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MEE > Elements > Flashcards

Elements Flashcards

1
Q

burglary

A 
breaking 
entering 
dwelling of another
at night 
intent to commit felony thereien
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2
Q

adverse possession

A 
Continuous - throughout stat. pd
Open & Notorious - reasonably observant owner
Actual - usual manner undertaken 
Hostile - no consent
Exclusive - not shared
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3
Q

diversity SMJ

A

complete diversity

amount in controversy exceeds 75,000

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4
Q

murder

A

unlawful killing of another
with malice aforethought

Malice shown by: intent to kill, intent to inflict serious bodily harm, intent to commit BARRK felony, killing with reckless indifference of human life

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5
Q

federal question SMJ

A

arises under treaties, law, Constitution of the US

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6
Q

arson

A

malicious
burning
of dwelling
of another

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7
Q

creation of easement (PING)

A

prescription - adverse possession
implication - implied for use apparent to parties and necessary for continued enjoyment
necessity - implied where only way out is across grantor’s land
grant - written complies with SOF

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8
Q

termination of easement (ENDCRAMP)

A

estoppel - burdened owner materially changes position in reasonable reliance of assurance that easement holder will no longer use
necessity - when necessity ends unless in writing
destruction - other than by willful conduct of burdened owner
Condemnation - gov’t action taking property
Release - writing from easement holder to burdened owner
Abandonment - physical action (more than words) showing intent to never use
Merger - title of easement and title of burdened land held by same person
Prescription - burdened owner interferes through adverse possession

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9
Q

larceny

A

tresspassory
taking and carrying away
of property of another
with intent to permanently deprive

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10
Q

robbery

A 
tresspassory 
taking and carrying away 
of property of another 
by force 
with intent permanently deprive
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11
Q

Rule Against Perpetuities

A

some future interests are void if there is no possibility they will vest within 21 years after a life in being

only applies to: contingent remainders, executory interests, some vested reminder subject to open

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12
Q

disability and tacking, adverse possession

A

disability - statue of limitation does not start running if owner under disability at time of claim inception

tacking - must be privity

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13
Q

strict scrutiny

A

government must show necessary to compelling government interest

applies to: race, national origin, fundamental rights

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14
Q

intermediate scrutiny

A

government must show means are substantially related to an important government interest

applies to: legitimacy and *gender

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15
Q

rational basis

A

challenger must show means not rationally related to a legitimate government interest

applies to: all other classficiations

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16
Q

general warranty, present covenants

A

breached at time of conveyance

covenant of seisin - grantor own estate
covenant of right to convey - grantor has power to coney
covenant against encumbrances - no encumbrances or liens (visible or invisible)

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17
Q

general warranty, future covenants

A

breached at time of interference

covenant of quiet enjoyment - grantee will not be distubed in possession by a third party’s lawful claim to title
covenant of warranty - grantor will defend against lawful or unreasonable claims to title
covenant of further assurances - grantor will do what is reasonably necessary to perfect title if imperfect

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18
Q

specific intent crimes

A

not just doing the act, but doing it with objective in mind

solicitation, attempt, conspiracy, first degree murder, larceny, burglary, robbery, assault, false pretenses, forgery, embezzlement

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19
Q

general intent crimes

A

awareness of all factors constituting crime

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20
Q

MPC mens rea

A

purpose - conscious object to cause certain result

knowingly - aware of nature of conduct/circumstances

recklessly - consciously disregards a substantial and unjustifiable risk, which is a gross deviation from standard of care

negligently - fails to be aware of substantial and unjustifiable risk, substantial deviation from standard of care

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21
Q

general standard of care

A

reasonably prudent person under the circumstances (do not consider the defendant’s mental particularities, only physical characteristics)

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22
Q

professional standard of care

A

act with the knowledge and skill of a member of the profession in good standing

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23
Q

children standard of care

A

act like a child of like age, education, experience, and intelligence (except when engaged in adult activity)

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24
Q

standard of care, owners/occupiers of land

A

trespassers - no duty if unknown

known or anticipated trespassers - if known highly dangerous artificial condition (man made death traps) –> must warn or make safe

licensee (permission/social guest) –> if known highly dangerous condition (natural or artificial) must warn or make safe

invitee (business purposes) - must warn or keep invitee safe from known or concealed artificial or natural highly dangerous conditions –> duty to inspect

25
Q

will formalities

A
  • T must be 18 or over
  • must be written
  • with testamentary intent

-signed by T (any marking intended by T or another
person’s sign in T’s presence and at their direction)

-2 attesting witnesses

26
Q

UPC will formalities, technicalities

A
  • if signed and notarized no witnesses needed

- ct. can validate “defective” if clear and convincing evidence of T’s intent

27
Q

UPC Holographic will

A

handwritten will valid so long as material provisions (property identified and who gets what)

28
Q

Placement of Signature

A

Info during time of execution (and T signs above) –> part of will under UPC; some states signature marks end of will!!

