Property w/NY Distinctions

Four Present Estates

1. Fee Simple Absolute
2. Fee Tail
3. Defeasible Fees
4. Life Estate

Defeasible Fees

1. Fee Simple Determinable
2. Fee Simple Subject to CS
3. Fee Simple Subj to Exec Lim
-ex: To A, but If X occurs, then to B

Defeasible Fee Characteristics

- Fully DDA Subject to Accomp Cond
- Words of Mere Desire, Hope, or Intention are Insuff.
- Absolute Restraints on Alienation are Void

Defeasible Fees:
Fee Simple Subject to CS
NY: Fee on Condition

CREATION:
-Clear Durational Lang; AND
-Carve Out Right to Reenter
ACCOM FUTURE INTEREST:
-Right of Reentry (termination)
-NY: Right of Reacquisition

Life Estate (Romantic Estate)

CREATION:
-language must convey the estate based on a term to be measured by an Explicit Lifetime Reference and never based upon a specified term of years.
-Pur Autre Vie (to a for life of b)
RULES
-Life tenant entitled to ordinary uses and profits from land
-Life tenant must not commit waste
ACCOM FUT INT
-Reversion of Remainder

Future Interest Capable of Creation in Grantor

POSS of REVERTER:
-accompanies only fsd
RIGHT OF REENTRY
-accompanies only fs subj to cs
REVERSION
-any reversion in grantor of any other estate conveyed

Future Interest in Transferee

THREE TYPES
-Vested Remainder
-Contingent Remainder
-Executory Interest
*NY: Abolishses these distinctions making all future interests in transferees subject to condition precedents: Remainder Subject to a CP

Vested Remainders

VESTED (created in an ascertained person and not subject to a CP)
INDEFEASIBLY VEST REMAINDER:
-holder is certain to acquire an estate in the future with no conditions attached
VES REM SUBJ TO TOTAL DIVESTMENT:
-remainderman's right can be cut short by a condition subsequent (C's executory interest)
-NY calls it the Vest Rem Subj to Comp Defeasance
VEST REM SUBJ TO OPEN
-remainder to a group of takers at least one of whom is qualified to take, possession is certain to occur, subject to diminution to the extent additional takers join the class

Contingent Remainder

CONTINGENT (unascertained person or subj. to CP or both)
RULE OF DESTRUCTIBILITY:
-expiration of preceding estate destroys any still contingent interest
-Abolished in NY, instead of destruction interest becomes a "Springing Executory Interest" (divesting O's reversionary estate when contingency occurs)
-Related Doctrine of Merger
RULE IN SHELLEY's CASE:
-
DOCTRINE OF WORTHIER TITLE:
-remainder in grantor's heirs is invalid and becomes a reversion in the grantor

Executory Interest

SHIFTING/SPRINGING EXEC INT:
-future interest created in a transferee-third party, which takes effect by either cutting short some interest in another person (shifting) or in grantor or his heirs (springing)
RAP APPLIES; DESTRUCT DOESN'T
-b/c not a vested interest

Transferability of Remainders and Executory Interests

VESTER REMAINDERS:
-fully transferable, descendible, and devisable
CONTINGENT REM/EXEC INTEREST:
-at common law not transferable inter vivos but today many courts allow it
-descendible and devisable provided that survival is not a condition to interest's taking

WASTE: Three Types

VOLUNTARY/AFFIRMATIVE (wilfull acts of destruction, overt conduct causing a decline in value)
PERMISSIVE/NEGLECT (land is allowed to fall into disrepair by a pattern of neglect)
AMELIORATIVE (acts that enhance value)

WASTE; Voluntary of Affrimative

NO EXPLOITING NATURAL RESOURCES UNLESS: PURGE
-Prior Use; open mines doctrine
-Reasonable repairs
-Granted right
-Exploitation is only suitable purpose of land

WASTE; Permissive

RULE 1
-lt must maintain premises in reasonably good repair
RULE 2
-lt must pay ordinary taxes to the extent of income or profits from land, and if no such income or profits than pay ordinary taxes to the extent of the premises' fair rental income

