2023.07.14 review Flashcards
Requirements for Adoption
(1) Terminate bio parents’ rights
(2) Create new adoptive parent relationship
(3) Need bio parent consent UNLESS abandonment or unfit
–Abandonment: consider
—–Actual abandonment
—–Contact with child
—–Financial support
Requirements for Non-Parent Visitation
-Extraordinary circumstances
-Relationship between child and non-parent
-Parent consent (con protection; CANNOT override if parent is fit)
Custody Factors
BIOC
Consider parents’ Con right to parenthood
What statements does Confrontation Clause bar?
-Offered against crim D
-Declarant not available for cross examination AND no prior opportunity to cross examine
-Testimonial (primary purpose is to further crim prosecution)
–Exceptions:
—-Assist ongoing emergency
—-Public policy (e.g., trauma to child witness)
Creation of Trust
-Settlor Intent
-Identifiable Corpus
-Transfers legal title to Trustee
-Transfers equitable title to Beneficiary
Trust Termination by Beneficiaries
-All beneficiaries consent (including unborn/unascertained beneficiaries)
-Doesn’t interfere with trust purpose
Can creditors reach beneficiary’s trust interest?
Yes UNLESS Spendthrift Provision
BUT Spendthrift not valid IF
-Settlor is beneficiary
-Creditor is Beneficiary’s dependent (e.g., alimony, child support)
What is LL liable for?
CLAPS
-Common areas
-Latent defects
-Assumption of repairs
-Public use rule
-Short term lease of furnished dwelling
Types of Affirmative Easements
PING
-Prescriptive easement
-Implied (implied from prior use at time land is severed)
-Necessity
-Grant (in signed writing)
NB Easement Appurtenant (easement with dominant and servient land) is transferred automatically with dominant tenement
Types of negative easements
LASS
Light
Air
Support
Streamwater
–
Negative easement - promise not to do something with property
Requirements for Burden of Real Covenant to run with servient land
WITHN
-Writing (signed)
-Intent
-Touch & concern
-Horizontal and vertical privity
-Notice
Requirements for Promise of Real Covenant to run with dominant land
WITV
-Writing
-Intent
-Touch and concern
-Vertical privity
Equitable servitude binds successors IF
WITNes
-Writing
-Intent
-Touch and concern
-Notice
Ways to terminate easement
END CRAMP
-Estoppel
-Necessity
-Destruction
-Condemnation
-Release
-Abandonment
-Merger
-Prescription
How is license different from easement?
License: Revocable
Easement: Must END CRAMP to extinguish
Easement definition
Grant of an interest in land that allows someone to use another’s land
License definition
Permission to go onto another’s land
Profit definition
Right to take resources from another’s land
Real Covenant/Equitable Servitude Definition
Promise to do or not to do something on the land
When does disability affect adverse possession SOL?
Owner disability exists at the start of the adverse possession
Land Sale Part Performance
-Oral K was certain and clear
-Acts of partial performance (e.g., possession, payment, substantial improvements to land)
Shelter Rule
A person who takes from a BFP will prevail against any interest that the BFP would have prevailed against.
A person will prevail under Shelter Rule even if the person had notice of prior unrecorded conveyance
Anti-Lapse Statute
-Default: If beneficiary dies before probate, their interest is distributed among other beneficiaries
-Anti-Lapse Statute: The deceased beneficiary’s interest will go to the beneficiary’s descendants
Grounds for removing Trustee
-Serious breach of trust
-Serious lack of cooperation among co-trustees
-Unfitness, unwillingness, or persistent failure to administer
-Substantial change in circumstances
Pour-Over Gift
A will can gift to a trust IF clearly identified in will language
Secret Trust
-Settlor agrees with Will Beneficiary that Beneficiary will hold property in trust for someone else
-IF proof by clear and convincing evidence, THEN constructive trust imposed in favor of intended (second) beneficiary
Spendthrift Provision
-Beneficiary can’t transfer interest
-Creditors can’t attach to beneficiary’s interest
Support Trust
Trust language directs Trustee to pay income or principal to Beneficiary to support accustomed lifestyle
Ways to terminate trust
-Automatically upon terms specified
-Automatically if trust purpose fulfilled OR becomes impossible
-By settlor
-By all beneficiaries’ consent (including unborn/unascertained beneficiaries) IF no material purpose of trust would be frustrated
-By trustee IF under $50k and insufficient to justify admin cost
Trustee duties
-Good faith
-Undivided loyalty to trust and beneficiaries
-Reasonable care in managing trust OR use Trustee’s special skills
-Diversify investments unless better to not
-Impartiality
Charitable Trust Differences
-Need indefinite beneficiaries (specific org ok, not specific people)
-May be perpetual
-Cy pres: if intended donor no longer exists, court may select alternative “si pres” the primary purpose
How to terminate easement by Abandonment
Owner demonstrates, by physical action, intent to permanently abandon it
Mere nonuse is insufficient
How do wild deeds work?
-Grantor grantee index=>shows records to and from a grantor=>if A to B and B doesn’t record, unrecorded B deed doesn’t show up AND neither does anyone B conveys to (e.g., C)
-Unrecorded B deed=>outside chain of title=>wild deed
-Tract index: shows all recorded interests in land; unrecorded B doesn’t show up BUT C shows up
-Notice jx: Buyer on notice depending on record system
What is grantee on inquiry notice of?
Reasonable inspection, physical appearance of land, records
T/F: Negligence per se established if D had an unforeseeable heart attack while driving, then crossed the center line and crashed
F; negligence per se rebutted if statutory compliance was beyond D’s control
