Real Property II

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Scope of easement: set by terms of grant or conditions of creation. No unilateral expansion of easement.
Fee tail: 1) Create w/ "To A and the heirs of his body"; 2) Mainly abolished in **NY TOO: attempt to create → fee simple absolute (HISTORICALLY: Grantee's lineal blood descendants); 3) Accompanying future interest: Reversion for O, Reverter for third party
Fee simple subject to executory limitations: 1) create: "To A, but if X event occurs, then to B."; A has: Fee simple subject to shifting executory interest, which goes to B; 2) Condition broke → Automatic forfeiture in favor of someone other than grantor; 3) Future interest: subject to clear durational term - shifting executor interest
Vested remainder subject to complete defeasance: **NY NAME: Remainder vested subject to complete defeasance. Right to possession could be cut short by condition subsequent: CP → Contingent Remainder; CS → Vested remainder subject to complete defeasance.
T responsibility for destruction w/ Express agreement to maintain property in good condition: HISTORY-COMMON LAW: T liable for any loss, including any loss from force of nature. Destruction - responsible for restoration construction. MAJORITY: T may terminate the lease when premises destroyed w/o fault. **NY RULE: No express undertaking of restoration, T may quit and surrender premises w/ no further duty to pay rent.
Contingent remainder Subject to CP: condition appearing before remainder-creating language, or woven into grant to remainderman - "To A for life, if B graduates from college (CP), to B": 1) B has contingent remainder; 2) O has reversion - No graduation, O and his heirs; 3) B graduates, A alive → CR becomes indefeasibly vested remainder. COMMON LAW: CRs destroyed if still contingent at end of previous estate - O and O's heirs would take fee simple absolute. **NY RULE and elsewhere: rule destroyed, B as a springing executory interest - on achieving condition → B takes.
Implied promises by Seller of Land K: 1) provide marketable title = title free from reasonable doubt, lawsuits, threat of litigation; 2) Not to make any false statements of material fact - MAJORITY: seller liable for failing to disclose latent - material lies AND omissions; PUBLIC POLICY: General liability disclaimer in K - no excuse for fraud or failure to disclose. NO implied warrantees of fitness or habitability in land K - COMMON LAW: caveat emptor. EXCEPTION: Implied warrantee of fitness and workmanlike construction.
The land K & Statute of Frauds issues: STANDARD: Land K must be written, state some consideration, signed by party against who enforcement sought; and describe land. Amount in recitation > actual land - remedy: specific performance w/ pro rata reduction in purchase price commensurate w/ acreage deficiency. EXCEPTION: Doctrine of part performance, look for B to do 2 out of 3: 1) takes physical possession; 2) pays some portion of purchase price; 3) makes substantial improvements to land
Tenancy for years: fixed period of time, no notice to terminate. Know term. date from start = T for years. STATUTE OF FRAUDS: > 1 yr., need writing
THE PRESENT ESTATES: FEE SIMPLE ABSOLUTE; FEE TAIL; DEFEASIBLE FEES; LIFE ESTATES
Commercial holdovers: original lease for ≥ 1 year, new periodic tenancy will be year to year. <1 year original - court looks to rental payments.
Tenant's duties: 1) liability to 3rd Ps: Matter of tort Law - Keep premises in good repair; 2) Duty to repair; 3) duty to pay rent
duty to pay rent: T breaches and is in possession: evict thru court or continue and sue for rent. Eviction - still gets rent from tenant who is tenant at sufferance, vacates. NO LL self-help - punishable civilly and criminally. **NY RULE: Prohibited, entitled to treble damages.