WASTE; Ameliorative

RULE: not acts to enhance value unless all future interest holders are known and consent

NY RULE:
life tenant may make reasonable improvements unless reaminderman objects

RAP; rule

RULE
Certain kinds of future interests are 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

RAP;

4-Step

1) ID Interest
(no app to indefeasibly vested remainders

2) ID Cond Prec to Suspect Interest

3) Find a Measuring Life

4) Ask the Question

RAP

VIOLATION EXAMPLE

ex: to A for life then to the first of her children to reach the age of 30.

RAP VIOLATION SO:
A has a life estate.
O has a reversion

RAP;

Bright-Line Violations
-bad as to one, bad as to all
-some executory interests

RULE 1/
A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the common law RAP; Bad to One; Bad to All

RULE 2/
Many shifting executory interests violate the RAP; An executory interest with no limit on the time within which it must vest violates the RAP.

RAP

effect of striking

in the event a RAP violation leaves a conveyance grammatically unsound, the correct procedure is to continue chopping off the prescriptive language until it is sound

RAP

reforms

WAIT and SEE or 2nd Look Doctrine:
-the validity of any suspect future interest is determined on the basis of the fact as they now exist, at the end of our measuring life, eliminating the what-if or anything is possible line of inquiry.

Uniform Statutory RAP
-codifies common law RAP and in addition provides for an alternative 90 year vesting period

UNDER wait and see and usrap:
-CY PRES (as near as possible) applies so that if a given disposition violates the rule, a court may reform it in a way that most closely matches grantor's intent, while still complying with the RAP
-reduction of any offensive age contingency to 21 years

RAP

NY PERPETUITIES REFORM STATUTE

-NY applies the common law rap and has rejected wait and see as well as cy pres except in the case of charitable trusts and poa's

-Interests invalidated b/c dependent on person attaining an age in excess of 21 years are saved by reducing the age contingency to 21.

-fertile octogenerian rule is replaced with fertile till 55 after which no kids or adoptions

-NY Rules Against Suspensions: extends common law rap to restriction on the power to sell or transfer, (in order for a conveyance 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

RAP

charity-charity exception

RULE/
gift from one charity to another does not violate the RAP

ex: to red cross so long as premises are used for red cross purposes, and if they cease to be so used, to the ymca

YMCA has a shifting executory interest voided by the RAP but the charity to charity exception saves it to allow for red cross to have a fee simple subject to the ymca's valid shifting executory interest

CONCURRENT ESTATES

1. Joint Tenancy
-right of survivorship to co-tenant
-interest alienable but not ds or dv
2. Tenancy by the Entirety
3. Tenany in Common

CONCURRENT ESTATES

joint tenancy

CREATION
-four unities
-express
-straw
--*NY

FOUR UNITIES: T-TIP
-time
-title
-identical share; and
-right to possess whole

EXPRESS LANGUAGE:
-grantor must clearly state 4 unities and right of survivorship

STRAW
-cl used straw to ensure four unities
-NY abolishes need for Straw allowing owner to create joint tenancy for himself and another without it

CONCURRENT ESTATES

joint tenancy

SPAM

SEVERANCE and

S sale
P partition
And
M mortgage

CONCURRENT ESTATES

joint tenancy

SEVER: S.p.a.m.
-effect of sale/transfer
-equitable conversion

SEVERANCE AND SALE
-SALE or TRANSFER: jt can sell or transfer interest during lifetime creating a tenant in common (lack of 4 unity) and leaving any remaining jt's intact

JT ENTERING K TO SELL SHARE
equitable conversion: equity regards as done that which ought to be done and so severance at K signing regardless of later closing date

CONCURRENT ESTATES

joint tenancy

SEVER: s.P.a.m

-Voluntary Agreement

-Partition in Kind
(ct action to divide where it is in best interest of all)

-Forced Sale
(ct action to sell and prop distrib proceeds where it is in best interests of all)

