Flashcards in Real Property NY Distinctions Deck (40):
Equitable conversion: Who bears the risk of loss in NY?
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.
What is a fee simple determinable called in New York?
Fee on limitation
What is a fee simple subject to condition subsequent called in New York?
Fee on condition
What is a right of re-entry called in New York? (three terms)
Right of entry / power of termination / right of reacquisition
What is a vested remainder subject to complete defeasance called in NY?
Remainder vested subject to complete defeasement / reaminder vested subject to total divestment
What are contingent remainders / executory interests called in New York?
Remainders subject to condition precedent
Does termination of the preceding estate terminate a remainder subject to condition precedent in NY?
No. Unlike the common law, remainders are not subject to destructibility.
What three common law doctrines have been abolished in New York?
(1) fee tail
(2) rule of shelley's case
(3) doctrine of worthier title
Is a right of reacquisition transferable to a third party in New York?
yes. Transferable like any possessory estate.
What must you do to preserve a future interest in land in New York?
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.
Are right of reverters automatically exercised in New York?
No. Must petition to retain possession of the property.
Does New York follow the "wait and see" approach to the RAP?
Has New York changed the fertile octogenarian rule in the RAP?
Yes. NY presumes that a woman over 55yo cannot have additional children.
Does the RAP apply to commercial options in NY?
Yes. And corporations cannot be measuring lives. Options must be exercised within 21 years unless there is a measuring life.
When can a life tenant make changes to a property (ameliorative waste) in NY? (5 steps)
(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
Is NY a lien theory or title theory state?
Lien theory. Liens do not sever a joint tenancy.
How must residential leases be written in NY? And what is the penalty if they aren't?
Must be written in a clear and coherent manner. Failure subjects landlord to damages which result AND a $50 fine.
Must landlords give a tenant at-will notice before terminating?
Yes. 30 days notice.
What damages are owed a tenant wrongfully evicted by a landlord?
Treble damages in NY
What actions may an incoming tenant take against a tenant held over in sufferance?
(1) action against holdover tenant
(2) void the lease
Can a lease include a "no children" clause?
No, except for facilities designated for people 55yo or older
Does a landlord have a duty to mitigate damages by re-letting premises in NY?
No. No duty to mitigate.
What damages can a landlord collect from a tenant who remains in possession after a written notice to leave?
Can collect double rent after demand to leave is made.
Can a landlord withhold consent to an assignment of a lease?
Yes. Can withhold for any reason in NY.
Can a landlord withhold consent to a sublease of a lease?
Yes, but cannot arbitrarily withhold. Failure to respond to a request for sublease is deemed consent.
What is the time frame for adverse possession in NY?
Can co-tenants adversely possess against another co-tenant?
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.
Can ouster be implied?
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)
What damages are available for unmarketable title?
(1) recovery of purchase price
(2) expenses of title examination
(3) nominal damages
Does NY have a statutory right of redemption?
Can a mortgagee use a non-judicial sale in a mortgage?
No. NY has abolished non-judicial foreclosures.
What duties do mortgagee's owe mortgagers before foreclosing?
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
Can corporation's invoke usury laws a defense to a mortgage in New York?
No. Only individuals.
What recording statute does New York have?
Race-notice statute. Subsequent purchasers must (1) take without notice of prior interest; AND (2) be first to record
What is a special warranty deed sometimes called in NY?
Bargain and sale deed
What kind of notice must a buyer have in NY to be subject to an equitable servitude?
Actual or constructive/record (not inquiry)
What must an adverse possessor believe in NY in order to gain title after the 10 year period?
"Claim of right" = Must have a reasonable belief that he/she has a right to the land. (i.e., good faith state)
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?
Presumption that they are tenants by the entirety, unless a contrary intention is explicit in the deed.
What tenancy does a tenant at sufferance create if payment is made?
Becomes an implied month-to-month period tenancy if:
(1) tenant continues to pay rent, and
(2) landlord accepts payment