ameliorative waste: no property enhancement unless all FI holders know and consent, honoring sentimental value
Risk of loss in land Ks: Equity regards as done, that which ought to be done - once K signed, B owns land. DESTRUCTION: after K, before closing - B bears risk of loss UNLESS K says otherwise. **NY DESTRUCTION: Buyer w/o fault - risk remains w/ seller until buyer has title/takes possession
Condition precedent: CP when conditional language before creating the remainder - EX: "To A for life, and if B reached the age of 25, to B.": 1) A - life estate; 2) B - Contingent remainder, must be 25 before taking possession; 3) B <25 at A's death - cannot take, reverts back to O or O's heirs; 4) O or O's heirs - hold subject to B's springing executory interest; 5) O - reversion
POSSESSOR'S RIGHTS: right to be free from trespass or nuisance
Severance and mortgage of joint tenancy: MINORITY RULE: theory of mortgages - 1 JT's execution of mortgage or lien on share will sever encumbered share. **NY AND MAJORITY RULE: lien theory of mortgages - JT execution does not sever JT
Affirmative easements: Create w/ PING: 1) Prescription (OCEAN); 2) Implication (from prior use - at time of severance use existed creating implication); 3) Necessity (division of one lot → no way out); 4) Grant (Writing signed by grantor). Parties Bound: 1) Appurtenant - transfers automatically w/ dominant tenement; 2) In gross for commercial purposes - assignable. Remedy: Injunction or damages
Lawful execution of the deed: writing, signed by grantor: a) No need for recitation of consideration if passage of actual consideration; b) Description of the land - not perfect, just unambiguous, can we find it w/ some research
2 Bright line RAP rules and Exception: 1) Gift to open class conditioned on members surviving beyond 21, violates RAP - Bad as to one, bad as to all. Must show CP to every class members' taking will happen w/n perpetuities period; 2) Many Shifting EIs violate the RAP - No limit in time for vesting → violation. EXCEPTION: Gift from one charity to another, no RAP violation. Policy: to encourage gift giving
**NY STATUTE: NY Perpetuities Reform Statute: CL RAP, rejected wait and see and Cy pres, except for charitable trusts and powers of appointment. Age contingency gets knocked down to 21. Fertile octogenarian → 55 yrs., don't care about adoption. NY suspension rule - CL rap to restrictions on power to sell or transfer, restriction if > lives + 21 can't bring together in a conveyance of fill fee simple title.
Tenancy at sufferance: When T wrongfully held over past expiration date, leasehold helps LL recover rent. Lasts until eviction of LL elects to hold T to new tenancy. **NY RULE: LL acceptance of rent after expiration creates implied mo-to-mo unless otherwise agreed.
Equitable servitudes: promise that equity will enforce against successors (comes w/ injunctive relief). Creation: 1) writing - generally, but not always; 2) Intent - parties intended enforceable promise; 3) Touch and concern; 4) Notice - assignees of burdened land had notice of promise. NO PRIVITY requirement.
COMMON LAW Shelley's rule: Merges present and future interest → gives fee simple absolute. EX: O conveys "To A for life, then, on A's death, to A's heirs" A is alive. Rule of law, not rule of construction - apply, even w/ contrary grantor intent. **NY RULE and elsewhere: Rule in Shelley's case abolished. A has life estate, unknown heirs have a contingent remainder, O has a reversion.
More on equitable mortgages: If a deed is given for security purposes rather than as an outright transfer of the property, it will be treated as an equitable mortgage and the creditor will be required to foreclose it by judicial action like any other mortgage. In determining whether an absolute deed is really a mortgage, the ct considers the following factors: 1. The existence of a debt or promise of payment by the deed's grantor, 2. The grantee's promise to return the land if the debt is paid, 3. The fact that the amount advance to the grantor/debtor was much lower that the value of the property, 4. The degree of the grantor's financial distress, and 5. The parties' prior negotiations.
Easement Appurtenant: benefits holder in physical use or enjoyment. Need two parcels 1) dominant land - derives benefit; 2) servient tenement - bears burden. Passes automatically w/ dominant tenement - no need to say in conveyance (unless acquirer is bona fide purchaser w/ notice of easement)
ZONING: pursuant to PP, gov. can enact statutes to reasonably control land use
Duty to Deliver possession: MAJORITY/ENGLISH RULE: Must put T in actual physical possession of property - Prior T holds over → LL in breach, new T gets damages. TINY MINORITY/AMERICAN RULE: mere legal possession required
Fee simple determinable: **NY NAME: fee on limitation: 1) Create: "To A for so long as..." "To A during..." "To A until...": a) Grantor must use clear durational language; b) Violation of stated condition → automatic forfeiture; 2) Distinguishing: ALL defeasible fees is devisable, descendible, alienable. RULE: You can convey less then what you started w/, but NEVER more; 3) Future interest: Possibility of reverter in the grantor
Termination of easement: (END CRAMP): Estoppel - servient owner materially changes position in reasonable reliance on holder's assurance of nonenforced - Estopped from enforcement; Necessity - expire on end of necessity, but if there is also an express grant, doesn't automatically end; Destruction - of servient land, unless willful owner conduct, terminates easement; Condemnation of servient estate; Release - written release, goes from easement holder → servient owner; Abandonment - holder, thru physical action, must demonstrate intent to never use easement again (not non-use); Merger doctrine - title to two parcels becomes vested in one person, automatically extinguished, does not come up again automatically on separation; Prescription - servient owner extinguishes by interfering w/ elements of AP
Life estate pur autre vie: "To A for the life of B" - A has a life estate pur autre vie. Life estate measured by life other than grantee's. A still has a life estate, and O still has a reversion.
