PROPERTY

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lawsetonhall
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24679
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PROPERTY
Updated:
2010-06-24 23:42:59
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PROPERTY
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PROPERTY
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  1. FREEHOLD ESTATES: FEE SIMPLE ABSOLUTE
    • Language: "To A and his heirs" or "To A"
    • Duration: Absolute ownership of potentially unlimited duration
    • Transferability: Devisable, descendible, alienable
    • Future Interest: None
  2. FREEHOLD ESTATES: FEE TAIL
    • Language: "To A and the heirs of his body"
    • Duration: Only as long as there are lineal blood descendants of grantee
    • Transferability: passes automatically to above descendants
    • Future Interest: Reversion (if held by grantor), Remainder (if held by 3rd party)
  3. FREEHOLD ESTATES: FEE SIMPLE DETERMINABLE
    • Language: " To A so long as..." "To A until..." "To A while..."
    • Duration: Potentially infinite so long as stated event does not occur
    • Transferability: descendable, devisable, alienable subject to condition
    • Future Interest: Possibility of reverter (held by grantor)
  4. FREEHOLD ESTATES: FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT
    • Language: "To A, but if X event occurs, grantor reserves right to reenter and retake"
    • Duration: Potentially infinite so long as condition not breached, and thereafter, until the holder of the right to entry timely exercises power of termination
    • Transferability: Devisable, Descendable, and Alienable subject to condition
    • Future Interest: Right of entry/power to terminate (held by grantor)
  5. FREEHOLD ESTATES: FEE SIMPLE SUBJECT TO EXECUTORY LIMITATION
    • Language: "To A, but if X event occurs, then to B"
    • Duration: Potentially infinite, so long as stated contingency does not occur
    • Transferability: Devisable, Descendable, Alienable subject to contingency
    • Future Interest: Executory Interest (held by 3rd party)
  6. FREEHOLD ESTATES: LIFE ESTATE
    • Language: "To A for life" or "To A for the life of B"
    • Duration: Measured by life of transferee or some other life (pur autre vie)
    • Transferability: Devisable, Descendable and Alienable if pur autre vie and measuring life still alive
    • Future Interest: Reversion (if held by grantor) Remainder (if held by 3rd party)
    • - NOTE - LT entitled to all ordinary uses and profits from land BUT must not commit waste hurting future interest holders.
    • - NOTE - 3 kinds of waste: (1) voluntary/unless...PURGE (prior use/reasonable repair/granted right/exploitation, (2) permissive/fall into disrepair, (3) ameliorative (need to know all future interest holders and get consent from all)
  7. FUTURE INTERESTS: CAPABLE IN CREATION IN GRANTOR
    • (1) Possibility of Reverter: Accompanies only fee simple determinable
    • (2) Right of Entry/Termination: Accompanies only fee simple subject to condition subsequent
    • (3) Reversion: arises in grantor who transfers an estate of lesser quantum than she started with, other than a fee simple determinable or fee simple subject to condition subsequent (i.e. O has a fee simple absolute and conveys "To A for life." This is less than what O started with, so reversion)
  8. FUTURE INTERESTS: VESTED REMAINDER
    • - Defined: Created in an ascertained person and is not subject to any condition precedent
    • (1) Indefeasibly Vested Remainder: Holder of remainder is certain to acquire an estate in the future w/no conditions attached
    • (2) Remainder Subject to Complete Defeasance: Taking is NOT subject to condition precedent, however his right to possession could be cut short by condition subsequent.
    • (3) Vested Remainder Subject to Open: Vested in a group of takers, at least one of whom is qualified to take possession but each class member's share is subject to get smaller b/c others can still join in. Class closes whenever any member can demand possession.
  9. FUTURE INTERESTS: CONTINGENT REMAINDER
    • - Defined: Created in an ascertainment person or is subject to a condition precedent, or both.
    • - Unborn example: "To A for life, then to B's heirs". A and B are alive. B's heirs unknown because living person has no heirs.
    • - Condition Precedent Example: "To A for life, then, if B graduates from college [cond prec], to B. A is alive. B is in high school. Before B can take, he must graduate college thus cond prec not satisfied yet. Be therefore has contingent remainder, O has reversion.
    • - Destructibility rule used to destroy remainder if not fulfilled by the time preceding estate ended. No longer the case. Instead, estate goes to grantor's heirs until cond prec is met.
    • - Shelly Rule mostly abolished (abolished in NY)
  10. FUTURE INTERESTS: EXECUTORY INTERESTS
    • - Defined: A future interest created in a transferee (3rd party) which is not a remainder and which takes effect by either cutting short some interest in another person (shifting) or in the grantor or his heirs (springing)
    • (1) Shifting: Always follows a defeasible fee and cuts short someone other than grantor ("To A and her heirs, but if B returns from Iraq next yr, to B and his heirs")
    • (2) Springing: Cuts short the grantor (O conveys, "To A, if and when he marries." A is unmarried).
