Distinctions - Real Property

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Distinctions - Real Property
2011-07-18 11:20:04
NY Bar Exam

NY Bar Exam
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  1. What is a fee simple determinable (and possibility of reverter) referred to as in New York?
    A "fee on limitations."
  2. What is a fee simple subject to condition subsequent (and right of entry) referred to in New York?
    A "fee on condition" with the "right of reacquisition."
  3. What is the transferability of a right of entry?
    The right of reacquisition is descendible, devisable, and alienable in the same manner as an estate in possession (e.g., a transferable inter vivos).
  4. What are the limitations on possibilities of reverter and rights of entry?
    NY has adopted a rerecordation statute; the holder of an interest must record a declaration of intent to preserve the interet no sooner than 27 years and no later than 30 years after the creation of the interest. The holder must also file successive renewal declarations no sooner than nine years and not less than 10 years following the initial declaration of last renewal.
  5. What is the NY rule on amelorative waste (for both life estates and tenancies)?
    NY follows the modern trend and adds the following three requirements: (i) The proposed change does not violate any agreement regulating the conduct of the life tenant; (ii) The life estate or term of years is not less than five years; and (iii) The life tenant gives each future interest holder written notice of the proposed change at least 30 days prior to commencement of any work. Notice must be served personally or by registered mail. If the owner of a future interest demands a security to protect his interest, the court will set a reasonable dollar amount which must be satisfied before any work can begin.
  6. What is a vested remainder subject to total divestment referred to as in New York?
    A "remainder vested subject to complete defeasance."
  7. Does the Dctrine of Worthier Titles exist in New York?
    The Doctrine of Worthier Title has been abolished in NY with respect to transfers taking effect after 9/1/67.

    However, by statute in NY, a disposition in trust created on or after 9/1/57 in favor of a class of persons described only as the heirs, next of kin, or distributees of the creator does not create a beneficial interest in the trust. Therefore, the settlor can terminate the trust without the consent of the heirs, etc. If the settlor does not terminate, because the Doctrine of Worthier Titles is abolished, on the death of the settlors the heirs, etc., will take by remainder.
  8. What is the difference between executory interests and remainders in New York?
    The distinction between contingent remainders and executory interests has been abolished. Any future interest in a transferee that is subject to a condition precedent is referred to as a "remainder subject to condition precedent."
  9. Does New York apply the common law Rule Against Perpetuities?
    Yes, tempered by a reform statute.
  10. Does New York enforce the "wait and see" theory?
    Generally, no. New York has rejected the "wait and see" theory except when applied to powers of appointment.
  11. Where an estate would be invalid because it depends on a problem attaining or failing to attain an age in excess of 21 years, is the age contingency reduced to 21 years?
    Yes, under NY RAP reform legislation.
  12. What are the presumptions as to childbearing age under the NY RAP reform legislation?
    A male can have a child at 14 years of age or over. A female can have a child at 12 years of age or older, but not over the age of 55 years.

    However, evidence may be given to establish whether a living person is able to have a child at the time in question.
  13. If the validity of a disposition depends upon the ability of a person to have a child at some future time, is the possibility that the person may have a child by adoption considered?
    No, it is disregarded under the New York RAP reform legislation.
  14. Is a determination of the validity or invalidity of a disposition by the application of the statute affected by a later occurence of facts contradicting the facts presumed under the statute?
    No. Under the NY RAP reform legislation, the afterborn or after-adopted child who actually appears is included in the gift and the disposition is still valid.
  15. When an interest would otherwise be invalid because the will or trust refers to someone's spouse, widow, or windower, is it presumed that the reference is to a person in being at the effective date of the instrument?
    Yes, under the NY RAP reform legislation.
  16. Where the duration or vesting of an estate is contingent upon the occurence of a specified event, is it presumed that the creator of the estate intended the contingency to occur, if at all, within 21 years from the effective date of the instrument creating the estate?
    Yes, under the NY RAP reform legislation.
  17. What is the overriding presumption of the NY RAP reofrm legislation?
    There is a presumption that the creator intended to create a valid interest.
  18. What is the NY rule against suspension of alienation?
    The absolute power of alienation is suspended when there are no persons in being by whom an absolute fee or estate in possession can be conveyed or transferred. To be valid under the suspension rule, there must be persons in being who could join together in a conveyance of the full fee simple title within lives in being plus 21 years. Thus, all pieces of the fee simple must be held by ascertainable persons in being within lives in being plus 21 years. An interest can be valid under the suspension rule and invalid under the Rule Against Perpetuities. Conversely, an interest can be invalid under the suspension rule and valid under the Rule Against Perpetuities.
  19. What is the statutory spendthrift exception to the NY rule against suspension of alienation?
    A 1973 statute allows the creator of a trust to give an income beneficiary the power to transfer his interest. If the income beneficiaries are given the power to transfer their beneficial interests, the trust can last beyond lives in being plus 21 years provided all interests vest within that period.
  20. Does the suspension rule prevent a life estate in trust in an unborn person?

