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Garner v. Gerrish and the renter's life estate: teaching a new concept of "home.".

"If you wish to secure for yourself a right not to be moved," says the law, "get yourself an estate in land. The longer the better." (1)


Property law scholars have been interested in Garner v. Gerrish (2) because it is a decision that presses at the boundaries of leasehold doctrine. As such, it is covered in various first-year property law textbooks. (3) Its unique fact pattern makes it useful as a means of helping students understand the differences among leaseholds for a term of years, the periodic tenancy, and the tenancy at will. The landlord in Garner, Robert Donovan, drafted a lease on a pre-printed form, writing in the terms of the lease that would be fulfilled. (4) The lease was not written with the advice of counsel. (5) The most significant clause of the lease stated that only the tenant, Lou Gerrish, had the right to terminate the lease. (6) Donovan then died and the lawyer for his estate, Robert Garner, hoped to terminate the lease. (7) The issue at stake was whether this clause in the lease should have been taken to grant both the landlord and the tenant a right to terminate as a matter of property law doctrine and as a matter of New York state policy. (8) The Court of Appeals held that because only the tenant had the right to terminate, the landlord in effect gave the tenant a determinable life estate. (9)

How then, have scholars viewed the opinion? David M. Becker argued that the decision fell into a category of cases notable for their "deviant language," a common phenomenon found within property law and contract. (10) In these types of cases, courts are called upon to determine the meaning of inelegantly drafted terms, where ambiguous language meant the parties' rights and responsibilities could not be easily determined, thus creating a dispute for courts to resolve. (11) Thomas W. Merrill and Henry E. Smith have argued instead that the decision indicates the possibilities of creating new forms of property: the leasehold tenant's life estate, a blend of leasehold and life tenancy doctrines. (12)

Becker observes that property law limits the "species of ownership that have evolved over time. (13) These "are described and distinguished in terms of their potential duration." (14) Durational choices, in turn, influence the benefits and responsibilities that accrue. Property law limits these forms of ownership for the purposes of uniformity and in the name of predictability. (15) Becker argues that this restriction is harmful, in that there are countervailing rationales for supporting creative use of legal forms--"intent, custom, fairness and other policy considerations--because the benefits of ad hoc determination far outweigh the costs of inconsistent treatment of such language." (16) Thus, precedent should be ignored and standard forms rejected, especially because cases that decide the meaning of deviant forms do not have any serious value as precedent, merely because the deviance in the language ensures their rarity. (17)

Thomas Merrill and Henry E. Smith, in considering Garner, wonder in turn whether courts in the future will defer to parties' intentions to create newer forms of property rights, in rejection of the perspective that there is only a limited number of property law forms--the "numerus clausus" principle: Donovan and Gerrish could create a life estate or a lease. (18) If they chose the lease, it could be a term of years, a periodic tenancy, or a tenancy at will. (19) Would we want, if others followed the "do it yourself" model they pursued, the unorthodox terms to be upheld. Merrill and Smith urge that the "numerus clausus" should be followed, for several reasons. (20) For example, if the "do it yourself model" proliferated, high information costs would ensue as "a problem because third parties must ascertain the legal dimensions of property rights in order to avoid violating the rights of others and to assess whether to acquire the rights of others." (21)

I argue that the case can also offer a pedagogical lesson about the "do it yourself model," insofar as it offers a means of exploring the context of those cases when parties are not represented by lawyers. What sorts of situations call for greater cautionary measures in drafting documents? One can presume Donovan knew he could have had the aid of counsel in drafting the lease. Perhaps he did not want to involve lawyers because he was more interested in his social connection with Gerrish than the legal relationship of landlord and tenant. Garner and Gerrish had known each other for years. (22) Perhaps as a matter of privacy, he hesitated, because bringing in lawyers might have resulted in greater scrutiny than he might have wanted.

Merrill and Smith explain, though, that the decision to find a lease for life is not about Donovan and Gerrish only. It is about how the rest of us are affected, and the long term effects. (23) I agree with Merrill and Smith. I argue, however, that the problem also concerns the precedent existing in New York. New York precedent recognizes an aberrational and inefficient leasehold arrangement while not considering that the circumstances of the agreement were suspicious and raised questions both of unconscionability and undue influence.

Gerrish's life estate severely limited the ability of the estate to make a return on its asset. Efficiency and the "numerus clausus" principle should have been a factor the court considered in its determination.

How might property law faculty use the decision in teaching leasehold doctrines? In the Dukeminier text, the editors raise the "numerus clausus" principle discussed in the Merrill and Smith article, asking whether the decision violated " (24) it. They contend that it did. (25) Merrill and Smith address, in turn, the court's rejection of the "numerus clausus" principle as a holdover from feudal property law doctrines. (26) With the greater significance of modern day practices and rules contributing to the rejection of feudal formalities like seisin, the court reasoned it was within its purview to recognize a non-traditional form like a leasehold for life. (27) Yet, Merrill and Smith note that those very types of arguments in opposition to supposed feudal formalities are themselves "circular, formalistic and dustily feudal," if not historical. (28)

These scholars believe leaseholds are sufficiently different from fee simple interests to warrant such distinctions as between a leasehold for life and a fee simple. The traditional leasehold, regardless of its length, is presumed to be different from a fee simple. The presumption is that as long as there is a lease, it is subordinate both to the life estate and the fee simple, in that the true ownership rights are never held by the leaseholder. The tenant has only the right to use the property for the time period set forth in the lease, with the reversionary interest returning to the superordinate interest at the expiration of the lease. But in this case of a tenant holding a lease for life, the subsequent conveyance of the property from the landlord's widow to the tenant within a few years of the court's determination, indicates that the leasehold for life in this case meant, instead, a fee simple interest.

One might wonder, in light of the court finding a determinable life estate in the lease, how it is different from the type of long-term lease sometimes found in commercial contexts, such as the lease for 99 years? It is arguably different; those types of commercial leases often require of tenants certain obligations that would normally be undertaken by an owner in fee simple. Longterm tenants are expected to develop a certain stake in the property and are tasked with its development and upkeep. The tenant might pay the taxes and insurance and make improvements to the property. (29) Donovan, however, did not require that Gerrish fulfill any of those obligations, as he was presumably going to take care of them himself. Thus, it made sense for Donovan's widow to deed the property to Gerrish within a few years after she became the fee simple owner. Gerrish had the rights of a long term tenant while Donovan' s widow had the responsibilities of a fee simple owner.

None of the treatments of the case in the scholarly and textbook literature raise another aspect of legal pedagogy, the purpose of legal education. How might a new study of the case help teachers of property address the Carnegie report's challenge that law faculty develop a more practice-oriented curriculum? This debate over pedagogy is one rooted in the very development of legal education in the United States. (30) With the rise of Langdellianism, the study of law came to be seen as a "science" in which students would study cases to discover and decipher the legal doctrines found in the holdings. (31) This new pedagogical approach was contrary to the form of legal education, the apprenticeship method, which had been predominant beforehand. Young law trainees used to work with practicing lawyers in order to learn their craft. However, in today's world of legal education, students are introduced to the craft of lawyering in their legal research and writing classes, in internships, or in clinical classes. Otherwise, they wait until they graduate. (32)

Couldn't doctrinal faculty cultivate in their students the skills they will need once they begin practice? Moreover, couldn't law and society scholarship be a means of demonstrating to students the implications of what practice means "in the real world"? Law wedded purely to legal doctrine and not grounded in practice is meaningless. Lawyers do not argue cases in a vacuum separate and apart from the social and cultural aspects of the cases that they bring before the courts. Similarly, judges do not easily divorce themselves from the social and cultural impacts that influence their perceptions and decision-making. It behooves law students to understand what motivates the development of legal doctrine as well as what motivates doctrinal changes. (33)

Garner v. Gerrish can arguably become a vehicle for discussing lawyering strategies and the use of evidence and argumentation in developing effective theories of a case. For example, legal research and writing professors "take as a given that the facts section is the most important part of the brief for persuading judges." (34) It is about the questions lawyers ask and the way they present the facts at trial and on appeal: "most judges are moved more by fairness, common sense, and compassion to help a person who has been wronged, than by clever legal analysis." (35)

In this article, I demonstrate those pedagogical possibilities by drawing upon unpublished materials from the case files. I also develop an alternative theory to the case than the one that was presented in the reported decisions and opinions. This theory might have resulted in a more favorable outcome for the landlord's estate. In this sense, I am rearguing the case for Garner as I discuss the evidence presented in the case through affidavits and other correspondence among the parties. I explain how Garner might have used those facts differently. If those shortcomings had been surmounted, Garner might have been able to make a better case on behalf of the estate because, ultimately, "whether a particular legal or non-legal argument prevails often depends upon how the arguer frames the issue." (36)

Gerrish framed the facts in a way that was more persuasive to the Court of Appeals. Did he frame his case in such a way that made him sympathetic to the court? Did he tap into any prevailing mindsets on the court that favored vulnerable tenants over invulnerable landlords? Gerrish argued that Donovan made the agreement of his own volition and created a tenancy at will. (37) He claimed he had a lease for life because he alone had the right to terminate. (38) He fulfilled all the lease's terms, and as such, Garner had no basis to evict. (39) In framing the facts of the case, what did Garner say in reply? His response was not very persuasive and did not appear to challenge Gerrish's narrative. He explained that if the lease was to be one for life, Gerrish had to prove that the lease, by its terms, indicated such intent. (40) He further explained that in instances when a tenant was given the right to terminate, the common law in New York explained both the landlord and the tenant had the right. (41)

When Garner became the executor for Donovan's estate, and learned of the lease, what questions did he have? What did he wonder about? What did he learn? What litigation strategies did he consider? What strategies did he then pursue? Suppose Donovan had shown him the lease prior to signing it with Gerrish, what advice might he have given? Could Garner have made a better case for nullifying the contract by using arguments that might have persuaded the court? If he had made these arguments, would the court have considered them in making its determination? If the Court of Appeals had addressed them, might the outcome have been different? Along this line of alternative theories of the case, Edward E. Chase asks some important questions: "Is a lease, such as that in Garner, an unconscionable agreement? Does it matter whether the termination privilege is held by the landlord or the tenant (42) He hints that if the decision is looked at through the contracts doctrine of unconscionability, the case could have been decided differently: "If unconscionability is the underlying concern, shouldn't that be handled on a case-by-case basis rather than through the adoption of general rules of construction? "(43)

I believe Chase's interpretation of the case bears merit and is thus worthy of further scrutiny and scholarly inquiry. As Daniel B. Bogart explained, the Court of Appeals, in focusing on the contractual intent of the parties, held in favor of the four corners of the document. (44) But this "four corners" approach was insufficient. If Garner had made the case for it, the court, in making its determination, could have gone further in its use of contract law doctrine. Not only should unconscionability have been a factor in the court's determination, but the theory of undue influence should have been considered as well.

