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New York Real Estate Law ReporterColumns & DepartmentsLandlord Tenant LawLitigation

Real Property Law

By ssalkin

No Easement Created

New York Land Development Corp. v. Bennett

Grant Created Valid and Alienable Possibility of Reverter

NJCB Spec-1, LLC v. Budnik

Comment

A right of reacquisition — but not a possibility of reverter — was rendered void under the common law upon any attempt to assign it, until the legislature enacted EPTL §6-5.1 in 1966, classifying all future interests as descendible, devisable and alienable. In 265 A.D.2d 286, the court held that the grantor's right to reacquisition became void upon its conveyance to a third party in 1893, which concurrently extinguished the restrictions on the grantee's property. By comparison, in 8 A.D.2d 405, the Fourth Department held that the grantors' interest in a possibility of reverter in a strip of land was fully alienable. The court cited modern texts on real property law and decisions from other states. In general, the use of durational language in a conveyance signals that the transferor has retained a possibility of reverter which automatically terminates the transferee's interest upon the occurrence of the specified limitation. In 149 N.Y.S.2d 887, the court held that the grantor retained a possibility of reverter in his land, as the deed stated that the property interest will be held by the grantee “so long as it shall be necessary for school purposes.” In holding that grantor retained a possibility of reverter, the court emphasized that the language limited the duration during which the grantee would retain the estate and designated the time the estate would revert to the grantor. Similarly, in 28 N.Y.S.2d 262, the Second Department held that the grantors held a possibility of reverter in a deed containing the language “so long as the Railroad Company shall continue to use the said land for its said railroad,” as the words “so long as” created an appropriate durational term to construe a possibility of reverter. Furthermore, the deed did not contain any condition or express provision for re-entry. By contrast, when a grant contains language of condition, courts have held that the grantor has retained a right of reacquisition, which entitles the grantor to enter and terminate the grantee's estate upon failure to perform the condition. In 16 A.D.2d 82, the court held that despite the deed containing the durational word “whenever,” the deed's dominant conditional language showed the grantor's intent to create a condition subsequent, and thus to retain a right of reacquisition. The court stated that the deed contained the “effective formulae” to create a condition subsequent, as it required the land to be “subject to the following conditions and reservations” of being used for school and meeting purposes.

Contract Vendee Entitled to Specific Performance

Carpenter v. Crespo

Questions of Fact About Scope of Mortgage

JPMorgan Chase Bank, N.A. v. Cao

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