    Trust income interest in an unborn person is subject to the statutory spendthrift rule and thus is subject to the restriction on transfer. The consequence is that the suspension rule is violated whenever there is a life estate in trust in an unborn person (or in a class that may possibly include unborn persons). The suspension rule restricts duration of NY trusts to lives in being plus 21 years (unless income beneficiaries are given power to transform their interests).
  21. Can an owner create a joint tenancy in himself and another be a single deed even though the unitieis of "time" and "title" are not satisfied?
    Yes. There is no need for a straw.

    NOTE: By statute, a disposition of property to two or more persons as executors, trustees, or guardians creates a joint tenancy even without specific words in the conveyance of title.
  22. In the event of a severance of a joint tenancy, will the right of survovrship of the nonacting party be destroyed?
    Only if the conveyance is propery recorded.
  23. Does a grant by anyone to a husband and wife necessarily result in a tenancy by the entirety?
    Yes, unless the grantor expressly provides otherwise.
  24. What concurrent estate is created when a disposition of real property is made to unmarried persons whom the conveyance describes as "husband and wife"?
    A joint tenancy, unless a tenancy in common is expressly declared.
  25. How can a tenancy by the entirety be terminated?
    Only by voluntary partition, conveyance signed by both parties, or divorce.
  26. Does dissolution by marriage based on a five-year absence terminate a tenancy by the entirety?
  27. Is there severance if one spouse mortgages her interest?
  28. If one tenant in a tenancy by the entirety sells, does the purchaser take as a tenant in common, subject to the remaining tenant's right of survivorship?
    Yes. The purchaser retains only the right to use or possess the premises.
  29. Can creditors reach a tenancy by the entirety?
    Only joint creditors.
  30. Can either spouse in a tenancy by the entirety sue for waste?
  31. When will failure of a tenant to give timely notice of her exercise of an option to renew be excused?
    • It is the result of an honest mistake;
    • The landlord is not prejudiced by the lateness; and
    • Substantial forfeiture would result to the tenant as a result of the loss of the leasehold.
  32. How can a periodic tenancy be terminated?
    By notice of termination from the landlord to the tenant at least 30 days (in NYC), or at least one month (outside NYC), before the expiration of the term. Outside NYC, no notice is required if a definite term has been set forth.
  33. How can a tenancy at will be terminated?
    A landlord must give written notice of at least 30 days, which should be personally served on the tenant. If the tenant has not vacated in accordance with the notice, the landlord may reenter and maintain an action to recover possession without further notice.
  34. How does a tennacy at sufferance become a periodic tenancy?
    Acceptance of rent creates a month-to-month periodic tennacy commencing on the first day after expiration, absent a contrary agreement.

    The rules applicable to termination of a tenancy at will govern termination of a tennacy at sufferance (i.e., written notice of at least 30 days personally served on the defendant).
  35. What happens if the landlord accepts rent from a hold-over tenant?
    Gives rise to a month-to-month periodic tenancy by operation of law. However, a periodic tenancy for any other term may be created by agreement.
  36. What are the rights of a new tenant?
    A new tenant may bring an action to evict the old (hold-over) tenant or avoid the lease and recover any consideration paid to the landlord, unless the lease contains express provisions ot the contrary.
  37. What happens where a tenant who holds a lease of indefinite duration notifies the landlord of an intention to quit the premises, and then fails to deliver possession (i.e., hold-over after giving notice of intention to quit)?
    The tenant must pay the landlord double the rent otherwise payable, as long as she is in possession.
  38. What is the plain language requirement for leases?
    All written residential leases must be written in a clear and coherent manner using words of common and everyday meaning and appropriately divided and captioned. Failure to comply results in liability in an amount equal to any actual damages sustainedm plus a $50 penalty.

