NY Bar Real Property — Questions and Answers

Question 1: Under New York law, which type of deed provides the GREATEST protection to a grantee by including covenants of seisin, right to convey, against encumbrances, quiet enjoyment, warranty, and further assurances?

Quitclaim deed
Bargain and sale deed
Statutory warranty deed (full covenant and warranty deed) (Correct answer)
Fiduciary deed

Correct answer: Statutory warranty deed (full covenant and warranty deed)

A full covenant and warranty deed (statutory warranty deed) contains all six covenants of title and provides the greatest protection to the grantee.

Question 2: In New York, when a grantor delivers a deed to a grantee but the grantee has not yet recorded it, and the grantor subsequently sells the same property to a bona fide purchaser for value who records first, who prevails under New York's recording act?

The first grantee, because the grantor had no title left to convey
The second purchaser, because New York follows a race-notice statute (Correct answer)
The first grantee, because delivery of the deed transferred title
Neither party; the property escheats to the state

Correct answer: The second purchaser, because New York follows a race-notice statute

New York follows a race-notice recording statute, so a subsequent bona fide purchaser for value who records first without notice of the prior conveyance prevails.

Question 3: A testator devises Blackacre 'to A for life, then to B and her heirs.' B predeceases A. What interest, if any, does B's estate hold at the moment of B's death?

Nothing; B's remainder is extinguished upon B's death
A vested remainder in fee simple, which passes to B's heirs or devisees (Correct answer)
A contingent remainder that fails because B cannot survive A
A springing executory interest that transfers to B's estate

Correct answer: A vested remainder in fee simple, which passes to B's heirs or devisees

B holds a vested remainder in fee simple absolute; because it is already vested, it passes through B's estate and is not extinguished by B predeceasing the life tenant.

Question 4: Under New York's Statute of Frauds, which of the following is required for a contract for the sale of real property to be enforceable?

The contract must be witnessed by two disinterested parties
The contract must be in writing and signed by the party to be charged (Correct answer)
The contract must be recorded in the county clerk's office within 30 days
The contract must be notarized by a New York notary public

Correct answer: The contract must be in writing and signed by the party to be charged

New York's Statute of Frauds (GOL § 5-703) requires that a contract for the sale of real property be in writing and subscribed by the party to be charged or their lawful agent.

Question 5: In New York, a landlord's failure to maintain a residential premises in a habitable condition gives a tenant which of the following remedies?

The right to withhold all rent until repairs are made, with no further obligation
Repair and deduct from rent, up to one month's rent, without any notice requirement
Rent abatement or withholding pursuant to RPL § 235-b, with proper notice and procedure (Correct answer)
Immediate lease termination without liability for future rent under any circumstances

Correct answer: Rent abatement or withholding pursuant to RPL § 235-b, with proper notice and procedure

New York RPL § 235-b codifies the implied warranty of habitability, allowing tenants to seek rent abatement or withhold rent, but proper notice and procedure must be followed.

Question 6: Which of the following correctly describes a 'joint tenancy' under New York law?

Co-owners hold unequal shares and each may devise their interest by will
Co-owners hold equal shares with a right of survivorship, and all four unities must be present at creation (Correct answer)
Co-owners hold equal shares but there is no right of survivorship
Co-owners hold title as a single legal entity and cannot transfer their interest individually

Correct answer: Co-owners hold equal shares with a right of survivorship, and all four unities must be present at creation

A joint tenancy requires the four unities (time, title, interest, and possession) and includes a right of survivorship, distinguishing it from a tenancy in common.

Question 7: Under New York law, an easement by prescription is established when a party uses another's land in a manner that is:

Open, notorious, hostile, and continuous for 10 years (Correct answer)
Open, notorious, with permission, and continuous for 10 years
Exclusive, secret, hostile, and continuous for 20 years
Open, notorious, hostile, and continuous for 21 years

Correct answer: Open, notorious, hostile, and continuous for 10 years

In New York, an easement by prescription requires open, notorious, hostile (without permission), and continuous use for the 10-year statutory period.

Question 8: O conveys Greenacre 'to A so long as the land is used for agricultural purposes.' What type of future interest does O retain?

Right of entry (power of termination)
Possibility of reverter (Correct answer)
Reversion in fee simple
Executory interest

Correct answer: Possibility of reverter

A grant 'to A so long as...' creates a fee simple determinable in A, and the grantor retains a possibility of reverter that vests automatically upon the occurrence of the stated condition.

Question 9: In New York, which of the following is the MOST accurate statement regarding adverse possession?