A study of the trial record, which it appears no scholar has done to date, indicates that the tenant once alleged facts in the case that point to this possibility. In addition, focusing solely on the question of whether the lease was a tenancy at will emphasized only one aspect of the lease's controversial terms; that only the tenant had the right to terminate the lease. This inquiry did not focus on another one of the lease's important aspects: the fact that a periodic tenancy was implicit in that the tenant was to pay rent on a monthly basis and the lease had no termination date. The trial and appellate courts focused on this line of inquiry and found in favor of a periodic tenancy that was terminable at the death of the landlord. (45) Each court held for Garner. The Court of Appeals (46) then reversed the appellate court. (47)

Scholars have not addressed other implications of the decision for developing and teaching legal doctrine. What if the leasehold were seen as a disguised lease under Article 9 of the Uniform Commercial Code? In first year property classes, purchases and sales of property explain the means by which buyers become owners, and mortgages indicate the significance of liens upon the property interests of buyers and lenders. Garner v. Gerrish implies another possibility: A leasehold might become a secured interest, giving rights of ownership to a renter. This idea is indicated by the court defining the leasehold as a life estate interest. (48)

Of greater significance are the implications of the decision from a policy standpoint. Not only do decisions such as these spur academics to consider previously unimagined possibilities in legal doctrine, but Garner v. Gerrish might have had some far-reaching and unintended consequences. As was mentioned earlier, Becker argues that deviant language in leases would have little merit as precedent. At first glance, that would seem to be correct. How many landlords and tenants would tend to draft leases such as the one found in Garner? However, its unique facts, contrary to what Becker said, did not mean the case lacked long-ranging effects. (49)

The case has significance from the standpoint of legal precedent because the case's reasoning has been used to resolve other landlord-tenant disputes. (50) In addition, it is also significant because the conveyance of the property to Lou Gerrish after the case was resolved and the estate probated, indicates that the parties did not interpret the case's holding to mean that Lou Gerrish had a life estate in the property. Instead, the parties took the case's holding to mean that Gerrish had become the fee simple owner of the property in question. This brings us back to the question raised by Becker, Merrill, and Smith: should courts be more cautious in deciding cases, such as these, that entail the creation of new forms of property, i.e., a determinable life estate in a residential lease?

I support Merrill and Smith, but for different reasons. First, lawyers should be attentive to instances where unconscionability and undue influence might be at stake. Second, courts should cling to traditionalism and eschew rejection of conventional forms, particularly when parties draft documents without the aid of counsel. As a matter of property law doctrine, Garner v. Gerrish reinforces the adage that "bad facts" can make "bad law." If the court had wanted to move New York in the direction following modern trends in tenancies-at-will, this case was not the ideal vehicle for driving the change.


On April 14, 1977, Robert J. Donovan took a form lease and wrote in the terms that would govern his leasehold arrangement with Lou Gerrish. (51) Neither party showed the document to his counsel before signing the lease. Pursuant to the lease, Gerrish would pay $100.00 per month for a house in Potsdam. (52) Contrary to a traditional term of years lease, this lease had no termination date. (53) Instead, Gerrish could live there for as long as he wished: "Lou Gerrish has the privilege of termination [sic] this agreement at a date of his own choice. (54) If any rental payment was late, Gerrish had a 30-day grace period to make the payment before he would be deemed to be in default. (55) Gerrish moved-in a month after the two parties executed the lease and, initially, lived there without incident. (56) However, Donovan died several years later on November 10, 1981, and his executor, David Garner, attempted to cancel the lease and obtain the premises, which Gerrish objected to. (57) The Lawrence County trial court found for Garner, and the appellate court affirmed. (58) This decision was then reversed by the Court of Appeals. (59) As a result of the court's reversal, Gerrish had a life estate for which he only had to pay the rental amount of $100.00 per month provided for in the lease. (60) Donovan, in effect, relinquished all rights to cancel the lease. (61)

The Court of Appeals found that the appellate division and the trial court were incorrect as a matter of law. (62) The Court disagreed with the finding of a tenancy at will, a property law doctrine that would have enabled the current landlord, David Garner, as the executor, to evict Lou Gerrish. (63) Garner claimed that the leasehold arrangement was a tenancy at will because the lease contained no definite term. (64) Thus, either party could terminate the lease. (65) The trial court agreed, finding that the leasehold was "indefinite and uncertain by its very language as regards the length of time accorded respondent to occupy the premises ... fails to set forth the duration of continuance, and the date or event of termination. (66) The trial court thus found the lease to be a tenancy at will, "personal in its nature and terminat[ing] upon the death of either the lessor or the lessee." (67) The payment of $100.00 monthly meant that the property was leased on a month-to-month basis and that "petitioner was entitled to terminate the lease upon the death of the lessor effective upon the expiration of the next succeeding monthly term of occupancy." (68)

The trial court did not consider the possibility of a periodic tenancy. (69) The lease included language explaining when the leasehold could be terminated which would be at Gerrish's discretion. (70) Without specific language, Garner could claim that the parties had agreed to a month-to-month lease, in which case it would have been possible to terminate the lease one month's notice.

It is significant to note that according to the Restatement (Second) of Property, "the death of one party to a periodic tenancy does not terminate the lease." (71) The Restatement notes, however, that in cases of a periodic tenancy, if the lease term enabled only the tenant to terminate, the rule for tenancies-at-will would apply instead. (72) Thus, it is unclear whether arguing in favor of a periodic tenancy would have benefited Garner in any way. According to the Restatement, tenancies at the will of only the tenant are actually determinable life estates. (73)

The appellate court, on the other hand, appears to have defined the lease as a periodic tenancy, but it did so using a different line of reasoning. (74) The court explained that it was called upon to construct the terms of a residential lease drafted by the "plaintiff's deceased lessor without the aid of counsel, provid[ing] for the rental of a one-family ranch house to [the] defendant, the lessor's friend and companion, at a monthly rental of $100." (75) The court explained that a "month-to-month tenancy was indeed created and that tenancy was terminable upon the death of the lessor. (76) The court was unwilling to find that although the lease clearly stated Gerrish had the right to terminate, it precluded Donovan or Garner, as Donovan's representative, from terminating it. (77) Instead, the court preferred to find reciprocity in the power to terminate. (78) It was as though the language that Gerrish alone had the right to terminate was viewed merely as descriptive rather than dispositive. (79)

It is unclear why the Court of Appeals took this case. Perhaps the justices thought the case offered an ideal opportunity to revise New York's tenancy at will law and prevent a potential wrong from being done to a tenant facing eviction. The Court of Appeals felt that the old rule that a lease which grants only the lessee the right to terminate also gives the lessor the same right was antiquated and formalistic. (80) This was the common law rule (81) that the trial court and appellate division drew upon in their determinations: "during the 19th century and at one time was said to represent the majority view." (82) But this rule no longer made any sense under New York law and, thus the authority for its persistence, should no longer apply, (83) for it was "widely criticized, particularly in this century, as an antiquated notion which violates the terms of the agreement and frustrates the intent of the parties." (84) Drawing further upon the formalism of early common law practices, which once required livery of seisin for a life estate interest to be conferred, the Court of Appeals found that a "life tenancy would fail, and a tenancy at will would result only when livery of seisin [sic], or any other requirement for a conveyance, had not been met." (85)

Because all of the formal requirements expressed through the livery of seisin had long fallen into disuse, there was no longer any reason why a lease that could only be terminated at the tenant's will should be converted into one that the landlord could also terminate. (86) The earlier formal rules no longer needed to apply, especially because this was the modern view presented in the discussion of tenancies-at-will found in the Restatement (Second) of Property. (87) A similar set of facts is found in the Restatement commentary where a landlord leases a farm to a tenant for as long as the tenant desires to stay on the land. (88) The drafters of the Restatement described the lease in this example as a determinable life estate. (89) Drawing upon this example, the Court of Appeals found that the lease in Garner created a determinable life estate on behalf of Gerrish that was terminable at his will or upon his death. (90)

In light of materials found in the archival records, the Court of Appeals' decision is overly-formalistic in its reliance upon the Restatement, notwithstanding its finding of formalism in arguments supporting adherence to the common law rule of reciprocity. (91) The court in effect rejected appeals to equity. (92) Its formalism reflected an older view of contracts that predated the growing significance of policy concerns like undue influence and unconscionability. (93) Parties were presumed to bargain at "arm's length." If parties were caught by unfair bargains, courts were not overly concerned. As a result, the opinion did not reflect the true realities of the situation and the important policy concerns raised in the case because the Court of Appeals focused on the contractual matters, the "four corners" (94) of the document.

The fact that it is possible to articulate two competing visions of formalism in the same case indicates the persistence of what adherents of critical legal studies once called "indeterminacy. (95) Tushnet explains, "within the standard resources of legal argument were the materials for reaching sharply contrasting results in particular instances." (96) An advocate, or judge for that matter, could easily choose one side over the other, thus the critics argued, in their cynicism, that only political perspectives and goals explained outcomes. Thus, it is important for litigators to be aware of the significance of the competing visions that their adversaries present and the perspectives that might underpin judicial understandings of the cases that come before them.

