NY Distinctions

Question 0

NY Calls a Fee Simple Subject to a Condition Subsequent

Answer 0

Fee on Condition

Question 1

NY Calls a Fee Simple Determinable

Answer 1

Fee on limitation

Question 2

NY on Rule Against Perpetuities (4)

Answer 2

1. Does not follow Wait and See doctrine.
2. Will consider testators intent to circumvent rule
3. If rule violation results from a contingency that a person attain an age greater than 21 years, age contingency is reduced to 21 years.
4. Rule does not apply to commercial and government transactions

Question 3

Joint Tenancy

Answer 3

Property to two or more persons as executors, trustees, or guardians creates a JT automatically.

Joint Tenancy survives condemnation of real property

Question 4

Property passing in intestacy to 2 or more persons

What form property will take

Answer 4

Tenants in common

Question 5

Tenancy by the Entirety

Answer 5

Disposition of property to married person creates TiE automatically
Unless Expressly declared to be a JT or TiC.

Disposition to unmarried persons who are described as married creates a JT unless specifically declared a TiC

Divorce transforms property to TiC

May be terminated only by voluntary partition

Question 6

Rights of Creditor against a TiE

Answer 6

Either spouse may mortgage interest in a TiE

Creditor can enforce judgement against interest of debtor
Whether present possessory interest or right of survivorship.

Question 7

Risk of Loss

Answer 7

Uniform Vendor and Purchaser Risk Act
Absent contrary provision, if neither legal title or possession has passed to purchaser, contract is not enforceable by seller if property is destroyed.

If part destroyed, may still be enforced with abatement of selling price.

Question 8

Sellers remedy for buyers breach of real property contract

Answer 8

Seller is entitled to keep down payment up to 10% of purchase price for breach that is not excused.

No proof of actual damages required.

Question 9

Tenancy at Will and Periodic tenancy Termination

Answer 9

Periodic tenancy - 30 days notice either party

At will - landlord must give 30 days notice

At sufferance - landlord must give 30 days written notice prior to initiating repossession

Question 10

Holdover Tenant

Answer 10

Holdover tenant is trespasser and may evict or accept offer of rent and bind tenant to new periodic tenancy for month to month.

Tenant who gives notice to quit but fails to deliver possession is liable for double rent.

Question 11

Landlords Duty to deliver possession

Answer 11

Absent contrary provision - implied condition to deliver possession at the beginning of the term.

Breach entitles tenant to rescind and recover consideration paid.

New tenant is unable to take possession because of holdover, tenant may bring eviction proceeding against holdover tenant, or avoid lease without obligation.

Question 12

Landlord duty to repair

Answer 12

Landlord of a multiple dwelling is obligated to keep entire dwelling in good repair.

Tort liability exists where L has covenanted to make repairs.
Disrepair creates unreasonable risk to T that performance of covenant would prevent. L failed to exercise reasonable care to perform contract.

Question 13

Agreements to waive or modify warranty of habitability

Answer 13

void as against public policy

Question 14

Constructive Eviction - Requirements for Stay of Process

Answer 14

1. Must deposit rent then due in court and

2. Must abandon premises

Question 15

Security Deposit

Answer 15

Deposits held in trust in interest bearing account for benefit of T
no commingling of funds

Violation of statute and commingling funds T may bring action in conversion entitling him to immediate recovery of security deposit.

Question 16

Assignments and Subleases

Answer 16

Assignment requires written consent of landlord absent contrary provision of lease.

Consent may be unconditionally withheld without cause, provided landlord then release tenant within 30 days notice by tenant.

Landlord reasonable withholds consent, there can be no assignment and no requirement for release.

T in multiple dwelling has right to sublease subject to written consent which may not unreasonably withheld.