NY BAR REVIEW 13 Flashcards
TENANCY BY THE ENTIRETY
grant by anyone to husband and wife NECESSARILY results in tenancy by the entirety unless grantor EXPRESSLY provides otherwise.
tenancy by the entirety- disposition of real property to unmarried persons whom conveyance describes as husband and wife
JOINT TENANCY is created, unless tenancy in common is expressly declared.
tenancy by the entirety
An interest in property that can be held only between a husband and wife in which each party has a right of survivorship over the property and which neither party can terminate without the consent of the other.
tenancy in common- right of survivorship?
NO
joint tenancy of husband and wife - right of survivorship?
YES
severance - contract to convey
right of survivorship of NONACTING PARTY will NOT be destroyed UNLESS conveyance is PROPERLY RECORDED
joint tenancy
owner creates it in himself and another by a single deed eventhough unities of TIME AND TITLE are NOT satisfied.
By statute, disposition of property to two or more persons as executors, trustees, guardians, creates JOINT TENANCY even without specific words in conveyance of title
defenses to professionals’ DUTY TO DISCLOSE risks of treatment
undisclosed risk is too commonly known.
patient indicated would undergo treatment or diagnosis irrespective of risk, or he didnt wish to receive the info that practitioner was otherwise obligated to disclose.
Consent by or on behalf of patient wasnt reasonably possible OR practitioner, after considering all circumstances, used reasonable discretion re manner and extent to which risks and alternatives were disclosed bc reasonably believed that manner or extent of disclosure could be expected to adversely and substantially affect patient’s condition.
possessor’s duty to those on premises
Plaintiff’s legal status doesnt determine duty owed to him.
standard is REASONABLE CARE under the circumstances for ALL injuries on land.
plaintiff status does remain relevant re
foreseeability of his presence and amount and nature of precautions required to meet standard of reasonable care under circumstances
statutory standard of care
effect of establishing
violation of statute
negligence per se- violation of statute
negligence - unexcused breach of regulation or local ordinance
violation of state statute
negligence PER SE
unexcused breach of regulation or local ordinance
evidence of negligence
statutory standards and employees
workers’ comp replaces any tort liability arising out of on the job accidents
creation of easement
prescription
by statute, use in requisite manner for 10 YEARS establishes easement by prescription.
same as adverse possession
duty re negligent infliction of emotional distress
plaintiff must be within ZONE OF DANGER
if plaintiff’s distress is caused by threat of physical impact, threat MUST be directed at plaintiff or an IMMEDIATE FAMILY MEMBER in his presence.
ZONE OF DANGER of physical injury.
no other plaintiff who sees defendant negligently injuring another can recover damages for own distress
covenants running with the land
real covenants
TOUCH AND CONCERN THE LAND is extended to include contributions toward common fund for neighborhood upkeep of parks, roads, where contributing property owners receive easement in common to use public areas.
assault
victim put in REASONABLE apprehension OR apprehension of HARMFUL OR OFFENSIVE touching or CONTACT.
stop, or ill shoot!
pointing a rifle at time threat was made.
IMMEDIACY
NOT lesser included tort within battery!
what is contained in gun is irrelevant.
The 3 FUTURE COVENANTS in general warranty deed
breached only on interference with possession of grantee or successors.
Run w grantee’s estate.
Run w land.
Adverse possession
Running of statute
By statute, possession for 10 YEARS in requisite manner will establish possessors title to land.
TENANT IN COMMON in EXCLUSIVE possession who HASNT ousted his nonpossessory co-tenant can claim title by adverse possession after 20 YEARS
RULE AGAINST PERPETUITIES
fertile octogenarian
presumptions as to childbearing age
presumption that male can have a child at 14 YEARS OLD and over and a female at 12 YEARS OLD and over, but NOT over 55.
Evidence may be given to establish whether living person is able to have a child at time in question.
RULE AGAINST PERPETUITIES
validity of interest
presumption that creator INTENDED to create a valid interest
Unborn beneficiaries
TRUST INCOME INTEREST in unborn person is subject to STATUTORY SPENDTHRIFT RULE and subject to restriction on transfer.
SUSPENSION RULE is violated
when there is a life estate in trust in unborn person, or in class that may possibly include unborn persons.