Unconstitutional exactions: Gov. seeks amenities in exchange for granting permission to build. Must be reasonably related in nature/scope to impact of proposed development → NO: uncon. Inherently suspect - could be government extortion.
LL's Tort Liability: COMMON LAW: Caveat lessee - let tenant beware, harsh, LL as no duty to make premises safe. EXCEPTIONS: (CLAPS) Common areas - LL must maintain, stairwells, hallways; Latent defects rule - LL must warn (not fix) T of hidden defects LL knows or has reason to know; Assumption of repairs - LL must complete, w/ care, repairs voluntarily undertaken; Public use rule - LL leases public space and should know b/c nature of defect and length of lease, T will not repair, liable for > de minimus repairs (Concert hall case); Short term lease of furnished dwelling - liable for defective condition causing proximate harm to T (Rats in HI)
Remainder: FI created in grantee capable of becoming possessory on expiration of prior possessory estate created in same conveyance as remainder. ALWAYS accompanies preceding estate of known, fixed duration - Usually: life estate or term of years. NEVER follows defeasable fee: always waits for previous estate to run natural course, cannot cut short or divest prior transferee
T duty to repair: silent lease - STANDARD: Maintenance - maintain premises and make ordinary repairs. NO waste - > 1 person has interest in property. Fixtures pass w/ ownership of the land - even if T installed. Removal is voluntary waste - E.g. heating fixtures, custom storm windows, furnace, lighting installations. Express agreement control. Silence: T may remove fixtures installed so long as removal doesn't cause substantial harm to premises.
Real Covenants: Create: Grantor signs writing. Parties bound: Burden runs to successor if - Writing, intent, touch and concern, H privityl; Benefit runs if - writing, intent, touch and concern, V privity. Remedy: damages.
trespass: intentional invasion of land by tangible physical object. can remove trespasser by bringing action for ejectment.
Duty to pay rent: T breaches, out of possession: (SIR): Surrender - option to treat as implicit surrender offer, LL accepts (>1 yr. left on lease - must be in writing, SOF); Ignore - MINORITY: hold responsible for unpaid rent and sue for unpaid rent; Re-let premises on wrongdoing T's behalf - T liable for deficiency; MAJORITY: LL must try to re-let, reasonable, good-faith effort, mitigation principle; **NY GENERAL RULE: LL does not have to mitigate damages
Tenant liability to 3rd Ps: Liable for injuries to 3rd Ps T invited even if LL made express promise of repair
RULE AGAINST PERPETUITIES (RAP): certain kinds of FIs are void if any possibility that interest might vest >21 yrs after death of measuring life
Reciprocal Negative Servitudes/General Scheme Doctrine: Create: MAJORITY In subdivision, restriction in prior deeds conveyed by common grantor bind subsequent grantees who don't have in deed if - At start, grantor had a) common scheme; b) unrestricted lot holders had notice). Parties bound: common scheme exists, subsequent purchasers w/ notice are bound. Remedy: Injunction.
Surface waters: from rain, springs, melting snow, yet to reach waterway or basin. HALF STATES: Common enemy rule - surface water is that enemy → Landowner change drainage, or any improvements to combat flow. MANY COURTS: modify to prohibit unnecessary harm to others' land.
LATERAL SUPPORT: land improvement, neighbor's excavation results in cave-in on adjacent property, excavator only liable if acted negligently. No SL unless P must show that the improvements did not cause the cave in - difficult to prove, negligence standard.
How does the covenant run - benefit: Does the benefit of A's promise go B → B2? a) writing; b) Intent; c) touch and concern; d) vertical privity, NOT horizontal
Tenancy at will: no fixed duration, "To T for as long as L or T desires." w/o express agreement - court will find implied periodic T from regularly paid rent. Termination at any time, MOST Js require reasonable demand to quite premises. **NY RULE: LL terminating must give at least 30 days notice.
