CEMENT THREE Flashcards
2
SURFACE WATER LANDOWNERS - NATURAL FLOW THEORY - SURFACE LANDOWNERS ARE LIABLE WHERE THEY
- UNREASONABLY ALTER NATURAL DRAINAGE
2
IN ORDER TO JUSTIFY A CONDITION ON A BUILDING PERMIT, THERE MUST BE A
- NEXUS BETWEEN LEGITIMATE STATE INTEREST AND CONDITION IMPOSED.
2
WHERE A NEXUS IS FOUND BETWEEN CONDITION ON BUILDING PERMIT AND LEGITIMATE STATE INTEREST, THERE MUST ALSO BE
- ROUGH PROPORTIONALITY BETWEEN REQUIRED DEDICTATION AND
- IMPACT ON COMMUNITY.
- CITY BEARS BURDEN OF MEETING THIS HIGHER TEST.
2
SURFACE WATER - COMMON ENEMY THEORY - THE LANDOWNER MAY DO
- ANYTHING TO CHANGE DRAINAGE/COMBAT FLOW
- AS LONG AS IT DOESN’T CAUSE UNNECESSARY DAMAGE TO OTHER’S LAND
3
THREE COMPETING THEORIES OF SURFACE WATER LANDOWNERSHIP ARE
- NATURAL FLOW VS.
- COMMON ENEMY VS.
- REASONABLE USE THEORY
2
EASEMENT BY RESERVATION IS CREATED WHERE
- GRANTOR CONVEYS TITLE TO LAND
- RESERVES RIGHT TO CONTINUE USING LAND FOR STATED PURPOSE
2
STATUTE OF FRAUDS - WHERE A CONTRACT IS BETWEEN MERCHANTS, AND A RECEIVING MERCHANT FAILED TO OBJECT TO A CONFIRMATION MEMO WITH A TRANSCRIPTION ERROR REGARDING THE QUANTITY OF GOODS WITHIN 10 DAYS
- THE MISTAKE IS BINDING.
- (CONSIDER EQUITY DEFENSES.)
2
FOR NOTICE STATUTES, FOR THE BFP WHO TAKES WITHOUT NOTICE, MAKE SURE SHES IS TAKING WITHOUT NOTICE OF A
PRIOR, UNRECORDED, INTEREST
2
SELLER’S AGENT MAY STILL EARN COMMISSION WHERE THE SALE FAILS TO CLOSE DUE TO
- SELLER’S FAULT
1
BUYER’S AGENT IS TECHINICALLY A SUBAGENT OF THE
- SELLER’S AGENT
2
LANDLORDS AND NO SELF HELP - LANDLORD MAY NOT
- FOREFULLY REMOVE TENANT’S PROPERTY
- CHANGE LOCKS
2
WHERE TENANT DOES NOT PAY RENT AND CONTINUES TO MAINTAIN POSSESSION, LANDLORD MAY
- FILE FOR NOTICE OF EVICTION
- SUE FOR RENT DUE
1
WHERE TENANT REMOVES FIXTURES, HE COMMITS
- WASTE
1
WHERE AN ILLEGALITY BY A TENANT IS MINOR, IT MAY NOT
- CONSTITUTE A BREACH
1
HOLDOVER TENANT - WHERE A LANDLORD ELECTS TO IMPOSE A NEW PERIODIC TENANCY ON A HOLDOVER TENANT, HE CAN DEMAND HIGHER RENT WHERE
- HE GAVE NOTICE OF THE INCREASE BEFORE THE LEASE EXPIRED.