There were no depositions and no trial transcripts in the case at hand. A jury never heard the case. The intent of the parties was presumed to be as it was written, and yet, contract doctrine permits courts to look outside of the "four corners" when the situation merits such an inquiry. The evidence indicates that the factual context of the allegations should have been considered. Because Garner did not do an effective job at litigating, the court developed a limited perception of the case and did not consider a relevant line of inquiry. Unfortunately, this limited perception of the case indicated the persistence of presumptions within the legal culture of landlords as all-powerful landowners bent upon gouging helpless tenants, and the corollary of that presumption--tenants never take advantage of landlords. These presumptions led to what could have been an incorrect decision.

It is striking that the possibility of undue influence was never addressed in any significant fashion by Garner, and as a result, his failure to raise the defense at trial precluded the possibility of raising it at the appellate court or before the Court of Appeals. Gerrish alleged facts in the case, that if put under further scrutiny, could have indicated the possibility of undue influence, thus providing a basis to nullify the contract. It is unclear why Garner did not challenge Gerrish's factual assertions of Donovan entering into the contract of his own free will and without any undue influence. Did he think he did not have enough evidence? Was there some reason why he wanted a bench trial with no witnesses testifying before a jury? Was he hoping to protect the family's privacy?

This article makes an attempt to re-litigate Garner v. Gerrish. In the classroom, such an approach can be useful in modeling to students the sort of questions lawyers ask when dealing with client problems. Lawyers ask questions not only in an attempt to understand the factual matters their clients are dealing with, but to understand how those factual matters fit into patterns which can then be understood through the lens of legal doctrine. At times however, not all of the information that they seek may be available. How might lack of information affect one's litigation strategy? Perhaps this explains why Garner went to trial on affidavits only.

Gerrish's statement of facts in his appellate brief was detailed. The statement explained a human interest story, one that might have persuaded the court that the contract was a reasonable one in light of the circumstances. Donovan wanted Gerrish to live in the house as long as he wished. As a result of a longstanding friendship and a confidential relationship, Gerrish had been Donovan's caretaker during a debilitating illness. Garner did not address Gerrish's statement of facts; he merely explained the lease and its terms. His primary emphasis was on the law and the fact that Gerrish did not have a determinable life estate. In effect, Garner took Gerrish's statement of the facts on its face as being accurate. Did he do so because Donovan was dead and he believed he had no basis to challenge Gerrish's facts? Because Garner offered no alternative story, he had no alternative theory of the case. No undue influence claim entered the official record.

Unconscionability could result in the striking of unfair or unreasonable contractual clauses: "as a general proposition, unconscionability, a flexible doctrine with roots in equity ... requires some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party." (97) Moreover, "a tenancy terminable at the will of only one of the parties may, under all the circumstances, present an unconscionable arrangement and, if so, the tenancy will be terminable at the will of either party." This doctrine, however, was not relevant in the eyes of the Court of Appeals. The presumption seemed to be that Donovan drafted the lease on his own as the landlord, that Donavan did not pressure Gerrish into an unfair bargain, and that Gerrish could not have pressured him. (98) Donovan simply waived his own rights and there was nothing unconscionable about that.

Garner did consider the possibility of unconscionability, but he used a weak argument in support of it; one that the Court of Appeals did not even address. (99) He did not attack the circumstances surrounding the making and signing of such a one-sided lease. He merely claimed that the expenses of the house's upkeep had increased and thus he was concerned that in the future those costs would outweigh the income generated by the lease." (100) As a result, it was unreasonable in his view for the Court of Appeals to imagine that the landlord-tenant relationship should persist. He did not mention whether there was a mortgage on the home, instead he explained that the school taxes for the 1982-1983 year were $455.68, that the county and town taxes were $260.53, and that the insurance on the property was $202.00. (101) These taxes and expenses also promised to increase in the future. (102) Equity required that Garner be able to increase the rent or terminate the agreement. Gerrish refused to agree to an increase, pointing to the lease's terms of $100.00 per month. (103) Therefore, Garner believed he had no other choice but to pursue eviction proceedings." (104)

Because there was no in-depth discussion of the circumstances surrounding the bargain, Garner did not use the more effective defense of undue influence as compared to the weaker unconscionability claim. Nothing in Garner's explanation of the facts indicated he ever considered the possibility of Donovan having been taken advantage of by Gerrish, and that as a matter of undue influence, the contract should be declared void. (105) Undue influence might have mattered in light of Gerrish's explanation of his relationship with Donovan. He explained in an affidavit dated June 7, 1982, that in April 1977, Donovan asked him whether he wanted to live in the house he owned. (106) They had been friends over the course of forty years and at the time they signed the agreement, Donovan was either separated or divorced from his wife living as a single man. He noted:
   for a year or two before the Lease was made, the
   said Robert J. Donovan suffered a stroke and retired,
   which impaired his speech, limbs, and vision,
   and your deponent saw him practically daily from
   then on, and assisted him in as many ways as possible,
   so that the said Robert J. Donovan could get
   about daily. Your deponent also assisted the said
   Robert J. Donovan in his speech, as he had difficulty
   in talking. Because of all the assistance and favors
   that your deponent gave to the said Robert J.
   Donovan, that is the manner in which the said Robert
   J. Donovan executed the Lease abovementioned. (107)

It is not infeasible that Donovan entered into the agreement with Gerrish in payment for the medical care provided and that he did so of his own free will. But in developing an effective theory of the case, Garner could have focused on the specific allegations Gerrish made in his affidavit. One could argue that the facts as alleged by Gerrish evoke the classic dynamic of an undue influence case. The undue influence could have provided the basis for the unconscionable bargain. Donovan could have been impaired and dependent upon Garner at the time the lease was negotiated and executed; or, if he was not at the time, he had been dependent upon him very recently. Garner explained in his affidavit that Donovan's widow Maureen knew nothing about the lease and that no one was with them when they signed it. (108) However, Mrs. Donovan must have discovered the terms of the lease after the document was signed, but it is unclear whether she objected to the lease once she discovered its existence.

Nonetheless, once Donovan fell ill, she sent Gerrish a letter in July of 1980 explaining that because of a catastrophic illness and the costs of maintaining the property, the family could no longer afford to be generous. What did that say about what she knew of the lease and the circumstances under which it was negotiated? In her view, had the lease been written prior to the time Donovan fell ill? She explained that she hoped they could work it out, in light of the long-standing friendship. Objecting to any increase, Gerrish explained that he had a lease. (109) He then spoke to Donovan "and asked him if he wanted any changes with our arrangement and he stated that he did not." (110) If Donovan had not become ill and died, what would he have wanted? This is the crux of the matter: Donovan's death meant the court did not have a full understanding of the situation.

Did Garner ever notice that Gerrish claimed he negotiated such a lease, and such terms, with a man who appeared to be utterly dependent upon him? Garner was not a lay executor; he was an attorney and should have known better. (111) If he did know of these circumstances as Gerrish alleged them, for whatever reason, he did not think that he could make an effective undue influence case? But imagine that Donovan pursued an undue influence defense. What might he have wondered? Even if Donovan negotiated the lease when he was in good health, he had fallen into poor health at the point when the lease could have been renegotiated. (112) Yet, Gerrish refused to negotiate with Donovan's wife, a woman who discovered that the bargain was no longer effective. (113) Acting on her husband's behalf, she looked into protecting their familial interests. Instead, Gerrish asked the opinion of a man whom he claimed was debilitated. (114) When Gerrish explained that he spoke to Mrs. Donovan about the lease but then spoke to Donovan himself, did he speak to him in her presence? If he did not speak to him in her presence, why did he not do so? Was he afraid that she would block his influence?

In 1980, Donovan had a stroke. (115) He had been in the care of a man he trusted, a man who had been his long-time friend. (116) Gerrish explained that he regularly spoke on Donovan's behalf. (117) What questions might Garner have asked as he prepared his case? What questions might Garner have asked Gerrish at a deposition or at trial? What questions might he have had of other witnesses, for example, Mrs. Donovan? Was Donovan even capable of expressing himself? If they negotiated the lease during the time of his incapacitation or afterwards, provided Donovan's health improved, was Gerrish sure about what Donovan said and what he understood? Did Donovan comprehend in 1980 how the situation had changed since they signed the lease in 1977? If Donovan understood and gave Gerrish his instructions, did he presume Gerrish did what he wanted? Pursuing that scenario further, did Gerrish in fact do what Donovan wanted? In this instance of whether the lease's terms should remain unmodified, did Donovan really speak, or was Gerrish speaking for himself and what he wanted?

It seems as though Garner failed to adequately represent the estate's interest. Presuming that Donovan entered into the lease of his own free will, Garner missed an alternative theory of the case. Garner might have done a better job at litigating the case had he explored alternative theories such as undue influence and unconscionability. Perhaps Gerrish drafted the terms written onto the preprinted form in 1977 and then had Donovan sign. Yet, by the time Gerrish drafted an affidavit in 1983, he presented Donovan as not being dependent upon him, (118) perhaps aiming to forestall any claims of undue influence. Gerrish stated that he and Donovan had been long-time friends. (119) He no longer claimed Donovan gave him the deal for performing caretaker duties. (120) Instead, he claimed that Donovan visited him and explained that he wanted to show him some houses he had built, one of which had a "for sale" sign. (121) Donovan insisted that Gerrish move into one of the houses because they had become difficult to sell. (122) Gerrish provided a letter dated June 10, 1982, allegedly written by Maurice J. Plumley. (123) Plumley was a realtor who claimed that in 1977, he was the realtor attempting to sell properties on behalf of Donovan. (124) Once Donovan decided to rent to Gerrish for an indefinite amount of time, he was "advised that I should exclude this property from our attempts to sell." (125)

Could Gerrish have pressured Donovan on the basis of unconscionability? If Donovan had suffered a stroke but was doing better by the time he wanted to sell, it is not implausible that Gerrish knew that Donovan was no longer in good health. As a result, he could no longer manage his properties. He might have needed money because of his illness. Donovan could have been desperate to sell, but he was not in an equal bargaining position with the man who had been his caretaker. Unable to sell the houses, Gerrish could have pressured Donovan to give him the extraordinary concessions that appeared in the lease.

