Select Page

Property II
St. Johns University School of Law
DiLorenzo, Vincent M.

PROPERTY II* Real property law allows the parties to agree otherwise.  All the default rules expressed in this outline can be modified by agreement.ESTATES IN LANDI. Six Interests in Landa. Fee Simpleb. Life Estatec. Fee Taild. Estate for Yearse. Estate Year to Yearf. Estate at WillII. THE FEE SIMPLEa. Basic Structure i. “O to A”, and it describes the parcel of land1. “O to A” – words of purchase (who; the grantee)2. Parcel – words of limitation (what)b. Default Rule for Estates Created i. Unless otherwise intended, it’s a Fee simple ii. If the estate reads “O to A” and nothing more, it’s a fee simple estate iii. Don’t need any particular words to transfer a fee simplec. “to A and his heirs” i. The heirs of the person holding fee simple (A) will receive the property after A dies, whether A has a will or not ii. If A has no will, heirs take by intestacy iii. Today, don’t need to use “and his heirs” – if they are used, implies a fee simple estated. Fee Simple Absolute i. What a fee simple estate is known as, if there are no limitations ii. The holder of a fee simple absolute has all these exclusive, perpetual rights:1. to possess2. to use3. to alienatea. all their interest, or in part4. to destroya. if you want to tear down a building to build another5. first rights (to fruits and profits e. Fee Simple Subject to a Life Estate i. “O to A for life, then to B” or “O to A for life, remainder to the heirs of A”1. “for life” = words of limitationa. A has right to possess until he dies; no fee simple estate2. O is divested of title, and the fee simple estate goes to the heirs of A, and the life estate goes to A – they both vest immediately ii. When there’s a life estate, then an ownership estate, both estates vest immediately iii. Not a fee simple absolutef. Fee Simple Subject to Conditions Subsequent i. After breach of the condition there is a forfeiture ii. The loss of title is NOT automatic; it requires a court order iii. Alienable iv. Key words: “ right to reenter”, “may” v. Example: “O to A, so long as the parcel is used as a one family residence”1. if it is used as an apartment building, A forfeits because it breached the condition and there’s a reversion back to O vi. the reversionary interest of the original owner is called a right of reentry vii. In NY, it’s called a fee on condition, and the original owner has a right of reentryg. Fee Simple Determinable i. There is condition imposed, and upon breach of condition there’s a forfeiture ii. Loss of title is automatic1. most likely to have forfeiture iii. Key Words: “so long as”, “until”, “while” iv. The reversionary interest of the original owner is called a possibility of reverter v. In New York, it’s called a fee on limitation, and original owner has a reversionary interesth. Fee Simple Subject to a Covenant i. Never leads to forfeiture ii. Only when the parties made it absolutely clear that there’s a forfeiture do you take it off the table1. if “then to”, “reverts” or “right of reentry” appear = no  iii. Covenant – promise by the grantee that a specified act will or will not be performed1. if breached, no forfeiture  but promisee may sue for injunction or damagei. How to Determine the Type of Fee Simple Estate i. Look at all the words used1. language of the instrument is most important evidence2. no extraneous statements can contradict the express language ii. Ascertain the grantor’s intention  it’s all a matter of intention iii. Policy: Avoid Forfeiture – when two phrases point in different directions, then the grant is ambiguous, and you invoke the type of estate least likely to invoke forfeiture1.  “Provided”a. can mean fee simple determinable, fee simple subject to condition subsequent, or fee simple subject to a covenant2. “Reverts”a. CAN NOT be f.s. subject to a covenantb. Look at intention – usually condition subsequent bc it’s less likely to lead to forfeiture3. Hierarchy of forfeiturea. Fee simple subject to a covenant – never forfeitureb. Fee simple subject to conditions subsequent – more forfeiturec. Fee simple determinable – most forfeiture iv. Court can invoke a legal presumptionj. Statute of Limitations Defense for Conditions in New York i. statute of limitations is 10 years – original owner must bring suit within ten years of the first breach of condition or reversion1. original owner has to be aware and check on the parcel to see if they have a right of reversion and reentry ii. a condition is void and unenforceable on a fee simple estate after 30 years iii. An condition imposed after 9-1-1958 can NEVER be a fee simple determinable1. all such grants are conditions subsequent, and even those grants are not automatically enforced (courts have discretion to enforce them or not based on the equities of the case; case by case basis)k. Alienability of Reversionary Interests i. Is a reversionary interest alienable, or can only the original grantor enforce it?1. Majority rule: Yes, it is alienable.l. Remainder Interest i. A Conveyance to a third party in the future ii. “O to A, so long as the property is used as a 1 family residence, then to B”1. O has a reversionary interest, but B has a remainder interest III. THE LIFE ESTATEa. Not perpetualb. The primary right is a right of possession, and it ends upon the death of the measuring life i. “O to A for life” – estate that O has granted as owner of a fee simple is a life estate in A, and the estate ends when A dies; holder of the estate and measuring life are the same1. O maintains a reversionary interest here ii. “O to A for life, for the life of B” – holder of the estate and the measuring life are differentc. Rights of a Holder of a Life Estate i. Exclusive to possess ii. Exclusive to use iii. First rights to fruits and profits iv. Right to alienate: although to measuring life remains the life of th

e of intention to terminate iii. Must be given “at least one period in advance” if period is less than 6 months iv. Must period is year to year “never more than six months, and specifying the last day of a period as the expiration date” (only 6 months notice is required) v. UNLESS THE PARTIES AGREE OTHERWISE vi. If you have not agreed otherwise, and you do not comply with the common law rules for notice, then the notice you gave is void and unenforceable1. If a tenant gives notice on November 16 that she will vacate on November 30, the lease is still enforceable. vii. Periodic tenancy, without notice, has automatic successive renewal1. If the tenant moves out without giving notice, the lease is still enforceableg. Notice of Terminaiton (NY) i. In NYC: termination by (1)landlord giving tenant at least 30 days notice and (2) the notice must be in writing; NO notice required for tenant to terminate ii. OUTSIDE NYC:. Notification required. Tenancy can be terminated by either party by notice at least one month before the expiration of the term (codifies common law rule),h. When there are two stated rental periods, the longer period is the true period, and the shorter period is a payment schedule to pay in installments i. Example: “L leases to T starting October 1st, at an annual rent of $24,000 payable at $2,000 per month on the first of each month.”  this is a year to year where the tenant can pay in installmentsVII. ESTATE AT WILLa. Tenancy at willb. Has no fixed/guaranteed period of occupancy at allc. Terminates at will (whenever either party decides that the rights come to an end)d. A personal interest/personal contract between the landlord and tenant (not the case with year to year, or years) i. when the tenant dies, the lease comes to an end ii. when the landlord sells the property, the right to occupy no longer esistsVIII. STATUTE OF FRAUDS FOR TENANCIESa. In NY, any tenancy for one year or greater must be in writing; if not, it is void and unenforceable i. A month-to-month does not have to be in writingb. If an oral lease is for more than one year, then a tenancy at will is created.IX. LICENSEa. A right of use with no exclusion (of general public or original owner, as a matter of right)b. Revocable at willc. Either the grantor of the license and the recipient can terminate at any time