CONCURRENT ESTATES

joint tenancy

SEVER s.p.A.M

RULE/
where one party executes a mortgage or lien on their share

TITLE THEORY: jt as to now encumbered property is severed

LIEN THEORY: no severance
-NY and majority position

CONCURRENT ESTATES

tenancy by the entirety

CREATION
-arises presumptively in any conveyance to married partners unless otherwise expressed
-has right of survivorship

CANT TOUCH THIS
-creditors of one spouse cant
----NY and mortgage and right of survivorship issue
-unilateral cant: neither spouse acting alone can defeat right of survivorship by conveyance or encumbrance

CONCURRENT ESTATES

tenancy in common

-each co-tenant owns indiv. part w/right to possess whole
-dda but no right of survivorship among tic's
-presumption favors tic, remember law dislikes jt

CONCURRENT ESTATES

tenancy in common

RIGHTS of CO-TENANTS

POSSESSION
-Co Tenants Have a Right to Possess Whole; Denial of Such is Wrongful Ouster
RENT FROM CO-T IN EXCL POSS
-Absent Ouster No Right to Demand Rent From co-tenant in exclusive possession
RENT FROM THIRD PARTIES
-Co-tenant’s fair share of any rental income must be accounted for
ADVERSE POSSESSION
-Need hostility to adversely possess, thus absent ouster, a co-tenant who has been in exclusive possession for the statutory AP period cannot acquire title to exclusion of others
----NY: Implied Ouster: Exclusive possession for 20 years allows co tenant to acquire full title by AP

CONCURRENT ESTATES

tenancy in common

DUTIES of CO-TENANTS

CARRYING COSTS
-Each co-tenant is responsible for his or her fair share of carrying costs (ex: taxes and mtg interest payments) based upon his undivided share in the property

REPAIRS
-Co-tenant who performs repairs enjoys a right to contribution for necessary repairs provided that she has told other tenants of the need;
-Each is liable for a percentage of the repairs equivalent to his undivided share of interest in the property

IMPROVEMENT
-No right of contribution as to improvements
-Right to Credit at Partition for improving co-tenant equal to any increase in value attributable to his work

WASTE
-all 3 apply

LL/T LAW

four leasehold (non-freehold esates)

1. Tenancy for Years
2. Periodic Tenancy
3. Tenancy at Will
4. Tenancy at Sufferance

LLT LAW

periodic tenancies

IMPLYING; TERMINATING

3 WAYS TO IMPLY:
1. -land leased with no mention of duration but provision is made for successive payments at defined intervals-

2. -oral term of years in violation of sof-

3. -Holdovers: ipt measured by rent tendered, in NY holdover results in month-month ipt-

TERMINATION:
-requires notice, usually written
-common law notice requirement is the period itself with a max of 6 months
-periodic tenancies ends at the conclusion of a natural lease period, one full term following notice

LLT LAW

tenancy at will

CREATION; TERMINATION

CREATION:
-requires an express agreement or else presumption will favor an implied tenancy based on payment of regular rent

TERMINATION:
-may be done by any party, at any time with a reasonable demand to vacate
-NY: LL's must give 30 days written notice before terminating at will tenant

LLT LAW

tenancy at sufferance

terminates by eviction of LL electing to holdover

TENANT DUTIES

Liability to Third Parties
-t responsible for injuries sustained by invited third party even where third party promised to make all repairs

Duty to Repair:
-default rule: make ordinary repairs and no waste
-law of fixtures
-expressly covenanted

Duty to Pay Rent
-breach and in possession
-breach and out of possession

TENANT DUTIES

duty to repair

LAW OF FIXTURES

 Fixtures Pass w/Ownership of the Land SO, Removal of Fixture → Voluntary Waste → T must not Remove Fixtures even if she installed them

FIXTURES:
-once movable chattel that, by virtue of its annexation to realty Objectly Shows an Intent to Improve the Realty (ex: Heating Systems, Customized Store Windows, Furnace, Certain Lighting Installations)

STEP 1: Is there an express agreement that controls?