1
COMMERCIAL LEASE - IF A HOLDOVER TENANT IS A COMMERCIAL TENANT, HE CAN IMPOSE A YEAR TO YEAR PERIODIC TENANCY WHERE THE ORIGINAL LEASE WAS
- OVER A YEAR LONG
5
A TENANCY AT WILL WILL TERMINATE BY OPERATION OF LAW WHERE
- DEATH OF EITHER PARTY
- WASTE BY THE TENANT
- ASSIGNMENT BY THE TENANT
- TRANSFER OF THE TITLE BY THE LANDLORD
- LEASE BY THE LANDLORD TO A THIRD PARTY
2
A TENANCY AT WILL MUST BE CREATED BY
- EXPRESS AGREEMENT
- (IF NO EXPRESS AGREEMENT, THE COURTS WILL TREAT THE LEASE AS AN IMPLIED PERIODIC TENANCY)
1
WHILE A TENANCY AT WILL CAN BE TERMINATED BY EITHER PARTY, THIS IS USUALLY REQUIRED
- A REASONABLE NOTICE TO VACATE
1
TERMINATION OF PERIODIC TENANCY REQUIRES THAT THE TERMINATION MUST BE AT THE
- END OF THE PERIOD OF THE TENANCY
4
FOUR MEANS OF CREATING PERIODIC TENANCY
- EXPRESS AGREEMENT
- IMPLICATION (RENT IS PAID AT SET INTERVALS)
- INVALID LEASE BUT LANDLORD ACCEPTS PAYMENT*
- HOLDOVER TENANT BUT LANDLORD ACCEPTS PAYMENT*
PERIOD OF TENANCY IS FOR AMOUNT OF TIME PAYMENT COVERS
3
TENANCY BY THE ENTIRETY - RIGHT OF PARTITION
- ONE SPOUSE CANNOT CONVEY HER PORTION
- ANY ATTEMPT TO DO SO IS INVALID
- NO DESTRUCTION OF TENANCY
1
TO REACH A TENANCY BY THE ENTIRETY, THE CREDITORS MUST BE
CREDITORS OF THE COUPLE
1
WASTE - A CO-TENANT CAN BRING AN ACTION AGAINST ANOTHER CO-TENANT FOR
- WASTE
2
WATCH OUT RAP QUESTIONS THAT INVOLVE A WOMAN AND HER CHILDREN, BECAUSE THE ASSUMPTION IS A WOMAN CAN HAVE CHILDREN
- UNTIL SHE DIES
1
SPRINGING EXECUTORY CUTS SHORT THE
- GRANTOR’S INTEREST
1
GRANTING AN INTEREST IN REAL PROPERTY THAT TERMINATES IN FIVE YEARS, AND SHIFTS THE OWNERSHIP TO A THIRD PARTY IS A
- FEE SUBJECT TO EXECUTORY INTEREST
3
AMMORTIZATION AND NON-CONFORMING USE - USE OF AMMORTIZATION TO SATISFY TAKINGS CLAUSE
- NONCONFORMING USE’S IMMEDIATE VALUE IS AMMORTIZED OVER THE COURSE OF A SET PERIOD
- ONCE THE VALUE OF THE NON-CONFORMING USE REACHES ZERO
- THE NONCONFORMING USE ENDS.
2
SURFACE WATER - REASONABLE USE THEORY
- UTILITY OF USE IS BALANCED AGAINST
- HARM CAUSED BY THE USE
2
MORTAGEE CAN TAKE POSSESSION OF LAND WHERE MORTGAGOR
- CONSENTS
- ABANDONS
2
A HOLDER IN DUE COURSE MUST TAKE THE NOTE IN GOOD FAITH AND PAY
- VALUE OF PROPERTY
2
HOLDER IN DUE COURSE IS SUBJECT TO DEFENSES THAT MAKE THE CONTRACT
- VOID
- (NOT VOIDABLE DEFENSES)
1
BFP’S FOR VALUE INCLUDE
- MORTGAGEES FOR VALUE
1
WHERE BUYER INTENDS TO SUE FOR BREACH, AND NOTIFIES SELLER OF INTENT TO SUE FOR BREACH BEFORE CLOSING, THE CONTRACT WILL NOT
- MERGE INTO THE DEED
1
TACKING FOR ADVERSE POSSESSION IS SATISFIED WHERE