No depositions were ever taken and the proceedings followed a bench trial. This was arguably a mistake because Garner might not have had the chance to cross-examine Gerrish on the inconsistencies in his testimony. He did not square his story with that of Mrs. Donovan. Which story was more accurate? Was it the story dating back to 1982, when Gerrish explained quite clearly that he signed a lease which coincidentally contained terms absolutely beneficial to him and clearly detrimental to the other party, and under conditions in which he had been a caretaker for Donovan, a vulnerable man who had had suffered a stroke? (126) Perhaps it is instead the 1983 sanitized version of a healthy and independent man insisting upon leasing a house to his long-time friend and negotiating such terms because of the exigencies of a difficult real estate market that is the accurate portrayal? (127)

Garner's presentation of the case easily led to the presumption that Donovan freely negotiated the lease; perhaps reinforcing the long-standing presumptions in landlord-tenant law that landlords are all-powerful, knowledgeable of the law, and capable of writing contracts that protect their interests. (128) These presumptions date back to criticisms of the common law that gave landlords more protections against tenants than tenants had against landlords. (129) Critiques of the common law rules motivated the changes in landlord-tenant law over the past few decades that began to swing the pendulum towards protecting tenants in the face of landlords presumed to be of the slumlord type: greedy, motivated by profit, and uncaring of the safety and comfort of their tenants. (130) All landlords want is to maximize income and not provide hospitable living environments. (131) However, things are not always as they seem, and not every landlord is the type that takes advantage of his tenants. Instead, tenants may capitalize upon circumstances for their own benefit, thus taking advantage of landlords. These presumptions have led to prejudice against landlords.

The Restatement (Second) of Contracts clearly states that "undue influence is unfair persuasion of a party who is under the domination of the person exercising the persuasion or who by virtue of the relation between them is justified in assuming that that person will not act in a manner inconsistent with his welfare." (132) Contracts executed through undue influence are voidable by the victim. (133) Had the undue influence allegations been addressed, that alone could have resulted in the lease being found void. (134) If Garner had developed the facts in light of the interpretation offered in this article, the Court of Appeals might have employed the reasoning used in In re LoGuidice, (135) a case with a fact pattern similar to that of Garner v. Gerrish. Had this been the case, the court might have held differently.

In In re LoGuidice, a young man executed a lease to rent his uncle's house. (136) The uncle then died eighteen days after the execution of the lease. (137) The nephew drafted the lease with the help of his fiance, who was a law student. (138) Like the situation in Garner, where Gerrish could stay in the house forever and pay only $100.00 per month, this lease gave the nephew the right to rent the premises at a low rate for up to thirty years with no increases. (139) The lease effectively generated a negative cash flow for the uncle, and after his death, would have left his sister homeless and without care. (140) The nephew in effect took advantage of the confidential relationship he had with his uncle, and had him sign the lease when he was in poor health. The lease was so skewed in favor of the nephew and unreasonable in its terms that the court was unwilling to uphold it. (141)

On the other hand, perhaps Gerrish thought he was being reasonable. The leasehold agreement was a fair bargain; Donovan gave Gerrish various concessions such as the low rental amount and the absolute right to terminate unilaterally, because he did not want the house sitting idle when there were no buyers. The lease was valid and Gerrish fulfilled its terms, always paying the rent owed. In his view, Mrs. Donovan and Garner had no right to ask him to pay a higher rent, and they had no right to evict him for refusing to pay anything above the $100.00 per month he owed according to the lease.

Which view would have made more sense in light of the precedent being set by the Court of Appeals? The lease should have been seen as a tenancy at will terminable by either of the parties, or one terminable at the behest of the tenant only, a leasehold with a terminable life estate. The court should have affirmed the appellate decision and held in favor of a lease with mutual rights to terminate. It is quite clear that the lease was aberrational in that it was not typical of what one might expect in a residential lease, for example, the term of years. Becker, Thomas, and Merrill argue that traditional forms should give way to the creative use of legal forms that more closely align with individual circumstances and needs. (142) The danger, though, is that such nontraditional forms can be used to set policy such as when the Court of Appeals used the language in the lease to determine the parameters of tenancies-at-will without having full knowledge of the factual circumstances that led to the aberrational form.

Becker imagined this possibility when he argued that "despite its concern for the parties' intent, the court may have affirmed a rule that will be applied as precedential meaning without any regard for actual intent." (143) He imagines that a court considering a fact pattern such as the one raised in Garner, "will examine the lease in its entirety as well as the context in which the bargain was struck. Some courts, however, will reach their construction without any reference to the parties' intent." (144) He noted that in other cases where a life estate was found, the evidence in the case presented outside the "four corners" proved that was the intent. (145) The Court in this instance, however, did not consider this very argument, when it was one Garner raised. He explained that the lease did not clearly state that a life estate determinable at Gerrish's will was being considered. (146) It was not clear this was Donovan's intent, but the court interpreted the lease that way.

Whether or not scholars imagine these aberrational forms will be upheld in the future, the legal reasoning persists in the policies set forth. As a result, should policy be defined on the basis of extraordinary cases? Should policy be set by an extraordinary case drafted by lay people without the aid of counsel? Should courts rely upon common law rules that predate modern authorities, or should they follow the modern authorities like the Restatement? Should the answer be, "it depends?" And yet, one can argue in favor of the Court of Appeals' holding that a lease with an aberrational clause should not have provided the basis for rejecting the Restatement rules and examples which were directly on point and explained the modern day trend. A stronger argument, though, is that a focus on the undue influence matters could have put the case more squarely within the corpus of cases and legal doctrine that might have more accurately fit the true facts and circumstances.


In the end, Garner was trapped by policy changes made over the previous few decades that contributed to the courts' perspectives on landlord-tenant law in New York. Tenant activists and public interest lawyers had been spearheading changes in landlord-tenant law, relying on the presumptions and prejudices that landlords were greedy slumlords who manipulated and took advantage of their tenants. Thus, the court was less willing to see Donovan as a victim of an overreaching tenant. This view of landlords is being increasingly challenged today, especially in the context of landlords like Donovan: "unlike larger landlords and corporations, small landlords generally do not seek to make a significant profit. Contrary to popular belief, most property owners are simply trying to earn a reasonable return on their investment." (147)

Nonetheless, fair housing by the 1960s and 1970s had become a civil rights issue addressed at the highest levels of federal government: "in March 1965, President Johnson called for a commission to study the causes of slums and urban blight, and to make appropriate recommendations." (148) It was part of the "war against poverty" and a struggle against the housing discrimination that often forced poor people of color to live in slums. (149) Slum clearance was the goal of improving the living conditions of these poorest Americans. (150) One strategy lay in changing the old common law rules that enabled landlords to take advantage of tenants or remove them arbitrarily. (151) Pointing to the revolution in landlord-tenant law that moved leasehold law out of the realm of property law and into that of contracts, Merrill and Smith noted:
   This debate assumed considerable prominence in
   the 1960s and 1970s, as tenants' rights lawyers
   urged the wholesale revision of established tenets of
   landlord-tenant law to provide greater protection for
   tenants, especially low-income tenants. A primary
   weapon in this campaign was the contention that
   traditional rules of landlord-tenant law are a vestige
   of outmoded "feudal" property concepts. Reformers
   urged that these rules be discarded in favor of
   concepts associated with bilateral contracts.... (152)

Evidence of this switch to contract could be seen in Garner. (153) The Court explained that the older rules were emblems of feudal concepts grounded in seisin. (154) This, combined with the presumption that landlords are all-powerful, enabled the possibility of seeing Donovan as having freely negotiated the contract with Gerrish, even though that was questionable.

Outside of the courtroom, legislators could further regulate landlord-tenant relations in order to ensure that social policy goals would be met. (155) They used policies like rent control to guarantee that housing would be affordable and thus prevent a shortage of housing for those who needed it the most. (156) Landlords, if not the culprit, could be part of a solution as rent control was "a protection for the poor ... a restraint on exorbitant landlord profits" (157):
   Rent control ordinances attempt to protect tenants
   from inflation ... Typically such ordinances freeze
   rents with increases permitted only under narrowly
   circumscribed conditions ... Although to be constitutional,
   rent control laws must permit the landlord
   to achieve a fair return on his investment, rent control
   ordinances do not establish rents by calculating
   the rents needed for a fair return. Instead, they assume
   that market rents at some previous time were
   fair and reasonable, and then use these market rents
   as the starting point for calculating permitted
   rents. (158)

Rent control presupposed, Milton Friedman once argued, "landlords are rich, tenants poor, and hence rent control is a way of redistributing income from rich to poor." (159) From the perspective of an economist proposing the maximization of efficiency through the free market, Friedman argued that poor people's housing needs could be met by letting the market set the price. (160) But from a law and policy perspective, one can argue that the presumptions that underpin rent control are most harmful to the small landlord. Small landlords do not make exorbitant profits; their goal is merely to earn a small amount of extra income to offset expenses. They must rely primarily on market forces: these determine the amount of rent they can receive in light of market conditions. But rent control interferes with those market conditions.

Free market proponents who share this view would argue that landlords are not relatively as wealthy as the policy analysts imagine them to be. (161) As a result, tenants are harmed by this erroneous presumption that landlords' profits are unreasonable and should be seized as a result. With rent control, landlords cannot get the market rate of return. This can push them out of the rental market. Why rent out one's property if the costs are greater than the potential income? If anything, the limits on profits created by rent control obstruct landlords from being able to afford the upkeep on their properties in the manner they would prefer because all of their profits must cover bare expenses like taxes and utilities. Unable to afford anything beyond the minimum, their properties suffer from lack of upkeep and the tenants suffer because their housing is substandard. Substandard housing can arguably become an unintended consequence--the cost a rent-controlled tenant might be forced to bear.

Notwithstanding the shortcomings of rent control, its policy implications meant that legislatures ensured that landlords' profits would be limited for the protection of tenants who live in apartments falling under the legislation's purview. These could remain controlled for generations, as long as the original tenants renewed their leases and lived there for as long as they wished. They might pass their apartments on to relatives who would inherit the same rights to live in units at prices that were protected from inflation and which persisted in limiting landlords' rate of return. (162) This last unintended consequence was the most glaring, indicating the failures of rent control that could be discovered through abuse of the system.