On breach of warranty of habitability T entitled to: 1) Move out and end lease; 2) Repair and deduct - more Js allowing by statute; 3) Reduce rent - hold in escrow to show good faith; 4) Remain in possession, pay rent, seek money damages. LL MAY NOT retaliatory eviction: raising rent, ending lease, harassment
Defenses to enforcement of equitable servitudes: Changed conditions - so pervasive entire character of neighborhood is changed. NOT limited or piecemeal.
implied covenant of quiet enjoyment: gets tested: T has right to quiet use and enjoyment of premises w/ LL interference. BOTH residential and commercial leases. Breach by: Actual and wrongful eviction; Constructive eviction (SING) - Substantial interference - attributable to LL's actions or failure to act, chronic; Notice - T notify, LL fails to repair; Goodbye - T must vacate w/n reasonable time after failure to fix;
Life estate: 1) Create: Use explicit life time terms, NEVER term of years: "To A for life." - A is "life tenant" w/ life estate O has a reversion: A dies, reverts back to O and O's heirs. Term of years = leasehold interest; 2) Characteristics: Rooted in the doctrine of waste - RULE 1: Life tenant entitled to ALL ordinary uses and profits from land; RULE 2: Life tenant must not commit waste - not do anything to hurt future interest holders; 3) FI: If held by O - reversion, Third party holds - remainder
Nonconforming use: was lawful, becomes nonconforming by new ordinance. Cannot eliminate all at once w/o just compensation → becomes taking otherwise.
joint tenancy: Distinguish by: a) Right of survivorship - one T dies, share automatically → survivor; b) T's interest alienable, but NOT devisable or descendible. Create: a) Four unities: Ts must take interest a) at the same time; b) by the same title; c) identical = interest; and d) identical rights to possess the whole. Grantor must clearly express - right of survivorship. Straw man - have to convey to third party as intermediate to create for yourself. **NY STATUTE: No need for strawman, convey directly to self, and partition
Negative easements: LASS - Light, Air, Support Streamwater. Create: ONLY writing grantor signs. Parties bound: (). Remedy: Damages/injunction.
Class: Children - Class is open or closed; Open = possible for others to enter; Closed = max membership set, born later → shut out. COMMON LAW rule of convenience: class closes whenever member can demand possession
Riparian doctrine: H2O for those who own land bordering watercourse. riparians share right of reasonable use of H2O. Riparian user next to the water can take all water necessary for domestic use. Natural water use will always prevail over downstream unnatural user.
Covenants for title & three types of deed: Quitclaim deed; general warrant deed; statutory special warranty deed
Private nuisance: substantial and unreasonable interference w/ another's use and enjoyment of land. NO tangible physical invasion required. Can be odors and noise (But they are not trespass). Hypersensitive or specialized use P doesn't win.
Tenancy by the entirety: **NY RECOGNIZES - a protected marital interest between H and W w/ right of survivorship. Create: only in H and W w/ right of survivorship, presumptively in any conveyance to H and W, unless clear statement otherwise. Unilateral conveyance - neither party can defeat survivorship by conveying to another party. Very protected - Creditors cannot touch if only one spouse owes. **NY RULE - can only enforce against debtor spouse's share, non-debtor spouse rights cannot be compromised
Fee Tail: Language to create: "To A and the heirs of his body." Duration: Lasts as long as there are lineal blood descendants of grantee. Transferability: Passes automatically to gratee's lineal descendants. Future interest: Reversion if held by grantor; Remainder if held by third party.
Quitclaim: worst deed, no covenants, not even promising that he has title to convey. Grantor promises in land K to provide marketable title at closing - implicit in every land K. Any problems post-closing - seller off hook.
Equitable servitudes: Create: Most - Grantor signs writing. Parties bound: Writing, intent, touch and concern, notice (doesn't require privity). Damages: Injunction.
Fee simple absolute: 1) Language to create: "To A and his heirs," "To A." 2) Duration: Absolute ownership of potentially infinite duration. 3) Transferability: Devisable; Descendible; alienable. 4) Future interest: None
tenancy in common features: Three features: a) Each T owns individual part, and each has a right to the whole; b) Each interest descendable, devisable and alienable - no survivorship right; c) Presumption in favor of tenancy in common
Assignment: Assigning lease to T2 puts LL and T2 in privity of estate - liable to each other for all covenants in lease that run with land. NO privity of K btn. LL and T2 w/o T2 expressly assuming all promises in orginal lease. LL and T1 are no longer in privity of estate - still in Privity of K - LL and T1 are secondarily liable to e/o. Lease assignment to T3 → no more privity of estate w/ T2, T2 does not have any liability w/o express assumption.