  11. CONCURRENT ESTATES: JOINT TENANCY
    • - Defined: 2 or more own w/the rank of survivorship (when one dies, share automatically goes to surviving joint tenants.
    • - Alienable, but not devisable or descendable b/c survivorship rights
    • - Created by T-TIP: JT's must take interest (1) at same Time, (2) by same Title/same instrument, (3) w/Identical interests, (4) right to Possess the whole. In addition, must clearly state right of survivorship
    • - Use of straw
    • - Severance of JT by SPAM: Sale (results in tenant in common, but other JT's can stay in tact), Partition (voluntary agreement, partition in kind, forced sale) And Mortgage (only in minority of states, not NY)
    • - Example: O conveys "To A, B and C as joint tenants w/right of survivorship"
  12. CONCURRENT ESTATES: TENANCY BY THE ENTIRETY (21 STATES INCLUDING NY)
    • - Defined: A marital interest btw/married partners w/right of survivorship
    • - Arises presumptively in any conveyance to married partners unless stated otherwise.
    • - Highly protected, creditors of only 1 spouse can't touch this tenancy
    • - Neither tenant, acting alone, can defeat right of survivorship by unilateral transfer to 3rd party
  13. CONCURRENT ESTATES: TENANCY IN COMMON
    • - Defined: Both own but there is no right to survivorship
    • - Each co-tenant owns an individual part and each has right to possess the whole
    • - Each interest is devisable, descendable and alienable. No survivorship rights btw/tenants
    • - Presumption favors the tenancy in common.
  14. THE FOUR LEASEHOLD ESTATES: TENANCY FOR YEARS
    • - Defined: Lease for a fixed, determined period of time
    • - Could be anything from 1 day to 50 yrs.
    • - Terms greater than 1 yr MUST be in writing to satisfy SOF
    • - Termination: No notice needed to terminate at date decided at outset
  15. THE FOUR LEASEHOLD ESTATES: PERIODIC TENANCY
    • - Defined: Lease for some fixed period that continues for successive intervals, or until LL or T give proper notice of termination. Can be express or implied
    • - Express: "To T from month to month" or "To T from yr to yr."
    • - Implied arises in 3 ways: (1) land is leased with no mention of duration, but provision is made for payment of rent at set intervals, (2) oral term of yrs in violation of SOF creates implied periodic tenancy measured by time intervals rent is paid, or (3) holdover (residential period measured by time period rent collected, commercial will be yr to yr if lease was for yr or more at outset).
    • - Termination: Generally notice must be given in writing = to periodic tenancy (i.e. rent paid month to month, 1 month notice. for yr period, 6 month notice) Also must end at conclusion of natural lease period (i.e. 1st or 31st, not 15th.) Can be altered by agreement btw/parties
  16. THE FOUR LEASEHOLD ESTATES: TENANCY AT WILL
    • - Defined: Tenancy for no fixed duration (i.e. "to T for as long as LL or T desires")
    • - Unless specifically agree to this, payment of regular rent will cause a ct to treat this as an implied periodic tenancy
    • - Termination: By either party at any time. However, a reasonable demand to vacate is needed. In NY, 30 days written notice.
  17. THE FOUR LEASEHOLD ESTATES: TENANCY AT SUFFERANCE
    • - Defined: Created when T has wrongfully heldover past the expiration of the lease. We give wrongdoer a leasehold estate to permit LL to recover rent.
    • - Termination: Last only until LL either evicts T or elects to hold T to a new tenancy. In NY, if LL accepts subsequent rent, it results in implied month-to-month periodic tenancy.
  18. TENANTS DUTIES
    • (1) T is liable to third parties. Must keep premises in reasonably good repair. Liable for injuries sustained by 3rd parties T invited even where L expressly promised to make repairs
    • (2) T has duty to repair: Must maintain premises and make ordinary repairs. T must not commit waste (3 types). T must not remove fixtures, no matter that T installed it unless it won't cause substantial harm.
    • (3) T has duty to pay rent: LL can either evict or keep T and sue for rent . NO SELF HELP. If T breaches then leaves, remember SIR (Surrender, Ignore abandonment, Re-let premises)
  19. LANDLORD'S DUTIES
    • (1) Duty to deliver possession: Physical possession, no one can still be in premises at start of lease
    • (2) Implied Covenant of Quiet Enjoyment: T has right to use premises w/o interference. Can be breached by (a) wrongful eviction or (b) constructive eviction - SING (Substantial Interference due to LL's actions or failure to act and problem using recurring, Notice, Goodbye)
    • (3) Implied Warrant of Habitability (residential): The premises must be fit for basic human habitation. Bare living requirements must be met (i.e. no heat in winter, no plumbing). If breached - MRRR (Move out, Repair and Deduct, Reduce rent or withhold rent, Remain in possession and seek $ damages)
  20. ASSIGNMENT OF LEASE
    • - In the absence of some prohibition in the lease, T may freely transfer his interest in whole.