- ONE ADVERSE CLAIMANT OUSTS THE PRECEEDING CLAIMANT
1
FUTURE INTERESTS AND ADVERSE POSSESSION - THE SOL DOES NOT BEGIN TO RUN UNTIL
- THE INTEREST BECOMES POSSESSORY
1
FOR ADVERSE POSSESSION, WHERE A TENANT REMAINS, IT WILL LIKELY NOT BE CONSIDERED ADVERSE BUT TENANT WILL BE CONSIDERED A
- HOLDOVER TENANT
1
NEGATIVE EASEMENTS MAY ONLY BE CREATED THROUGH
- EXPRESS GRANT
4
CATEGORIES OF ACTS THAT MAY BE PREVENTED THROUGH EASEMENT
- LIGHT
- AIR
- SUPPORT
- STREAM OF WATER
1
IF BOTH SERVIENT AND DOMINANT PARCEL HOLDER USE AN EASEMENT, THE REPAIR COSTS ARE
- APPORTIONED
1
AN EASEMENT BY RESERVATION IS VOID WHERE IT RESERVES THE USE
- FOR THE BENEFIT OF ANOTHER
1
AN EASEMENT CREATED BY NECESSITY WILL TERMINATE WHEN
- THE NECESSITY ENDS
1
WHERE THERE IS A BREACH IN THE IMPLIED WARRANTY OF HABITIBAILITY AND THE TENANT DECIDES TO REDUCE OR WITHHOLD RENT, THE TENANT MUST
- PLACE THE RENT IN ESCROW
3
A LIFE TENANT CAN EXPLOIT PROPERTY’S RESOURCES WHERE
- NECESSARY FOR REPAIRS OR MAINTENANCE OF LAND
- GRANT EXPRESSLY GIVES THE RIGHT TO EXPLOIT
- LAND WAS USED FOR EXPLOITATION PRIOR TO GRANT (OPEN MINES DOCTRINE)
4
TENANTS REMEDIES FOR LANDLORD’S BREACH OF IMPLIED WARRANTY OF HABITABILITY
- MOVE (VACATE AND TERMINATE LEASE)
- REPAIR (DEDUCT EXPENSES FROM FUTURE RENT)
- REDUCE OR WITHHOLD RENT
- REMAIN (AND SEEK MONEY DAMAGES)
3
EASEMENT IS CREATED BY IMPLICATION WHERE
- PREEXISTING APPARENT AND CONTINUOUS USE OF A SINGLE TRACT
- SINGLE TRACT IS DIVIDED
- EASEMENT REASONABLY NECESSARY TO DOMINANT TRACT’S USE AND ENJOYMENT OF PROPERTY
2
EASEMENT MAY BE IMPLIED WITHOUT PRIOR USE WHERE THERE IS A
- SUBDIVISION PLAT
- PROFIT A PRENDRE
1
JUSTICIABILITY MEANS A
- CASE OR CONTROVERSY EXISTS
4
FOR A CASE TO BE JUSTICIABLE, IT MUST SATISFY THE REQUIREMENTS FOR
- STANDING
- RIPENESS
- MOOTNESS
- POLITICAL QUESTION DOCTRINE
3
TO HAVE STANDING A PARTY MUST HAVE
- AN INJURY
- CAUSATION
- REDRESSABILITY
3
METHODS OF SUPREME COURT REVIEW
- DISCRETIONARY REVIEW (WRITS OF CERTIORARI)
- MANDATORY REVIEW (THREE JUDGE DISTRICT COURT PANELS RE INJUNCTIVE RELIEF)
- ORIGINAL AND EXCLUSIVE JURSIDSICTION (STATE V. STATE)
2
WHERE A CASE RESTS, ON INDEPENDENT, ADQUATE STATE GROUNDS, THE SUPREME COURT
- WILL NOT GRANT REVIEW
- UNLESS THE DECISION CANNOT STAND ON STATE GROUNDS ALONE
2
STATE OFFICIALS MAY BE SUED FOR DAMAGES IN THEIR INDIVIDUAL CAPACITY FOR FEDERAL CONSTITUTIONAL OR STATATUATORY RIGHT VIOLATIONS WHERE THEY WERE
- COMMITTED IN THE COURSE THEIR OFFICIAL DUTIES
- BUT THEY ARE ENTITLED TO CLAIM QUALIFIED IMMUNITY.