Future interest: FIs that can be created in grantor: 1) Possibility of reverter - Only w/ fee simple determinable; 2) Right of entry/power of termination - only w/ fee simple subject to condition subsequent; 3) Reversion - FI arising in grantor who transfers estate of lesser quantum than started w/, other than the #s 1 and 2. "To A for life" "To A for 99 years"
Concurrent estates: three forms: 1) Joint tenancy; 2) Tenancy by the entirety; 3) Tenancy in common
Executory interest: future interest created in 3rd P transferee, which is not remainder and either cuts short interest in another (shifting) or in grantor or heirs (springing)
Fee simple absolute: Analysis: 1) Create w/ "To A and his heirs": COMMON LAW: Don't need to his heirs, just say, "to A"; 2) Distinguishing characteristics: a) absolute ownership; b) duration: potentially infinite; b) Freely devisable, descenbable, alienable; 3) NO accompanying future interest: A has no heirs while alive - only prospective heirs
Easements: grant of nonpossessory property interest, entitles holder to some form of use or enjoyment of another's land. servient tenement - the land being used or enjoyed, e.g. - right to cross land. MOST: Affirmative - right to go on and do something; Negative - only created by express writing signed by grantor: Four categories: 1) Light; 2) Air; 3) Support; 4) Stream water from artificial flow; MINORITY) scenic view
Indefeasibly vested remainder: certain to acquire in future, no strings. EX: "To A for life, remainder to B" - A and B are alive: 1) A - life estate; 2) B indefeasibly vested remainder - dies before A, passes by his will or intestacy to heirs
Statutory special warranty deed: two promises, grantor makes them only on behalf of himself. **NY NAME: Bargain and sale deed. 1) promise that he hasn't conveyed estate to anyone other than grantee; 2) estate free from encumbrances made by grantor
Vested Remainder Created ____: when BOTH created in ascertained person and NOT subject to condition precedent
Vested remainder subject to open: group of takers, >0 qualified to take EX: "To A for life, then to B's children" - A alive, C and D are B's children: 1) C & D - vested remainder subject to open. Class is still open. 2) Closed on A's death - C and D can demand possession, B's fetuses will share, children born later shut out. Womb rule. 3) C and D predecease A - go to devisees or heirs
Groundwater (AKA percolating H2O): beneath surface of earth, not confined to kown channel. Surface owner entitle to reasonable use -NOT wasteful use.
Title is Unmarketable when: a) AP even for a part of land - seller must provide good record title; b) Must be unencumbered fee simple - no servitudes and mortgages w/o buyer waiver. Seller has right to pay w/ proceeds from sale - buyer cannot claim unmarketable b/c mortgage. c) zoning violation - brings litigation.
General warranty deed: Series of promises on behalf of self and predecessors, warrants against defects in title, includes grantor's predecessors. SOL begins on delivery. Present covenants: 1) Seisin - grantor owns, no claims to convey; 2) Right to convey -power to make transfer, no temporary restraints or disabilities on grantor's capacity; 3) Against encumbrances - promise no servitudes or liens on land. Future covenants - no breach til grantee disturbed of possession: 1) Quiet enjoyment - grantee will not be disturbed in possession by 3rd P's lawful claim of title; 2) Warranty - will defend grantee if any lawful claims of title asserted; 3) Further assurances - future acts reasonably necessary to perfect the title if later turns out to be imperfect
How does the covenant run - Burden: Burden - harder for that to run then benefits: 1) Does the burden of A's promise to B run from A to A-1? Requirements: a) Original express written promise btn A and B; b) Intended covenant (Courts generous); c) Touch and concern the land - affects parties' legal relations as landowners d) horizontal and vertical privity: Horizontal is succession of a state grantor/grantee, LL/tenant, mortgagor/mortgagee relationship (Hard to find - likely reason for burden not to run); Vertical - non-hostile nexus, K, devise, or descent AP it is absent; E) notice - For burden side to run, A1 had notice when she took
LAND CONVEYANCING: Always a two-step process: STEP 1) Land K - endures until; STEP 2) Land closing - deed becomes operative document
Four steps to spotting RAP problems: 1) What future interest? - RAP ONLY for contingent remainders, executory interests, and certain vested remainders subject to open. NOT for: FI in the grantor, or indefeasibly vested remainders, or vested remainders subject to complete defeasance; 2) What Conditions Precedent to vesting of FI?; 3) Find measuring life. Person who is alive at the end of the conveyance - Is their death relevant?; 4) ASK: W/n 21 years of death of that life, do we know for certain if FI holder can/not take?: YES → Good conveyance; NO → future interest is void
Springing executory interests: cuts short the grantor. EX: "To A, if and when he marries" A unmarried: 1) A - Springing EI; 2) O - fee simple subject to A's springing EI
FIs in Transferees: 1) vested remainder: a) indefeasibly vested remainder; b) vested remainder subject to complete defeasance; c) vested remainder subject to open; 2) contingent remainder: 3) executory interest: a) shifting, or b) springing
How do you enforce covenant against successive owners: ASK 1: Does the burden of A's promise to B run from A to A-1? ASK 2: Does the benefit of A's promise to B run from B to B-1? Don't need horizontal privity for benefit to run.