    • - LL can prevent T from assigning by putting in lease, "need prior written approval."
    • - Once LL consents to transfer, he waives all future objections to transfer unless LL expressly reserves right
    • - In NY, MUST get written consent and consent can be unreasonably (unless 4 or more units in residential building) withheld and T can only seek release from lease.
    • - After assignment, LL and T2 are in privity of estate, meaning liable to each other for all covenants that run with the land (i.e. promise to pay rent, paint premises, pay taxes).
    • - LL and T1 remain in privity of contract unless t2 assumed all premises in original lease
  21. SUBLEASE
    • - In absence of some prohibition in lease, T may freely transfer his interest in part
    • - LL can prohibit by stating in lease, "no sublet without prior written consent."
    • - LL and sublessee are in neither privity of estate or privity of contract. T2 is responsible to T1 and vice versa. The original relationship btw T1 and LL remains in tact.
  22. LANDLORD'S TORT LIABILITY
    • - Common law rule of caveat lessee. Let T beware. LL under no duty to make premises safe, save 5 exceptions - CLAPS
    • (1) Common areas - LL must maintain all common areas (stairwells and hallways)
    • (2) Latent Defects - LL must warn T of hidden defects LL knows or should know about. No duty to repair
    • (3) Assumption of Repairs: If LL volunteers to make repairs, must do so with reasonable care
    • (4) Public Use: LL who leases public space and who should know because of the nature of the defect and the length of lease, that T will not repair is liable for any defects on the premises
    • (5) Short term lease of furnished dwelling: LL liable for any defect on site (from few days to few weeks)
  23. SERVITUDES: AFFIRMATIVE EASEMENTS
    • - Creation: PING - Prescription (use that is continuous, open and notorious, actual under a claim of right that is hostile for statutory period), Implication (implied from prior use), Necessity (a division of a tract deprives one lot of means of access out), Grant (writing signed by grantor).
    • - Parties Bound: Easement Appurtenant is transferred automatically with dominant tenement. Easement in gross for commercial purposes is assignable.
    • - Remedy: Injunction or Damages
  24. SERVITUDES: NEGATIVE EASEMENTS
    • - L-A-S-S (Light, Air, Support and Streamwater)
    • - Creation: Only by writing from grantor
    • - Parties Bound: Easement Appurtenant is transferred automatically with dominant tenement. Easement in gross for commercial purposes is assignable.
    • - Remedy: Injunction or Damages
  25. SERVITUDES: REAL COVENANTS
    • - Creation: Writing signed by grantor
    • - Parties Bound: Burden of promise will run to successor of burdened lot if WITHN requirements satisfied (Writing, Intent, Touch & concern, Horizontal Privity and vertical privity, and Notice). Benefit of promise will run to successor of benefited lot if WITV (Writing, Intent, Touch & concern, and Vertical privity)
    • - Remedy: Damages
  26. SERVITUDES: EQUITABLE SERVITUDES
    • Creation: Writing signed by grantor (unless implied by General Scheme Doctrine)
    • Parties Bound: Successors Bound if WITNes (Writing, Intent, Touch & concern, Notice, privity not required)
    • Remedy: Injunction
  27. SERVITUDES: RECIPROCAL NEGATIVE SERVITUDES (GENERAL SCHEME DOCTRINE)
    • - Creation: Majority says, in a subdivision, residential restriction contained in prior deeds conveyed by common grantor will bind subsequent grantees whose deeds contain no such restriction if at start of subdividing, grantor had (1) common scheme and (2) unrestricted lot owners has notice. (Minority rule will not bind subsequent grantees unless their lots are expressly restricted in writing)
    • - Parties Bound: Where common scheme exists, subsequent purchasers w/notice are bound
    • - Remedy: Injunction
  28. ADVERSE POSSESSION
    • - Defined: Possession for a statutorily prescribed period of time can ripen into title (trespasser turns into rightful owner) Remember Adverse CONS
    • - (1) Adverse: Actual use w/o owner's permission
    • - (2) Continuous: Uninterrupted use for statutory period
    • - (3) Open & Notorious: Use discoverable upon inspection and type usual owner would make
    • - (4) Statutory Period: Majority 20yrs uninterrupted. 10 yrs in NY
    • - Tacking: One adverse possessor may tack his predecessor's time onto his time as long as there is privity satisfied by any non-hostile nexus (i.e. blood, contract, deed, will)
    • - Disabilities: SOL will not run if true owner has disability at inception of adverse possession (i.e. insanity, imprisonment, infancy)

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