Rent control, in effect, enabled certain classes of tenants to treat their apartments as family assets. (163) Tenants could live in the apartment indefinitely and have relatives take over the leases. The relatives would gain benefits of renting apartments at below market rates. These relatives would also avoid the vacancy allowances that the statute permitted landlords to receive once an apartment became unoccupied. Those inheriting the apartments were seen as being capable of affording market rents; they just did not want to pay them. Thus, the legislature enabled certain reforms. The rights of an individual to succeed the tenant named on the lease would be limited by removing nieces, nephews, aunts, and uncles from those authorized to succeed the prior tenant. The right of succession without a vacancy allowance was limited to one generation, and high earners lost rent control protections--those earning $175,000 per year or whose apartments rented for $2,000 or more per month. (164)

The Court of Appeals arguably saw nothing unusual in Gerrish having an apartment for the rest of his life because rent control has been in existence in New York since the 1940s, and Albany, the location of the Court of Appeals, is a rent-controlled city. The town of Potsdam in St. Lawrence County, however, never had rent control. (165) That Gerrish would pay only $100.00 for the house for the rest of his life, amounted to Gerrish gaining a rent-controlled house, effectuated, whether purposefully or not, by contract. This was then reinforced by the Court of Appeals, rather than by statute. But Gerrish's deal was better than one any rent controlled tenant could have dreamed of. (166) Thus, proving the extent to which the lease was really an asset.

Rent-controlled tenants are bound by leases that can be renewed annually or every two years. Their apartments are supposed to be their only residence. Regulations establish the statutory increase in rent that a landlord is permitted to charge. Garner never had to worry about increases because the lease did not authorize any. He also did not need to worry about renewing the lease, because it only ended when he moved out or died. Contrary to other tenants, rent-controlled or not, Garner never needed to worry about the possibility of eviction, provided he paid his rent. He could have arguably moved elsewhere and then subleased the property for a rental value greater than the $100.00 he paid monthly, thus gaining income on it for the rest of his life. It was up to Gerrish to decide if and when to leave; this decision was not open for negotiation between the parties. On the other hand, imagining the possibility that Gerrish did not take advantage of Donovan, it is not infeasible that Donovan could have treated the house like a rent-controlled apartment. Perhaps selling the house had been difficult and Donovan had negotiated the terms in Gerrish's favor as a result. But again, as in the instance of whether Gerrish truly negotiated with Donovan for such a favorable lease, the evidence is unclear--some of Gerrish's claims seemed to point to that conclusion, but not all of them.

If Garner wanted to negotiate a deal after the Court of Appeals' decision was handed down, he was not in a good bargaining position to do so. For example, what if he offered to sell the house to Gerrish? Under this scenario, there would have been no incentive for Gerrish to buy, because the Court of Appeals' decision to find a life estate in his lease accorded a hybrid status to his interest in the house, one that gave him the benefits of fee simple ownership without the expense. In effect, Gerrish had rights similar to an owner, such as the ability to live on the property for as long as he wished, but without having to incur the costs of purchasing a fee simple interest. He could live on the property for the rest of his life as though he was a fee simple owner, yet he would remain a renter, paying below-market rent that would never increase. To remain on the property for the rest of his life, Gerrish would only have to pay the prescribed rent without committing waste; he would not even have to pay the taxes. (167) Yet, Garner would not be able to recoup the future value of the expenses that would be incurred by continuing to rent the house at such a low rate.

On the other hand, other owners, limited by the constraints rent control placed upon their return in the face of the inflationary costs of upkeep and taxes, found more lucrative alternatives. Some went into the luxury market, renting only at decontrolled rates, especially after doing substantial renovations that enabled them to charge much higher rents. Others ultimately sold their properties, removing themselves from the rental market altogether by converting their rental properties into condominiums: "the condominium conversion route offered a profit-generating alternative, coupled with attractive tax advantages." (168) These tax advantages had not existed before, in that tax delinquencies tended to increase in jurisdictions that had rent control. (169) For those renters who could afford to buy their units, these conversions offered them a true stake in their apartments. (170) They gained the benefits and responsibilities of fee simple ownership, thus avoiding the possibility of ever being evicted. (171) They gained a true asset that they could then pass on to relatives, not just a lease that required rent payment.

The Garner decision has been lauded by property law scholars who argue that tenants should have a "right to stay." In their view, the sanctity of the home is of greatest importance: "the home not only provides the basic necessity of shelter but is also central to an individual's emotional and personal life. The intangible connection between individuals and their homes is not limited to homeowners ..." (172) Bell believes tenants have the same connection to their residence as homeowners do and that tenants should have an expectation that they could continue living in their homes. (173) Landlords should only be able to remove tenants for good faith reasons, and not, for example, as the result of bad faith retaliatory reasons. (174)

More recently, Florence Roisman has called for advocates to persist in the push for "a general principle of tenure for renters in the United States." (175) Roisman feels they should reinvigorate litigation efforts and begin where earlier generations of tenant advocates left off. Advocates should fight to protect the rights and interests of the most disadvantaged, those who do not have fee simple interests in the properties where they reside and who, as a result, are vulnerable to dispossession.

Marc Galanter's typology of parties can also help illuminate the understanding that many legal scholars have of landlordtenant law today. Different categories of litigants have specific advantages and disadvantages that enable or hinder their efforts when they go to court: "one-shotters" as compared to "repeat players." (176) One-shotters do not use the law and the legal system often. (177) They might not know much about the law, and when they do become litigants, they have serious personal issues at stake; everything is dependent upon their "one shot" in the legal system. (178) This category often includes litigants who have close familial and social ties; the courts are brought in to resolve these high-stakes disputes. Divorce actions and will contests are two such examples that fit in this category. Repeat players are those who use the law fairly often and are interested in law as policy. This is especially true when they litigate against other repeat players, or their knowledge, access, and use of the law provides advantages in the litigation context when they file actions against one-shotters. (179) According to Galanter, landlords who attempt to evict tenants fit into this category. (180)

The revolution in landlord-tenant law as found in the turn to contract and as indicated by rent control has had at least one significant impact. It has strengthened the abilities of one-shotter tenants to litigate on equal footing with repeat player landlords. (181) Tenants have gained the benefits from litigation sponsored by repeat player public interest groups. But it is not infeasible that the revolution in landlord-tenant law in New York has resulted in small landlords becoming one-shotters as the result of policies formulated by repeat players who advocate on behalf of tenants' rights. Contrary to the prevailing view, landlords can be one-shotters, especially when they have small holdings and are not big leaguers holding numerous residential and commercial properties. (182)

Donovan and Gerrish were each one-shotters. Donovan did not hold an extensive portfolio of real estate; he owned only a few properties. (183) He also did not use a lawyer in drafting the lease. (184) He and Gerrish knew each other; they were friends, perhaps explaining the reason why Donovan did not confer with counsel before they signed. Garner was arguably a repeat player, in that he was a lawyer acting as an executor. Drawing upon the typology, he was a repeat player who should have had greater advantages in the litigation. If he did have any advantages, was he limited by the constraints of his case, the evidence he had, and the arguments he could make?

The presentation of the facts in Garner v. Gerrish may seem to fit the model of a one-shotter, poor tenant being taken advantage of and then pushed out of doors by a repeat player lawyer executor. Gerrish, however, did not fit the prototypical tenant that Galanter, Bell, and Roisman envisioned. Gerrish had been living in the house for four years at the time of Donovan's death, but Garner was not seeking to evict for retaliatory reasons. (185) Although relations had been amicable, Garner had a good faith reason for wanting to end the tenancy. Even though Gerrish regularly paid his rent on time, the bargain was no longer cost-effective enough for Garner, as representative of Donovan's estate, to continue the tenancy. The return was not reasonable in light of the property's upkeep. As for having a vested interest in the property in the form of a "right to stay," Gerrish once explained that he never really wanted to live in the house anyway. (186)

In his 1983 affidavit, Gerrish explained: "we went to one of the houses which had a 'For Sale' sign on it and while there, Robert Donovan asked me to move into the house. I thought that he wanted me to buy the house and told him that I was not interested and that I really did not need a place to live." (187) Concerned that he might have to move if the house were sold, Donovan replied that he would be taking the house off the market if Gerrish moved in. (188) Finally, Gerrish explained "that there were many times when I would be away from the area for periods of time and I did not want there to be any problems if the rent was not paid on time. Mr. Donovan then wrote on the bottom of the lease that I would have a thirty day grace period for the payment of rent." (189) Donovan and Gerrish then signed the lease agreement and it commenced in May of 1977. (190)

When Gerrish moved in, he was not desperately in need of affordable lodgings and his well-being was not dependent upon whether he couldlive in the house. (191) It seems that he moved-in merely as a favor to Donovan. He obviously had other options; he was living elsewhere and traveled a great deal. (192) In the end, he never explained that he really saw the house as his home. For example, he did not mention that he relinquished his previous lodgings in order to move into the house. He did not speak of having to sublet an apartment or house in order to move in. Most importantly, he did not speak of any hardships he would have experienced if forced to relinquish the lease and find an apartment or a house to buy. Yet, in the end, the Court of Appeals treated him like a tenant who had no other options and was utterly dependent upon living in a rent-controlled apartment.

In light of the analogies to be found in rent control, Gerrish was the type of tenant that led the legislature to pursue the 1997 rent control reforms and apply them to tenants not in dire need of housing. They were not so impoverished that they could not afford to pay market rents. (193) These tenants had become the unintended beneficiaries of laws meant to benefit others who were less well-off. As a result of the reforms, certain tenants found that their apartments were decontrolled, meaning they were removed from rent controls' regulatory regime. Landlords could thus charge market rents. Gerrish, like those tenants, did not need the sorts of rent control protections that the Court of Appeals found in his lease. He did not need to rent a house at $100.00 per month for the rest of his life.


What creates a home? Is "home" grounded exclusively in the traditional grant or purchase of a fee simple? In New York it is also grounded in rent control statutes that enable tenants to keep their leases for their lifetimes. Looking at the terms of the lease, one can argue an alternative and unique theory of the case, one which it appears has not been addressed in the scholarly literature. Returning to a discussion of pedagogy, this unique theory of the case can be a means of introducing students in first year property class to basic concepts relating to sales of real property and more advanced topics in real estate conveyance and secured transactions. What does a sale of property look like? How is a sale traditionally done? Could Donovan's lease with Gerrish have been an unorthodox approach to selling the property? Pursuing this line of logic, this could have been a disguised lease, one that operated instead as a sale.