Creating an affirmative easement: (PING) 1) Prescription - must satisfy elements of adverse possession [Continuous use for statutory period (**NY STATUTE: 10 yrs.); Open and notorious usage; Actual use; Hostile use]; 2) Implication - AKA easement from existing use [Court may imply if previous use apparent, parties expected use to survive b/c necessary to dominant land use and enjoyment]; 3) Necessity - landlocked, easement of right of way implied by necessity if grantor conveys portion of land w/ no other way out except grantor's remaining land; 4) Grant - Deed of easement: SOF requires >1 yr, must be in writing that complies w/ formal elements of deed
implied warrantee of habitability: will be tested(**), only residential. PUBLIC POLICY: non-waivable. STANDARD: premises must be fit for basic human habitation, bare living requirements → Look to local housing code or independent court conclusion. E.g. violations - no heat in winter, no plumbing, no running H2O (Fundamentally incompatible w/ human habitation)
Contingent remainder created _____: when created in unascertained person OR is subject to CP OR BOTH - Unborn and unascertained: 1) "to A for life, then to B's first child" - A alive, no kids yet; 2) "To A for life, then to B's heirs" - B is alive, DK his heirs; 3) "To A for life, then to B's children who survive A"
Three species of waste: a) voluntary/affirmative waste - overt conduct, causes value decrease; b) permissive waste/neglect - allow land to fall into disrepair, fail to reasonable protect; c) ameliorative waste - no property enhancement unless all FI holders know and consent, honoring sentimental value
voluntary/affirmative waste: overt conduct, causes value decrease. No consuming or exploiting Nat. resources - EXCEPTIONS: PURGE 1) PU - Prior use: can use in way was used before (Also open mines doctrine); R - Reasonable repairs: consume nat. resources for repairs, maintenance; G - Grant: if express grant to resource go ahead; E - Exploitation: land is suitable only for exploitation (e.g. quarry)
inquiry & record notice (constructive): inquiry - look at lay of the land, neighborhood conforms to common restriction; record notice (constructive) - publicly recorded Docs., impute to owners → Courts split - SOME COURTS: subsequent buyer on record notice of contents of prior deeds; **NY/BETTER VIEW: No record notice of content of prior deeds transferred by common grantor
EMINENT DOMAIN: Government's fifth amendment power to take private property for public use in exchange for just compensation. Explicit taking - act of governmental condemnation. Implicit/regulatory taking - gov. reg. not intended to be taking, but has the same effect - Economic effect of wiping out investment. Remedy - gov must: 1) Compensate owner for taking; OR 2) Terminate the regulation and pay owner for damages while it was in effect.
Severance and partition of joint tenancy: Voluntary agreement. Partition in kind - court action for a physical division if in best interest of all. Forced sale - court action if in the best interest where sold and proceeds divided proportionately.
NY Executory Interests and Contingent Remanders: **NY RULE: Abolished difference between EIs and CRs - Both are remainders subject to Condition Precedent
Easement in gross: confers on holder some personal or pecuniary advantage not related to use or enjoyment of land: 1) dominant land - no benefit; 2) servient land - bears burden, e.g. - right to place billboard, right to swim in another's pond, right to lay power lines. ONLY transferable if for commercial purposes.
The profit: entitles holder to enter servient land and take soil or some substance of soil (nat. resources): Same rules as easement
Four leasehold or nonfreehold estates: 1) Tenancy for years; 2) periodic tenancy; 3) tenancy at will; 4) tenancy at sufferance
Prior appropriation doctrine: H2O initially belongs to state, right to divert and use can be acquired by an individual, regardless of whether riparian owner. Rights determined by priority of beneficial use: 1st in time, 1st in right. Any productive or beneficial use (like agriculture) - sufficient to create right.