The claimant must pay property taxes for at least 5 of the 10-year statutory period
The claimant must have actual, open, notorious, exclusive, and hostile possession for 10 years and, under the 2008 amendment, must have a 'reasonable basis' for the belief that the land is owned by them (Correct answer)
The claimant need only show open and notorious use for 20 years without any additional requirements
The claimant must file a quiet title action within 3 years of completing the 10-year period

Correct answer: The claimant must have actual, open, notorious, exclusive, and hostile possession for 10 years and, under the 2008 amendment, must have a 'reasonable basis' for the belief that the land is owned by them

New York's 2008 amendment (RPAPL § 501) added a requirement of a 'claim of right' with a reasonable basis for the belief in ownership, in addition to the traditional elements over 10 years.

Question 10: A residential tenant in New York City has lived in a rent-stabilized apartment for 15 years. The landlord wishes to recover the unit for personal use. Under NYC rent stabilization rules, which of the following is MOST accurate?

The landlord may recover the unit immediately with 30 days' notice regardless of tenancy length
The landlord may recover the unit for primary personal use by filing a non-renewal notice, but senior or disabled tenants with long tenancies may have heightened protections (Correct answer)
Rent-stabilized tenants can never be evicted for owner occupancy under any circumstances
The landlord must obtain court approval and pay relocation assistance equal to 3 months' rent in all cases

Correct answer: The landlord may recover the unit for primary personal use by filing a non-renewal notice, but senior or disabled tenants with long tenancies may have heightened protections

Under NYC rent stabilization, a landlord may seek owner occupancy, but qualified senior citizens (62+) or disabled tenants are exempt from such evictions under the Rent Stabilization Code.

Question 11: In New York, which doctrine allows a court to enforce a promise to convey land made in exchange for the promisee's substantial detrimental reliance, even absent a written contract?

The merger doctrine
Promissory estoppel (part performance) (Correct answer)
The parol evidence rule
Equitable subrogation

Correct answer: Promissory estoppel (part performance)

New York courts recognize part performance and promissory estoppel as exceptions to the Statute of Frauds when a party has detrimentally relied on an oral promise to convey land.

Question 12: A mortgage on real property is executed and delivered in New York but not immediately recorded. A subsequent judgment creditor dockets a judgment against the mortgagor. Under New York law, who has priority?

The mortgage lender, because the mortgage was delivered before the judgment
The judgment creditor, if the judgment was docketed before the mortgage was recorded and the creditor had no actual notice of the mortgage (Correct answer)
The mortgage lender always, because a mortgage is a lien superior to all judgment liens
Neither party; they share the property pro rata

Correct answer: The judgment creditor, if the judgment was docketed before the mortgage was recorded and the creditor had no actual notice of the mortgage

Under New York's race-notice recording statute, a judgment creditor who dockets before the mortgage is recorded, without notice of the prior mortgage, takes priority.

Question 13: Under New York law, when a lease is silent on the issue of subletting, a residential tenant in a building with four or more units has what right to sublet?

No right to sublet without landlord consent; silence in the lease prohibits subletting
An absolute right to sublet to any person the tenant chooses
A qualified right to sublet with landlord consent, which consent cannot be unreasonably withheld under RPL § 226-b (Correct answer)
The right to sublet only with a court order permitting subletting

Correct answer: A qualified right to sublet with landlord consent, which consent cannot be unreasonably withheld under RPL § 226-b

New York RPL § 226-b grants residential tenants in buildings with four or more units the right to sublet with landlord consent, and the landlord cannot unreasonably withhold consent.

Question 14: A contract for the sale of real property in New York is signed, but before closing, the property is destroyed by fire. Under the traditional New York rule and the doctrine of equitable conversion, who bears the risk of loss?

The seller, because they still hold legal title to the property at the time of loss
The buyer, because equitable conversion treats the buyer as the equitable owner from the moment of contract (Correct answer)
The risk is split equally between buyer and seller
The party in actual possession of the property at the time of loss

Correct answer: The buyer, because equitable conversion treats the buyer as the equitable owner from the moment of contract

New York traditionally follows the doctrine of equitable conversion, under which the buyer bears the risk of loss after the contract is signed because equity treats the buyer as the owner of the land.

Question 15: Which of the following BEST describes a 'tenancy by the entirety' under New York law?

A form of co-ownership available to any two persons, with right of survivorship but no unilateral right to partition
A form of co-ownership available only to married couples (or domestic partners in NY), with right of survivorship and immunity from individual creditors of one spouse (Correct answer)
A form of co-ownership identical to joint tenancy but allowing unequal shares
A form of co-ownership that terminates automatically upon the death of either spouse

Correct answer: A form of co-ownership available only to married couples (or domestic partners in NY), with right of survivorship and immunity from individual creditors of one spouse

A tenancy by the entirety in New York is available only to married couples (and now registered domestic partners), carries a right of survivorship, and is immune from individual creditors of either spouse alone.