2
AN ATTORNEY GENERAL WILL BE PROTECTED BY QUALIFIED IMMUNITY WHERE HIS CONDUCT DID NOT
- VIOLATE CLEARLY ESTABLISHED STATUATORY OR CONSTITUTIONAL RIGHTS
- OF WHICH A REASONABLE PERSON WOULD HAVE KNOWN
1
THE NECESSARY AND PROPER CLAUSE MUST HAVE THIS TO ACCOMPLISH AN ACT
- ANOTHER FREE STANDING SOURCE OF CONGRESSONAL POWER
3
GENERAL WELFARE CLAUSE ON AN ANSWER WILL GENERALLY INVOLVE
- TAXING
- SPENDING
- OR AN AREA WITHIN CONGRESS’ POLICE POWER
2
DIFFERENT BURDENS REQUIRED FOR INTRASTATE ECONOMIC ACTIVITIES VS. INTRASTATE NON-ECONOMIC ACTIVITIES
- ECONOMIC = RATIONAL BASIS TO CONCLUDE ACTIVITY IN AGGREGATE WILL SUBSTANTIALLY AFFECTS INTERSTATE COMMERCE
- NON-ECONOMIC = DIRECT, SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE (TOUGHER BURDEN TO MEET)
3
CONGRESS CAN INDUCE STATE REGULATORY ACTION WHERE THE INDUCEMENT
- IS UNABMIGOUSLY STATED
- RELATES TO THE PURPOSE OF THE LAW
- IS NOT UNDULY COERCIVE
1
CONGRESS CAN VEST THE POWER TO APPOINT INFERIOR OFFICES IN THE PRESIDENT. INFERIOR OFFICERS ARE OFFICERS
- WORKING UNDER PRESIDENTIALLY APPOINTED OFFICERS.
1
PRESIDENT CAN REMOVE THIS LEVEL OF FEDERAL OFFICERS
- HIGH-LEVEL EXECUTIVE OFFICERS
4
WHO CAN CONGRESS IMPEACH
- PRESIDENT
- VP
- FEDERAL JUDGES
- FEDERAL OFFICERS
3
IMPLIED PREEMPTION TRIGGERS
- MUTUAL EXCLUSIVITY
- STATE LAW IMPEDES FEDERAL OBJECTIVE
- CONGRESS’ ACTION IMPLY CLEAR INTENT TO BE SOLE LEGISLATIVE AUTHORITY
4
WORDS OF EXPRESS CONDITION ATTACHED TO A FEE SUBJECT TO CONDIDTION SUBSEQUENT OR EXECUTORY LIMITATION
THEY WILL MAKE A B HOP
- BUT IF,
- PROVIDED THAT,
- ON CONDITION THAT,
- HOWEVER
1
IN CA, CASE LAW PROHIBITS JUDGE FROM GIVING JUDICIAL NOTICE TO
FACTS THAT PROSECUTION MUST PROVE BEYOND A REASONABLE DOUBT
3
CA COURT’S CRITERIA FOR ANALYZING “COMMON COMMUNITY OF INTEREST” FOR CLASS ACTION REQUIREMENT.
- DO COMMON QUESTIONS OF LAW OR FACT PREDOMINATE?
- IS THE CLASS REPRESENTATIVE ADEQUATE?
- WILL THE CLASS EXISTENCE OFFER SUBSTANTIAL BENEFIT TO THE PARTIES AND THE COURT?
