MNEMONICS

Question 1

To prove the existence of a valid gift,

• Donee must prove 3 elements by clear & convincing evidence: AID
• Donor must intend to make a present irrevocable transfer of ownership by an effective
  • ACE delivery:

Answer 1

To prove the existence of a valid gift, the donee must prove by clear and convincing evidence that:

• A: ACCEPTANCE of the gift (usually impied),
  
  • unless facts indicate that Donee did not intend to accpet the tendered gift.
• I: Donative INTENT:
• D: An effective DELIVERY putting it out of the Donor’s control.

The 3 types of effective delivery are ACE:

• A: ACTUAL delivery:
  
  • passing title immediately, terminating D’s possession and control
    
    • (putting in mail, of handing over)
• C: CONSTRUCTIVE delivery:
  
  • Where actual physical delivery is impractical:
    
    • b/c of nature of gift: (E.g. keys to a car, or safe deposit box, or title to boat)
    • “Instrument of gift”: deed of gift evidencing a present irrevocable completed gift, even though D retained right to possess the property for life.
      
      • E.g. handwritten letter with picture of item and gift language.
• E: ESCROW delivery:
  
  • Someone other than donor to deliver the gift.
  • If escrow agent is the donor’s agent: Then
    
    • Delivery must be completed before:
      
      • D’s death, incompetency, or contrary instruction not to deliver.
      • Agent’s authority dies w/ Donor.
  • _Delivery is complete upon Escrow agent’s possession if he is either: _
    
    • 1) Independent contractor: (post office, or County Clerk’s recording office): OR
    • 2) Donee’s agent:
      
      • Gift is complete when agent takes possession:
    • Irrelevant if Donor subsequently dies, becomes incompetent, or changes mind, prior to Donee actually receiving gift.

Question 2

Covenants running with the land: (CRL)

• 2 categories of restrictive covenants:
• Elements of CRL: PINTS

Answer 2

Covenants running with the land: (CRL)

• Real Covenants (PINTS), OR
• Equitable Servitudes (TINS):
  
  • DON’T need privity of estate going back to common owner
  • BUT when seeking enforcement of ES:
    
    • NO money damages (ONLY an injunction)

2 categories of Restrictive Covenants:

• 1) Personal Covenant b/w 2 parties:
  
  • enforceable by either party based on privity of K
• 2) Covenants that run w/ land:
  
  • binding and enforceable by subsequent owners:

CRLs are annex to the land:

• CANT be separated from the land when sold or transferred
• CRL is binding on all subsequent owners
  
  • Benefits and burdens successive owners

Covenants restricting the use of land are strictly (narrowly) construed:

• ONLY enforced IF
  
  • established by clear & convincing evidence

_Elements for CRL:_ PINTS **(on the bar)

• P: PRIVITY of estate: (Vertical Privity)
  
  • Historically traces the land of the D and P back to common owner who imposed the CRL.
• I: INTENT by original contracting parties:
  
  • That CRL attach to the land and run to future owners
  • E.g. original CRL stated “grantee & heirs would be restricted”
• N: CIA NOTICE of the CRL
  
  • IF there was CIA notice of its existence:
    • Subsequent purchaser of land = bound by CRL
  • ​Implied in Fact K:
    • Duty to pay homeowner association (HA) where:
    • ​B has notice that private community HA provides facilities or services for benefit of community.
• T: CRL must TOUCH and concern the land:
  
  • Burden & benefit of enforcing covenant must relate to land
  • Most affirmative covenants = NOT binding on grantees
    
    • b/c of “touch and concern” factor
  • NY: Aff Cov that runs in perpetuity = NOT enforced
• S: STATUTE of frauds:
  
  • Easily satisfied by the “Deed Pole Doctrine” IF:
    
    • Original cov was in a doc signed by grantor OR grantee.

Question 3

Covenants WONT run w/ land:

• IF they fall w/in CANS classes:
  
  • Conflicts b/w CRL and existing zoning law:
  • Existing common plan or scheme in a development:
  • “Implied reciprocal servitude”

Answer 3

Cov WONT run w/ land IF they fall w/in CANS classes:

• C: Cov imposed by a COMMON owner:
  
  • Upon part of her land conveyed away for benefit and protection of the land that she retained (prob15-p.23)
  • Subsequent owners can enforce this cov:
    
    • b/c/ PINTS are satisfied (NYAA-645)
• A: Cov entered into b/w 2 ADJOINING owners:
  
  • for mutual benefit and protection of both lands
  • ONLY enforcable as Equitable Servitude:
    
    • Injunction – no money damages
    • b/c NO privity of estate = tracing the land back to common owner who imposed the restriction:
• N Imposed for benefit of NEIGHBORING lands:
  
  • Grantor’s restrictive cov on land conveyed away:
  • Can be enforced by neighbors as 3rd party beneficiaries (3PB)
    
    • Despite no privity of estate b/w grantor and neighbors
• S: Cov imposed to carry out common plan or SCHEME:
  
  • For benefit of future owners in housing development
    
    • E.g Development contains only single family homes
  • Originally recorded in chain of title to all lots w/in development:
    
    • For their mutual benefit and protection (PINTS)

Existing common plan or scheme in a development:

• Puts Subsequent purchasers on Inquiry notice as to any existing restrictive covenants:
  
  • Even if developers covs were never recorded, and
  • Even though B had no constructive notice
    
    • E.g. all the houses look the same, etc.

Conflicts b/w CRL and existing zoning law:

• Stricter restriction will be enforced

“Implied reciprocal servitude”

• Implied in law – developer who sold first parcel w/ restrictions:
  
  • Would impose similar restrictions on all parcels subsequently sold in that project
• Restrictive Cov in housing development can be enforced by earlier buyers against developer & against subsequent buyers of lots
  
  • On basis of “implied reciprocal servitude.”
• E.g. If Developer agree to set aside 10 acres to build school or park
  
  • but attempted to sell them to commercial establishment:
  • Owners in that dev could seek injunction

Question 4

Portfolio Theory:

Before Surrogate CT will impose surcharge for any resulting loss due to investments:

• Surrogate will evaluates overall investment strategy of entire investment portfolio
• based on TIN DAD factors:

Answer 4

Trustee’s investments are prudent based on TIN DAD:

T: TRUST TERMS restricting trustee investment

I: INFLATION:

N: NEEDS of beneficiaries

E.g. if they need income now

D: DIVERSIFICATION of investments: (eggs in many baskets)

A: Total AMOUNT of the trust:

D: DURATION of trust: