Property Flashcards
Estate Names - NY
Fee simple determinable = “fee on limitation”
FSSCS = “fee on condition”
Executory interests & contingent remainders = “remainder subject to condition precedent”
Determinable fees
- Fee Simple Determinable: possibility of reverter automatically back to grantor; this is alienable; created by durational language like “until/while/so long as/during.”
- FS Subject to Condition Subsequent: right of re-entry; alienable interest; created by conditional language like “provided that/on condition that/but if.”
- FS Subject to Executory Interests = present fee simple that could terminate and go to third party, not grantor.
Preserving Right of Reentry/Possibility of Reverter
NY: B/w 27-30 yrs after interest created, holder must file declaration of intention to preserve the restriction, and then re-file every 9-10 yrs after that.
RAP in NY
- No Shelley’s Case or Doctrine of Worthier Title
- No “wait & see approach”
- Presumption that women over 55 can’t have children
- *Applies to commercial options (no right to repurchase more than 21 yrs after conveyance)
Ameliorative Waste - NY
Tenant for life or years may alter property iff:
1) doesn’t violate agreement,
2) tenancy/life expectance at least 5 yrs
3) tenants gives future interest holder 30 days notice
4) reasonably prudent alteration
5) that doesn’t reduce market value of future interests
LL-Tenant in NY
- Residential leases must be written in clear manner (liability otherwise on LL)
- Holdover tenancy creates implied month-to-month tenancy w/ same terms as prior lease
- Terminating tenancy @ will reqs 30 days notice
- LL HAS NO DUTY TO MITIGATE by finding other tenants; treble damages if wrongfully evicts T.
Ouster of Co-tenant
NY: One tenant can AP against another. 10-yr clock starts running after *obvious ouster of co-tenant OR 10 years of continuous exclusive possession (“implied ouster”).
Adverse Possession
CL: continuous, open & notorious, actual, exclusive, and hostile.
NY: 10 yr period + AP had reasonable belief she had right to land.
Co-Tenants Duties
- Right to possess whole property, and take natural resources in proportion to share.
- No duty to share profits from using property BUT must share rents from 3d parties after deducting operating expenses.
- T can collect contribution for operating expenses ()taxes/mortgage), UNLESS he’s only one in possession and income from land > overpayment.
- No duty to contribute to repair costs, even nec’y ones, although may be considered in partition/accting
- Ditto for improvements
NY: Co-tenant is entitled to reimbursement for nec’y repairs - but not voluntary improvements.
Assigning & Subletting Leases
Assignment = complete transfer of T’s remaining lease; sublet = transfer of any lesser amount.
NY: No assigning w/out LL WRITTEN permission (unless lease says otherwise), which he can refuse for any reason. No sublet w/out LL permish, but LL can’t arbitrarily refuse to consent. Failure to respond = consent.
Assignee liable to LL but sublettor not unless expressly assumes the rent agreement (sublettor IS liable to original T). Original T remains liable to LL unless there has been a novation.
Holdover Tenancy in NY
Creates implied m-2-m tenancy if T tenders and LL accepts rent.
If LL wants tenant out, can demand double rent for time spent as holdover.
LL can only use self-help in commercial leases, but only after demanding rent due.
“Marketable Title”
Implied covenant unless disclaims in sale K. Default rule is that it must be marketable @ time of closing.
Remedy: buyer can rescind, sue for breach, or seek specific performance w/ abatement.
NY: R1: Possibility of reverter renders title unmarketable. R2: if seller is not at fault, buyer’s remedies ltd to recovery of $, cost of title search, nominal damages.
Equitable Conversion
CL: Seller retains legal title to land before closing, but buyer has equitable title. Risk of loss therefore usually on buyer, regardless of who possesses.
NY: Adopted Uniform Vendor & Purchaser Risk Act keeps risk of loss with seller until buyer takes possession or title transferred.
Lien vs. Title Theory States
Majority rule (+NY!) treates mortgage as lien that doesn’t affect jt tenancy. Also means mortgagee cannot take possession prior to foreclosure.
Minority rule severs jt tenancy upon granting of mortgage. Also: mortgagee can take possession at default, and also to make repairs and prevent waste.
Foreclosure - Mortgagor’s Options
Equity of redemption: buyer usually has right after default but before foreclosure to repay full amount of debt. Efforts to “clog” this right usually rejected.
Statutory redemption: some states allow mortgagor to repay debt and reclaim for limited time post-foreclosure sale – NY DOES NOT.
Subprime Lending Reform Bill: NY reqs mortgagors inform debtors 90 days before foreclosure, which triggers state-approved loan counseling and mandatory settlement talks.