Info “after text” NOT present at time of execution –> will is still valid but after text does not apply

29
Q

Holographic Wills

A

Handwritten will

UPC - valid if material provisions included (property and who gets what

30
Q

Presence Requirement (Wills)

A

UPC/majority - conscious presence - witnesses must be aware of where testator is and conscious of what they are doing

minority - scope of vision test

31
Q

Self proven will

A

testator and witnesses sign affidavit under oath before notary

formalities conclusively presumed

32
Q

Will revocation

A

(1) expressly
(2) physical act + intent to revoke
(3) inconsistency - read will and codicil together BUT if inconsistent, codicil prevails

If two wills and second has no residuary clause, second will treated as revoked codicil and first will prevails

(4) divorce - revokes all provisions in favor of ex-spouse

effect of interlineation - revokes part but inserting new part does not make it valid (unless re-executed)

33
Q

Dependent Relative Revocation, General Rule

A

will doctrine that reinstates an original bequest

(1) T made a mistake trying to revoke
(2) but for mistake would not have revoked and
(3) reinstatement most inline with T’s intent

34
Q

UPC Revival of Will, General Rule

A

(1) WILL-2 revoked by physical act
(2) WILL-1 still exists, and
(3) T wants WILL-1 revived

35
Q

Incorporation by Reference Wills

A

document must be in existence at time will was created (EXCEPTION: for future document disposing of tangible property other than money not disposed of in the will if signed by T and describing property with reasonable certainty

will manifest intent to incorporate document and describe writing with enough detail to identify

36
Q

Lapse, General Rule

A

when a beneficiary named in a will dies before the testator, the gift lapses unless it can be saved by a state’s anti-lapse statute

37
Q

Abatement, General Rule

A

when T is partially insolvent - sacrifice in this order to pay funeral, administrative, and credit expenses

(1) Intestate (if any)
(2) residuary
(3) general legacy - sum alone
(4) demonstrative - sum + directive as to how to pay
(5) specific bequest

38
Q

Ademption, General Rule

A

When gift fails because no longer in estate at time of death – applies to specific gifts only!!

Specific devisee has right to remaining specifically devised property (if any) AND

  • balance purchaser still owed on specific devise at time of death
  • condemnation award unpaid at T’s death
  • fire or casualty insurance proceeds unpaid at time od death
  • real or personal property acquired as replacement
  • property as a result of foreclosure on specifically devised noted
39
Q

Intestacy, General Rule

A

spouse and no issue or parent –> all to spouse

spouse and issue –> all to spouse (if issue are issue of both spouses)

no spouse and issue –> all to issue

no spouse and no issue –> to parents

no spouse, issue, or parents –> issue of parents

40
Q

Spousal Rights (Homestead, Exempt Property, Family Allowances)

A

applies testate or intestate. can be waived by written agreement after full disclosure

homestead - right ti live in the hime as long as spouse chooses (cash allowance under UPC)

exempt property - household furniture, car, appliance, and personal effects to fixed amount

family allowance - reasonable allowance out of estate for maintenance of family during administration

41
Q

Elective Share

A

fraction of elective estate (usually 1/3) given to surviving spouse. May be waived by written contract with full disclosure

Elective estate includes: revocable trusts, transfers held by decedent and another in right of survivorship, transfers within two years of death (if more than 15k given to donee), transfers with retained right to possess or enjoy income from property

UPC - maximum share is 50% - share depends on length of marriage

42
Q

Testamentary Capacity

A

measured at time of execution, BOP on contestants

(1) Did T know nature of act he was doing
(2) Did T know the nature and character of his property
(3) Did T know the natural objects of his bounty
(4) Did T understand the disposition he wished to make

appointment of guardian is evidence of lack of capacity but not conclusive

43
Q

Insane Delusion

A

will must be the product of insane delusion

44
Q

Undue Influence, Wills

A

BOP on contestant to show

  • existence AND exertion of influence
  • effect is to overpower mind and will of testator
  • result is a will that would not have been executed but for the influence
45
Q

