NY Distinctions

Question 1

With respect to the rule against perpetuities, New York has (A) adopted, or (B) rejected the “wait and see” theory?

Answer 1

New York has rejected the wait and see theory, except when applied to the power of appointment

Question 2

How does New York deal with the age contingency problem in the rule against perpetuities?

Answer 2

The age is reduced to 21 years in New York.

Question 3

How does New York deal with the fertile octogenarian?

Answer 3

It is presumed that a woman cannot have a child over 55 years of age. However, evidence may be given to establish if a person can or can’t.

Question 4

How does the rule against perpetuities deal with the unborn widow or widower problem in New York?

Answer 4

The reference is presumed to refer to the person in being effective at the date of the instrument

Question 5

How does the rule against perpetuities in New York deal with an administrative contingency problem, where the duration or vesting of an estate is contingent upon a specific event?

Answer 5

Is presumed that the creator of the estate intended the contingency to occur, if at all, within 21 years from the effective date of the instrument creating the estate.

Question 6

As a general rule, what is the presumption in New York with respect to instruments, interests, and the states that may violate the rule against perpetuities at common law? I.e., how you deal with them as a rule of thumb

Answer 6

There is a presumption that the creator intended to create a valid interest. Make that happen

Question 7

What do you do with an instrument that suspends the power of alienation because there are no persons in being by home an absolute fee or estate in possession can be conveyed or transferred? E.g., a trust

Answer 7

All pieces of the fee simple title MUST be held by ascertainable persons in being within lives in being +21 years.

Question 8

The following is an exception to the statutory spendthrift trust, that allows a trust to last beyond the lives of being +21 years

Answer 8

The creator of a trust can give the income beneficiary the power to transfer his interest. If the income beneficiaries are given the power to transfer their beneficial interests, the trust can last BEYOND lives in being +21 years PROVIDED THAT all interests vest within that period.

Question 9

How does New York trust Law deal with unborn beneficiaries?

Answer 9

Trust income interest in an unborn person is subject to the statutory spendthrift rule, and thus is subject to the restriction on transfer. The consequence is that the suspension rule is violated whenever there is a life estate in trust in an unborn person (or a class that could include unborn persons).

Question 10

How does tenancy by the entirety work in New York?

Answer 10

New York follows the common law. A grants to husband and wife necessarily results in a tenancy by the entirety UNLESS the grantor EXPRESSLY provides otherwise. (This applies only to real estate)

Question 11

What terminates a tenancy by the entirety in New York? What, surprisingly, does not terminate it? What type of creditors may reach the property? What happens if one spouse mortgages their interests?

Answer 11

A tenancy by the entirety may ONLY be terminated by 1. A voluntary partition, 2. Conveyance signed by both parties, or 3. Divorce.
Disillusion based on a 5 year absence does not terminate the tenancy by the entirety, and there is NO SEVERANCE if one spouse mortgages her interest. The purchaser takes as a tenant in common, subject to the remaining tenants right of survivorship, and obtains only the right to use or possess the property. The property can rate be reached only by JOINT CREDITORS. Also either spouse may sue for waste

Question 12

When there is a destruction of the premises without fault, what are the rights of the landlord and tenant?

Answer 12

The default rule in New York is the tenant may WITHOUT FAULT QUIT and SURRENDER possession of the leasehold WITHOUT any further duty to PAY RENT.

Question 13

What is the default rule for New York with respect to the assignment of a residential lease?

Answer 13

Tenant may not assign without the written consent of the owner. The landlord may UNCONDITIONALLY withhold consent without cause. The tenant’s sole remedy is to seek release from the lease.

Question 14

What is the default rule for New York with respect to the Sublease of a residential lease?

Answer 14

If the building has 4 or more units, the tenant has the right to sub lease subject to the written consent of the landlord. Consent CAN not be unreasonably withheld and, if so, will be deemed to consent.

Question 15

How does adverse possession work in New York?

Answer 15

Possession for 10 years in the requisite manner, in and of itself, establishes the possessors title to land.
A tenant IN COMMON in exclusive possession who has not ousted his nonpossessory cotenant can claim title by adverse possession after 20 YEARS

Question 16

Between signing the contract for the sale of land and closing, who bears the risk of loss in New York? New York has adopted the uniform vendor and purchaser risk act

Answer 16

The risk of loss is on the seller in New York unless the buyer has either legal title or possession at the time of the loss.

Question 17

Is New York a race jurisdiction, a notice jurisdiction, or a race notice jurisdiction?

Answer 17

New York is a race notice jurisdiction, a subsequent purchaser for value wins if he records 1st AND had no actual or constructive notice of a prior conveyance.