Components Flashcards
Given word, Provide components/requirements
Defenses to K Formation
1) Misunderstanding
2) Incapacity
3) Mistake
4) Fraud/Misrep/Nondisclosure
5) Duress
6) Illegality
7) Unconscionability
Ks in SOF World
1) Marriage
2) Suretyship
3) One year
4) UCC over $500
5) Real property
K Formation
Offer, Agreement, Consideration
K Remedies
1) Expectation Damages
2) Reliance Damages
3) Restitution
Irrevocable Offer (K)
1) Option
2) Firm Offer
3) Unilateral K - Offeree has started performance
4) Detrimental Reliance
Promissory Estoppel
1) Reasonably expected to induce reliance
2) Detrimental action in reliance
3) Injustice only avoided by enforcement
Misunderstanding (K)
1) Material term open to interpretations
2) Each side attaches dif meaning
3) Neither party knows or should know of confusion
Mistake (K)
1) Mistake of present fact
2) The fact is material OR fraudulent
3) Justifiable to rely on misrepresentation
Real estate SOF satisfied
2 of the following
1) Possession
2) Payment
3) Improvements to land
K Performance Defenses
1) PER
2) Warranties
3) Conditions
4) Excuse of performance obligations
K Warranties
1) Express warranty
2) Implied warranty of merchantability
3) Implied warranty of fitness for a particular purpose
What future interest follows a fee simple determinable?
Possibility of reverter (“to A and her heirs, so long as the land is used as a park” the grantor has POR)
What future interest follows a fee simple subject to condition subsequent?
Right of entry
What future interest follows when a third party is given the future interest?
Fee Simple Subject to Executory Interest
What future interest follows a life estate?
Grantor: reversion
Third party: remainder
Property Waste
1) Affirmative
2) Voluntary
3) Ameliorative
Vested Remainder
1) To ascertained grantee
2) Not subject to condition precedent
What does the RAP apply to?
1) Contingent Remainders
2) Executory interests
3) Class gifts subject to open
Concurrent tenancies
1) Tenancy in common
2) Joint tenancy
3) Tenancy by the entirety
Unities to create joint tenancy
1) Possession
2) Interest (equal interest)
3) Time
4) Title (same instrument)
Tenancies
1) Tenancy for years
2) Periodic tenancy
3) Tenancy at will
4) Tenancy at sufferance
Constructive eviction
1) Premises were unusable for intended purposes
2) Tenant notifies landlord
3) Landlord does not correct problem
4) Tenant vacates after reasonable time
Exceptions to SOF in Real Estate
1) Part performance
2) Detrimental reliance (estoppel)
Adverse Possession
1) Continuous
2) Open and notorious
3) Hostile
4) Exclusive
Deed Contents
1) Identify parties
2) Signed by grantor
3) Words of transfer
4) Description of property
Deed Types
1) General warranty
2) Special warranty
3) Quitclaim
Lien state - most important ideas
1) Mortgage as lien that does NOT sever joint tenancy
2) Mortgagee CANNOT take possession prior to foreclosure
Title state - most important ideas
1) Mortgage does sever joint tenancy and converts it to tenancy in common
2) Lender has the right to possess the property at any time
Types of equitable mortgages
1) Deed of trust
2) Installment land K
3) Absolute Deed
4) Conditional sale and repurchase
Exceptions to real estate “first in time” rule
1) Purchase-money mortgage
2) Recording act
3) Subordination agreement
4) Mortgage modifications
5) Future advance mortgages
6) After-acquired property
Implied Easements requirements
1) Transferable
2) NOT subject to SOF
3) NOT subject to recording statutes unless sub purchaser had notice
Implied easements types
1) Necessity
2) Implication
3) Prescription
4) Estoppel
Termination of easements
1) Release (express writing)
2) Merger
3) Abandonment
4) Prescription
5) Sale to Purchaser
6) Estoppel
7) End of necessity
Reqs for covenant to run with the land
1) Writing
2) Intent
3) Touch and concern
4) Notice
5) Privity
Running burden covenant - privity
Horizontal and strict vertical privity
Running benefit covenant - privity
Relaxed vertical privity
Equitable servitude reqs
1) Writing
2) Intent
3) Touch and concern
4) Notice
Implied reciprocal servitude
1) Intend to create on all subplots
2) Reciprocal for each subplot
3) Negative
4) Successor on notice
5) Common plan or scheme
Variance standard reqs
1) Compliance creates unnecessary hardship
2) Hardship arises from circumstances unique to property
3) Owner did not create hardship
4) Variance keeps with overall purpose of ordinance
5) Variance will not cause substantial harm
Private nuisance
(1) Substantial and (2) Unreasonable interference
Public nuisance
Interference with the (1) health, safety, or property rights and (2) must show different harm than rest of community
Exceptions to PER
1) Ambiguity
2) Collateral Deal
3) Condition Precedent
Consequential Damages Reqs
1) Foreseeability
2) Causation
3) Certainty
Doctrines affecting conveyance by will
1) Lapse
2) Ademption
3) Exoneration
4) Abatement
Lawyer MUST withdraw when
1) Continued rep will violate an ethical rule (or any other law under ABA)
2) Lawyer’s health makes it unreasonably difficult to carry out effective rep
3) Fired by client (unless ordered to continue by court)
4) CA Rule: lawyer knows or should know client making claim without probably cause AND for purpose to harass or maliciously injure
Lawyer MAY withdraw when
1) crime or fraud
2) breach of agreement for material term
3) Client conduct makes rep unreasonably difficult
4) Other Good Cause exists
5) ABA: (a) any reason so long as there is not a material adverse effect; (b) if rep causes unreasonable financial burden; (c) client insists on course of action lawyer finds repugnant and has a fundamental disagreement
6) CA: (b) inability to work with co-counsel; (b) client insists on unwarranted claim or defense
Responsibilities upon termination of lawyer-client relationship
1) Reasonable notice
2) Reasonable steps to mitigate harm
3) Return papers and property (CA: all papers and property; ABA: to which client is entitled)
4) Recover fees for services rendered
CA PR buzzwords
informed written consent
ABA PR buzzwords
informed consent confirmed in writing
Fee requirement in writing when
CA: exceeds $1k
Writing fee requirement exceptions (CA)
1) Corporation
2) History of similar services
3) Emergency services
4) Waives in writing right to a written fee K
Model Rules Fee Splitting Reqs
(1( The fee is in proportion to the services provided by each lawyer;
(2) The client agrees in writing to the fee-splitting; and
(3) The total charged fee is reasonable.