Personal Jurisdiction, General Rule

A

Exercise of personal jurisdiction must satisfy statutory and constitutional requirements AND D must be notified in reasonable time and given opportunity to be heard

(1) Stat. requirements - authorized by state
Ex: D present in forum state and served with SOP, D domiciled in forum state, D consents, D committed acts within long arm statute

(2) Const. requirements

(A) CONTACT

minimum contacts such as exercise of jd would would fair and reasonable
Contact = purposeful availment (taking advantage of state laws) and forseeablility (know or anticipate being hailed into ct)

(B) RELATEDNESS

Relatedness = if P’s claim arises out of D’s contact with the forum –> specific PJ
If not, must have general PJ (D is at home in forum and can be sued on any claim)

(C) FAIRNESS
Fairness (specific JD only) = burden on D and witnesses, state’s interest, plaintiff’s interest

46
Q

Claim Aggregation

A

P can aggregate all claims against a single D

P can aggregate claims against multiple D only if they are jointly liable

Several P can aggregate claims only if seeking to enforce same right

47
Q

Eerie

A

determines what law to apply in diversity cases

(1) Federal law on point? If yes, and valid apply federal law
(2) If no federal law on point, and substantive (SOL, choice of law, elements of claim or defense, or outcome determinative) apply state law.

If procedural apply federal law.

48
Q

Venue

A

Judicial district where claim can be brought (can be waived, unlike SMJ)

Proper where:

  • D resides, if all D reside in same state
  • where substantial party of events giving rise to claim occurred/where property is
  • or (rare/if needed) where D is subject to PJ
49
Q

Service of Process, General Rule

A
  • by a nonparty at least 18 years old
  • include summons and complaint
  • within 90 days of filing the complaint (may be extended for good cause)

Individuals by (1) personal service (2) service at usual place of abode with someone of suitable age and discretion who also lives there (3) service on authorized agent

Corporation by serving officer, managing or general agent, or auth. agent of corp.

OR method allowed by state law

50
Q

Complaint Requirements

A

(1) grounds for federal jurisdiction (2) short statement that pleader is entitled to relief (3) demand for relief

51
Q

Pre-answer Motion Requirements

A

motion to dismiss, motion to strike, or motion for more definite statement

MTD MUST raise (or else waived)

(1) lack of personal jurisdiction
(2) improper venue,
(3) insufficiency of process,
(4) insufficiency of service of process

MTD can raise lack of SMJ (can also raise through trial); failure to state a claim and failure to join a necessary party (can be raised before or at trial)

52
Q

Answer Requirements

A
  • must contain specific denial or admission of each fact and raise affirmative defenses
  • If no pre-answer motion made –> 21 days
  • If formal SOP waived –> 60 days from when request for waiver received
  • if pre-answer motion –> 14 days

(DKI = denial; failure to deny = admission)

53
Q

Effect of a Default, Default Judgement

A

Default judgement - precludes D from contesting liability, BUT can still appear/contest damages; enters when D did not oppose case

If D appeared –> must receive at least 7 days notice of hearing for entry of DJ

Default - simply a notation by court clerk that D has not answered timely - can be set aside

54
Q

Amending Pleadings, General Rule

A

can amend as of right within 21 of service; if more than 21 days must have consent or leave of court

55
Q

Indispensable Party

A

Parties that must be joined or grounds for dismissal

Indispensable if

(1) should be joined –> complete relief cannot be afforded without them OR absentee has an interest in the subject matter
(2) can be joined –> PJ over absentee and adding would not destroy SMJ

If cannot be joined, action may proceed considering prejudice to absentee parties and adequacy of judgement

56
Q

Class Action Requirements

A

Numerosity - joinder impracticable
Typicality - named parties’ interest typical of class
Commonality - common Q of fact of law
Fair and Adequate Rep - named parties will adequately rep group

AND categorized by either (3 types)

risk of inconsistent results by individual suits
injunctive or declaratory relief appropriate for class as a whole
common Q of law predominate and class action superior to other methods --> notice to all class members, must be able to opt out
57
Q

Claim Preclusion/Res judicata

A

P precluded if

(1) same D
(2) same cause of action
(3) final judgement on the merits

58
Q

Issue Preclusion/ Collateral Estoppel

A

(1) same P and D or privities
(2) issues actually litigated AND
(3) essential to judgement

59
Q

Attractive Nuisance

A

P must show

  • dangerous condition of which landowner should have been aware
  • magnitude of risk great, expense of remedying is small

MEE (2 decks)

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