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NYS Bar > Real Property NY Distinctions > Flashcards

Real Property NY Distinctions Flashcards

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1
Q

Equitable conversion: Who bears the risk of loss in NY?

A

The seller. The risk of property loss remains that of the seller until buyer (1) takes possession of the property OR (2) title is transferred, whichever is first.

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2
Q

What is a fee simple determinable called in New York?

A

Fee on limitation

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3
Q

What is a fee simple subject to condition subsequent called in New York?

A

Fee on condition

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4
Q

What is a right of re-entry called in New York? (three terms)

A

Right of entry / power of termination / right of reacquisition

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5
Q

What is a vested remainder subject to complete defeasance called in NY?

A

Remainder vested subject to complete defeasement / reaminder vested subject to total divestment

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6
Q

What are contingent remainders / executory interests called in New York?

A

Remainders subject to condition precedent

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7
Q

Does termination of the preceding estate terminate a remainder subject to condition precedent in NY?

A

No. Unlike the common law, remainders are not subject to destructibility.

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8
Q

What three common law doctrines have been abolished in New York?

A

(1) fee tail
(2) rule of shelley’s case
(3) doctrine of worthier title

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9
Q

Is a right of reacquisition transferable to a third party in New York?

A

yes. Transferable like any possessory estate.

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10
Q

What must you do to preserve a future interest in land in New York?

A

Must record “Declaration of Intention to Preserve Restrictions on Use of Land” between 27 and 30 years after interest was created. Can refile very 9-10 years after that.

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11
Q

Are right of reverters automatically exercised in New York?

A

No. Must petition to retain possession of the property.

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12
Q

Does New York follow the “wait and see” approach to the RAP?

A

No.

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13
Q

Has New York changed the fertile octogenarian rule in the RAP?

A

Yes. NY presumes that a woman over 55yo cannot have additional children.

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14
Q

Does the RAP apply to commercial options in NY?

A

Yes. And corporations cannot be measuring lives. Options must be exercised within 21 years unless there is a measuring life.

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15
Q

When can a life tenant make changes to a property (ameliorative waste) in NY? (5 steps)

A

(1) alteration is one a “prudent owner” would make
(2) alteration will not reduce market value
(3) alteration does not violate express terms of any agreement
(4) life expectancy of life tenant is 5 years or more, AND
(5) future interest holders are given notice 30 days prior

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16
Q

Is NY a lien theory or title theory state?

A

Lien theory. Liens do not sever a joint tenancy.

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17
Q

How must residential leases be written in NY? And what is the penalty if they aren’t?

A

Must be written in a clear and coherent manner. Failure subjects landlord to damages which result AND a $50 fine.

18
Q

Must landlords give a tenant at-will notice before terminating?

A

Yes. 30 days notice.

19
Q

What damages are owed a tenant wrongfully evicted by a landlord?

A

Treble damages in NY

20
Q

What actions may an incoming tenant take against a tenant held over in sufferance?

A

(1) action against holdover tenant

(2) void the lease

21
Q

Can a lease include a “no children” clause?

A

No, except for facilities designated for people 55yo or older

22
Q

Does a landlord have a duty to mitigate damages by re-letting premises in NY?

A

No. No duty to mitigate.

23
Q

What damages can a landlord collect from a tenant who remains in possession after a written notice to leave?

A

Can collect double rent after demand to leave is made.

24
Q

Can a landlord withhold consent to an assignment of a lease?

A

Yes. Can withhold for any reason in NY.

25
Q

Can a landlord withhold consent to a sublease of a lease?

A

Yes, but cannot arbitrarily withhold. Failure to respond to a request for sublease is deemed consent.

26
Q

What is the time frame for adverse possession in NY?

A

10 years

27
Q

Can co-tenants adversely possess against another co-tenant?

A

Yes. But the co-tenant seeking to adversely possess must show “ouster,” i.e., express communication of the intention to exclude the other tenant. Mere possession is not enough.

28
Q

Can ouster be implied?

A

Yes. Ouster is implied if co-tenant exclusively possessed property for 10 years. Then, the tenant must hold exclusivity for another 10 years in order to adversely possess. (20 years total)

29
Q

What damages are available for unmarketable title?

A

(1) recovery of purchase price
(2) expenses of title examination
(3) nominal damages

30
Q

Does NY have a statutory right of redemption?

A

No.

31
Q

Can a mortgagee use a non-judicial sale in a mortgage?

A

No. NY has abolished non-judicial foreclosures.

32
Q

What duties do mortgagee’s owe mortgagers before foreclosing?

A

Under the subprime lending reform bill:

(1) lenders must file foreclosure notices with the borrower 90 days before foreclosure.
(2) advise borrower on how to avoid default.
(2) mandatory settlement conference within 60 days of notice

33
Q

Can corporation’s invoke usury laws a defense to a mortgage in New York?

A

No. Only individuals.

34
Q

What recording statute does New York have?

A

Race-notice statute. Subsequent purchasers must (1) take without notice of prior interest; AND (2) be first to record

35
Q

What is a special warranty deed sometimes called in NY?

A

Bargain and sale deed

36
Q

What kind of notice must a buyer have in NY to be subject to an equitable servitude?

A

Actual or constructive/record (not inquiry)

37
Q

What must an adverse possessor believe in NY in order to gain title after the 10 year period?

A

“Claim of right” = Must have a reasonable belief that he/she has a right to the land. (i.e., good faith state)

38
Q

When spouses take title to real property, and the deed is silent as to whether it is by joint tenancy or tenancy by the entirety, which interest do they hold?

A

Presumption that they are tenants by the entirety, unless a contrary intention is explicit in the deed.

39
Q

What tenancy does a tenant at sufferance create if payment is made?

A

Becomes an implied month-to-month period tenancy if:

(1) tenant continues to pay rent, and
(2) landlord accepts payment

40
Q

Does a landlord have a duty to keep rented property in good repair? When?

A

Landlords of multi-family dwellings must keep the property in good repair.

NYS Bar (24 decks)

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