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Property II
St. Johns University School of Law
Parella, Robert E.

Property 2 outline
The System of Estates
Liabilities at death of Tenant
If someone today dies without heirs the property escheats to the state
Will
o
o
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Step children is not a legal relationship, this could cause problems
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§
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Niece nephewBrother/sisterParentsSpouseChildren
o
Split courts-you don’t need witness for will if its in your own handwriting (holographic)If no will then property goes to heirs in order of importance-(only the dead have heirs…don’t know who their heirs are until they die)Property goes to whoever the will says it does
Types of Estates
Fee means it can last forever
Fee simple
o
o
o
o
o
§
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Contingent Interest-possession depends on a condition
o
o
Fee simple absolute means it is not defeasibleàcant be cut shortTotal restraint, ie can never be sold, of a fee simple absolute will be held invalidVested Interest-it is certain that the interest will become possessory
o
Vested subject to partial divestment
§
If estate is to heirsà1 child born, that child has a vested remainder, if another child is born that estate is 50-50 and thus part of his estate was divestedEven if A dies after B, B’s heirs get it so it is still vestedThis interest would be vested (not contingent) because A dying is a legal certainty
When someone says “to a for life, remainder to b” b gets a fee simple because that’s the presumption
The modern presumption creates a fee simple absoluteà”to A forever” creates a fee simpleàdidn’t use to”to a for life” creates a life estateSay conveyance to “A and his heirs” creates fee simple absoluteHeirs take when the deceased dies intestateUsually referred to as “fee simple absolute” (greatest estate known to law) as it may last forever
Fee tail
o
o
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§
End only when children die without children of their ownFor lineal descendants only- children, grandchildren, great children, etc.
o
o
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Doesn’t exist in NY anymoreàlanguage making fee tail creates a fee simple absoluteNot popular with sons because their interest is limited, and therefore land value was limitedLand wasn’t marketable
o
§
Court takes into account the value of the remainder interest in comparison with the life estate (remainder interest is valued high when 80 year old woman on death bed has life estate, but valued low when 20 year old healthy man has life estate )
When a property has a remainder and life estate…neither party can suffer a detriment when selling propertyDisadvantagesFee tail male-only descends to male heirs of the bodyThis fee lasted forever, made when people wanted to keep land in their familyConveyance “to A and the heirs of his body”
Term of years-less than a life estate, but sometimes can be better than life estate
o
99 year lease of empire state building is worth more than life estate of it
Fee simple determinable
o
§
Limit what town is getting
o
§
Grantor has a possibility of reverter
Fee simple subject to condition subsequent
o
o
Right of entry-right of reacquisitionTo the town on the condition that provided it is only used as a park, and if it is not so used the grantor or its heirs can enter
If you have a fee simple absolute and you convey for a certain period of time you create a fee simple determinableConveyance to a town as long as its used as a park for example
Diff between fee simple determinable and fee simple subject to condition subsequent
Choice of words
o
o
 
In condition subsequentàif they use it for something other than a park it is condition that may be fixed by grantorIn determinable-if ever not used as a park it automatically ends
Seisin
Seinsin only in freehold estate-not in term of years
Livery of seisin
o
o
Now we constitute conveyance through a deedIn feudal times had to give a stick to the person you conveyed land to
Statute of Uses
o
allowed deeds to be ok instead of livery of seisin
Future interest is a non-possessory interest, interest becomes possessory in future
Alternative contingent remainder-if one thing happens on person gets it, if the opposite happens then other gets
Primary remainder-are 1st in line for the remainder
Alternative remainder-if the primary doesn’t get because of some contingency then alternative gets
Future interests-
Fee simple determinable or based on condition subsequent
o
Future interest in reverter
Remainders take effect when the preceding estate expires naturally
Executory interest
o
o
D has a fee, but not fee simple absolute because if John returns her interest will be divested
o
Called a fee simple subject to an executory interest
o
§
§
if he doesn’t come back for a while and is considered legally dead…D then has fee simpleàif he is not dead and returns he could sue D for restitution, but title gained by subsequent property

a lease
License to use
Leases are a contract and give you an estateàtherefore remedies are money damages (from contract), and equity (estate)
Commercial lease is usually negotiated by attorneys
Residential leasesànot usually w/ attorney help, T rarely has bargaining power, residential lease is a shelter(necessity) and thus legislature is more sympathetic to these tenants
Statute of Frauds
Always statute of frauds for leases
o
o
Ie. NY common law-oral lease for 1 year or less is enforceable including an oral lease to begin in the futureHowever some exceptions for short term leases
Remember: if you don’t have writing, a letter with essential terms revoking the oral lease suffices statute of frauds
Periodic tenancy can arise
During holdovers
o
Common law implication when you hold over that you are a tenant for another term (lease for 5 years, when you hold over you are liable for another 5 years rent), statutes changed this to become a month to month tenant
Expressed in K or not argued but implied
When you have an unenforceable oral lease of any duration
o
Once T enters, pays rent and is accepted, T becomes a T from year to year, even if the oral agreement says it’s a month to month
§
L or T must give 6 months notice to terminate, if not they are contracted until the next year, however if the oral agreement is for 13 months, it terminates at end of the 13th month- doesn’t transfer right of exclusive possession, allows people to use the thing (laundry room in apartment building, allow tenants to use it, but doesn’t transfer possession)
reversion is a future interest in the transferor but that arises with a defeasable fee
it is said that all reversions are vested
o
they become divested once contingent remainders become possessory
there is a reversion in fee tail because once blood line ceases it reverts back to o
o
in NY it would create fee simple absolute
-same as possession