CA Rules Fee Splitting Reqs
(1) The lawyers enter in a written agreement to divide the fee;
(2) The client has provided written consent after full disclosure of the fee splitting; and
(3) The total fee charged is not unconscionable.
If fees > $1k in CA
(1) be in writing
(2) state the fees and services to be
provided
(3) be signed by both parties
(4) A copy of the written contract, signed by both parties, must be given to the client or his/her
representative.
Lawyer-Client Privilege
(1) The client must intend for communication to be confidential
(2) The communication must be for purpose of seeking legal advice and representation
Model Rules: the privilege is indefinite, and survives the client’s death.
CA Rules: it terminates when the client’s estate is settled and the personal representative is discharged.
Lawyer and Client conflict unless
(1) The lawyer reasonably (subjectively and objectively) believes he can provide competent and
diligent representation
(2) The representation is not prohibited by law
(3) The affected client gives informed consent, confirmed in writing.
When can a lawyer be a witness?
(1) The testimony relates to an uncontested issue
(2) The testimony relates to the nature and value of legal services rendered in the case
Model Rules: Disqualification of the lawyer would work substantial hardship on the client
CA Rules: The lawyer has obtained the client’s informed written consent.
CA Exceptions to not funding clients
(1) (with client consent) pay expenses to third persons related to the representation (e.g., expert witness)
(2) advance litigation costs to the client, with repayment contingent on the outcome of the case
(3) lend money to the client if the client promises in writing to repay the
loan
ABA Exceptions to not funding clients
(1) permitted to advance litigation costs (including the expenses of medical examination and the costs of obtaining and presenting evidence)
(2) Lawyers representing indigent clients may advance court costs and litigation expenses regardless of whether the funds will be repaid
Entering into business transaction with a client
(1) The terms are fully disclosed in writing;
(2) The terms are fair and reasonable;
(3) The client understands the terms;
(4) The client consents in writing; and
(5) The client is encouraged to seek independent counsel and given an opportunity to do so.
Exceptions to conflict between 2 current clients
(1) The lawyer reasonably believes (subjectively and objectively) that she will be able to provide competent and diligent representation to each affected client;
(2) The representation is not prohibited by law;
(3) The representation does not involve representation of parties on both sides of the same litigation
or proceeding; and
Model Rules: each affected client gives informed consent, confirmed in writing.
CA Rules: informed written consent.
3 steps to go through on a conflict of interest essay
(1) Why does a conflict exist
(2) Whether it is reasonable to continue representation
(3) Whether the client gave consent (ABA v. CA)
A lawyer may not accept payment from a third party for representation unless:
(1) The client gives informed consent (ABA v. CA)
(2) There is no interference with the lawyer’s judgment; and
(3) Lawyer-client confidentiality is preserved.
ABA Rules reporting outside of organization
(1) The lawyer reports to the highest internal authority;
(2) The authority refuses or fails to act in a timely manner;
(3) The misconduct is a clear violation of law; and
(4) The lawyer reasonably believes the violation is reasonably certain to cause substantial injury to the organization.
CA Rules reporting outside of organization
The CA Rules do NOT allow the lawyer to reveal confidential information to outside
authorities unless the Death or Substantial Harm exception to the Duty of Confidentiality
applies.
Special Prosecutor Duties
(1) must not prosecute a charge that he knows is not supported by probable cause.
(2) required to timely disclose all exculpatory evidence and info that tends to disprove guilt or mitigates the offenses.
(3) New evidence: The prosecutor must disclose any new, credible evidence creating a likelihood that a convicted defendant did not commit the offense.