RIGHTS/DUTIES of tenancy in common: a) possession - right to whole, effort to exclude is wrongful ouster; b) NO rent from co-T in exclusive possession absent ouster; c) YES rent from 3rd Ps - entitled to fair share of rental income; d) adverse possession - Co-T in exclusive cannot acquire to exclusion of others w/o ouster, no hostility (**NY RULE: Theory of implied ouster - Co-T if exclusive 20 yr. possession); e) Carrying costs - each tenant liable based on undivided share they hold (taxes, mortgage); f) Repairs - right to contribution for repairs if notified co-Ts of need; g) improvements - no right to contribution , but, at partition, credit; h) waste - no waste, co-T can bring action; i) partition - right to bring action
Defeasible fees - Fee simple determinable: 1) Language to create: "To A so long as..." "To A until..." "To A while..." - language providing that upon the happening of a stated event, the land is to revert to the grantor. 2) Duration: Potentially infinite, so long as event does not occur. 3) Transferability: Alienable, devisable, descendible, subject to condition. 4) Future interest: Possibility of reverter held by grantor. ****ing stupid dumb people revert
permissive waste/neglect: allow land to fall into disrepair, fail to reasonable protect. Life tenant must maintain in reasonably good repair & pay ordinary taxes - to extent of profits from land, no profits → to extent of fair rental value. **NY STATUTE: Can make improvements that prudent fee simple holder would make under same circs, unless remaindermen object
Severance and Sale of joint tenancy: JT can sell or transfer (even in secret) - severs JT bc disrupts four unities: 1) Buyer becomes → tenant in common; 2) JT still intact btn. Other tenants
LL liability for Tenants: GENERAL RULE: LL not liable for acts of other Ts. EXCEPTIONS: I) Can't permit nuisance; II) Control common areas
Condition Subsequent: CS when conditional language, taken alone and set off by commas, would create a vested remainder - EX: "To A for life, remainder to B, provided that if B dies <25, to C" - A alive, B is 20: 1) A -life estate; 2) B - VRSCD because there is CS; 3) C - shifting executory interest; 4) Condition subsequent: B living to 25; 5) O has a reversion
Delivery requirement (**) at closing: grantor physically or manually transfers deed to grantee (mail, messenger, agent). Legal standard - ASK: Did grantor have present intent to be immediately bound irrespective of whether deed literally handed over. EXPRESS REJECTION by recipient defeats delivery. Absolute deed on face, transferred w/ oral condition - condition drops out, after delivery accomplished too hard to deal w/ truth. Delivery by escrow is ok - deliver to escrow agent to deliver once certain conditions are met: 1) Conditions met → automatic passage of title; 2) Title still passes if grantor dies, becomes incompetent, other incapacity
Fee simple subject to condition subsequent (**): - **NY NAME: Fee on condition: 1) Create: "To A, but if X event occurs, grantor reserves the right to reenter and retake." - Clear durational language and carve out right to reenter; 2) Estate NOT automatically terminated - Grantor has option to cut short when stated condition occurs; 3) Future interest: right of entry/power of termination/**NY NAME - right of re-acquisition
Implied equitable servitude: w/ subdivisions, court will imply reciprocal negative servitude. If GENERAL OR COMMON scheme doctrine present, look for: 1) at time of sales beginning - subdivider had general scheme of residential development, D's lot too; 2) D lotholder had notice of promise in prior deed - three forms: a) actual notice; b) inquiry notice (inquiry notice); c) record notice (constructive)
Defeasible fees - Fee simple subject to an executory limitation: 1) Language to create: "To A, but if X event occurs, then to B." 2) Duration: Potentially infinite, so long as stated contingency does not occur. 3) Transferability: Alienable, devisable, descendible, subject to condition. 4) Future interest: Executory interest - held by third person
Doctrine of worthier title (AKA rule against remainder in grantor's heirs): most states observe. EX: O alive, conveys "To A for life, then to O's heirs." No DWT: A has life estate, O's heirs have CR. W/ DWT: CR in O's unknown heirs is void, A has life estate, O has reversion. Purpose: promote free land transfer. Rule of construction - go w/ Grantor's intent.
Covenant: promise to/not do something related to the land, K limitation or promise regarding land - NOT a grant of property interest. 1) Negative - refrain from something related to land: E.g. I promise not to build for commercial purposes. 2) Affirmative - promise to do something related to land: E.g. - maintain fence, walkway, etc. LOOK AT DAMAGES to determine if covenant: Money damages → covenant; Injunction → equitable servitude. One track gets burden, one gets the benefit
Zoning variance: Principal means to achieve flexibility, must show: 1) undue hardship; 2) wouldn't work detriment to surrounding property. Administrative action - zoning board.
