying repairs.
A - Assumption of repairs: while under no duty to make repairs, once undertaken, L must complete them with reasonable care. If L, as a volunteer, makes the repairs negligently, L is liable.
P - Public use rule: L who leases public space (such as a convention hall or museum) and who should know, because of hte nature of the defect and the length of hte lease, that T will not repair is liable for any defects on the premises
S - Short term lease of furnished dwelling: L is responsible for any defective condition which proximately injures T.
- What does the term servitudes mean?
- It's a generic term, referring to a family of non-possessory property interests.
- How can an affirmative easement be created?
1) P - Prescritpion (use that is continuous, open and notorious, actual, under a claim of right that is hostile for request statutory period)
2) I - Implication (implied from prior use; at time land is severed, a use of one part existed from which it can be inferred that an easement permitting its continuation was intended).
3) N - Necessity (division of a deprives one lot of means of access out)
4) G - Grant (writing signed by grantor)
- What parties are bound by an affirmative easement?
- An easement appurtenant is transferred automatically with the dominant tenement.
An easement in gross for commercial purposes is assignable.
- What is the remedy for violation of an affirmative easement?
- Injunction or damages.
- What types of things are the subject of negative easements?
1) L - Light
2) A - Air
3) S - Support and
4) S - Streamwater
- How can a negative easement be created?
- Only by writing signed by the grantor.
- What is the remedy for violation of a negative easement?
- Injunction or damages
- How may a real covenant be created?
- By a writing signed by grantor.
- To what parties will the burdene of the promise of a real covenant run?
- Successor of burdend lot if WITHN requirements are satisfied:
1) W - Writing,
2) I - Intent,
3) T - Touch and concern,
4) H - Horizontal and vertical privity, and
5) N - Notice
- To what parties will the benefit of a promise run?
- Successor of benefitied lot if WITV requirements are satisfied:
1) W - Writing,
2) I - Intent,
3) T - Touch and concern, and
4) V - Vertical privity
- What is the remedy for violation of a real covenant?
- How can an equitable servitude be created?
- By a writing signed by grantor (unless implied by General Scheme Doctrine)
- When will successors be bound by an equitable servitude?
- When WITN satisfied:
1) W - Writing,
2) I - Intent,
3) T - Touch and concern,and
4) N - Notice
(privity not required)
- What is the remedy where an equitable servitude is violated?
- How are reciprocal negative servitudes created under the majority rule?
- Majority Rule:
In a subdivision, residential restriction contained in prior deeds conveyed by a common grantor will bind subsequent grantees whose deeds do NOT contain the restriction IF: at the start of subdividing, 1) grantor had common scheme and 2) unrestricted lot holders had notice.
- What is the minority rule with respect to reciprocal negative servitudes?
- Under the minority rule, subsequent grantees will not be bound unless their lots are expressly restricted in writing.
- Who is bound by a reciprocal negative servitude?
- Where a common scheme exists, subsequent purchasers with notice are bound.
- What is the remedy for violation of a reciprocal negative servitude?
- What is an easement?
- The grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another's land, called teh servient tenament.
- What are common examples of easements?
- 1) The privilege to lay utility lines on another's land;
2) The easement giving its holder the right of access across a tract of land.
- Are most easements affirmative or negative?
- What is an affirmative easement?
- The right to go onto and do something on servient land.
- What is a negative easement?
- It entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible.
- What categories of negative easements are generally recognized?
- LASS - Light, Air, Support, Stream water from an artificial flow.
- What additional category is recognized in a minority of states?
- Scenic view.
- Can there ever be a natural or automatic right to a negative easement?
- No. Can ONLY be created expressly by writing signed by grantor.
- What is an easement appurtenant?
- An easement that benefits its holder in his physical use or enjoyment of his property.
- How will you konw when you've got an easement appurtenant?
- "It takes two." Two parcels of land must be involved in order for there to be an easement appurtenant: 1) the dominant tenement, which derives the benefit, and 2) the servient tenement, which bears the burden.
- What is an easement in gross?
- An easement that confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land. Here, servient land is burdened, but there is no benefited or dominant tenement.
- What are common examples of an easement in gross?
- 1) The right to place a billboard on another's lot;
2) The right to swim in another's pond;
3) The utility company's right to lay power lines on another's land.
- Why is it important to distinguish between appurtenant easements and easements in gross?
- Because of the transferability of the easements.
- What is the transferability of the appurtenant easement?
- It passes automatically with teh dominant tenement, regardless of whether it is even mentioned in the conveyance.
- When does the burden of an easement appurtenant on the servient land pass?
- It also passes automatically with the servient estate, UNLESS teh new owner is a bona fide purchaser without notice of the easement.
- What is the transferability of an easement in gross?
- It is not transferable unless it is for commercial purposes.
- What are the requirements for the creation of an easement by grant?
- An easement to endure for more than one year must be in a writing that complies with the formal elements of a deed because of hte statute of frauds.
- What is the writing to evidence the easement called?
- A deed of easement.
- When may the creation of an easement be implied?
- Court may imply an easement where the holder of two lots has split and sold one if:
1) The previous use had been apparent and
2) The parties expected that the use would survive division because it is reasonably necessary to the dominant land's use and enjoyment.
- When will an easement be implied by necessity?
- The landlocked setting: An easement of right of way will be implied by necessity if the grantor conveys a portion of his land with no way out except over some part of grantor's remaining land.
- How is an easement by prescription created?
- By satisfying the elements of adverse possession: COAH:
1) C - Continuous use for the given statutory period;
2) O - Open and notorious use;
3) A - Actual use; and
4) H - Hostile use, meaning without the servient owner's consent. *Note: permission defeats the acquisition of an easement by prescription.
- What is the appropriate statutory period for an easement by prescription in NY?
- 10 years.
- What determines the scope of an easement?
- The terms of the grant or the conditions that created it.
- Is unilateral expansion of the use of an easement permitted?
- How may an easement be terminated?
- END CRAMP
1) E - Estoppel
2) N - Necessity
3) D - Destruction of servient land, other than through the willful conduct of the servient owner
4) C - Condemnation of the servient estate by eminent domain
5) R- Release, meaning a written relase, given by the easement holder to the servient owner
6) A - Abandonment
7) M - Merger doctrine (or unity of ownership)
8) P - Prescription.
- When is an easement terminated by estoppel?
- When the servient owner materially changes his position in reasonable reliance on the easement holder's assurances that the easement will no longer be enforced.
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