STEP 2: In the absence of an express agreement T may remove installed chattels if Removal Does Not Cause Substantial Harm to Premises, if substantial harm than that amounts to an objective showing of an intent to install a fixture and thus law of fixtures applies

TENANT DUTIES

duty to repair

T EXPRESSLY COVENANTED TO MAINTAIN PROPERTY IN GOOD CONDITION and NO FAULT DAMAGES

CL: T was liable for any loss to the property including loss due to a force of nature

Maj: T may terminate the lease when premises are destroyed through no fault of his own

NY: Absent a 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

TENANT DUTIES

duty to pay rent

Tenant Breach/Possession → NO SELF HELP: (including changing locks or removing T’s possessions)
-LL must evict through courts or continue relationship and sue for past due rent
-In eviction LL continues to accrue rent from tenant at sufferance until he vacates
-Self-Help is a criminal and civil violation which in NY will entitle tenant to treble damages

Tenant Breach/ NO Possession: [SIR]
[Surrender] tenant surrenders through words or actions indication a wish to give up lease, and LL accepts; if unexpired term is greater than one year SofF applies
[Ignore] Ignore abandonment and hold T responsible for accrued rent (avail only in a minority of state)
[Re-Let] premises on wrongdoer’s behalf and hold him liable for any deficiency

Duty to Mitigate must be satisfied with a good-faith effort to re-let but there is no such duty in NY

LL DUTIES

Duty to Deliver Possession
-must put t in actual possession or property at beginning of leasehold term

Implied Covenant of Quiet Enjoyment
-actual or constructive eviction (dido SING)

Implied Warranty of Habitability
-remedy: mrrr

LL DUTIES

implied covenant of quiet enjoyment

Applies to Residential and Commercial Leases

Breach can be Actual Wrongful Eviction, Wrongful Exclusion or Constructive Eviction (dido SING

SI: substantial interference (due to L’s actions or failure to act)

N: notice (T gave and L Failed to Respond Meaningfully)

G: goodbye (Get Out, T vacated in a reasonable time following L’s failure to fix the problem)

LL DUTIES

implied warranty of habitability

-Only to Residential Homes
-NON-WAIVABLE

Std: Premises Must be Fit for Basic Human Dwelling
(or as stated in housing court or the court’s opinion)

Common Breach Examples: no heat in winter, no plumbing, no running water

MR3: Move, Repair (and deduct), Reduce (w/escrow), Remain

No Retaliatory Eviction (rent raise, ending lease, harassment etc.)

LLT LAW

assignment and subleases (whole or in-part)

Default Rule: Free to Assign or sublease

K may provide for no assigning or leasing without L’s prior written approval

LL will be estopped from objecting to transfers after accepting one payment therefrom unless in doing so he expressly reserves the right to do so in the future

NY: LL may require written consent, LL may unreasonably withhold, and T must seek release from lease

NY Exception: Four or More Unit Holders Must not be denied unreasonable consent

LLT LAW

Assignment

Landlord and Asignee:
-privity of estate: liable to one another for all covenants in original lease running with the land
-no privity of K

Landlord and Assignor
-privity of esate - NO
-privity of K - yes
-remain secondarily liable to each other

Landlord and Assignee of Assignee
-privity of estate
-middle assignor is in no privity with L and thus absolved of all liability unless he assumed any promises in the original lease when taking assignment

LLT LAW

subleases

no privity of estate or K between LL and sublesee, T1 and T2 remain liable to one another and vice-versa

LLT LAW

RULE/
Caveat Emptor with CLAPS Exceptions:

C - COMMON AREAS

L - LATENT DEFECTS
(duty to warn, not repair, where he knew or should have known)

A - ASSUMPTION OF REPAIRS

P - PUBLIC USE RULE
(L who leases public space, such as a convention hall, and who should know because of the nature of the defect and the length of the lease that the tenant will not be repairing is liable for any defects on the premises)

S - SHORT TERM LEASE OF FURNISHED DWELLING