    NOTE: Violations will not render a lease void or voidable, nor is it a defense to any action to enforce the lease.
  39. Will violation fo the plain language requirement render any lease void of voidable?
    No, nor is it a defense to any action to enforce the lease.
  40. Can a landlord refuse to rent solely on the ground that a potential tenant has children?
    No, it is a misdemeanor. Violation also results where the lease contains a "remain childless provision."

    EXCEPTIONS: Senior citizen buildings, developments, or mobile home parks exclusively for persons age 55 or older.
  41. What are the responsibilities of the tenant where the building is destroyed or becomes untenable?
    If no express agreement to the contrary has been made in writing, the tenant without fault may quit and surrender possession of the leasehold without any further duty to pay rent. Rent paid in advance shall be adjusted to the date of such surrender.
  42. What are the rules for maintaining a tenant's security deposit?
    Commingling the tenant's security deposit with the landlord's other funds is prohibited. When funds are commingled, a conversion will be found entitling the tenant to immediate recovery of the deposit. In multiple dwellings containing six or more units, the security deposit must be placed in an interest-bearing account for the benefit of the tenant.
  43. Is the landlord required to mitigate damages when the tenant abandons?

    However, there have been cases that have not followed this rule. Courts seem more likely to require the landlord to mitigate when residential leases rather than commercial leases are involved.
  44. When does partial actual eviction occur?
    When the tenant is physically excluded from a substantial portion of the leased premises.
  45. When can a tenant defend against an action to dispossess by depositing rent due in court?
    Whenconditions exist in the leased premises sufficient to constitute a constructive eviction.
  46. What is retailatory eviction?
    Retailatory eviction applies to all residential rental premises except owner-occupied dwellings iwht less than four units. Retaliation must be pleaded as an affirmative defense but may also subject the landlord to civil actions for damages and other relief. All restrictions limiting occupancy to the tenant and imemdiate family are unenforceable.
  47. Are restrictions limiting occupancy to the tenant and immediate family enforceable?
  48. Can a tenant renting a residence assign his lease without the written consent of the owner?
    No, unless provided for in the lease. The landlord may unconditionally withhold consent without cause. The tenant's sole remedy is to seek release from the lease.
  49. What is the tenant's remedy if the landlord withholds consent to assignment without case?
    To seek release from the lease.
  50. Does a tenant in a residential building having four or more units have the right to sublease?
    Yes, subject to the written consent of the landlord. Consent cannot be unreasonably withheld, and, if so, will be deemed a consent (failure to respond ot the tenant's notice will also constitute a consent).

    NOTE: Commercial leases follow the MS rule.
  51. What is the tenant's remedy if the landlord unreasonably withholds consent to a sublease?
    Unreasonably withheld consent will be deemed a consent.
  52. Does the landlord have a legal duty to repair?
    By statute, the landlord of every multiple dwelling (three or more apartments) is required to keep the dwelling in good repair.
  53. Does the tenant have a legal duty to repair?
    The tenant may be held liable if the condition of disrepair is caused by the tenant's act or negligence or by any third party under her control.
  54. What is the statutory period for an easement by prescription?
    10 years.
  55. What does "touch and concern" the land include in New York?
    Contributions toward a common fund for neighborhood upkeep of parks, roads, etc., where contributing property owners receive an easement in common to use the public areas.
  56. What is the statutory period for adverse possession?
    10 years.

    However, a tenant in common in exclusive possession who has not ousted his nonposessory co-tenant can claim title by adverse possession after 20 years.
  57. What is required to meet the adverse possession requirement of "hostile"?
    The possessor must have a good faith belief (albeit a mistaken one) that the land he is occupying is indeed his. In New York, it is considered bad faith, and an impediment to a successful adverse possession claim, for the claimant to know that he is occupying another's land.