Putting aside for now the topics of unconscionability and undue influence which were addressed earlier and presuming that Donovan acted of his own free will, Donovan allegedly wanted Gerrish to live in the house because he had been unable to sell it. Therefore, he drafted and signed a lease that enabled Gerrish alone to terminate it. This could mean that Donovan had no intention of ever canceling it himself, and intended that Gerrish live there forever as though he had a freehold interest in the house. It looked like a conveyance rather than a lease. What if that is what Donovan intended? What if he did not want to give Gerrish the property as an outright girl, but instead Donovan really thought of the leasehold arrangement as a sale of the property, and the rent payments merely as installments towards the purchase? Perhaps Donovan never intended to take back his fee simple remainder in the property, relinquishing it instead to Gerrish, whose interest in the property was meant to survive Donovan's death. This alternative theory of the case, Donovan intending a disguised lease, would not have helped Garner, but it might have put Gerrish in a more secure position.

Ignoring for now the ways in which the decision seemed to reflect the logic and rationale of rent control laws enabling tenants to live in apartments for the rest of their lives and treat their apartments as family assets, true leases do not have security interests. Rent control tenants presumably cannot use their leases as collateral. On the other hand, the Uniform Commercial Code describes those instances where leases can create security interests. This is dependent upon the facts of the case, "whether a transaction creates a lease or a security interest." (194)

At first glance it might seem that the lease between Donovan and Gerrish would not apply. This is because the default rule appears to be that such leasehold arrangements are for goods; however, the arrangement between Donovan and Gerrish was for the lease of realty. Furthermore, in cases where a lease is for goods, "the consideration the lessee is to pay the lessor for the right to possession and use of the goods is an obligation for the term of the lease not subject to termination by the lessee." (195) Gerrish had, though, the fight to terminate; this right was exclusive to him. But drawing upon the facts of the case, the lease arguably became a secured interest, but not in the traditional form. (196)

Donovan did not loan Gerrish money and then demand collateral as a guarantee of payment. Donovan then did not register his security interest. Instead, I argue, Gerrish was the one who gained the security. This was not a short term lease of personal property under a contract. But with the rise of the "interface" between property and contract law, reformers argued, as was explained earlier, that leases should be shorn of their feudal antecedents. Property law doctrine should look to contractual doctrines that governed the sale of goods as personal property rather than the older doctrines found in conveyances of real property. (197) The important point here is that secured transactions doctrine governs those security interests founded in goods.

In Credit Car Leasing Corp. v. De Cresenzo, one court stressed that a primary factor in determining whether an agreement is a sale or a lease is the lessee's interest. (198) If the contract creates an equitable or pecuniary interest in the lessee, the court will find that the agreement is a sale and not a lease. (199) If the contract creates an ownership interest, a true lease can be categorized as a disguised lease and thus incur a security interest. (200) As the decision stood, Gerrish was to pay $100.00 per month for the rest of his life. (201) The lease he held was an asset. He never had to live in the house; he could just as easily sublease it to others and receive income for the rental at a sum even greater than the amount he was to pay the estate. Gerrish need never relinquish the premises during his lifetime, provided he continued to pay the prescribed rent. (202) In addition, Gerrish could secure his rights to the property by registering it in the land records. This would, in effect, meet the filing requirements for perfecting security interests therein.

Notwithstanding the contractual aspects of securing his lease, this was an interest in land. Gerrish's death alone could end his lease. (203) As the life tenant, he was not to waste the property. This was not an apartment he held over a short term, but a house he held over the long term. As the house was an item of real property, did it thus become an asset that he held for the rest of his life? Could it become collateral for the purchase of other property? If, for example, the estate incurred a mortgage upon the property, would Gerrish's interests be primary to any subsequent lienholder? One could argue that in light of the Court of Appeals' opinion, the parties saw the determinable life estate interest in the house as a freehold estate, giving support to the argument that Donovan might have intended the arrangement to be a disguised lease, a sale that avoided all the formalities of traditional real estate purchases. Even though Donovan might not have intended such an interest, a disguised lease or leasehold for life, one can argue this was an unintended consequence.

Gerrish was to have the property for the rest of his life. Who knows when Gerrish was going to die? Was Garner, as executor, going to be able to manage the property for the rest of Gerfish's life, collecting rents and managing the property? As Garner argued, there was a disincentive for the landlord-tenant relationship to persist, because eventually the estate would in effect have to subsidize and pay Gerrish for living in the house when the expenses became too high for the income to cover them. These provided a rationale for Gerrish to become the fee simple owner. By late spring of 1984, Garner in all likelihood finished up his duties on behalf of the estate, because on June 5, 1984, he granted the property to Mrs. Donovan. (204) Several years later, she signed the property over to Gerrish by a deed dated May 6, 1988. (205)


Becker imagines the possibility that Donovan did intend Gerrish to have a determinable life estate, and wonders how a lease such as this could have been drafted by lawyers to avoid the problem of ambiguity. (206) Analogizing to a situation where the transferor, C, grants to the transferee, D, "To D, at $N per month [or per year] for as many years as D desires" would raise the specter of the leasehold subject to a defeasible life estate. (207) Instead, "they must use well-known standardized formats that clearly define the interest to be created." (208) If a life estate is intended, use the life estate language and clarify the circumstances that would lead to termination, for example, if D fails to pay the prescribed rental. If a tenancy at will is intended, the lawyers drafting the document should say so and explain that both C and D can terminate.

Notwithstanding speculation about how such a lease might look in subsequent cases involving similar disputes, none of the cases faced by courts that found the decision to be integral to their analyses involved the exact type of lease, one involving the possibility of a leasehold interest with a terminable life estate. The closest case on point involved a tenant having a right to renew a lease for successive five year terms on the same terms and conditions, provided that all the terms and conditions of the lease had been met. (209) The tenants exercised their option to renew during the lifetime of the owner. (210) After the landlord died, his widow inherited the property; unlike Garner, she did not immediately challenge the terms of the lease once she became the landlord. (211) The tenants renewed three times when the landlord sought a declaration that the renewal clause was invalid. (212) The widow argued using Garner's logic that the tenant's right to renew should be extinguished. (213) The court conceded that the language in the clause did not use language that might infer a perpetual right to renew. (214) The aspects of the lease that permitted "successive" renewal indicated, though, the possibility of a single renewal. (215) But the parties' behavior persuaded the court that the agreement "intended the lease to be renewable for successive five-year terms during defendants' lifetimes". (216)

In another case, decided several years later, a different court held conversely in stating that a tenant's renewal options were void and in violation of the rule against perpetuities because the six 25-year renewal options "could be exercised [in perpetuity] after the initial lease term had expired." (217) This argument was made by Garner, but the Court of Appeals was unwilling to recognize that Gerrish could determine the date of the lease's expiration to take place long after his death. (218) More on point with Garner, the court in Warren Street Associates adhered to the Court of Appeals holding that this lease was also for a definite term, although not for a life estate interest, and the tenant's options to terminate at particular times did not make the tenancy suddenly become indeterminate. (219)

Garner v. Gerrish could thus become a sword for landlords to use against tenants when the original opinion, if anything, was protective of tenants' rights. The "right to stay" did not always hold. This did not mean, though, that landlords were always able to persuade courts to adhere to Garner's logic and reasoning. Tenants, on the other hand, could not always use the decision as a shield, as in Warner Street Associates. (220) In another case, rent-controlled tenants faced with eviction argued before a federal court. (221) A developer, aiming to do a condominium conversion, pledged the apartments as collateral for a loan and then defaulted. (222) The savings and loan organization that held the units then fell into receivership. As a result, the Resolution Trust Corporation, a federal entity, undertook management of the property. Seeking to maximize the return on the assets the corporation held, the question arose whether the Resolution Trust Corporation could cancel the leases of those tenants who were covered by the rent stabilization guidelines and who remained in the development when it converted.

The tenants, in fighting their eviction, argued that their tenancies were protected by statute, and that as a result, traditional landlord-tenant laws did not apply to them. Moreover, according to statute, they were protected by guidelines put in place to prevent the eviction of those who do not purchase units when a building undergoes a conversion. As renters who did not buy, they could not be evicted; the rent stabilization guidelines continued to apply to them and determined the rents they would pay. The rent-controlled tenants argued that they had a perpetual lease along the same lines of the lease Gerrish had and that the rent stabilization guidelines enabled such a construction. The court disagreed, finding that under New York law, perpetual leases could exist, but that such leases are "disfavored by the law and can come into being only if the lease itself clearly provides for a perpetual tenancy." (223) The greater policy interests of enabling the federal entity to pursue its specified goals mattered more than the tenants' stated interest in living in their apartments over the long term.

Has Garner had a cautionary effect? Perhaps it has because attorneys and courts are now aware of the dangers of ambiguously worded leases that can be interpreted to confer a life estate interest in a tenant. Courts have considered it, but they have done so in cases where statutory law can tend to interpret tenants as having some form of life estate interests. Nonetheless, they are cautious about using the holding of Garner v. Gerrish so broadly and would rather limit it to cases where the language seems to clearly grant such an estate. However, since the Court of Appeals decision in Garner, it appears that the New York courts have not been confronted with a case directly on point.


The Carnegie report on legal education explains what students learn in the first year curriculum when they matriculate in classes like property: "students demonstrate new capacities for understanding legal processes, for seeing both sides of legal arguments, for sifting through facts and precedents in search of the more plausible account, for using precise language, and for understanding the applications and conflicts of legal rules." (224) Yet, the drafters of the report claim that law schools are not doing the best job they can at preparing their students for professionalism: "the challenge for legal education: linking the interests of legal educators with the needs of legal practitioners and with the public the profession is professed to serve--in other words, fostering what can be called civic professionalism." (225) Students are not seeing the connection between what they do in the classroom with their eventual role as lawyers in practice who counsel clients and advocate for them. The reporters ask, if sufficient attention is being paid to the purposes of advocacy, its ethics, and its relation to professionalism?

