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New York Real Property


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Real Property
Flash Cards
Features of Fee Simple Absolute
Transferrable, divisible, inheritable, infinite duration.
Fee Simple Determinable and Possibility of Reverter<br>
“For so long as”, “while”, “during”, “until”. Automatically reverts to the grantor upon happening of stated event
What estate do the words “for the purpose of” and “to be used for” create?
A fee simple. They do not create a FSDPOR because they are mere expressions of motive.<br>
<br>Fee Simple Subject to Condition Subsequent and Right of Entry<br>
Grantor Reserves the Right to Terminate upon happening of Stated Event-- but grantor must re-enter. <br>“Upon condition that”, “Provided that”, “But if” and “If it happens that”<br>
“For so long as”, “while”, “during”, “until” – what estate do such words create?
<br>FSDPOR. Automatic reverter to grantor upon happening of event.<br>
Upon condition that”, “Provided that”, “But if” and “If it happens that” – what estate do such words create?
FSSCS and Right of Entry
<br>Fee Tail<br>
<br>To A and the Heirs of his body. This happens until A and his line die out. Grantor has a reversion.<br>
Life Estate (may be defeasible)
To A for life-- To A for the life of B (life estate pur autre vie). Until the end of the measuring life. Grantor retains a Reversion.
<br>Rights and Duties of Life Tenant? <br>
<br>LT entitled to any ordinary uses and profits of the land. LT cannot do anything that injures the interests of a remainderman or reversioner. He must pay ordinary taxes-- special assessments for short-term public improvement. He is NOT obliged to get insurance or for 3P damages<br>
Types of Waste for Life Tenant
Affirmative (Voluntary waste) by LT only when necessary for maintenance or repair---- where land is suitable only for such use-- and if expressly or impliedly permitted by grantor.

Permissive waste—LT does not protect or preserve the land.

Ameliorative waste—a LT benefits the property. Now a LT may do so if the market value of future interests is not diminished-- and either the r’men do not object-- or a substantial and permanent change in the neighborhood conditions has deprived the property of its productivity or usefulness.
True of False: All reversionary interests are vested and thus not subject to the Rule Against Perpetuities.
A conveys to B for life and then to the children of C. C has one child, D. What does D have?
D has a vested remainder subject to open.
A conveys to B for life, then to C and his heirs, but if C dies unmarried, then to D and his heirs if D marries E, otherwise to F. What estates do each have?
C's remainder is vested but subject to a condition subsequent. Thus C has a vested remainder subject to complete divestment by D's executory interest. D and E have alternative contingent remainders.
The Rule in Shelley's Case: How to treat "To Be for life, then to B's heirs".
The Rule against Remainders in Grantee's Heirs means that B has a Fee Simple under common law but B's heirs have a contingent remainder under the Modern Treatment.
The Doctrine of Worthier Title. How to treat "To B for life, then to my heirs at law."
Rule against Remainders in Grantor's heirs means that B has a life estate and the grantor has a reversion. The Modern Treatment is that G'or's heirs have a contingent remainder.
Class closure: When does a class close?
Rule of Convenience: It closes when some member of the class can claim distribution of her share of the class gift.
Which of the following are NOT subject to the Rule Against Perpetuities? 1. Indefeasibly vested remainder; 2. contingent remainder; 3. shifting executory interest; 4. springing executory interest; 5. vested remainder subject to total divestment; 6. veste
indefeasibly vested remainders and vested remainders subject to total divestment are NOT SUBJECT to the RAP. The rest are.
State the Rule Against Perpetuities.
No interest in property is valid unless it must vest, if at all. not later than 21 years after some life in being at the Creation of the interest.
State some common RAP pitfalls
- Fertile Octogenarian
- Unborn widows
- To children upon reaching age 22 or higher
- Executory interest following defeasible fee: "To A for so long as X is true, then to B".
- Slothful executor
- Rights of first refusal attached to land rather than to Current Tenants
When are restraints on alienation of fee simple estates VALID?
When they are of limited time and reasonable purpose -- e.g., limited to joint life-times of co-owners/
Characteristics of Joint Tenancy
- Unity at creation of time, title, interest, possession
- Can be severed by inter vivos conveyance (sale or foreclosure) or contract to convey or by murder or by partition, whether voluntary or involuntary
Characteristics of Tenancy by the Entirety
H & W each have an undivided interest in the whole estate And a RIGHT OF SURVIVORSHIP.
Severable by divorce, mutual agreement, or execution by a joint creditor of BOTH H and W, but NOT BY INVOLUNTARY PARTITION. Note also that an individual spouse cannot convey or encumber (mortgage) Entirety Property.
Characteristics of Tenancy in Common
- Default setting
- Possession: No right to exclusion but right to possess whole.]
- Can get partition
Mortgages and Liens: difference in treatment of Joint and Co-tenants
TiC: Mortgagee can encumber of T1's interest; in JT, only foreclosure will sever the JT. Thus, in JT, a mortgagee runs the risk that T1 will die before foreclosure; T1's death would extinguish the right.
How may a periodic tenancy arise?
- express agreement
- implication
- operation of law
How may a periodic tenancy be terminated?
It is automatically renewed until notice is given. Usually notice must be given one full period in advance -- e.g. one month's notice for a month to month tenancy. Exception: only six months' notice required to terminate a year-to-year tenancy.
Distinguish Tenancy at Will from Tenancy at Sufferance
At will lasts for as long as either (1) landlord AND tenant OR (2) the tenant so desire. A Sufference comes about where tenant wrongfully stays after termination of tenancy. It is terminated when the landlord Evicts or else Elects to hold the tenant to another Term.
Tenant's Duties
1. First, do no harm
2. Do not Waste -- voluntary, permissive, ameliorative.
3. Pay rent even if premises are destroyed without fault of you or L'lord.
4. Repair ordinary stuff but don't bother to repair fire damage or other casualty damage unless Expressly included.
5. No use of prop for illegal purposes. Occasional unlawful conduct does NOT breach.
6. Pay rent
Landlord's Remedies if Tenant Breached Duties
1. Evict or Sue for Rent
2. If Tenant Abandons, either do nothing or repossess. Landlord must mitigate by seeking to relet and T liable for damages.
Landlord's Duties
1. Deliver Actual possession of property
2. Quiet enjoyment. This means no Actual eviction, Partial eviction, OR Constructive Eviction
3. Implied Warranty of Habitability. This is nonwaivable and Implied in Residential leases.
Tenant Remedies for (1) Actual Eviction; (2) Partial Eviction; (3) Constructive Eviction; (4) Breach of IWH
(1) Terminates T's obligation to pay rent
(2) Terminates T's obligation to pay ENTIRE rent; partial eviction by paramount title holder means reapportionment of rent oblgiation
(3) if landlord breached and property unhabitable, T must VACATE within a reasonable time.
Differences between Assignments and Subleases
- If TIME remains at the end of the transfer, the transfer is a SUBLEASE and not an assignment.
- Assignees are in Privity of Estate and are thus liable for Run with the Land Covenants. Rent covenants run with the Land. A sublettor is not so liable. A sublettor can't enforce any of the lease covs exceopt maybe the IWH.