    If the claimant knows that he is occupying another's land, this is possession without a claim of right and is a mere trespass.
  58. Is the existence of de minimis nonstructural encroachments (e.g., fences, hedges, sheds, nonstructural walls) a claim of adverse possession?
    No, this is deemed permissive and nonadverse.
  59. What is the effect of the Uniform Vendor and Purchaser Risk Act?
    It places the risk on the seller unless the buyer has either legal title or possession at the time of the loss.
  60. In addition to the right to recover the full purchase price of casualty insurance, does New York allow the seller to keep insurance proceeds?
    Yes, because an insurance policy is a personal contract between the seller and the insurer, absent an express agreement to the contrary. The buyer can obtain insuranc eproceeds only if the buyer paid the premiums.
  61. Are both visible and invisible easements encorachments giving the purchaser a right to object to title?

    EXCEPTION: A public highway and the lawful structures thereon.
  62. What is the remedy if title is unmarketable but there is no fault on the part of the seller?
    The buyer may recover only the purchase money paid, the expenses of the title examination, and nominal damages.
  63. What is the difference between the descriptions "running along the street" and "along side of the street" in a conveyance?
    The description "running along the street" is construed as conveying the grantor's title in land to the center of the street, while the descripton "along side of street" does not pass title ot the street in the conveyance.
  64. What is the statutory special warranty deed referred to in New York?
    The "bargain and sale deed."
  65. Is New York a notice or race-notice jurisdiction?
  66. Is assignment of the mortgage without the note valid?
    No, in New York it is void.
  67. Does the mortgage always follow the note?
    Yes, even if an assignment of the note is silent as to the mortgage.
  68. Does New York follow the title theory or the lien theory?
    The lien theory. The mortgagor has possession until foreclosure.
  69. What are the two (2) methods of foreclosure on land in New York?
    • Foreclosure by an action in equity and sale, where the property is sold and the proceeds are distributed among the interested parties; and
    • Strict foreclosure, an action in equity to compel the parties entitled to the right of redemption to exercise it by paying the mortgage debt within a reasonable time or be forever barred on such right of redemption.
  70. What is foreclosure by action in equity and sale?
    The property is sold and the proceeds are distributed among the interested parties.
  71. What is strict foreclosure?
    An action in equity to compel the parties entitled to the right of redemption to exercise it by paying the mortgage debt within a reasonable time or be forever barred on such right of redemption.
  72. Is there an equitable right of redemption prior to sale?
    Yes. In New York, there is no statutory right of redemption after sale regardless of who buys at the sale.
  73. Is there a statutory right of redemption after sale?
    No, regardless of who buys at the sale. In New York, there is only an equitable right of redemption.
  74. When can the mortgagee ask the court for a deficiency judgment?
    If the sale proceeds are less than the judgment in the foreclosure action and the mortgagor has been personally served in the foreclosure action.

    If no demand is made for deficiency within 90 days of the sale, the proceeds (regardless of the amount) are deemed to be in full satisfaction of the mortgage debt.
  75. How long does a mortgagee have to make demand for deficiency?
    Within 90 days of the sale. Otherwise, the proceeds (regardless of the amount) are deemed to be in full satisfaction of the mortgage debt.
  76. What does New York require beore it will apply the principles of a constitutional limitation or taking?
    An actual appropriation or taking by title or government occupation or management.
  77. What must the complaining landowner establish in a constitutional limitation or taking action, beyond a reasonsable doubt?
    That under the zoning ordinance he cannot obtain a reasonable return under any use, oter than public or quasi-public use, permitted by the ordinance.
  78. Who has standing to challenge an adverse zoning decision?
    Members of a property owners' association (even if not owning affected land). Associations cannot assert claims for damages on behalf of individual members arising out of alleged zoning abuses.
  79. Can associations assert claims for damages on behalf of individual members arising out of alleged zoning abuses?
  80. Can large-lot zoning be construed as an attempt to exclude certain peopel from a community?
    Yes;. To overturn such zoning, the plaintiff must show that either: (i) The ordinance was enacted with an exclusionary purpose or that the ordinance ignores regional needs and has unjustified exlcusionary effect; or (ii) The local board neither provided a properly balanced and well-ordered plan for the community nor gave consideration to regional needs and requirements (e.g., five-acre minimum).