1
ARTICLE IV - WATCH OUT FOR STATE LAW DISCRIMINATING AGAINST OUT OF STATE CITIZENS THAT HAS
- LESS DISCRIMINATORY MEANS AVAILABLE
1
PRESIDENT CANNOT PARDON SOMEONE FOR
- CONVICTIONS LEADING TO IMPEACHMENT
3
TREATY CONFLICTS
- STATE V. TREATY = TREATY PREVAILS
- FEDERAL LAW V. TREATY = MOST RECENT IN TIME PREVAILS
- CONSTITUTION V. TREATY = CONSTITUTION PREVAILS
1
EXECUTIVE AGREEMENTS ONLY PREVAIL OVER
- CONFLICTING STATE LAWS
1
A STATE TAX CAN ONLY TAX THE PORTION OF THE BUSINESS THAT IS
- ACTUALLY CONNECTED TO THE STATE
4
THESE PORTIONS OF THE BILL OF RIGHTS ARE NOT EXTENDED BY THE 14TH AMENDMENT
- 3RD AMENDMENT AND QUARTERING SOLDIERS
- 5TH AMENDMENT RIGHT TO GRAND JURY
- 7TH AMENDMENT RIGHT TO JURY TRIAL IN CIVIL CASES
- 8TH AMENDMENT RIGHT AGAINST EXCESSIVE FINES
2
REVERSE INCORPORATION AND THE 14TH AMENDMENT - THE 14TH AMENDMENT CAN APPLY TO THE FEDERAL GOVERNMENT THOUGH
- FIFTH AMENDMENT DP CLAUSE
2
PROCEDURAL DUE PROCESS - LIBERTY DEPRIVATIONS INCLUDE
- LOSS OF FREEDOM
- GOVERNMENT RESTRICTION OF FUNDAMENTAL RIGHTS
5
PROCEDURAL DUE PROCESS - PROPERTY DEPRIVATIONS INCLUDE
- ANY LEGITIMATE CLAIM OR ENTITLEMENT TO A BENEFIT UNDER THE LAW
- PUBLIC SCHOOL ATTENDANCE
- WELFARE
- PUNITIVE DAMAGE AWARDS
- ENEMY COMBATANT STATUS
2
BALANCING TEST FOR PROCEDURAL DUE PROCESS
NATURE OF DEPRIVED INTEREST
EXISTING PROCEDURAL SAFEGUARDS
BURDEN CREATED ON GOVERNMENT BY CREATING PROCEDURE
1
SUBSTANTIVE DP V. PROCEDURAL DP
- COURT REVIEWS THE SUBSTANCE OF THE LAW, NOT THE PROCEDURES
3
SUBSTANTIVE DUE PROCESS INVOLVES A DETERMINATION OF
- ADEQUACY OF GOVERNMENT’S REASONS FOR DEPRIVING LIFE, LIBERTY OR PROPERTY
- FUNDAMENTAL RIGHT - STRICT SCRUTINY
- NON FUNDAMENTAL RIGHT - RATIONAL BASIS
1
ECONOMIC RIGHTS TYPICALLY RECEIVE THIS LEVEL OF SCRUTINY
- RATIONAL BASIS
1
RETROACTIVE LEGISLATION REGARDING CIVIL LIABILITY MUST ONLY MEET
RATIONAL BASIS REVIEW
1
BILLS OF ATTAINDER
- PUNISH SPECIFIC PERSONS WITHOUT A JUDICIAL TRIAL
2
FUNDAMENTAL RIGHTS ARE CREATED BY BOTH
FIF
2
TO PROVE A DISCRIMINATORY MOTIVE IS BEHIND A LAW, YOU HAVE TO PROVE
- NOT JUST DISCRIMINATORY IMPACT but
- DISCRIMINATORY MOTIVE PROVED THROUGH ACTUAL EVIDENCE
1
WORKING AS A NOTARY PUBLIC IS
- NOT INTEGRAL TO SELF GOVT. AND THE DEMOCRATIC PROCESS
2
THESE GENDER CLASSIFICATIONS HAVE PASSED INTERMEDIATE SCRUTINY
- STATUTORY RAPE LAWS
- ALL MALE MILITARY DRAFT
3
LAWS CRIMINALIZING GROUP MEMBERSHIP ARE ONLY ALLOWED WHERE
- GROUP INVOLVED WITH ILLEGAL ACTIVITIES
- DEFENDANT HAD KNOWLEDGE OF ILLEGAL ACTIVITIES
- DEFENDANT JOINED GROUP WITH SPECIFIC INTENT OF FURTHERING ACTIVITIES
1