In BOTH subleases AND ass't's by T, T1 REMAINS liable on rent and ALL other covenants in the lease. In the sublease context, T1 may enforce the landlord's covenants although T2 cannot.
Easement: definition
A grant of an interest in land that allows someone to use another's land. Negative easements are really restrictive covenants. Appurtenant easements are those in which a dominant estate can demand something -- water, air, support -- from a servient estate. These easements pass with D-acre. Easements in gross are held by the holder and not the land; these can be for personal pleasure rather than economic gain.
Creation of easement
- If for more than one year, an easement must be written, signed by holder of S-acre, and comply with requirements for deeds
- Express grant in writing or reservation IN THE GRANTOR UNLESS by Implication, by Necessity, or by Prescription.
Easement by Implication
An easement may be implied if prior to the division of a single tract, an apparent and continuous use exists on the "servient" part, that is Reasonably Necessary for enjoyment of the "dominant part", and the court determines that the parties Inteneded the use to continue after division.
Easement by Necessity
This arises when a landowner sells a portion of his tract and thereby deprives one lot of access to a public road or utility line.
Easement by Prescription
Like adverse possession, getting a P. E'ment requires Open and Notorious Adverse Continuous and Uninterrupted Use for the Statutory Period.
And you can't get them in Public Land.
How to End an Easement
- stated conditions
- unity of ownership/merger
- release
- abandonment
- estoppel
- prescription
- necessity
- condemnation and destruction of the servient estate
Real Cov's/ Burden Running with the Land: requirements for creation
1. intent
2. notice - actual, inquiry, or record
3. Horizontal privity when the promisor entered into the covenant
4. Vertical privity: between successor to covenantor and covenantor
5. Touch and concern
Real Cov's/ Benefit Running with the land: where these conditions are met, the promisees successors may enforce the covenant.
1. intent
2. vertical privity
3. touch and concern
1. Remedy for Breach of Real Cov?

2. Remedy for Breach of Equitable Servitude?
1. Damages

2. Injunction
Equitable Servitude: a covenant that does not run with the land but will be enforced in equity against assignees of the burdened land who have Notice. How do you create an Eq. Serv.?
1. Covenants in writing; exception -- if negative, can be inferred from common scheme of development
2. notice
Is privity of estate required for burdens or benefits to run with Equitable Servitudes?
No. No privity of estate is required for an equitable servitude to be enforceable by and against assignees.
Adverse Possession
1. statute runs
2. open and notorious
3. actual and exclusive
4. continuous possession
5. hostile -- i.e., without the owner's permission

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