This study of a legal case covered in the first year curriculum, provides a means of addressing the very concerns raised by the report. What happens when the development of legal doctrine is divorced from the social context from which the cases arose, or in which the prevailing legal doctrine presupposes a legal landscape that is one-dimensional: "issues of social needs or matters of justice ... law schools rarely pay consistent attention to the social and cultural contexts of legal institutions and the varied forms of legal practice." (226) Garner v. Gerrish provides a means of discussing with students the ways in which the development of legal doctrine can be influenced not only by lawyers' advocacy on behalf of clients, but by the policy perspectives of judges and of legislatures.

The Court of Appeals in Garner v. Gerrish relied upon the formal logic of doctrinal property law and theory removed from the underlying contextual and factual aspects of the opinion. (227) Considering only the superficial contractual aspects: "landlord and tenant wrote a lease without an attorney," they did not consider what factors might have led to such a lease, and thus did not consider other doctrinal aspects, such as those to be found in contract law: unconscionability and undue influence. The decision can be used to discuss the responsibilities of lawyers in advocating for clients. Why didn't Garner more carefully develop these theories of the case in his advocacy? If he had done so, might he have provided a window of opportunity for the Court of Appeals to more fully address the issues at stake? In light of the fact that the opinion is covered in various first year property law textbooks, students who read the case are, as a result, not confronted with the important nuances to be found in the case, and faculty are encouraged to fall back upon the very formalistic logic the Carnegie report laments.

Legal realists and critical theorists have long assessed and critiqued the ways in which courts make determinations. From developing an early attack against classical legal theorists who refused to believe that law had anything to do with social conditions, to an assertion that law is about policy determinations or even politics, students learn the maxim "we are all realists now." (228) And yet, what are they to do with this realism? Which policy determinations have merit, and in comparison to which others? What presumptions about relationships of power underpin our perceptions? Are these always accurate? How do these influence one's "theory of the case"? Under what circumstances should courts reject common law rules as a matter of policy, and favor instead, modern day practices urged by the American Law Institute drafters of the Restatements?

The Carnegie reporters note that "most law schools give only casual attention to teaching students how to use legal thinking in the complexity of actual law practice." (229) How might the Garner decision or another like it be useful in cultivating in students the skills that are essential for practice? Faculty might develop studies built upon doctrinal cases covered in the first year curriculum. They might show students examples of documents--like the lease in Garner--that are material in developing an effective "theory of the case" and explain the role of pretrial discovery. Students might then analyze these documents and imagine what further discovery might be necessary. How might these documents be useful in questioning witnesses, for example, at a deposition or at trial? What information might be important in preparing a "memorandum to the file" which could then be useful in drafting documents such as complaints, answers, interrogatories, bills of particulars, motions and memoranda of law?

Some law schools are already implementing such pedagogical strategies in response to the Carnegie report. For example, Harvard Law School recently implemented the problem-solving method in the first year curriculum for the entire first year class: "Problems and Theories." (230) Students work in teams to address problems in their coursework. They learn what it means to be confronted with client problems in an environment divorced from the highly stylized first year curriculum where students study the traditional first year topics in a vacuum, as though property has nothing to do with contracts or civil procedure. They read case stories and wonder about the facts, client goals, and the questions they must ask in order to get a fuller picture of the legal issues at stake.

In discussing Garner v. Gerrish, I provide an example of how students might be encouraged to think in terms of case analysis outside of the pure doctrinal setting that the first year curriculum encourages. Students might think of cases from the perspective of litigation strategies as well. Thus, Garner v. Gerrish should not be considered only from the theoretical standpoint of the "numerus clausus" principle, nor whether property law benefits from the use of the unorthodox--unusual forms. Instead, it can be used as a means of developing discussion not only within the property law class, but in a case method problem-solving approach across the first year curriculum.



(1) Patrick M. McFadden, The Right to Stay, 29 VAND. J. TRANSNAT'L L. 1, 16 (1996) [hereinafter McFadden].

(2) 63 N.Y.2d 575 (1984).


(4) Garner, 63 N.Y.2d at 577.

(5) Id.

(6) Id.

(7) Id. at 578.

(8) Id.

(9) Id. at 581.

(10) David M. Becker, Debunking the Sanctity of Precedent, 76 WASH. U. L. Q. 853, 905 (1998) [hereinafter Becker].

(11) Id. at 894-896.

(12) Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property: The Numerous Clauses Principle, 110 YALE L.J. 1 (2000) [hereinafter Merrill & Smith].

(13) Becker, supra note 10, at 858.

(14) Id.

(15) Merrill & Smith, supra note 12, at 3.

(16) Becker, supra note 10, at 860.

(17) Id. at 973.

(18) Merrill & Smith, supra note 12, at 22.

(19) Id.

(20) Id. at 69-70.

(21) Id. at 69.

(22) Louis Gerrish, Aft. [paragraph] 2, Feb. 23, 1983.

(23) Merrill & Smith, supra note 12.

(24) DUKEMINIER, supra note 3, at 425.

(25) Id, (26) MERRILL, supra note 3, at 593.

(27) Garner, 63 N.Y.2d at 580-81.

(28) MERRILL, supra note 3, at 593.

(29) For examples of cases discussing the problems that can arise in the context of long term leases, see CHASE, supra note 3, at 493-500; First Nat'l Bank of Omaha v. Omaha Nat'l Bank, 214 N.W.2d 483 (Neb. 1974) (a lease term of 50 years requiring the tenant to pay a monthly rental as well as taxes, insurance, and upkeep); Cain P'ship, Ltd v. Pioneer Investing Servs. Co., 914 S.W.2d 452 (Tenn. 1996) (A 20 year lease with a right to extend the lease for three additional terms of 20 years each and an additional term of 15 years. The tenant was responsible for an annual rent payable in monthly installments and the property taxes).


(31) Id. at 52.

(32) Id. at 3.


(34) Brian J. Foley & Ruth Anne Robbins, Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Facts Sections, 32 RUTGERS L.J. 459, 462 (2001). See also, Haydock, Herr & Stempel, Fundamentals of Pretrial Litigation, 7th ed. (2009).

(35) Id.

(36) Id at 470.

(37) See Louis Gerrish, Aff., Feb. 23, 1983.

(38) Garner, 63 N.Y.2d at 578.

(39) Id.

(40) Id.

(41) Id.

(42) CHASE, supra note 3, at 392.

(43) Id.

(44) Daniel B. Bogart, A Casebook for Teaching Teachers: Jesse Dukeminier and James E. Krier, Property, 22 SEATTLE U. L. REV. 921,931 (1999).

(45) Garner v. Gerrish, 471 N.Y.S.2d 717 (N.Y. App. Div. 1984); Garner, 63 N.Y.2d 175.

(46) In the state of New York, the Court of Appeals is the court of last resort.

(47) Garner, 63 N.Y.2d 575.

(48) Id. at 579.

(49) The following cases relied upon the Garner court's reasoning: Farone v. Mintzer, 521 N.Y.S.2d 158 (N.Y. App. Div. 1987); Warren Street Assoc. v. City Hall Tower Corp., 608 N.Y.S.2d 429 (N.Y. App. Div. 1994); Resolution Trust Corp. v. Diamond et al., 18 F.3d 111 (2d Cir. 1994); City of New York v. State of New York, 87 N.Y.2d 982 (1996); Jarns Holdings, Inc. v. Gong Zheng Huang, 238 N.Y.L.J. 37 (N.Y. Civ. Ct. 2007).

(50) Farone, 521 N.Y.S.2d 158.

(51) Lease Agreement between Robert Donovan and Louis Gerrish executed April 1977 [hereinafter Lease Agreement].

(52) Id.

(53) Id.

(54) Garner, 63 N.Y.2d at 575.

(55) Lease Agreement, supra note 51.

(56) Id.

(57) "According to David Garner, the agreement should not be considered a lease because the terms would be unconscionable." Louis Gerrish, Aff. [paragraph] 9, Feb. 23, 1983.

(58) Garner, 471 N.Y.S.2d 717; Garner, 62 N.Y.2d 601.

(59) Garner, 63 N.Y.2d at 577.

(60) Id. at 575-77.

(61) Transcript of Record at 12, Garner v. Gerrish, No. 72990-82 (Sup. Ct. St. Lawrence Co., Apr. 1, 1983).

(62) Garner, 63 N.Y.2d at 581.

(63) Id.

(64) Transcript of Record at 32, Garner v. Gerrish, No. 72990-82 (Sup. Ct. St. Lawrence Co., Apr. 1, 1983).

(65) Id. at 33.

(66) Garner v. Gerrish, No. 72990-82, slip op. at 2 (Sup. Ct. St. Lawrence Co., April 1, 1983).

(67) Id at 3.

(68) Id.

(69) Id.

(70) Transcript of Record at 12, Garner v. Gerrish, No. 72990-82 (Sup. Ct. St. Lawrence Co., Apr. 1, 1983).

(71) RESTATEMENT (SECOND) OF PROPERTY [section] 1.5 cmt. f (1977).

(72) Id. at cmt. h.

(73) Id. at cmt. g.

(74) Garner, 471 N.Y.S.2d at 717-18.

(75) Id. at 608.

(76) Id.

(77) Id.

(78) Id.

(79) Id.

(80) Garner, 63 N.Y.2d at 579.

(81) "a lease for so long as both parties shall please, or for so long as the lessee shall please, is said to be a lease at the will of both lessor and lessee, " W. Transp. Co. of Buffalo v. Lansing et al., 49 N.Y. 499, 508 (1872).

(82) Garner, 63 N.Y.2d at 578.

(83) Id.

(84) Id.

(85) Id. at 579.

(86) Id.

(87) RESTATEMENT (SECOND) OF PROPERTY [section] 1.6 (1977).

(88) Id.

(89) Id.

(90) Garner, 63 N.Y.2d at 580.

(91) See id. (holding that the lease expressly and unambiguously grants to the tenant the right to terminate, and does not reserve to the landlord a similar right).

(92) See generally id. at 581.

(93) See Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C. Cir. 1965) (unconscionability described as a basis for voiding a contract under the newly-enacted U.C.C. [section] 2-302).

