NY distinctions in Real Property

• The fee tail is abolished in New York, as it is in just about all states. A fee tail is "to A and the heirs of his body." In other words, the estate passes to lineal blood descendants.
• In New York, a fee simple determinable ("To A so long as ...") is called a fee on limitation.
• In New York, a fee simple subject to condition subsequent ("To A, but if X event occurs, grantor reserves the right to reenter and retake.") is called a fee on condition. This is less harsh than the reverter in the fee simple determinable.
  
• Under federal rules, ameliorative waste is not permitted unless all future interest holders are known and consent. However, in New York, a life tenant may make reasonable improvements unless the remaindermen object.
• Under federal rules, a remainder is contingent if it is created in an unascertained person or is subject to a condition precedent, or both. In New York, any future interest in a transferee that is subject to a condition precedent is called a remainder subject to a condition precedent. This includes shifting or springing executory interests.
  
• The RULE in SHELLEY'S CASE has been abolished in New York. The rule states that when O conveys to A for life, then, on A's death, to A's heirs, the present and future interests would merge into a fee simple absolute if A is alive. Instead, this conveyance leads to a life estate to A, a contigent remainder to A's unknown heirs, and a possible reversion to O.
• The DOCTRINE OF WORTHIER TITLE has been abolished in New York with respect to transfers taking effect after September 1, 1967. The doctrine voids a conveyance to O's heirs if O is still alive and leave A with a fee simple. Since New York does not follow the rule, O's heirs have a contingent remainder and A has a life estate.
• In New York, the vested remainder subject to complete defeasance is called the vested remainder subject to complete defeasance. Duh. But, sometimes, in other states, it is referred to as the vested remainder subject to total divestment.
• New York has adopted the common law rule against perpetuities with regard to any disposition other than a charitable trust and powers of appointment. This means it has rejected the cy pres doctrine of reforming a disposition that violates the RAP so that the grantor's intentions are as closely realize as possible without a RAP violation.
• Any age contingency in New York is reduced to 21 years if it would otherwise violate the rules against perpetuities.
• New York has modified the fertile octogenarian principle by presuming that a woman over 55 cannot have a child.
• New York's suspension rule adopts common law rules against perpetuities for suspension of the absolute power of alienation. Thus, an interest is viod if it suspends the power to sell or transfer for a period longer than "lives-in-being plus 21 years."
• In a joint tenancy, there must be four unities: time, title, identical interests, and the right to possess the whole of the property. To achieve a conveyance at the same time would require a straw man for a person already in possession of the property that wished to share it in joint tenancy. However, in New York, the need for a straw man to achieve the four unities has been eliminated.
• New York follows the "lien theory of mortgages," whereby a joint tenant's execution of a mortgage on his or her interest will not severe the joint tenancy. This is in opposition to the title theory, where a mortgage executed on a share of the joint tenancy severs the joint tenancy.
• New York recognizes the tenancy in the entirety created by a husband and wife.
• In New York, there is implied ouster, whereby a tenant in a tenancy in common is in exclusive possession for more than 20 years. This creates adverse possession of the land subject to the tenancy in common.
• In New York, the landlord who elects to holdover a tenant creates an implied month-to-month periodic tenancy, unless otherwise agreed.
  
• In New York, the landlord terminating a tenancy at will must give a minimum of 30 days written notice of termination.
• In New York, a landlord's acceptance of rent subsequent to expiration of the term will create an implied month-to-month periodic tenancy, unless otherwise agreed.
• Abesent tenant's express undertaking to restore the premises in the event of their destruction, if the premises are destroyed through no fault of the tenant, tenant may quit the premises and surrender possession without any further duty to pay rent in New York.
• In New York, self-help is flatly prohibited and entitles tenant to treble damages.
• New York does not require a landlord to mitigate when tenant abandons the premises.
• In New York, unless the lease provides otherwise, a residential tenant may not assign withut L's written consent. This is contrary to the general consensus, where a lease may be assigned of sublet freely absent an expres provision. But, by contrast to this rule, in New York, a tenant in a residential building having four or more units has the right to sublease subject to the landlord's written consent, which cannot be unreasonably withheld. If consent is unreasonably withheld, NY courts deem it to be consent anyway.
• The New York statutory period for an easement by prescription (by adverse possession) in ten years of open, continuous, actual hostile use.
• There are three forms of notice for an implied equitable servitude: actual, record, and inquiry notice. In New York, record notice does not encompass the contents of deeds transferred to others by a common grantor. As in, record notice does not encompass the neighbors deeds.
• For adverse possession, the New York statutory period is only ten years. Also, the New York Court of Appeals has held that a possessor's knowledge that a third party holds title is irrelevant.
• The doctrine of equitable conversion makes it so that once a contract is signed, the purchaser is the owner of land, even if he has not yet taken possession. New York does not follow this with regard to damages. In New York, so long as the buyer is without fault, the risk of loss remains with the seller until the buyer has title or has taken possession.
• New York is a race-notice jurisdiction