Periodic tenancy: successive or continuous in nature: express or implied. Provision for rent at set intervals. Oral term of years violates SOF → implied periodic tenancy, get from way rent is tendered.1st rental payment can do this. Holdover - measure by way rent tendered. (**NY RULE: electing to holdover a tenant, creates implied mo-to-mo periodic tenancy unless otherwise agreed). Termination - notice required, usually in writing. COMMON LAW: = to length of period itself, unless otherwise agree to shorten or lengthen - > or = year → 6 mos.PT MUST END at conclusion of natural lease period - like 1st of the mo.
Adverse possession: possession ripens into title. Elements (OCEAN): Continuous - uninterrupted for statutory period (**NY AP PERIOD: 10 yrs.); Open and notorious - like usual owner under circumstances; Adverse; Hostile - NO PERMISSION from owner (no subjective intent for possessor). Tacking - possible w/ privity, any non-hostile nexus (block K, deed, will). Ouster defeats. Disability at start of AP tolls SOL (insanity, infancy, imprisonment).
Shifting Executory Interest: always follows a defeasible fee, cuts short someone other than grantor. EX: "To A and her heirs, but of B returns from Canada sometime next year, to B and his heirs": 1) B - Shifting EI, no reminder b/c never follows defeasible fees; 2) A - Fee simple subject to B's shifting EI
Doctrine of equitable conversion: In Equity JT's K for sale severs JT as to King party's interest. Equity regards as done that which ought to be done.
Sublease: NO privity of estate or K btn. LL and T2
Defeasible fees - Fee simple subject to condition subsequent: 1) Language to create: "To A, but if X event happens, grantor reserves the right to reenter and retake." Grantor must CARVE OUT right of reentry. 2) Duration: Potentially infinite, so long as condition not breached, and thereafter, until holder of right of entry timely exercises the power. 3) Transferability: Alienable, devisable, descendible, subject to condition. 4) Future interest: Right of entry/power of termination (held by grantor).
LL's Duties: 1) Duty to deliver possession; 2) Implied covenant of quiet enjoyment; 3) implied warranty of habitability
RAP Reform: 1) MAJORITY REFORM: Wait and see - consider issue at conclusion of measuring life; 2) Uniform Statutory Rule Against Perpetuities (USRAP) - Codifies RAP, alternative 90 yr. vesting period; 3) Wait and see and USRAP, cy pres - go w/ grantor's intent → reduce age contingency to 21 yrs; 4) **NY STATUTE: NY Perpetuities Reform Statute
License: mere privilege to enter another's land for some delineated purpose. NO SOF issues - don't need writing. Freely revocable - will of licensor, unless estoppel. Classic license cases: 1) tickets - come for show; 2) Oral easement creates freely revocoable license - otherwise unenforceable, b/c SOF. ESTOPPEL bars revocation on investment of substantial money or labor
Life estate: 1) Language to create: "To A for life." "To A for the life of B." 2) Duration: Measured by life of trasnferee or by some other life. 3) Alienable, devisable, and descendible if pur autre vie and measuring life is still alive. 4) Reversion if held by grantor; Remainder if held by third party.
Rules of Construction for defeasible fees: 1) Words of mere desire, hope or intention are insufficient to create a defeasible fee - EX UNCLEAR: "To A for the purpose of constructing a day care center" "w/ the hope..." "expectation that the premises..."; 2) Absolute restraints on alienation are VOID = absolute ban on sale or transfer + no reasonable time-limited purpose. NO: "To A so long as she never attempts to sell." Reasonable time-limit purpose: "To A so long as she does not attempt to sell until 2009, when clouds on title will be resolved."
Assignment vs. Sublease: Assignment - transferring interest in whole; Sublease - transfer in part. No prohibition in lease - T may freely transfer, may prohibit in lease w/o LL's prior written approval. On consent - waive right to object, unless express written reservation. **NY RULE: Unless lease provides otherwise, Res. T can't assign w/o written consent from LL. NON-NY RULE: if LL unreasonably w/h consent, only remedy is to seek release from the lease. Res. Building > 3 units, right to sublease subject to LL's written consent - CANNOT be unreasonably w/h → that becomes consent

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Number of cards 120