(94) Id. at 449-50.

(95) Mark V. Tushnet, Critical Legal Studies: A Political History, 100 YALE L.J. 1515, 1524 (1991).

(96) Id.

(97) State v. Wolowitz, 96 A.D.2d 47, 67, 468 N.Y.S2d 131,145 (1983).

(98) Garner, 63 N.Y.2d at 577.

(99) Id.; Garner, Aft., Feb. 10, 1983.

(100) Garner, Aft., Feb. 10, 1983.

(101) Id.

(102) Id. at 31.

(103) Louis Gerrish, Aff., Feb. 23, 1983.

(104) Id.

(105) Garner, Aff., Feb. 10, 1983.

(106) Louis Gerrish, Aff., June 7, 1982.

(107) Id

(108) Garner, Aff., Feb. 10, 1983.

(109) Louis Gerrish, Aff., Feb. 23, 1983.

(110) Id.

(111) Garner Letter, Aug. 14, 1981.

(112) Louis Gerrish, Aff., June 7, 1982.

(113) Louis Gerrish, Aff., Feb. 23, 1983.

(114) Id.

(115) Louis Gerrish, Aff. [paragraph] 4, June 7, 1982.

(116) Id.

(117) Id.

(118) Louis Gerrish, Aff., Feb. 23, 1985.

(119) Id. at [paragraph] 2.

(120) Id. at [paragraph] 3.

(121) Id.

(122) Id. at [paragraph] 4.

(123) Maurice J. Plumley Letter (June 10, 1982) (on file with Faulkner Law Review).

(124) Id.

(125) Id.

(126) Louis Gerrish Aff. June 7, 1982.

(127) Louis Gerrish Aff. Feb. 23, 1983.

(128) See Deborah Hodges Bell, Providing Security of Tenure for Residential Tenants: Good Faith as a Limitation on the Landlord's Right to Terminate, 19 GA. L. REV. 483, 486 (1985) [hereinafter Bell].

(129) See Edward H. Rabin, The Revolution in Landlord-Tenant Law: Causes and Consequences, 69 CORNELL L. REV. 517, 519 (1983) [hereinafter Rabin].

(130) Id.

(131) See Bell, supra note 128, at 486; Brian J. Delaney, Landlord-Tenant Law: Protecting the Small Landlord's Rights During Summary Process, 37 SUFFOLK U. L. REV. 1109 (2004) [hereinafter Delaney]; MCFADDEN, supra note 1; Rabin, supra note 129, at 519; Florence Wagman Roisman, The Right to Remain: Common Law Protections for Security of Tenure, 86 N.C.L. REV. 817 (2008).

(132) RESTATEMENT (SECOND) OF CONTRACTS [section] 177 (1) (1981).

(133) Jenkins v. Pye, 37 U.S. 241,248 (1838).

(134) Id.

(135) In re LoGuidice, 186 A.D.2d 659 (N.Y. App. Div. 1992).

(136) Id.

(137) Id.

(138) Id. at 660.

(139) Id. at 659.

(140) Id.

(141) In re LoGuidice, 186 A.D.2d at 959.

(142) Becker, supra note 10, at 927-28; Merrill & Smith, supra note 12, at 54.

(143) Becker, supra note 10, at 906.

(144) Id. at 909.

(145) Id.

(146) Garner, 63 N.Y.2d at 578.

(147) Delaney, supra note 131, at 1110.

(148) Rabin, supra note 129, at 543.

(149) Id. at 554.

(150) Id.

(151) Id.

(152) Thomas W. Merrill and Henry E. Smith, The Property/Contract Interface, 101 COLUMBIA L. REV. 773, 820 (2001).

(153) Garner, 63 N.Y.2d at 579-81.

(154) Id. at 579.

(155) Rabin, supra note 129, at 520.

(156) Id. at 542.

(157) Id. at 555. See also N.Y. STATE DIV. OF HOUS. & CMTY. RENEWAL, A History of Rent Regulation (1993), 50yrRentReg/history.html (last visited Oct. 26, 2010).

(158) Rabin, supra note 129, at 555.

(159) Milton Friedman, Price Theory 260 (2007).

(160) Id.

(161) See id. at 260.

(162) Rent Regulation Reform Act of 1997, N.Y. DIV. OF HOUS. & CMTY. RENEWAL, (last visited Oct. 26, 2010).

(163) Id.

(164) Id. in addition, when a building is converted into a co-op, rent stabilized apartments can become destabilized as renters vacate.

(165) New York City has rental control, as well as "Albany, Buffalo and various cities, towns, and villages in Albany, Erie, Nassau, Rensselaer, Schenectady and Westchester Counties." Rent Stabilization and Rent Control, N.Y. TIMES available at timestopics/subjects/r/rent_control and stabilization/index.html (last visited Oct. 26, 2010).

(166) See, e.g., Fact Sheet # 32--Eviction, N.Y.C. RENT GUIDELINES BD. (regulations determining the bases under which a landlord could evict a tenant) available at resources/dhcr/dhcr32.html (last visited Oct. 26, 2010).

(167) RESTATEMENT (FIRST) OF PROPERTY [section] 138 (1936) (duty not to diminish market value of subsequent interests).

(168) Bernard V. Keenan, Condominium Conversion of Residential Rental Units: A Proposal for State Regulation and a Model Act, 20 MICH. J. L. REFORM 639, 643 (1987).

(169) Id. at 643 n. 14.

(170) See id. at 644.

(171) See id.

(172) Bell, supra note 128, at 483.

(173) Id.

(174) Id.

(175) Florence Wagman Roisman, The Right To Remain: Common Law Protections for Security of Tenure: An Essay in Honor of John Otis Calmore, 86 N.C.L. REV. 817, 819 (2008).

(176) Marc Galanter, Why the 'Haves' Come out Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC'Y REV. 95, 97 (1974).

(177) Id.

(178) Id. at 98.

(179) Id. at 100-01.

(180) See id. at 110-14.

(181) Id, at 107.

(182) Marc Galanter, Why the 'Haves' Come out Ahead: Speculations on the Limits of Legal Changes, 9 LAW & SOC'Y REV. 95, 98 (1974).

(183) Garner, 63 N.Y.2d at 577.

(184) Id.

(185) Id, at 577-78.

(186) Louis Gerrish, Aff. [paragraph] 3, Feb. 23, 1983.

(187) Id.

(188) Id. at [paragraph] 4.

(189) Id. at [paragraph] 5.

(190) Id. at [paragraph] 6.

(191) Id. at [paragraph] 3.

(192) Louis Gerrish, Aff. [paragraph] 5, Feb. 23, 1983.

(193) Id. at [paragraph] 3.

(194) U.C.C. [section] 1-201(37) (1977).

(195) Id.

(196) See Merrill & Smith, supra note 12, at 834-35.

(197) See generally id. at 820.

(198) Credit Car Leasing Corp. v. De Cresenzo, 525 N.Y.S.2d 492, 495-96 (N.Y. Civ. Ct. 1988) superseded by statute, N.Y. Personal Property Law [section] [section] 340, 341,343 (McKinney 1994).

(199) Id. at731.

(200) Id. at 730.

(201) See Garner, 63 N.Y.2d at 577, 588.

(202) Id. at 588.

(203) Id. at 581.

(204) Conveyance deeds, St. Lawrence County: David R. Garner to Maureen Donovan, Liber 990 page 606 (June 5, 1985).

(205) Conveyance deeds, St. Lawrence County: Maureen Donovan to Louis Gerrish, Liber 1018 page 806 (May 6, 1988).

(206) Becker, supra note 10, at 907.

(207) Id. at 930.

(208) Id.

(209) See Farone, 133 A.D.2d at 1010.

(210) Id. at 1009.

(211) See Id.

(212) Id. at 1010.

(213) See id. at 1009.

(214) Id. at 1010.

(215) Farone, 133 A.D.2d at 1010.

(216) Id.

(217) Warren Street Assoc., 202 A.D.2d at 200.

(218) Garner, 63 N.Y.2d at 581.

(219) Warren Street Assoc., 202 AD.2d at 201.

(220) Resolution Trust Corp. v. Diamond, 18 F.3d 111, 121 (2d Cir. 1994).

(221) Id. at 116.

(222) Id. at 115.

(223) Id. at 123 (2d Cir. 1994). See also a more recent case, Jams Holdings Inc. v. Huang, 2007 N.Y. Misc. LEXIS 6132, 9, 238 N.Y.L.J. 37 (2007), referring to Garner v. Gerrish, that the opinion was "inapplicable because it concerns a lifetime lease, terminable at the tenant's will, not a long-term lease as here." (224) William M. Sullivan et al., EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW 186 (The Carnegie Foundation for the Advancement of Teaching 2007) [hereinafter Sullivan].

(225) Id. at 4.

(226) Id. at 188.

(227) Garner, 63 N.Y.2d 575.

(228) Brian Z. Tamanaha, Understanding Legal Realism, 87 TEXAS L. REV. 731, 734 (2009).

(229) Sullivan, supra note 224, at 188.

(230) Ella Powers, Harvard Law Alters First Year Program, INSIDE HIGHER ED (Oct. 9, 2006), available at news/2006/10/09/harvard (last visited Oct. 26, 2010).

Berni D. Jones, Associate Professor, Suffolk University School of Law. Much thanks to: Elizabeth Trujillo, Francis and Kelli Phillip, Stephen McJohn, Deans Keenan and Simard, the staff at the St. Lawrence County (New York) Clerk's office, Sara McKenna, research assistant, Charles Foster, Al Brophy, Lorie Graham, the participants in the Suffolk University Law School faculty colloquium, Gabriel Teninbaum, Elizabeth Stillman, Joseph W. Singer, Daniel Perrault, Michael Jones, Eliza Jones, and the organizers and participants in the first annual meeting of the Association for Law, Property and Society, held in March of 2010. Special thanks to Carol Brown and James Kelly. (C) Bernie D. Jones. Please do not quote, cite, or circulate without express permission of author. Contact information: Bernie D. Jones, 120 Tremont Street, Boston, MA, 02108; 617-573-8169;
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