PERMIT FEES THAT VARY BASED ON THE TYPE OF SPEECH ARE
- UNCONSTITUTIONAL
2
IN A NON-PUBLIC FORUM, GOVERNMENT REGULATE THIS ASPECT OF SPEECH CONTENT
- THE SUBJECT
- (BUT NOT THE VIEWPOINT)
2
ADULTS PLAYING CHILDREN WILL NOT QUALIFY AS
CP
2
VOTING AGREEMENT HAS
NO FILING REQUIREMENT
NO TIME LIMIT
2
PROMOTERS REMAIN PERSONALLY LIABLE ON A PRE-INC CONTRACT UNTIL THIS IS SIGNED
NOVATION
1
TO ENGAGE IN INTRASTATE BUSINESS IN A FOREIGN STATE, A CORPORATION MUST FILE A
- CERTIFICATE OF AUTHORITY
2
WHO IS LIABLE IF STOCK IS SOLD FOR LESS THAN PAR VALUE
D’S WHO SIGNED OFF ON SALE
PURCHASER (SHAREHOLDERS MUST BE FULL CONSIDERATION FOR SHARES)
2
COMMON LAW - NOT ALLOWED FOR STOCK PURCHASE
FUTURE SERVICES
UNSECURED DEBT
2
MODERN RULE - ALLOWED FOR STOCK PURCHASE
- ANY TANGIBLE OR INTANGIBLE BENEFIT,
- PAST, PRESENT OR FUTURE
2
WHERE THE BOD VOTED FOR AN ACTION, EACH D IS PRESUMED TO CONCUR WITH BOD ACTION UNLESS
- D MADE A DISSENT OR ABSENTION IN WRITING
1
CORPORATE OFFICERS - APPOINTMENT
- SELECTED AND REMOVED BY DIRECTORS
2
WHO DECIDES TO INDEMNIFY A CORPORATE AGENT OR DIRECTOR?
MAJORITY OF INDEPENDENT BOARD MEMBERS OR
MAJORITY OF INDEPENDENT SHAREHOLDERS
2
DERIVATIVE SUITS - SHAREHOLDERS MUST OWN STOCKS
- WHEN CLAIM AROSE
- THROUGHOUT LITIGATION
2
SPECIAL SHAREHOLDERS MEETING CAN BE CALLED BY
BOD
PRESIDENT
10 PERCENT OF VOTING SHARES
1
SPECIAL SHAREHOLDERS MEETINGS ARE LIMITED TO TOPIC OF
- STATED PURPOSE
4
POOLED OR BLOCK VOTING TRUST REQUIRES
- WRITTENT TRUST AGREEMENT
- FILED WITH CORPORATION
- SHAREHOLDER GETS TRUST CERTIFICATES
- SHAREHOLDER REATINS ALL RIGHTS BUT VOTING
2
WHEN EVALUATING OPTIONS THAT MAKE A DEFAMATION CASE MORE STRONG, CONSIDER WHETHERE THE PLAINTIFF IS
- A PUBLIC OR
- PRIVATE FIGURE
2
SEVERABILITY OF ADMISSIONS CONNECTED WITH MEDICAL EXPENSES, CEC MAKES BOTH
- THE OFFER TO PAY
- AND ADMISSION OF GUILT INADMISSIBLE
2
DIFFERENCE BETWEEN CEC AND FRE REGARDING FORMER ACTS OF SEXUAL ASSAULT/CHILD MOLSETSATION
What is difference btwn the FRE and CEC regarding admissibility of prior acts of sexual assault/child molestation?
1) The FRE allows propensity evidence in civil AND criminal cases. But, CEC only allows in criminal cases. 2) CEC permits propensity evidence in criminal cases that charge domestic violence or elder abuse–but the FRE do not.
2
CEC - JUDICIAL NOTICE - JUDGE MUST TAKE NOTICE OF
- MATTERS GENERALLY KNOWN WITHIN THE JURSIDICTION,
- WHETHER NOTICE REQUESTED OR NOT
2
CA CRIMINAL CASE - IMPEACHING WITNESS’ CREDIBILITY. DIFFERENCE FROM FRE - WITNESS CAN BE IMPEACHED WITH
- PAST BAD ACTS
- EXTRINSIC EVIDENCE