Question 16: In New York, the 'merger doctrine' in real property law provides that:

When a tenant purchases the landlord's fee interest, the lease and fee merge, extinguishing the lease
All prior representations in a real estate transaction are merged into and superseded by the deed upon closing (Correct answer)
A life estate automatically merges into the next vested remainder when held by the same person
All easements are extinguished when property is sold to a bona fide purchaser

Correct answer: All prior representations in a real estate transaction are merged into and superseded by the deed upon closing

The merger doctrine holds that once a deed is delivered and accepted at closing, it supersedes and merges all prior representations, warranties, and contract terms, leaving only the deed's covenants in force.

Question 17: A New York homeowner wants to install a fence that will encroach two feet onto the neighbor's property. The neighbor orally agrees. Years later, the neighbor's successor in title demands removal of the fence. Which defense is MOST likely to succeed for the homeowner?

The oral license defense, since the original neighbor granted permission
Easement by estoppel, if the homeowner detrimentally relied on the neighbor's permission and the successor had notice
Adverse possession, if the fence has been in place for 10 years with all required elements met
Both B and C, depending on which elements are proven (Correct answer)

Correct answer: Both B and C, depending on which elements are proven

Both easement by estoppel (based on detrimental reliance on the license) and adverse possession (10-year open, notorious, hostile, continuous possession) are viable defenses if their respective elements are established.

Question 18: Under New York law, which of the following is TRUE regarding a 'fee simple subject to a condition subsequent'?

The estate automatically terminates when the condition is violated
The grantor retains a right of entry (power of termination) and must take affirmative action to reclaim the property upon breach (Correct answer)
The grantor retains a possibility of reverter that vests automatically on breach
The grantee may waive the condition and convert the estate to fee simple absolute

Correct answer: The grantor retains a right of entry (power of termination) and must take affirmative action to reclaim the property upon breach

In a fee simple subject to condition subsequent, the grantor retains a right of entry (power of termination) and must affirmatively exercise it to reclaim the property; title does not automatically revert.

Question 19: A buyer purchases commercial real property in New York and later discovers that a neighboring lot is burdened by an express easement that runs in favor of the purchased property. The prior owner never told the buyer about the easement. Which of the following is MOST accurate?

The easement is extinguished if it was not mentioned in the deed to the buyer
The easement runs with the dominant estate and benefits the buyer as the new owner, provided it was properly created and recorded (Correct answer)
The easement is personal to the original grantor and cannot be transferred without a new grant
The buyer must re-establish the easement by filing a new easement agreement within one year of purchase

Correct answer: The easement runs with the dominant estate and benefits the buyer as the new owner, provided it was properly created and recorded

An appurtenant easement runs with the dominant estate automatically and benefits each successive owner of the dominant tenement without any need for re-conveyance.

Question 20: Under New York's Real Property Actions and Proceedings Law (RPAPL), a mortgagee seeking to foreclose on a defaulted mortgage must:

File a notice of default in the county clerk's office and wait 60 days before commencing suit
Bring a judicial foreclosure action in Supreme Court, provide required notices, and comply with RPAPL § 1304 pre-foreclosure notice for residential properties (Correct answer)
Exercise a power of sale without court involvement, as New York allows non-judicial foreclosure
Obtain a confession of judgment from the mortgagor before commencing any foreclosure proceeding

Correct answer: Bring a judicial foreclosure action in Supreme Court, provide required notices, and comply with RPAPL § 1304 pre-foreclosure notice for residential properties

New York is a judicial foreclosure state; mortgagees must bring a court action in Supreme Court, and for residential mortgages must comply with RPAPL § 1304's 90-day pre-foreclosure notice requirement.

Question 21: A testator's will devises Blackacre 'to my daughter A for life, then to A's children who survive A.' At the time the will is executed, A has no children. What is the nature of the future interest in A's children?

A vested remainder subject to divestment
A contingent remainder, because the takers are unascertained (A has no children yet) and survival is required (Correct answer)
An executory interest, because it will divest A's life estate upon A's death
A reversion in the testator's estate because the remainder is void under the Rule Against Perpetuities

Correct answer: A contingent remainder, because the takers are unascertained (A has no children yet) and survival is required

The remainder in A's children is contingent because the takers are unascertained at the time of conveyance (no children exist) and there is an express survivorship condition, making it a contingent remainder.

NY Bar Real Property

Under New York law, which type of deed provides the GREATEST protection to a grantee by including covenants of seisin, right to convey, against encumbrances, quiet enjoyment, warranty, and further assurances?

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