NY BAR REVIEW 9 Flashcards
Rule against perpetuities
Administrative contingency problem
Where duration of vesting of an estate is contingent upon occurence of specified event, presumtpion that creator of the estate intended contingency to occur, if at all, within 21 years from effective date of instrument creating the estate.
Rule against perpetuities
Adopted children
If validity of disposition depends on ability of person to have a child at some future time, possibility that may have a child by adoption is disregarded
Landlord remedies
tenant abandons
landlord not required to mitigate damages when tenant abandons.
There have been cases that havent followed this rule.
Courts seem more likely to require landlord to mitigate when residential leases rather than commercial leases are involved.
Rent deposit
Commingling tenant security deposit with landlord’s other funds is prohibited. when funds are commingled, CONVERSION entitles tenant to immediate recovery of deposit. In multiple dwellings containing 6 or more units, security deposit must be placed in interest-bearing account for benefit of tenant.
Destruction of premises without fault
Building destroyed or becomes untenable and no express agreement to contrary has been made in writing, tenant without fault may quit and surrender possession of leasehold without further duty to pay rent. Rent paid in advance shall be adjusted to date of surrender.
Waste
Rule for ameliorative waste is same rule as with life estates
Discrimination
Children in dwelling homes
MISDEMEANOR- refuse to rent solely on ground that potential tenant has children. VIOLATION - when lease contains a “remain childless” provision.
EXCEPTION- planned senior citizen building development, mobile home park exclusively for 55 year olds and over.
Plain language requirement for lease
All written residential leases are to be written in a clear and coherent manner using words of common and everyday meaning and appropriately divided and captioned.
Failure to comply - liability in amount equal to any actual damages sustained, plus $50 penalty.
Violations WONT render the lease void or voidable, and it is NOT a defense to any action to enforce the lease.
Hold over after giving notice of intention to quit
Tenant holds lease of indefinite duration notifies landlord of intention to quit premises, then fails to deliver possession, tenant must pay landlord DOUBLE the rent otherwise payable, as long as in possession.
Rights of new tenant
New tenant may bring action to evict old hold over tenant or avoid lease and recover any consideration paid to landlord unless lease contains express provisions to contrary
Hold over doctrine
Landlord’s acceptance of rent from hold over tenant only gives rise to month to month periodic tenancy by operation of law.
Periodic tenancy for any other term may be created by agreement.
Tenancy at sufferance
Acceptance of rent creates month to month periodic tenancy, starting first day after expiration, absent contrary agreement.
The rules applicable to termination of tenancy at will govern termination of tenancy at sufferance.
Partial eviction
partial actual eviction occurs when tenant is physically excluded from substantial portion of leased premises.
Constructive eviction is defense
tenant may defend against action to dispossess by depositing rent due in court provided conditions in leased premises are sufficient to constitute constructive eviction.
Retaliatory eviction
Applies to all residential rental premises except owner occupied dwellings with less than 4 units.
Retaliation MUST be pleaded as affirmative defense but also may subject landlord to CIVIL ACTIONS for DAMAGES and other relief. All restrictions limiting occupancy to tenant and immediate family are unenforceable
